Federal Court of Australia

Lehrmann v Network Ten Pty Limited [2025] FCAFC 173

ORDERS

THE COURT ORDERS THAT:

1.    The appeal is dismissed.

2.    The appellant pay the respondents' costs of the appeal.

Note:    Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

REASONS FOR JUDGMENT

THE COURT:

1    On the evening of 15 February 2021, Network Ten Pty Limited broadcast a special edition of The Project, a national news, current affairs and entertainment program. The special edition was presented by Ms Lisa Wilkinson, an experienced journalist. Almost a month before the broadcast, Ms Wilkinson had been contacted by the boyfriend of a young woman. He said he had 'a sensitive story surrounding a sexual assault at Parliament House'. He told Ms Wilkinson that he had been asked to be the one to get the story told. The next day, the boyfriend, Mr David Sharaz, sent a timeline document to Ms Wilkinson. It concerned an alleged sexual assault on Ms Brittany Higgins. The timeline referred to the sexual assault having taken place almost two years earlier. It provided details of the sexual assault which was said to have occurred in a Ministerial office. It named the man who was said to be responsible. It provided detail about subsequent events, particularly Ms Higgins' conversations with police, with staff working at Parliament House and with the Minister.

2    The story as put to Ms Wilkinson by Mr Sharaz concerned the sexual assault, the place where it occurred and the pressure said to have been exerted upon Ms Higgins by the Liberal Party and a female cabinet minister not to report or otherwise pursue the sexual assault. After that, Ms Higgins was interviewed by Ms Wilkinson. There were further steps taken by producers and other staff, including review by in-house legal counsel.

3    The eventual broadcast of The Project special edition began with the following lead:

Tonight claims of rape, roadblocks to a police investigation and a young woman forced to choose between her career and the pursuit of justice, and it all happened right in the heart of our democracy.

Brittany Higgins says the government betrayed her. I sat down with her for this exclusive television interview.

4    There were two aspects to the narrative presented by the broadcast. There was the account given by Ms Higgins of the night when she woke up on the couch in the office of her Ministerial boss with a senior staffer on top of her having sexual intercourse. But there was also a version of the subsequent events, particularly Ms Higgins' dealings with people in her workplace about what had happened. The broadcast culminated with Ms Wilkinson offering the following editorialised comment:

If everything that you say is true, it sounds to me like the easiest place in this country, to rape a woman and get away with it, is Parliament House in Canberra.

5    Consequently, although the broadcast was about an alleged rape it was also very much about the response within Parliament House and the lack of any consequences for Ms Higgins' alleged assaulter.

6    The broadcast was republished on The Project's YouTube channel and the 10 Play website. These methods of publication attracted considerable national audiences.

7    The 'senior staffer' was not identified in the broadcast. However, it soon became publicly known that the person referred to by Ms Higgins was Mr Bruce Lehrmann, a more senior work colleague. Thereafter, much unfolded in the eye of the public. For present purposes, the full history of what followed need not be recounted. It is sufficient to say that some considerable time after the special edition went to air, Mr Lehrmann brought defamation proceedings in this Court against both The Project's broadcaster, Network Ten, and Ms Wilkinson.

8    By those proceedings, Mr Lehrmann complained of the following defamatory imputations as having been carried by the publications:

(a)    [He] raped Brittany Higgins in Defence Minister Linda Reynolds' office in 2019;

(b)    [He] continued to rape Brittany Higgins after she woke up mid-rape and was crying and telling him to stop at least half a dozen times;

(c)    [He], whilst raping Brittany Higgins, crushed his leg against her leg so forcefully as to cause a large bruise;

(d)    After [he] finished raping Brittany Higgins, he left her on a couch in a state of undress with her dress up around her waist.

9    Although there were four alleged imputations, the case turned upon whether or not there had been a rape. This was understandable. Mr Lehrmann could hardly have brought a defamation claim on the basis that he did rape Ms Higgins but (a) he did not do so by forcefully crushing his leg against her leg; (b) although he knew Ms Higgins did not consent to sex (or did not concern himself with whether she consented), she did not say no or stop when she woke up during the rape; and (c) he did not leave her in a state of undress after the rape. The true sting in the alleged imputations, the matter that was damaging to Mr Lehrmann's reputation, was the allegation that he was a rapist. If Mr Lehrmann was not a rapist, then the other aspects of the imputations may have had significance when it came to assessing damages. They were also aspects of Ms Higgins' published account that may have significance for the credibility of any account to be given by her in support of a defence of justification. However, if Mr Lehrmann was found to have raped Ms Higgins, then, in all likelihood, that conclusion would be so damaging to his reputation that the character of the additional imputations, as pleaded, could not give rise to any real damage.

10    After a lengthy trial, the primary judge found that it was 'plain as a pikestaff' that the broadcast was capable of identifying Mr Lehrmann and that it did so. His Honour upheld a defence of substantial truth on the basis that there had been non-consensual sex in circumstances where Mr Lehrmann 'did not care one way or another whether Ms Higgins understood or agreed to what was going on'. In reaching that overall finding, his Honour accepted that Ms Higgins had been in a state where she was not aware of her surroundings but then suddenly became aware of Mr Lehrmann on top of her engaging in sex with her. However, his Honour did not accept that Ms Higgins had then repeatedly told Mr Lehrmann to stop. He also did not accept that the sex resulted in a large bruise to Ms Higgins' leg. As to leaving Ms Higgins in a state of undress, the primary judge appeared to make an equivocal finding when addressing the issue specifically, though later in his reasons he did find that 'getting out of the Ministerial private office with celerity (and leaving Ms Higgins undressed) is the action of a cad'.

11    A statutory defence of qualified privilege failed on the basis that the respondents did not establish that their publications were reasonable. Other defences were also addressed briefly by his Honour.

12    In addition, his Honour made a provisional finding as to the quantum of damages. He did so on the assumption that sex took place, but (contrary to the findings he had made) that there should be a finding that the sex was consensual or that the required state of knowledge on the part of Mr Lehrmann was not established and for those reasons the truth defence failed. Of particular relevance to damages, in his Honour's view, was the fact that the matters covered in the broadcast had already been published in a leading newspaper on the morning of the same day as the broadcast and, since then, there had been 'a tsunami of adverse publicity' damaging Mr Lehrmann's reputation, as well as conduct of Mr Lehrmann himself bearing adversely on his reputation. Taking those and other matters into account, his Honour's provisional assessment of the quantum of damages was $20,000 in total.

13    Judgment was entered for Network Ten and Ms Wilkinson.

14    Mr Lehrmann now brings an appeal. He advances four grounds. Informed by the written submissions advanced to support them, we understand those grounds to be to the following effect:

(1)    The primary judge erred by upholding a justification defence of a kind that had not been pleaded or submitted and was not put to Mr Lehrmann in the course of his evidence and thereby conducted the trial in a manner that was procedurally unfair to Mr Lehrmann.

(2)    The primary judge erred in concluding that the imputations as to rape that were conveyed by the publications included non-consensual sex that took place in circumstances of 'non-advertent recklessness' when the meaning conveyed to an ordinary reasonable person by the publications was of 'a violent rape with express lack of consent'.

(3)    In the context of making alleged errors (1) and (2), the primary judge further erred as to the application of the burden of proof in that it was open to conclude, and the primary judge should have concluded, that he was not able to make a finding one way or the other as to whether Mr Lehrmann had raped Ms Higgins and, consequently, ought to have found that the defence of justification was not established.

(4)    The primary judge erred in the provisional determination that the appropriate award of damages was 'a mere' $20,000.

15    In response, Network Ten gave notice of two contentions as to grounds on which the judgment below should be affirmed, namely:

(1)    The primary judge ought to have found that Mr Lehrmann knew that Ms Higgins did not consent to having sex.

(2)    The primary judge ought to have found that, if it had been necessary to assess damages in favour of Mr Lehrmann, the appropriate award was no or nominal damages.

16    Ms Wilkinson also advanced a notice of contention. As to the grounds advanced, her notice of contention raised considerable matters of detail. They concerned three topics. First, alternative grounds were advanced upon which it was said the defence of justification should be upheld. Amongst them was a ground substantively to the same effect as Network Ten's contention as to the finding that should have been made as to the knowledge of Mr Lehrmann. Second, if Mr Lehrmann's appeal in relation to justification was upheld, Ms Wilkinson advanced grounds on which the primary judge should have upheld the statutory defence of qualified privilege. There were more than 20 separate grounds advanced on this topic. Third, if it was to be found that the provisional assessment of damages was in error and should be reassessed, it was said that the primary judge erred when assessing the quantum of those damages in finding that Ms Wilkinson's conduct was 'improper and unjustifiable'.

17    We will first consider the appeal grounds. In doing so, we will also address the contention grounds of each of Network Ten and Ms Wilkinson to the effect that the primary judge ought to have found that Mr Lehrmann knew that Ms Higgins did not consent to having sex (which we will refer to as the actual knowledge contention ground). We will then consider whether it is necessary or otherwise appropriate to address the remaining contention points.

18    However, we begin with an explanation of the way in which the parties joined issue as to the factual matters bearing upon the defence of justification, followed by a summary of the relevant findings by the primary judge.

The joinder of issue as to justification

19    Network Ten and Ms Wilkinson were separately represented and conducted separate defences.

Network Ten's justification defence

20    Network Ten provided detailed particulars in support of its defence of justification. They concerned events that were said to have taken place at a bar in Canberra known as 'The Dock', subsequent events at a nightclub known as '88MPH' and events that then took place in the early hours of the morning at Parliament House. As to the alleged rape, the particulars said that Ms Higgins entered the office of the Minister for whom she worked and, at some point shortly afterwards, passed out. As to what occurred thereafter, the particulars said:

Sometime later, Higgins was woken by a sharp pain in her thigh. She woke to find herself lying on her back on the sofa in Reynolds' office. She was wedged into the corner of the sofa. Lehrmann was on top of her. He had his knee crushed against Higgins' thigh, holding her legs open. He had her pinned into the corner of the sofa. He was sweaty and crouched over Higgins. His penis was inside Higgins' vagina and he was having forceful sexual intercourse with Higgins, audibly slapping himself against her.

21    The particulars then stated that Ms Higgins had not consented to sex with Mr Lehrmann 'and was incapable of so consenting' because she was too intoxicated to do so and 'she had been passed out, either asleep or unconscious'.

22    As to Mr Lehrmann's knowledge that Ms Higgins had not consented to sex, the particulars stated:

(a)    Higgins was too intoxicated to voluntarily and freely give her consent;

(b)    Higgins was passed out, either asleep or unconscious; and

(c)    Higgins had not communicated to Lehrmann, either in words or by actions, any consent to having sexual intercourse with him.

23    An alternative case as to Mr Lehrmann's knowledge was then stated:

Alternatively, because of his knowledge of the matters set out in the preceding paragraph, Lehrmann was reckless or indifferent as to whether or not Higgins had consented to having sexual intercourse with him.

24    Relevantly for present purposes, the above matters were said to support the conclusion that Mr Lehrmann raped Ms Higgins 'within the ordinary meaning of that term'. That is to say, the events just described were said to justify the defamatory imputations to the effect that Mr Lehrmann had raped Ms Higgins.

25    The particulars then went on to deal separately with what had allegedly occurred next. They began this further aspect of the defence in the following terms:

After waking up and realising that Lehrmann was having sexual intercourse with her, Higgins said 'no' at least half a dozen times and told Lehrmann to stop. Lehrmann did not stop and continued to have sexual intercourse with Higgins without her consent. Higgins could not get Lehrmann off her and began crying. Lehrmann continued to have sexual intercourse with Higgins without her consent and while she was crying.

26    As to this further aspect, in addition to the matters already pleaded as to why there was no consent, it was also pleaded that Ms Higgins said 'no' and told Mr Lehrmann to stop. Those additional matters were also relied upon to support the case that Mr Lehrmann knew that there was no consent for him to continue having sex. The alternatives of recklessness or indifference were also stated to apply to Mr Lehrmann's continued actions after Ms Higgins woke up.

27    Therefore, there were two aspects to the justification case as pleaded by Network Ten. The rape was said to have commenced when Ms Higgins was asleep or unconscious and at a time when she was too intoxicated to have consented. Then the rape was said to have continued despite Ms Higgins saying no at least half a dozen times and having told Mr Lehrmann to stop. As to both aspects, Mr Lehrmann was said to have known Ms Higgins did not consent or, alternatively, to have been reckless or indifferent as to whether she consented.

28    Therefore, one basis upon which the alleged imputations of rape were sought to be justified by Network Ten was that sexual intercourse commenced at a time when Ms Higgins was asleep or unconscious and Mr Lehrmann was reckless or indifferent as to whether she consented.

Ms Wilkinson's justification defence

29    Ms Wilkinson also pleaded a justification defence. It was not as factually detailed as the case pleaded by Network Ten. It was to the following effect:

(1)    when she left the 88MPH nightclub, Ms Higgins was so intoxicated she was stumbling and fell over;

(2)    Mr Lehrmann offered to share a taxi with Ms Higgins as they were headed in the same direction;

(3)    Mr Lehrmann directed the taxi to Parliament House;

(4)    Ms Higgins was visibly intoxicated when she arrived at Parliament House;

(5)    when Ms Higgins arrived at the Ministerial Suite, Ms Higgins fell asleep on the couch in the suite;

(6)    some time later, Ms Higgins woke and Mr Lehrmann was on top of her having sexual intercourse with her;

(7)    Ms Higgins did not consent to the sexual intercourse with Mr Lehrmann;

(8)    Mr Lehrmann knew that Ms Higgins:

'did not consent to sexual intercourse with him given:

(a)    he knew she was intoxicated and unable to consent;

(b)    she was unconscious when he penetrated her;

(c)    when she woke, she told him to stop, and he did not;

(d)    when she woke, she cried while he continued to have intercourse with her';

(9)    alternatively, Mr Lehrmann was reckless as to whether Ms Higgins consented; and

(10)    Mr Lehrmann's conduct amounted to rape of Ms Higgins.

30    Therefore, the justification defence as pleaded by Ms Wilkinson had many details that were the same as the defence pleaded by Network Ten. It alleged that Ms Higgins was intoxicated and unable to consent. It alleged that she was unconscious when Mr Lehrmann commenced having sexual intercourse. It alleged that when Ms Higgins woke, she told Mr Lehrmann to stop and he did not. It alleged that she cried and he continued having sex. Like Network Ten, Ms Wilkinson also advanced an alternative case to the effect that Mr Lehrmann was reckless as to whether Ms Higgins consented. However, Ms Wilkinson's defence did not allege that the sexual intercourse was 'forceful' and it did not allege that Mr Lehrmann's leg was crushed up against Ms Higgins' thigh.

31    Like Network Ten, one basis upon which the alleged imputations of rape were sought to be justified by Ms Wilkinson was that sexual intercourse commenced at a time when Ms Higgins was asleep or unconscious and Mr Lehrmann was reckless as to whether she consented.

One defence case or two defence cases

32    It also appears that, as to forensic preparation of the defence to Mr Lehrmann's claims, arrangements were made for Ms Higgins to speak to those acting for Network Ten. Her preference was not to speak to those acting for Ms Wilkinson. Before the primary judge, senior counsel for Network Ten conducted the cross-examination of Mr Lehrmann as to his account of the events that bore upon whether he had raped Ms Higgins in the manner said to be imputed by the broadcast. It is to be expected that Mr Lehrmann would not be subjected to two cross-examinations about the same subject-matter unless there was some necessity for that to occur. In that regard, senior counsel for Ms Wilkinson informed the primary judge of the following:

[We will] deal with the substance with that because my learned friend [senior counsel for Network Ten] and I have ensured that to the extent that relates to the truth defence, he's covering that, so I don't need to deal with that.

33    In the appeal, a submission was advanced to the effect that senior counsel for Ms Wilkinson had left the truth defence advanced by both respondents to Network Ten. It was said that the justification case as pleaded by Network Ten was the only case advanced at the final hearing. We do not accept that submission. The defences were separately pleaded. Further, it is apparent that submissions as to justification were advanced by each of Network Ten and Ms Wilkinson. In material respects they were not the same. Nowhere was it suggested that Ms Wilkinson advanced no matter on justification other than that put by Network Ten. The relevant arrangement did not extend beyond conduct of the cross-examination.

34    In any event, for reasons that will emerge, the point has no significance. It appeared to be advanced as part of an effort to focus attention upon the 'forceful' aspects of the way in which the case was pleaded by Network Ten that were not to be found in the defence of Ms Wilkinson. As we will explain, even if the justification defence advanced by both respondents was in the terms pleaded by Network Ten, that does not assist the case advanced by Mr Lehrmann on appeal.

Statement of agreed issues

35    The parties prepared a document entitled 'Factual and Legal Issues for Determination'. It commenced with the following statement concerning its purpose:

This document identifies each substantive contested factual issue in respect of which the parties consider it is necessary for the Court to make findings and each legal issue the parties require the Court to determine.

36    Under the heading 'Justification' the document listed only the following two questions:

Whether [Mr Lehrmann] raped Brittany Higgins in Parliament House in 2019?

Whether each of the imputations the Publications are found to carry is substantially true[?]

37    For reasons that have already been given, the answer to the second of these questions would only have substantive significance if Mr Lehrmann was found not to have raped Ms Higgins. Only then would it be necessary to consider whether each of the four imputations was conveyed by the broadcast and whether each was true. Contrary to submissions advanced for Mr Lehrmann in the appeal, the inclusion in the issues for determination document of the second question, as quoted above, could not be thought to convey the view that there was some issue between the parties as to whether Mr Lehrmann might have been defamed even though he was found to have raped Ms Higgins. No reasonable lawyer could be thought to understand that Mr Lehrmann might be seeking to advance a case to the effect that he would still have a case for damages if he was found to have raped Ms Higgins, but not in a manner that was consistent with each of the four pleaded imputations.

38    Indeed, in the course of lengthy written closing submissions, Mr Lehrmann recognised as much when he advanced the following submission:

In Mr Lehrmann's submission, there are differences between the imputations in terms of their level of seriousness, albeit relatively small ones in the scheme of such a serious general allegation, which will be the subject of a submission in relation to damages. For example, the ordinary reasonable person might think that for Mr Lehrmann to continue raping Ms Higgins after she had pleaded multiple times for him to stop (Imputation B) was especially heinous, and more so than the bare fact of rape (Imputation A), which might be committed simply by being recklessly indifferent to whether or not there was consent. The ordinary reasonable person might also think that for him to leave her half-naked on the couch afterwards (Imputation D) was callous, in a way which aggravates the sting of the imputation somewhat.

Be that as it may, if the Court does not find that Mr Lehrmann raped Ms Higgins in Senator Reynolds' office, either because it finds that rape did not happen or because it concludes that it is unable to reach a state of reasonable satisfaction either way, the inevitable consequence is that the defence of justification must fail for each of the imputations. This is because the proposition that Mr Lehrmann raped Ms Higgins is central to the sting of each of the imputations. None of the imputations can be substantially true unless that element is found to be true.

(emphasis added)

39    In the course of Mr Lehrmann's submissions on the appeal, the Court was not taken to any aspect of the proceedings before the primary judge that suggested that he claimed that he had been defamed even if he was found to have raped Ms Higgins (applying the ordinary understanding of the word rape amongst reasonable viewers of the special edition broadcast).

Relevant findings by the primary judge as to the issue of rape

40    As to what was required to answer the issue stated by the parties, namely whether Mr Lehrmann raped Ms Higgins in Parliament House in 2019, the primary judge found (at PJ[569]) that the respondents were required to prove:

(1)    that, at the time and place alleged … Mr Lehrmann had sexual intercourse with Ms Higgins;

(2)    without Ms Higgins' consent;

(3)    knowing Ms Higgins did not consent.

41    Before reaching that point in his reasons, the primary judge had made significant findings as to what was likely in the minds of Mr Lehrmann and Ms Higgins when they were together in the back of an Uber on their way to Parliament House in the early hours of the morning on 23 March 2019. Importantly, as to Mr Lehrmann, those findings were to the effect that the one dominant thought in his mind at the time was that he wanted to have sex with Ms Higgins and that was why he secured her agreement to go to the Ministerial Suite by telling her something along the lines 'that he had some whisky to show [her] or something': at PJ[430]-[437]. His Honour rejected Mr Lehrmann's evidence that (a) he was going to Parliament House to get his keys; and (b) Ms Higgins had indicated that she needed to go there, and that was why they shared an Uber: at PJ[419]-[420]. As to what Mr Lehrmann knew when he was in the Uber, the primary judge specifically found that 'he knew Ms Higgins was inebriated - indeed … he had encouraged Ms Higgins' consumption of alcohol; and … like most young men, he must have known that excessive alcohol consumption leads to impaired judgment, and lowered inhibitions': at PJ[433]. The primary judge had earlier found that he had 'no doubt that from his [that is Mr Lehrmann's] own observation, Mr Lehrmann must have been aware [at The Dock] that a woman of Ms Higgins' stature consuming this much alcohol was likely to have become significantly inebriated': at PJ[398]. He also found that Mr Lehrmann encouraged Ms Higgins in her further drinking at the 88MPH nightclub: at PJ[407]-[408].

42    As to Ms Higgins' agreement to go back to Parliament House and its significance, the primary judge reasoned as follows (at PJ[439]-[440]):

[Ms Higgins] was working in a professional office where she correctly perceived Mr Lehrmann as having greater power and, in fact, he had been dealing with her as a subordinate. Earlier in the evening she felt Mr Lehrmann was 'nice to me for the first time and I was pleased with how it was going' (T617.22-26) and felt 'like an equal', like they were 'peers almost' (T617.25-31). She wanted to get on with [Mr Lehrmann] and, moreover, was keen to interact - even at the expense of abandoning her date. She was drunk and had been drunk for some time and, for whatever combination of reasons, she had not only not rebuffed the advances of Mr Lehrmann, but had reciprocated …

Given the state of the evidence, apart from the uncertainties of trying to draw conclusions from what one can gauge impressionistically from the Parliamentary CCTV, how keen Ms Higgins was to go back to Parliament House is difficult to tell. But even if she found the prospect a tad unwelcome, going back was understandable, as like many professionals the subject of an advance by a work colleague with more power, Ms Higgins did not want to alienate someone she perceived could be of real importance to her career. If she agreed to go back somewhat reluctantly, it would have been for a reason not dissimilar as to why she made light of the incident three weeks earlier, when Mr Lehrmann had taken her mobile phone when she was trying to leave the Kingo. In this regard, there is no evidence Ms Higgins was aware that Mr Lehrmann had already decided to move on from working with the Minister.

43    In dealing with what occurred when Mr Lehrmann and Ms Higgins arrived at Parliament House, the primary judge found that he had 'no doubt that Ms Higgins' inability to put on her shoes [after passing through security at Parliament House] was caused by her state of inebriation': at PJ[455]. Indeed, it is clear that his Honour found that Mr Higgins was, at that time, in an 'inebriated state': at PJ[478].

44    His Honour also found that consideration of what occurred in the Ministerial Suite 'must be viewed in the light of the fact that Ms Higgins had been in a nightclub being intimate with Mr Lehrmann and had then agreed to accompany him': at PJ[491]. He also referred to accounts that Ms Higgins had given in the days after the incident which the primary judge viewed as suggesting that 'she was passive and hence incapable of consenting': at PJ[494]. This, in his Honour's assessment, was 'somewhat different' from the account given at trial where Ms Higgins had said 'no on a loop'. His Honour also found that he had little doubt that 'Ms Higgins' current account at trial reflects how I expect she would have wanted to act in such a situation, that is, to demonstrate active and repeated resistance to her assaulter': at PJ[498].

45    It was in the context of these findings that his Honour then made specific findings as to whether Ms Higgins had been raped by Mr Lehrmann.

46    As to whether there had been sexual intercourse, the primary judge found (at PJ[551]-[559]) that:

(1)    'sexual intercourse did take place and that it took place with Mr Lehrmann on top of Ms Higgins on the couch in the Minister's office';

(2)    Ms Higgins 'was passive (as she later said, "like a log") during the entirety of the sexual act'

(3)    Ms Higgins 'did not, or was not, able to articulate anything';

(4)    he was not satisfied that Ms Higgins said 'no' a number of times;

(5)    he was well short of being satisfied that Mr Lehrmann placed his leg against either of Ms Higgins' legs so forcefully as to cause a large bruise; and

(6)    it was unclear whether Ms Higgins' dress 'had been completely removed prior to the sexual act'.

47    As to consent, the primary judge found that his task was to assess the reliability of the account given by Ms Higgins that 'she did not consent because she was so drunk on the couch that at some point, she was not aware of her surroundings but then suddenly became aware of Mr Lehrmann being on top of her, at which time he was performing the sexual act, which he then continued to a conclusion': at PJ[580]. His Honour accepted her evidence as to these matters as being credible and found that she did not consent: at PJ[583], [586]-[587]. In particular he found that Ms Higgins '(a) was not fully aware of her surroundings when sexual intercourse commenced; and (b) did not consent to intercourse when she became aware Mr Lehrmann was "on top of her"'.

48    As to knowledge on the part of Mr Lehrmann that Ms Higgins did not consent, the primary judge reasoned that Mr Lehrmann did not have, at the relevant time 'a state of mind of actual cognitive awareness that Ms Higgins did not consent to having sex': at PJ[591]. However, he found that because of 'Mr Lehrmann's state of mind of non-advertent recklessness, the knowledge element has been made out': at PJ[602]. That is to say, his Honour upheld the claim of knowledge that Ms Higgins did not consent based upon a finding of recklessness of a particular kind. The detailed reasoning of the primary judge in this regard is addressed below in dealing with the actual knowledge contention ground. At this point we simply observe that his Honour used the term 'non-advertent recklessness' to refer to an instance 'where the accused person is so indifferent to the rights of the alleged victim as to ignore completely the requirement of consent'.

The appeal grounds and the actual knowledge contention ground

49    We now turn to consider the four grounds of appeal and what we have described as the actual knowledge contention ground. It is convenient to deal first with ground (2), then the contention ground, followed by the other appeal grounds.

Appeal Ground (2): The meaning conveyed by the use of the word rape in the broadcast

50    The written submission advanced in support of appeal ground (2) was that an ordinary reasonable person viewing The Project broadcast 'would not regard non-violent sexual intercourse with mere inadvertent recklessness as to consent as being within the ordinary meaning of "rape"'. That is to say, the viewer would regard the word rape as excluding non-violent sexual intercourse that took place without consent where Mr Lehrmann was so indifferent to the rights of Ms Higgins as to ignore completely the requirement of consent.

51    As developed, the submission was infected with antiquated notions as to what constitutes rape, particularly that it involves taking by force. Submissions were advanced broadly to the effect that the defamatory imputations that Mr Lehrmann complained of were that he had engaged in what was described as 'violent rape' and the justification defences that had been pleaded were in respect of a rape of that character. Yet, the submission was not supported by any reference to Mr Lehrmann's case having been articulated in that manner before the primary judge. This is not surprising given his case was that there had been no sexual intercourse at all and that he went to the Ministerial office to work on Question Time folders (an account that the primary judge dismissed as 'elaborate fancy' and a 'transparent lie': see PJ[465]-[472]).

52    Further, as has been explained, the justification case as pleaded included a case that the alleged imputations were substantially true because Mr Lehrmann had engaged in sexual intercourse with Ms Higgins at a time when she was intoxicated and passed out or unconscious. There was no allegation of any forcefulness as part of that aspect of the defence case. There was no suggestion on appeal that submissions had been put by Mr Lehrmann to the primary judge that a defence of that kind, if proven, would not justify the defamatory imputations. These matters will be addressed further when dealing with appeal ground (1). However, they do expose an air of unreality about the notion that Mr Lehrmann's concern in bringing the defamation proceedings was that The Project broadcast had accused him of engaging in what he would describe as 'violent' non-consensual sexual intercourse, but was not concerned about any aspect of the broadcast that might be said to have accused him of engaging in 'non-violent' non-consensual sexual intercourse with Ms Higgins in circumstances where he completely ignored the requirement of consent (which, on his case on appeal, would not be rape as a matter of ordinary meaning). The logic behind appeal ground (2) seemed to be that the findings by the primary judge not only did not amount to rape in the way the term is ordinarily understood amongst those viewing The Project broadcast, but that they were not findings that were adverse to his reputation. This we infer from the fact that the appeal ground was advanced on the basis that it would support a claimed increase in the provisional damages award the subject of ground (4).

53    In any event, these anomalous aspects of the ground can be put to one side.

54    The pleaded imputations fall to be considered by reference to the ordinary meaning of terms, not their legal meanings. In our view the ordinary reasonable viewer would understand rape as sexual intercourse occurring without the consent of a person (the victim), with the other person (the perpetrator) knowing the victim is not consenting or being reckless as to whether they are consenting. Recklessness, in that context, encompasses the perpetrator not caring whether the victim is consenting, either as a conscious lack of regard for whether the person is consenting, or complete indifference as to whether they are consenting.

55    In our view, the primary judge was correct to conclude (as he did at PJ[597]) that the ordinary person viewing the broadcast of the special edition of The Project in February 2021 would think that a man would have raped a woman if he had sex with her without her consent in circumstances where he was 'so bent on his gratification and indifferent to the rights of the woman that he ignored or was indifferent to the requirement for her consent'. The finding by his Honour to that effect reflected the meaning of rape to an ordinary person. As we will explain, that finding did not depend for its correctness upon the characterisation by the primary judge of such circumstances as 'non-advertent recklessness'. Rather, it depended upon the unchallenged finding by the primary judge as to Mr Lehrmann's state of mind. The state of mind of Mr Lehrmann as found by the primary judge was one of complete indifference to whether Ms Higgins consented. Sexual intercourse without consent by a person with that state of mind was rape according to the ordinary conception of that word.

56    Therefore, appeal ground (2) fails.

The actual knowledge contention ground: Alleged error in not finding actual knowledge

57    As has been mentioned, both Network Ten and Ms Wilkinson contend that the primary judge ought to have found that Mr Lehrmann knew that Ms Higgins did not consent to having sex.

58    The primary judge began his analysis concerning the knowledge of Mr Lehrmann as to whether Ms Higgins consented at PJ[590] in the following way:

If I was to accept that Ms Higgins was obviously unconscious when sexual intercourse commenced, then proof of the knowledge element would follow readily. That may well have been the case, but it is equally probable this may not have been obvious, thus requiring focus on the issue as to whether Mr Lehrmann understood that Ms Higgins, in her inebriated state, was not fully aware of what was happening to her.

59    His Honour then reasoned at PJ[591]:

Given what I have found about it being likely Ms Higgins did not expressly voice her resistance, and the other findings I have made of their interactions (that Ms Higgins was 'like a log'), I do not consider I can be positively satisfied on the balance of probabilities that Mr Lehrmann turned his mind to consent and had, at the relevant time, a state of mind of actual cognitive awareness that Ms Higgins did not consent to having sex.

60    These key passages in his Honour's reasons appear to involve the following steps:

(1)    his Honour was unable to conclude on the findings that had been made that Ms Higgins was obviously unconscious when sexual intercourse commenced;

(2)    nevertheless, his Honour had made a finding that it was likely that Ms Higgins did not voice her resistance and she was 'like a log'; and

(3)    even so, his Honour considered those facts were an insufficient basis to conclude that Mr Lehrmann turned his mind to consent and actually knew that Ms Higgins did not consent.

61    Both Network Ten and Ms Wilkinson contended that having regard to the findings that had been made about Ms Higgins' physical state at the time, his Honour should have concluded that Mr Lehrmann in all likelihood did turn his mind to whether Ms Higgins consented and concluded that she did not. In making that submission they did not seek to challenge any of the factual findings by the primary judge. Their focus was on whether there was logic in the final step described at (3) in the above paragraph.

62    It is necessary to consider the detailed and careful findings that had been made by his Honour up to the point of considering Mr Lehrmann's state of mind prior to and during sexual intercourse.

63    Earlier in his reasons (at PJ[493]), the primary judge referred to what he described as 'contemporaneous and apparently candid representations' made by Ms Higgins in the days after the events in the Ministerial Suite. He put them in the following terms as assertions made by Ms Higgins, each being a representation:

(1)    made only three days after the incident, and immediately after Mr Payne had asked 'Did he rape you?', being her immediate and spontaneous response: 'I could not have consented. It would have been like f**king a log' (T1422.39-43);

(2)    with her ex-boyfriend … again just days after the incident, where in response to his direct question 'Did you hook up in there or did someone take advantage of you?', Ms Higgins replied: 'Yeah, it was just Bruce and I from what I recall. I was barely lucid. I really don't feel like it was consensual at all' (Ex R99 (at 695)).

(original emphasis)

64    As to these representations, his Honour went on to say (at PJ[494]):

These representations, which suggest she was passive and hence incapable of consenting, reflect an interaction somewhat different from one where Ms Higgins had repeatedly, and unequivocally, said 'no on a loop'. This must be qualified by noting that consistently with the notion of passivity, there was alleged immobility, in that she also said at trial (as I have reproduced in context above), that she: 'couldn't scream for some reason … it was just, like, trapped in my throat; I couldn't do it. I know I felt really, like, waterlogged and heavy and I couldn't - I couldn't move'; and later: 'I couldn't, like, scream like you see in, like, the horror movies, like, I couldn't - I don't know. I don't know why I couldn't' (T629).

65    Then, as we have observed, his Honour went on to find that Ms Higgins did not say 'no on a loop'. In doing so, his Honour found 'it is more likely than not that she did not, or was not, able to articulate anything' and 'it is more likely than not that she was passive (as she later said, "like a log") during the entirety of the sexual act': see PJ[556] (emphasis added).

66    Therefore, his Honour ultimately found that when Ms Higgins was on the couch and sexual intercourse occurred, she was, as she had said in the days after the incident, 'like a log', that is to say, she was passive and that she did not, or was unable to, articulate anything.

67    It follows that, on the findings made by the primary judge, the following would have been the circumstances by the time Ms Higgins and Mr Lehrmann were both on the couch in the Minister's office.

68    Mr Lehrmann was aware that Ms Higgins had become significantly inebriated at The Dock. He knew that as the night proceeded, he had encouraged her to drink and Ms Higgins had consumed at least two and possibly more shots at the 88MPH nightclub. Whilst at the nightclub, Mr Lehrmann and Ms Higgins exchanged a passionate kiss and were quite touchy with one another. Mr Lehrmann also knew that there was a point at the nightclub when Ms Higgins fell over and he had helped her back to her feet, and that Ms Higgins' condition at the time was that she was drunk. He was aware that, when they left the nightclub and shared an Uber, 'with the acquiescence of the inebriated Ms Higgins, the plan became for the Uber to go to Parliament House following what Mr Lehrmann had said about [having some whisky to show Ms Higgins or something]'.

69    So, by the time they were on the couch, it was the early hours of the morning after Ms Higgins had been out for many hours during which time she had been drinking excessively and was in an inebriated state, indeed she was 'a very drunk 24-year-old woman, and her cognitive abilities were significantly impacted'. As the night had unfolded, Mr Lehrmann had pressed Ms Higgins to continue to drink. It was also highly likely that Ms Higgins was prone to drowsiness. The state of her drunkenness, the significant impact on her cognitive abilities and her proneness to drowsiness were all matters of which Mr Lehrmann was aware.

70    On the couch, Mr Lehrmann was also aware that Ms Higgins was not speaking and was not moving. Mr Lehrmann knew he was not in a sexual relationship with Ms Higgins. Indeed, he knew that until that evening their relationship had been solely as work colleagues. Specifically, he knew that Ms Higgins had not expressed her consent to sexual intercourse with him.

71    As to the above matters, see PJ[398]; PJ[404]; PJ[406]-[415], PJ[426]-[427]; PJ[514]-[515]; PJ[522]-[523]; PJ[551]-[559]; and PJ[586].

72    As has been mentioned, Mr Lehrmann's account as to why he was at the Minister's office at that time was rejected by the primary judge as a transparent lie. Mr Lehrmann was also found to have made false statements about other aspects of what occurred. As to these matters see PJ[459]-[463]; PJ[465]; and PJ[472]. He maintained that there was no sexual intercourse. Indeed, he said he was not with Ms Higgins in the Minister's office. This evidence was rejected on the basis of very firm findings as to the lack of credibility of Mr Lehrmann's account of what occurred that evening. Whilst those matters are not positive evidence of his actual knowledge, the consequence of the rejection of his account was that there was no evidence from him as to what occurred on the couch. The sole account came from Ms Higgins and there were significant aspects of that account that the primary judge accepted.

73    His Honour made findings as to Ms Higgins' general lack of creditworthiness and, in particular, rejected her account that she expressly and repeatedly voiced her lack of consent: at PJ[581]. However, despite those concerns, his Honour did make the findings to which we have referred.

74    His Honour then concluded from the fact that Ms Higgins likely did not 'voice her resistance' and was 'like a log', that he could not be positively satisfied that Mr Lehrmann turned his mind to consent and was cognitively aware that Ms Higgins did not consent to having sex. Essentially, the ultimate finding by his Honour was to the effect that, by the time they were together in the Minister's office, Mr Lehrmann was not aware that Ms Higgins did not consent, but rather he was so intent on having sex with Ms Higgins that he was indifferent to whether she consented.

75    His Honour observed that it was not in dispute that the knowledge element for rape could be established by recklessness: at PJ[593]. His Honour then made reference to authorities concerned with the concept of 'non-advertent recklessness'. His Honour expressed the view that those authorities 'apply equally to an element embedded in the natural and ordinary meaning of rape in contemporary Australia': at PJ[597]. Having done so, his Honour stated the required knowledge element in the following terms (at PJ[598]):

I consider that the knowledge element can be established if the respondents prove, to the civil standard, that at the time sexual intercourse took place, Mr Lehrmann's state of mind was such that he was indifferent to Ms Higgins' consent, and he just went ahead willy-nilly. Put another way, the knowledge element is established if Mr Lehrmann was so indifferent to the rights of Ms Higgins as to ignore the requirement of consent.

76    His Honour then made the following finding (at PJ[600]):

Notwithstanding the need for pause, I am satisfied that it is more likely than not that Mr Lehrmann's state of mind was such that he was so intent upon gratification to be indifferent to Ms Higgins' consent, and hence went ahead with sexual intercourse without caring whether she consented. This conclusion is not mandated by, but is consistent with, my finding that intercourse commenced when Ms Higgins was not fully cognitively aware of what was happening.

77    In the next paragraph, his Honour put the same conclusion even more succinctly: 'In his pursuit of gratification, [Mr Lehrmann] did not care one way or another whether Ms Higgins understood or agreed to what was going on'.

78    His Honour concluded at PJ[602]: 'Because of what I find to be Mr Lehrmann's state of mind of non-advertent recklessness, the knowledge element has been made out'.

79    Having considered with some care all of the detailed findings made with due deliberation by the primary judge and with due regard to the seriousness of the finding, in our respectful view, his Honour should have found actual knowledge on the part of Mr Lehrmann that Ms Higgins did not consent to sexual intercourse. Even though, as his Honour found, the one dominant thought in the mind of Mr Lehrmann when he was in the Uber with Ms Higgins was to have sex with her and that was why he secured her agreement to go to the Ministerial Suite, there is no finding to the effect that Mr Lehrmann's faculties were otherwise diminished. There were findings that he had been drinking during the course of the evening, but there was no finding that he was inebriated. So, there is nothing beyond the findings as to Mr Lehrmann's sexual desires as to why he would not turn his mind to whether Ms Higgins consented to sexual intercourse. On the contrary, the circumstances then presented to Mr Lehrmann, as found by the primary judge, screamed loudly to anyone with normal faculties that the very drunk, passive and silent woman, prone to drowsiness and with significant impact on her cognitive abilities, who was his junior colleague at work and who was not in any kind of personal relationship with Mr Lehrmann, had not consented to sexual intercourse. There is no suggestion that events unfolded in a way that meant Mr Lehrmann did not have time to reflect on the circumstances as they were presented to him or that they had some other dimension that was relevant to Mr Lehrmann's knowledge at the time.

80    It is our view, based on the findings made by the primary judge, that the only reasonable inference from the facts as known to Mr Lehrmann at the time, is that at some point before sexual intercourse commenced, Mr Lehrmann did turn his mind to whether Ms Higgins consented to sex and was aware that she was not consenting, but proceeded nonetheless.

81    For those reasons, we uphold the actual knowledge contention ground.

82    We observe that, even if we had not upheld the actual knowledge contention ground, the matters to which we have referred would have a considerable bearing upon the nature of any recklessness finding. Had we not been persuaded as to actual knowledge, we would have viewed the case to be one where there was well and truly enough evidence to support a finding that Mr Lehrmann was aware that Ms Higgins might not be consenting and yet proceeded to have sexual intercourse. That is to say, we would have approached his Honour's findings on the basis that they sustained a finding of recklessness of that kind.

Approach to remaining grounds

83    Given our conclusion as to actual knowledge, the factual foundation for the remaining grounds of appeal falls away. Nonetheless, as the grounds were fully argued and appeared to be at the heart of Mr Lehrmann's appeal, we consider it appropriate to address them. We do so on the assumption (contrary to our own conclusion) that the actual knowledge contention ground had not been upheld.

Appeal ground (1): Alleged procedural unfairness as to the justification defence

84    Mr Lehrmann's case before the primary judge as to the imputations conveyed by the publication of the broadcast were all expressed in terms of 'rape'. They did not seek to draw distinctions of the kind that are now advanced on appeal. Mr Lehrmann's case was that he had not had sexual intercourse with Ms Higgins and, therefore, there was no rape. As has been explained, the justification defences pleaded were that, on the facts particularised, Mr Lehrmann had raped Ms Higgins because he engaged in sexual intercourse with her when he knew she had not consented or alternatively was reckless as to whether she consented. Network Ten's defence referred expressly, in addition, to indifference. The addition was not necessary. In its ordinary usage, recklessness means to be utterly careless of the consequences of one's actions. The justification case as pleaded by each of the respondents was not hedged as to the breadth of its conception of recklessness. It did not use the term recklessness in a context that invoked any specialised legal meaning of the word.

85    On the appeal, in support of appeal ground (1), it was said by Mr Lehrmann that the justification case pleaded against him was that the alleged imputations were true because, in fact, there had been a forceful and violent rape with an assault causing bruising to Ms Higgins despite repeated and obvious statements by Ms Higgins refusing consent. It was further alleged that the submissions advanced by each of Network Ten and Ms Wilkinson were to the effect that there had been a rape of that character. It was said that the findings made by the primary judge were to different effect and were based upon a version of events that was not put to Mr Lehrmann in cross-examination. The written submissions for Mr Lehrmann went so far as to say that the justification case as pleaded was rejected by the primary judge.

86    Appeal ground (1) alleges that the case as found by the primary judge in upholding the justification defence (a) had not been pleaded; (b) was different to the justification case that had been pleaded; (c) had not been the subject of submissions; (d) had not been argued by Network Ten and Ms Wilkinson; and (e) had not been put to Mr Lehrmann.

87    For the following reasons, each aspect of ground (1) must be rejected.

88    As to (a) and (b), as has been explained, the justification case as pleaded included a claim that Mr Lehrmann engaged in sexual intercourse when Ms Higgins was asleep or unconscious and at a time when she had not said that she consented to having sexual intercourse with him, and he was reckless as to whether she consented. For reasons we have given, having regard to the imputations alleged (all of which were couched in terms of 'rape') and the natural and ordinary meaning of that term, the justification case included a case of the kind that was found by the primary judge. It was not necessary for the findings of recklessness made by the primary judge to be expressed in terms of 'non-advertent recklessness'. Indeed, the discussion of the element of recklessness and the use of such terminology in the context of the offence of rape had the tendency to distract, given it is the ordinary reasonable viewer's understanding of rape which is to be applied. Nevertheless, the use of that terminology did not take the case as found outside the pleaded case. The fact that there were other alternatives and a further respect in which the imputation of rape was sought to be justified that were not upheld (namely the aspects of the truth defence that alleged that Mr Lehrmann continued despite Ms Higgins repeatedly saying no and that there were forceful aspects to the sexual intercourse) did not take the case as found outside the pleaded case. As to those other aspects, as we have explained, Mr Lehrmann did not seek to articulate a case to the effect that the substantial truth required would not be demonstrated if the 'forceful' aspects of the defence as pleaded by Network Ten (but not Ms Wilkinson) were not upheld. Of course, they were matters that went to whether Ms Higgins' account was to be believed and the primary judge dealt with that aspect with care and considerable deliberation. It was not a matter that could be said to have been ignored when it came to the justification case.

89    Therefore, the case as found was within the terms of the recklessness case as pleaded.

90    As to (c) and (d), the pleaded recklessness case was addressed in closing submissions by Network Ten and by Ms Wilkinson. Most significantly, it was addressed by Mr Lehrmann, in his own written closing submissions which (in addition to the passage already quoted concerning the imputations) included the following as to 'The question of consent in the context of intoxication':

At [1050] of the 1RS and [115], [475] and [477]-[479] of the 2RS a submission is made that if the Court were satisfied that sexual intercourse took place then it constituted rape on the basis that Mr Lehrmann's conduct was reckless as to consent because he observed Ms Higgins drinking throughout the night (1RS) and, additionally, he observed Ms Higgins' inability to put on her shoes at security (2RS). (The 2RS also says that Mr Lehrmann 'saw her fall over' ([2RS[475]). Presumably this is a reference to Ms Higgins' allegedly falling over at 88MPH and referred to as indicative that Mr Lehrmann knew Ms Higgins was extremely intoxicated. Mr Lehrmann categorically denied having seen Ms Higgins fall over (see T296 L11-23)).

This submission as to recklessness should not be accepted. For the Court to find Mr Lehrmann 'raped' Ms Higgins on this basis, i.e. her intoxication vitiated any ostensible consent, the Court would first have to make findings that sexual intercourse took place and when any such sexual intercourse occurred.

As developed in the ACS and in these Reply submissions, Mr Lehrmann submits that the evidence cannot sustain a positive finding that any sexual activity took place. However, if the Court did find that sexual intercourse took place, the Court would then have to find, as an established fact, that at that time of the sexual intercourse, Ms Higgins was so intoxicated as to be unable to consent to sexual activity.

The Court would also need to make a positive finding that Mr Lehrmann himself, at that time, either knew or believed [Ms] Higgins was incapable of consenting to sexual activity, or that he adverted to that possibility but nonetheless proceeded to engage in sexual activity.

91    Elsewhere in his long and detailed closing submissions, Mr Lehrmann made the following submission:

Further, whilst there is a relatively confined period in which any sexual activity might have occurred, there is no cogent and reliable evidence as to Mr Lehrmann's state of mind at the time of any such sexual activity in relation to his knowledge, belief or advertence as to Ms Higgins' level of inebriation and ability to consent sufficient to permit the requisite finding of fact necessary to establish that rape or sexual intercourse without consent on the basis of intoxication occurred.

92    Hence, the finding by the primary judge that it was not in dispute that the knowledge element can be established by recklessness (at PJ[593]) accurately reflected the way in which the case had been conducted.

93    As to (e), Mr Lehrmann was well and truly on notice that the case against him included a case where he was alleged to have engaged in sexual intercourse with Ms Higgins on the couch when she was asleep or unconscious and that she woke up with Mr Lehrmann on top of her having sex and he did so in circumstances where he was reckless as to whether she consented. He chose to meet that case with a version of events to the effect that there was no sexual intercourse and he did not enter the Minister's office where the couch was located. In those circumstances, by reason of the nature of Mr Lehrmann's case, it was not necessary, as a matter of fairness, for each detail of the pleaded defence of justification to the effect that he did rape Ms Higgins to be put to him.

94    When he was questioned about Ms Higgins' version of events concerning the rape, Mr Lehrmann said that he did not have sexual intercourse with her. Significantly, when Mr Lehrmann was taken through an account of the sequence of events that occurred in Parliament House, he denied the proposition that was in effect put to him in each question. In particular there was this exchange:

Did you enter the [M]inister's office and find Ms Higgins on the [M]inister's couch, either semi-conscious or passed out?---No, I didn't enter the [M]inister's office.

During part of the period between 1.41 am and 2.30 am - sorry, 1.48 am and 2.30 am on 23 March 2019, you had sexual intercourse with Ms Higgins on the couch in Minister Reynolds' office, Mr Lehrmann?---I did not.

Ms Higgins was not wearing any underwear?---I did not have sex with her, so I can't answer that.

I suggest to you you removed your pants, but kept your shirt on?---No.

Ms Higgins was positioned on the Minister's couch with her head at the end closest

to the door and her legs pointed towards the window of the Minister's office?---No,

Dr Collins.

You spread Ms Higgins' legs so that you could penetrate her?---No.

You propped her right leg up on the back of the couch?---No, Dr Collins.

Your knee was on Ms Higgins' left leg, pinning it down on the couch?---No, this did not happen.

You then penetrated Ms Higgins, your penis in her vagina?---This did not happen, Dr Collins.

You were rough and forceful, slapping your body hard against Ms Higgins as you penetrated her?---This did not happen.

I put to you that you were aware that Ms Higgins was either passed [out] or semi-conscious?---No, Dr Collins.

95    Then after some further questions:

All right. Now, Mr Lehrmann, did you at at any time seek Ms Higgins' consent to have sexual intercourse with you?---I didn't have sexual intercourse with her.

Well, answer my question: did you at any time seek her consent to have sex or intercourse with her?

96    The last of those questions produced an objection from Mr Lehrmann's counsel. It was in terms that the question was unfair 'because he's denied having it, so that issue does not arise'.

97    It led to the following exchange between the primary judge and Mr Lehrmann:

No, they're logically separate, and I will allow the question. I assume your answer to the question is at no stage did you seek to procure consent to have any sexual intercourse - - -?---Yes.

- - - because you deny the fact sexual intercourse took place, and you deny you asked

for any consent; is that correct?---Yes, yes.

98    Senior counsel for Network Ten then sought to put his question again which produced an observation from his Honour that: 'Well, I don't think there's any doubt. I think he answered it, unless there's … something which is not covered by that question'.

99    Senior counsel then asked the following final question on the topic:

Did Ms Higgins, at any time, consent to having sexual intercourse with you?---I didn't get consent, because I didn't have sexual intercourse with her.

100    By that point, it was apparent that the case advanced by Mr Lehrmann was that there was no sexual intercourse and therefore no issue of consent. There was no practical injustice to Mr Lehrmann in senior counsel not putting, in terms, the alternative case as to recklessness. Further, the fact that the primary judge did not accept the case to the effect that Mr Lehrmann engaged in forceful sexual intercourse, did not mean that there was some procedural unfairness to Mr Lehrmann. He had the opportunity to answer the case and give an account as to what occurred in the Minister's office. He gave an account that there was no sexual intercourse. It was an account that the primary judge rejected as involving the telling of deliberate and material lies. There is no challenge to the devastating findings as to Mr Lehrmann's lack of credibility.

101    Justification only required substantial truth. The case was run on the basis that the sting in the imputations was that Mr Lehrmann had raped Ms Higgins. There was no alternative case that the sting was to the effect that Mr Lehrmann had engaged in some form of forceful rape. Put another way, it was not suggested that the position of Mr Lehrmann was that substantial truth required proof of rape as well as proof of the forceful aspects of the alleged imputations.

102    In the circumstances, as rape within the ordinary meaning of that term to a reasonable viewer of The Project broadcast was established, substantial truth was established.

103    There is no substance in the appeal ground.

Appeal ground (3): Onus allegedly not discharged on justification defence

104    Appeal ground (3) rested on a very narrow foundation. It did not seek to challenge any of the individual factual findings made by the primary judge. Rather, it emphasised what were said to be the consequences of the adverse findings made as to the credibility of the accounts given by each of Mr Lehrmann and Ms Higgins in the context of a justification defence, the onus of proof as to which was on the publishers. It was said that, in the present case, the primary judge ought to have found that the evidence led by Ms Higgins was not adequate to discharge the burden of proof. It was said to be an instance where, by reason of the adverse findings as to the credibility of each of Mr Lehrmann and Ms Higgins, the primary judge ought to have concluded that he did not know what had happened in the Minister's office.

105    One aspect of the submissions in support of the ground can be put to one side immediately, namely the suggestion that his Honour was not aware of the possibility that there may be a conclusion that the burden of proof as to the justification defence was not discharged because the whole of the accounts of both Mr Lehrmann and Ms Higgins were not accepted. His Honour was assiduous in setting out with considerable care the principles to be applied in finding the relevant facts, including those as to the onus and standard of proof: at PJ[90]-[145] (being Section E of his Honour's reasons). At key points in the reasons, his Honour referred back to those principles. Submissions to the effect that there was some failure by his Honour to recognise the possibility that the findings as to the credibility of Ms Higgins may mean that the onus may not be discharged on the basis that affirmative findings could not be made to the requisite standard lacked any basis.

106    Otherwise, the submissions in support of appeal ground (3) appeared to be founded on the general submission that, as his Honour did not accept the accounts of Mr Lehrmann and Ms Higgins, the onus had not been discharged. It was premised on a view that the account given by Ms Higgins was not accepted. At times, the submissions also brought to bear aspects of the arguments advanced in support of appeal grounds (1) and (2). For reasons that have been given, we do not accept those grounds. Therefore, we can focus upon the main submission as to whether the findings as to credibility of the two main witnesses meant that his Honour should have concluded that the onus of proof as to the justification defence had not been discharged.

107    The short answer to the submissions advanced by Mr Lehrmann is that the findings as to the credibility of Ms Higgins were nuanced and expressed with some care by the primary judge, and they did not involve a general rejection of her credibility on all matters. It is not accurate to say, in an unqualified way, that the primary judge did not believe her account. Important aspects of her account were accepted for detailed reasons given by the primary judge which were not the subject of any separate challenge. The same was not the case in respect of Mr Lehrmann.

108    The accounts given by each of Ms Higgins and Mr Lehrmann of the events on, what the primary judge referred to as, 'the fateful night', were subjected to close scrutiny and very detailed and careful consideration by the primary judge. While the primary judge had concerns about both their accounts, his findings concerning the evidence given by Mr Lehrmann were devastating. His Honour found that in important respects he told deliberate lies. He described the instances of his false out-of-court statements or unsatisfactory evidence as being 'legion'. He made express findings as to the falsity of Mr Lehrmann's account of key matters. He rejected the entirety of Mr Lehrmann's account of what happened in the Ministerial Suite. He found, contrary to Mr Lehrmann's evidence, that sexual intercourse with Ms Higgins took place with Mr Lehrmann on top of Ms Higgins on the couch in the Minister's office.

109    In contrast, the primary judge began his consideration of the account given by Ms Higgins in the following way (at PJ[489]):

The first thing to be said about Ms Higgins' account is that it involves a grave allegation by a witness with general credibility problems and whose contentious evidence, in accordance with the fact-finding principles explained above in Section E, must be approached with great care. But by reference to my findings as to the circumstances in which Mr Lehrmann and Ms Higgins found themselves, taken as a whole, it does not strike me as inherently implausible (unlike the account of Mr Lehrmann).

110    The primary judge also dealt with conduct of Ms Higgins after the events in the Ministerial Suite, including her communications with others, which were relied upon by Mr Lehrmann as being adverse to her credibility: at PJ[525]-[547]. As to that evidence, his Honour reached the following conclusion (at PJ[547]), also not separately challenged:

In summary, despite other concerns as to her creditworthiness, any alleged post-incident counterintuitive behaviour of Ms Higgins does not materially affect my assessment of the underlying cogency of her allegation she was assaulted. Further, considering all the post-incident conduct to which I have referred as a whole, it is not inconsistent with the conduct of a genuine victim of sexual assault struggling to process what happened, seeking to cope, and working through her options.

111    Importantly, the primary judge accepted key aspects of the account given by Ms Higgins. As we have explained, his Honour found 'it is more likely than not that [Ms Higgins] was passive (as she later said, "like a log") during the entirety of the sexual act'. He also accepted Ms Higgins' account that she suddenly became aware of Mr Lehrmann being on top of her 'performing the sexual act' and that she was not fully aware of her surroundings when sexual intercourse commenced and did not consent when she became aware that Mr Lehrmann was on top of her.

112    The fact that his Honour did not accept other aspects of Ms Higgins' account in and of itself did not lead to the conclusion that her whole account was to be rejected. No intelligible submission was advanced as to why the findings that were made accepting aspects of Ms Higgins' account were inconsistent with the careful findings of the primary judge as to her credibility.

113    There was no demonstrated defect in his Honour's approach which was considered and closely reasoned.

114    It follows that appeal ground (3) must fail.

Appeal ground (4): Damages

115    The initial submission advanced in support of appeal ground (4) was to the effect that if the Court concluded that the justification defence had not been made out, then this Court on appeal should reassess damages. However, only the most general of submissions were advanced as to how that task should be undertaken. In the end, the submission advanced by Mr Lehrmann as to damages was to the effect that if any of his grounds were upheld then he sought an opportunity to file material for consideration as to damages on appeal rather than remitting the matter.

116    In circumstances where that was the nature of the submission advanced and where Mr Lehrmann has not succeeded on any of his grounds and the actual knowledge contention ground has been upheld, it is not necessary or appropriate to consider the appeal ground as to damages.

A contention ground on justification

117    Ms Wilkinson advanced a further alleged error by way of contention to support the conclusion reached by the primary judge on justification. It concerned the approach of the primary judge when dealing with the evidence of Ms Fiona Brown who had conversations with Ms Higgins in the days and weeks after her sexual assault. As we have concluded that the appeal grounds must be dismissed, it is not necessary to consider this ground. It would require the consideration of the basis for a credibility finding in a long trial. It would also require a detailed review of all of the evidence that might be brought to bear concerning the conclusion reached by the primary judge. These were matters that were not fully addressed in submissions. We do not consider it appropriate to undertake that detailed review in circumstances where there is no need to do so and where the Court was not taken to all the evidence that was relevant to the making of the credibility finding.

The contention grounds as to damages

118    Network Ten advanced a contention, by reference to English authority, that the primary judge should have assessed no or nominal damages. It was said that there was a basis for concluding that the findings made by the primary judge as to Mr Lehrmann having given false evidence and certain other conduct of Mr Lehrmann meant there was 'an exceptional kind of abuse of process of the Court which would have warranted nominal or no damages'. The point was addressed by the primary judge at PJ[989]-[997]. His Honour reasoned that the appropriate relief to seek based upon allegations of abuse of process was a stay or dismissal. That is to say, it was necessary to demonstrate that the claim could not be advanced for that reason rather than decline to make an award of damages where the cause of action itself was not alleged to be an abuse of process.

119    There is much to be said for distinguishing between relief that may be granted on the basis of a conclusion that proceedings have been conducted in a manner that is an abuse of process and relief that may be granted where a party has made out a cause of action in defamation. An abuse of process may itself be the basis for an award of damages (if advanced as a tortious cause of action in proceedings). It may be a basis for the grant of a stay or a dismissal. It may bear upon the form of an order for costs. For example, the giving of false evidence may bear upon whether indemnity costs may be ordered: Krueger Transport Equipment Pty Ltd v Glen Cameron Storage & Distribution Pty Ltd (No 3) [2008] FCA 1592 (Gordon J); and Anchorage Capital Partners Pty Limited v ACPA Pty Limited (No 4) [2016] FCA 218 (Perram J), compare Sealed Air Australia Pty Limited v Aus-Lid Enterprises Pty Ltd [2020] FCA 388 (Kenny J). The same facts may bear upon the separate task of assessing the quantum of damages that may be recovered for harm to reputation. However, it is a very different thing to reason, in effect, that an appropriate remedy in respect of a cause of action in defamation that has been pleaded and proved (and therefore has not been the subject of a stay or dismissal as an abuse of process) should not be entitled to damages.

120    Nevertheless, there is no need for us to express a firm view having regard to the conclusions we have reached on the appeal grounds and we do not do so.

121    Ms Wilkinson advanced a different contention as to damages. It was directed to a finding made by the primary judge in the course of consideration of matters said to go to aggravated damages. The finding was to the effect that Ms Wilkinson's conduct in giving a speech at the Logies was 'improper and unjustifiable'. Significantly, it was not sought to advance the contention point as to aggravated damages as a basis for contending that the provisional assessment of damages was too high. Rather, it was raised against the prospect that the Court was persuaded as to grounds of appeal that would open up the assessment of damages. For reasons we have given, we are not so persuaded. Therefore, there is no need to address the contention ground raised by Ms Wilkinson as to aggravated damages.

The remaining contention grounds advanced by Ms Wilkinson

122    At the outset of these reasons, we explained how the broadcast of The Project special edition presented another dimension to the story beyond the account given by Ms Higgins of her rape by Mr Lehrmann. It was a dimension that was very critical of what happened after Ms Higgins was raped and she reported what had occurred to senior people in her workplace. None of those aspects of the broadcast were said to give rise to the defamatory imputations complained of by Mr Lehrmann. However, they assumed significance in the case for two reasons. First, the fact that Mr Sharaz had presented the story to Ms Wilkinson in the way that he did, including the matters in the timeline (which recorded details of what was said in conversations in which Ms Higgins was involved in the period after her sexual assault) meant that those actions, the motives behind them and their accuracy, had the capacity to be relevant when it came to assessing the credibility of the account given by Ms Higgins as to the events that were relevant to the justification defence. Second, both Network Ten and Ms Wilkinson pleaded a statutory qualified privilege defence which required them, amongst other things, to demonstrate that their conduct in publishing the defamatory 'matters' was 'reasonable in the circumstances'.

123    The primary judge made findings concerning the reasonableness of the actions taken by Ms Wilkinson for the purposes of considering the qualified privilege defence. Many of those findings were the subject of additional detailed contention grounds advanced by Ms Wilkinson. We now turn to whether those matters should be addressed having regard to the fact that we have concluded that the appeal should not be upheld.

124    Importantly, we note that the relevant contention grounds were expressed as being raised if the Court upholds the appeal in relation to justification. Accordingly, given the conclusion we have reached as to the justification defence, the additional detailed contention grounds do not arise. Usually, that would mean that it would not be necessary or appropriate to consider the matters raised by way of contention.

125    However, there are two matters which we do address because of their possible significance for future matters.

126    First, the primary judge approached the issue of qualified privilege on the premise that the rape allegation had not been proven to be true: at PJ[922]. This was explained on the basis that there was no need to consider the defence if justification had been established. The consideration of the facts bearing upon the alternative defence was an appropriate course for the primary judge to take in order to reduce the prospect of remitter after a successful appeal.

127    However, the premise upon which the qualified privilege defence was considered by the primary judge meant that the matters that Ms Wilkinson relied upon to support her conclusion that Ms Higgins was being truthful when she gave her account of the rape directly to Ms Wilkinson tended to be disregarded when it came to qualified privilege. Instead, the primary judge's analysis largely proceeded on the basis that the credibility of Ms Higgins' account of the rape was not supported by any other evidence. Consequently, his Honour's focus was upon the extent to which there could have been further inquiry that would have revealed the assumed falsity in Ms Higgins' account, such as the extent to which there was fact-checking or reasonable reliance upon investigations by others. Most significantly, the primary judge appears not to have considered, in this context, Ms Wilkinson's reliance on the supporting evidence that came from those to whom Ms Higgins had made reports of what had occurred in the days after her rape and the fact that she had made a complaint to the Australian Federal Police. Further, his Honour appears not to have considered, in this context, the significance of the comments provided in response to questions posed, before broadcast, to some of those involved at the time. Those comments confirmed the making of reports of sexual assault by Ms Higgins in the days after the rape. These were important aspects for adjudging the reasonableness of the actions of Ms Wilkinson when it came to reporting the aspects of the broadcast of which Mr Lehrmann complained. It was necessary for those matters to be taken into account in undertaking any assessment as to whether the conduct of Ms Wilkinson was reasonable in the circumstances.

128    Further, a qualified privilege defence is not confined to circumstances where it is known that a justification defence has failed. In our view, the appropriate assumption to make when it came to considering the alternative defence of qualified privilege was that there had been no justification defence and the only defence was qualified privilege. This would mean that it was less likely that the analysis would be infected with a view that the defamatory imputations could not be justified, being the assumption upon which the primary judge proceeded.

129    Second, by reason of the two aspects to the story the subject of the broadcast and the fact that Mr Lehrmann's case only concerned the imputations of rape as reported, issues arose as to the extent to which findings of unreasonableness as to the other aspects of the broadcast may bear upon the qualified privilege defence. One of the contention points raised by Ms Wilkinson in the appeal was to the effect that the primary judge did not give effect to his own conclusion as to 'the matter' in respect of which the conduct of Ms Wilkinson had to be demonstrated to be reasonable. In that regard, the primary judge found that it was the conduct in publishing those aspects of the 'matter' (that is, the whole of The Project special edition broadcast) that had the character of conveying the defamatory imputations, that needs to be the focus of the consideration as to whether the conduct was reasonable: at PJ[919]-[921], applying the views of Hodgson JA (Basten JA and McClellan CJ at CL agreeing) in Griffith v Australian Broadcasting Corporation [2010] NSWCA 257 at [117]-[121]. It was contended by Ms Wilkinson that, having reached that conclusion, his Honour then erred in having regard to aspects of the broadcast that did not convey the defamatory imputations complained of by Mr Lehrmann.

130    His Honour's reasoning in that regard involved reaching conclusions as to the lack of reasonableness on the part of Ms Wilkinson based on her approach to other aspects of the broadcast which the primary judge described as 'a political cover-up' of the sexual assault of Ms Higgins. The primary judge found that Ms Wilkinson was willing to assist in the politicalisation of the account given by Ms Higgins of later events (at PJ[955]). He criticised Ms Wilkinson for readily concluding that Ms Higgins' account of those later events was true without making further inquiries. These (and other) matters were relied upon to conclude that there was unreasonableness as to those aspects of the broadcast that conveyed the defamatory imputations complained of by Mr Lehrmann.

131    It is possible that, in some cases, a lack of care in seeking to verify one aspect of a publication may be relied upon to indicate a lack of care as to the whole publication. Further, issues as to one part of a proposed publication may give rise to warning signs as to other parts. In the present case, the account given by Ms Higgins was important for both aspects of the story, namely the sexual assault and the alleged political cover-up. Even so, it was quite possible that it was reasonable to publish as to one aspect and not reasonable as to another aspect.

132    As we have explained, there were matters supporting the account given by Ms Higgins that she had been sexually assaulted on the couch in the Minister's office to which his Honour did not refer in considering reasonableness. To the extent that conduct relating to other aspects of the broadcast were to be brought to account in considering whether there was statutory qualified privilege as to those parts of the broadcast complained about by Mr Lehrmann, it was necessary for those supporting matters to also be brought to account.

133    It was appropriate for his Honour to have had regard to other aspects of the broadcast for the purposes to which we have referred. However, it was necessary to ensure that, in doing so, the conclusion as to whether publication was reasonable was reached in respect of the part of the broadcast that conveyed the alleged defamatory imputations, after having regard to all matters relevant to the reasonableness of that aspect of the publication. Put another way, findings as to the overall approach to the broadcast or as to the approach to the part of the broadcast that did not concern the rape still had to be evaluated as to their significance for the publication of the parts of the broadcast that conveyed the defamatory imputations as to rape.

134    General findings as to the overall approach by Ms Wilkinson and her willingness to believe Ms Higgins still had to be considered as to their consequences for reasonableness of the part of the broadcast about which Mr Lehrmann complained. This required a consideration of those particular aspects which provided support for the rape account in particular.

Conclusion and orders

135    For the reasons we have given, the appeal must be dismissed. As the appeal has been wholly unsuccessful, there should also be an order that Mr Lehrmann pay the costs of each of Network Ten and Ms Wilkinson.

Associate:

Dated:    3 December 2025