FEDERAL COURT OF AUSTRALIA
Lehrmann v Network Ten Pty Limited (Limitation Extension) [2023] FCA 385
ORDERS
DATE OF ORDER: |
THE COURT ORDERS THAT:
1. The limitation period in each proceeding be extended until the commencement of these proceedings on 7 February 2023 pursuant to s 56A of the Limitation Act 1969 (NSW).
Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.
LEE J:
A INTRODUCTION AND APPLICABLE LIMITATION PERIODS
1 Before the Court are two proceedings commenced by Mr Bruce Lehrmann, being Lehrmann v Network Ten Pty Limited & Anor (NSD 103 of 2023) (Network Ten Proceeding); and Lehrmann v News Life Media Pty Ltd & Anor (NSD 104 of 2023) (News Proceeding). Any sentient person with an interest in newsworthy events in Australia would be familiar with the general background to the present disputes.
2 Mr Lehrmann sues in respect of defamatory matters published in early 2021. Both proceedings were commenced earlier this year, outside the applicable one-year limitation period. It is common ground that: (1) unless the limitation period is extended, both proceedings must be dismissed; and (2) these applications do not involve consideration of the substantive merits of the allegations made by Mr Lehrmann, nor any consideration of the truth or other non-limitation defences to those allegations. It follows nothing in these reasons bears upon, or should be construed as bearing upon, the truth or otherwise of the defence allegations in both proceedings that Mr Lehrmann engaged in unlawful conduct.
3 Before identifying the details of the limitation issue, I note the evidence adduced on the applications is canvassed in significant detail below. This material constitutes the basis upon which these applications fall to be determined, together with facts not reasonably open to question, which are either common knowledge or capable of verification by reference to a document the authority of which cannot reasonably be questioned: see s 144 of the Evidence Act 1995 (Cth) (EA). It might be thought trite to mention that these applications are to be determined by reference to the material placed before the Court, but it is appropriate given the widespread publicity and speculation surrounding the allegations against Mr Lehrmann, dealings between the Australian Federal Police (AFP) and the Director of Public Prosecutions (DPP) and dealings between the legal representatives of Mr Lehrmann and the AFP (and the existence of ongoing non-judicial inquiries).
4 There was some confusion as to when the relevant limitation periods started to run. Mr Lehrmann submitted that all relevant causes of action accrued on the initial date of publication, being 15 February 2021. But the true position is more complicated than first appears.
5 The post 1 July 2021 effect of s 14C and Sch 5, cl 11(3) of the Limitation Act 1969 (NSW) (Limitation Act) (relevant amendments) is that the single publication rule in s 14C “extends to a first publication before the commencement of the section, but only in respect of subsequent publications after the commencement”. Prior to 1 July 2021, every publication of defamatory matter created a separate cause of action, with the limitation period running for each cause of action. Network Ten Pty Limited (Network Ten), News Life Media Pty Limited (News Life) and Ms Samantha Maiden (together, the respondents) submit that the common law multiple publication rule continues to apply to publications between 15 February 2021 and 30 June 2021, and that in relation to the:
(1) Network Ten Proceeding (first matter): all causes of action accrued on 15 February 2021 and hence the limitation period expired on 14 February 2022;
(2) Network Ten Proceeding (second matter): causes of action accrued between 15 February 2021 and no later than 16 May 2021 and hence the limitation period expired progressively in respect of those causes of action between 14 February 2022 and no later than 15 May 2022; and
(3) Network Ten Proceeding (third matter); News Proceeding (first matter and second matter): causes of action accrued between 15 February 2021 and 30 June 2021 (all publications occurring on or after 1 July 2021 being deemed to have accrued on 15 February 2021) and hence the limitation period expired progressively in respect of those causes of action between 14 February 2022 and no later than 29 June 2022.
6 Mr Lehrmann submits the relevant amendments only apply “in relation to the publication of defamatory matter after the commencement of the amendment”: Sch 4, cl 7 of the Defamation Act 2005 (NSW) (Defamation Act); Sch 5, cl 11 of the Limitation Act. He further submits that in Barilaro v Google LLC [2022] FCA 650 (at [376]–[381]), Rares J construed these transitional provisions to mean that the amendments did not apply when publication occurred before the commencement date but remained available for download after commencement, and that the amendments applied only when the first publication occurred after commencement. But this is open to some doubt: Barilaro was concerned with the availability of defences that came into operation on 1 July 2021 to continuing publications first published prior to that date; it was not concerned with the application of the limitation period to such publications.
7 Following the relevant amendments, the limitation period remains one year but the test for extending the limitation period is different and now provides for an extension where the Court is satisfied that it is just and reasonable to do so. Despite this, all parties expressly submitted it was unnecessary for me to form a final view on the limitation effect of the transitional provisions.
8 I have organised the balance of my reasons dealing with the applications under the following headings:
B THE APPLICABLE TEST;
C THE EVIDENCE;
D THE MATTERS RELIED UPON BY MR LEHRMANN;
E EVIDENTIARY FINDINGS;
F THE OPPONENTS’ SUBMISSIONS;
G CONSIDERATION OF THE OPPONENTS’ SUBMISSIONS;
H EVALUATION;
I THE DISCRETION;
J ORDERS AND A FURTHER MATTER.
B THE APPLICABLE TEST
9 Consistently with his lawyers’ view as to when all causes of action accrued, Mr Lehrmann contended that the relevant test to extend the limitation period in relation to all pleaded causes of action is the “not reasonable test” applicable before s 56A of the Limitation Act was amended. The respondents understandably submitted they were “prepared to proceed on the basis that [Mr] Lehrmann’s submission is correct”. As it happens, the result does not turn on differences between the earlier and current test – the parties all expressly accepted that if Mr Lehrmann succeeds on the “not reasonable test”, he would satisfy the current test. The obverse would not necessarily have been the case (had Mr Lehrmann failed on the “not reasonable test” and the current test was to be applied), but for reasons unclear to me, those acting for Mr Lehrmann submitted it was unnecessary for me to consider this possibility. It follows the balance of these reasons will involve the elucidation and application of provisions which, to the extent they are of interest, will soon be of only historical interest.
B.1 General Principles
10 The earlier and relevant version of s 56A provided as follows:
56A Extension of limitation period by court
(1) A person claiming to have a cause of action for defamation may apply to the court for an order extending the limitation period for the cause of action.
(2) A court must, if satisfied that it was not reasonable in the circumstances for the plaintiff to have commenced an action in relation to the matter complained of within 1 year from the date of the publication, extend the limitation period mentioned in section 14B to a period of up to 3 years running from the date of publication.
(3) A court may not order the extension of the limitation period for a cause of action for defamation other than in the circumstances specified in subsection (2).
11 I summarised the relevant principles, in a way the parties accepted as being correct, in Landrey v Nine Network Australia Pty Ltd [2023] FCA 27 (at [8]–[9]):
8. … [Section] 56A requires the Court to engage in an evaluative (as opposed to discretionary) analysis. In Paule v McKay [(No 2) [2022] ACTSC 190; (2022) 18 ACTLR 135], McWilliam AsJ explained as follows (at 140–141 [21]–[22]):
21. The circumstances in which it will not have been reasonable to commence proceedings within the period cannot be exhaustively defined. They are likely to be “relatively unusual”, “special” or “compelling”… See also Barrett [v TCN Channel Nine Pty Ltd [2017] NSWCA 304; (2017) 96 NSWLR 478] at [70]–[71] per McColl JA, where her Honour explained that in recognition of the strict time limit and the public interest in the timely commencement of actions for defamation, too ready an acceptance of circumstances that are said to have made it unreasonable to sue within the year would undermine that public interest ...
22. The applicable principles that have emerged from the authorities are as follows:
(a) The statutory tests respectively require the Court to determine whether on an objective basis the reasons why the plaintiff did not commence the suit within time point to the conclusion that it was not reasonable to commence the action: [Pingel v Toowoomba Newspapers Pty Ltd [2010] QCA 175] at [115].
(b) What is meant by “on an objective basis” is that the circumstances are as they appear objectively to the court and not the circumstances which the plaintiff believed, however unreasonably, to exist: Barrett at [70] citing [Noonan v MacLennan [2010] QCA 50; (2010) 2 Qd R 537] at [20]. The focus must be on the individual circumstances of the case: Pingel at [42], and the plaintiff’s actual reasons are a vital part of the circumstances pertinent to whether it was reasonable or not to bring the proceedings within the nominated period: Carey v Australian Broadcasting Corporation [2010] NSWSC 709; 77 NSWLR 136 at [48].
(c) The burden of establishing that it was not reasonable to commence within the one-year period is on the plaintiff: [Barrett v TCN Channel Nine Pty Ltd [2017] NSWCA; (2017) 96 NSWLR 478] at [70], citing Noonan at [15], although a plaintiff does not have to account for every day or week in a limitation year: Noonan at [49].
9. A person in the position of Mr Landrey bears the burden of persuading the Court to the necessary state of satisfaction. In considering whether this burden has been discharged, the Court is required to examine the circumstances as they appear and consider what is reasonable in the context of the circumstances as found.
10. In Joukhador [v Network Ten Pty Ltd [2021] FCAFC 37; (2021) 283 FCR 1], the Full Court made an important point often overlooked in submissions made on applications of this type: the statutory task cannot be assayed at a level of abstraction. Observations made in other cases based on bespoke facts cannot be elevated to inflexible rules of general application: see also Pingel … (at [90] per Applegarth J). The focus must always be on the circumstances revealed by the evidence and the nature of the statutory test. As the Full Court noted (at 12 [51]):
A consideration of “the circumstances” includes the objective situation of the claimant. The question of what is not reasonable in the circumstances requires the court to evaluate all of the objective circumstances as a whole, not piecemeal. In the end, that evaluation is a question of fact, but the assessment proceeds by reference to the claimant’s position and whether, objectively, it would not have been reasonable for him or her, in light of all of the circumstances, to commence the proceeding within one year ...
12 In the present circumstances, it is worth expanding upon this summary in four respects: first, the importance of the claimant’s contemporary, subjective views and reasoning; secondly, how one deals with changing circumstances during the limitation period; thirdly, the true effect of the Full Court’s observations in Joukhador v Network Ten Pty Ltd [2021] FCAFC 37; (2021) 283 FCR 1 as to the “ordinary” position when criminal allegations are made; and fourthly, the operation of the discretion conferred by s 56A(2) of the Limitation Act.
B.2 Subjective Reasons and the Objective Exercise
13 There was some debate as to the relevance of a claimant’s subjective belief. This uncertainty seems to derive from decontextualised repetition of judicial statements to the effect that the Court is concerned with “the circumstances” as they appear objectively, and not as they appeared to the claimant: see Noonan v MacLennan [2010] QCA 50; (2010) 2 Qd R 537 (at 543 [20] per Keane JA, 550 [65] per Chesterman JA); Barrett v TCN Channel Nine Pty Ltd [2017] NSWCA; (2017) 96 NSWLR 478 (at 492 [70] per McColl JA).
14 It is important not to overcomplicate the nature of the task. In Carey v Australian Broadcasting Corporation [2010] NSWSC 709; (2010) 77 NSWLR 136 (at 145 [48]), McCallum J explained that in Noonan, Keane JA was not saying “that one removes from consideration what the [claimant] did and why”, but rather that the formulation “not reasonable in the circumstances” necessarily requires the Court to enquire into the claimant’s subjective reasons. Justice McCallum continued by accepting that (at 145 [48]):
to describe the test as an objective one means no more than that a person cannot bring himself or herself within the test by proving only a subjective belief that it was not reasonable to bring the proceedings. Otherwise, the test requires attention to the [claimant]’s actual reasons, as they are a vital part of the circumstances pertinent to whether it was reasonable or not to bring the proceedings within the nominated period.
15 Her Honour’s view was accepted on appeal by Beazley JA (with whom McColl JA and Sackville AJA agreed on this point): Carey v Australian Broadcasting Corporation [2012] NSWCA 176; (2012) 84 NSWLR 90 (at 101 [56]–[57]). It is also consistent with other authorities. In Joukhador, for example, the Full Court emphasised that the claimant did not feel capable of “fighting on any other front” until he had resolved the criminal charges against him (at 14 [63]). This fact, in combination with others, provided a “sufficient direct and inferential explanation for his decision not to take any action in defamation” (at 14 [63]).
16 Some submissions made by the respondents fastened upon the use of the word “vital” in the passage from Carey at first instance, as quoted above. But the statutory text demands that the evaluation be conducted by reference to “the circumstances”, that is, all the ascertainable and relevant facts that make up “the circumstances” in each case. The state of mind and reasoning processes of the claimant are part of the ascertainable relevant facts to be considered in reaching the conclusion as to whether the necessary state of satisfaction has been reached by the Court. The reason or reasons why a decision was made by a claimant is, after all, a question of objective fact (and as Bowen LJ famously said, “the state of a man’s mind is as much a fact as the state of his digestion”: Edgington v Fitzmaurice [1885] 29 Ch D 459 (at 483)).
B.3 “Not Reasonable” and the Entire Limitation Period
17 An issue arose as to the proper approach where differing circumstances pertain to different times within the limitation period.
18 Those acting for the respondents and Ms Wilkinson (collectively, the opponents) directed attention to the following passage from the reasons of Fryberg J in Pingel v Toowoomba Newspapers Pty Ltd [2010] QCA 175 (at [52]), explaining Noonan (at 547 [49] per Chesterman JA):
In Noonan v McLennan, Chesterman JA approved a dictum of Noud DCJ at first instance to the effect that an applicant does not have to account for every day or week in the limitation year. With respect, I agree. However the applicant’s evidence must at least in broad terms deal with the whole of the year and must demonstrate why there was no significant period in which it would have been reasonable to have commenced an action. A would-be litigant who could reasonably commence an action postpones doing so at his or her own peril. If supervening events make it difficult or unreasonable to do so at a later time, they will not be sufficient to satisfy the requirements of the subsection.
19 Relying upon this dictum, it was asserted Mr Lehrmann’s evidence must establish there was “no significant period” in which it would have been reasonable to have commenced. The evidence did not do so because even if it was not reasonable for Mr Lehrmann to commence following the criminal charge in August 2021, there was no such impediment to Mr Lehrmann commencing in the first six months of the limitation period.
20 This approach distorts the task at hand. Section 56A(2) requires the Court to extend if satisfied that it was not reasonable in the circumstances for the claimant to have commenced “within 1 year from the date of the publication” (emphasis added).
21 In contrast to most torts, which generally have a six-year limitation period, in New South Wales, since 2002, the legislature has reduced the time for bringing a defamation case to one year. This truncated period was first introduced as part of a suite of amendments to facilitate the new statutory objectives of the Defamation Act 1974 (NSW) being, among other things, to promote the resolution of defamation proceedings “in a timely manner” but also, importantly, to promote “speedy and non-litigious methods of resolving disputes”: see s 3(d). This limitation period was mirrored in the uniform legislation passed in 2005. Also mirrored nationally were means to achieve speedy non-curial resolution including the mechanism in Pt 3 Div 1 allowing a concerns notice to be issued to the publisher of the alleged defamatory material, with the publisher then having 28 days to make an offer to make amends. Further, for matters proposed to be commenced in this or another federal court, the availability of prompt modes of dispute resolution complements the objective in s 3 of the Civil Dispute Resolution Act 2011 (Cth) (CDR Act) “to ensure that, as far as possible, people take genuine steps to resolve disputes before certain civil proceedings are instituted”.
22 A tight limitation period applies, but it is an entire year. This is a period during which a claimant is allowed, and would be expected, to: reflect and consider maturely whether the proposed litigation is able to be resolved without litigation; consider whether the cost of litigation would be proportionate to the extent of perceived damage; conduct necessary enquiries as to the identity of the respondent or respondents; and decide whether there is sufficient material to decide to litigate. Finally, if litigation is to be commenced, there is a need to ensure sufficient material is available to the person settling the claim to provide a proper basis for any allegations proposed to be made. But more generally, the period of a year also allows a potential litigant time to see how things go. Was the damage as bad as first imagined? Will I let sleeping dogs lie or risk stirring up the controversy by suing? A claimant is entitled to reflect upon what might be a life-changing decision bringing stress and potential adverse financial consequences.
23 The statutory task is holistic, involving an evaluation of all relevant facts or “the circumstances” that existed within one year of the date of the publication. Apart from being a gloss on the text of s 56A(2), viewed contextually and realistically, the suggestion that a claimant has some form of positive obligation to commence proceedings at the first possible opportunity, or in one period over another within the time set by the legislature, is unsustainable.
24 Having said this, the fact that it may have been reasonable to commence for a significant period within time is, of course, material and could well be determinative, but the existence of this fact alone is not necessarily fatal depending upon the whole of the circumstances. One can imagine an unexpected and catastrophic event occurring towards the end of a limitation period which might for the first time make it not reasonable for a claimant to commence proceedings. Depending upon a consideration of the whole of the circumstances, it may be that a person who did not commence proceedings because of such an unanticipated event could nevertheless satisfy the statutory test.
25 The above is just another way of saying what Chesterman JA said in Noonan (at 547 [49]) that a claimant “does not have to account for every day or week in the limitation year” but rather must “satisfy the court that it was not reasonable in the circumstances to have commenced an action within the limitation period”.
B.4 Criminal Allegations and the “Ordinary” Position
26 In Joukhador, Rares, Wigney and Bromwich JJ remarked (at 12 [52]) that where a person is facing a criminal charge, and the impugned matter raises questions about the person’s guilt or innocence, the “ordinary” position is that it will not be reasonable to commence defamation proceedings. This is because if the civil proceedings could realistically expose the claimant to forensic examination of matters bearing upon his guilt or innocence, it may prejudice the claimant’s defence of the criminal charge (at 12 [52]).
27 The legislative intention in the Limitation Act was not to require a claimant to commence a defamation action within one year at all costs. Parliament would have been cognisant of the common law presumption of innocence and the strain that the institution of civil proceedings places upon individuals whose liberty is at stake, including the requirement, among other things, to give discovery, articulate one’s case and give evidence: Joukhador (at 13 [57]).
28 Ms Wilkinson’s senior counsel submitted that if what the Full Court observed is to be a statement of the default position where a person is facing criminal allegations, it is not only wrong in law, but also flies in the face of experience.
29 But this puts the matter too highly. As I noted in Landrey, the considered observations of the Full Court will be highly relevant to the disposition of applications of this kind (at [14]). With that said, to transpose observations made in one case uncritically and apply them inflexibly to another set of circumstances would amount to error. The Full Court did not say that the mere incidence of extant criminal allegations or proceedings is determinative; all the relevant circumstances fall to be considered: Joukhador (at 13 [59]).
B.5 The Discretion as to the Extension
30 As is no doubt already evident, once the Court has reached the required state of satisfaction that it was not reasonable in the circumstances for the claimant to have commenced within one year, the Court must extend the time. But the Court retains a discretion as to the period of the extension granted: Landrey (at [6]); see also Casley v Australian Broadcasting Corporation [2013] VSC 251 (at [39]–[41] per Beach J).
31 The discretion conferred by s 56A(2) to extend the limitation period has been described as “unfettered”, but I would prefer not to use that word. The discretion is broad but is not at large. It is confined by the duty to act judicially and by the scope and purposes of the Limitation Act, and confined in the sense no extension can exceed three years. The discretion also falls to be exercised in the context of the legislative policy encouraging the prompt resolution of defamation disputes including, importantly, a confined limitation period (as discussed at [21] above).
C THE EVIDENCE
C.1 The Unusual Course of the Evidence in Chief
32 The course that unfolded as to the evidence adduced by Mr Lehrmann in support of the applications was, to use a neutral word, unwonted. To the extent it is possible to explain what occurred, it is worth doing so in a little detail.
33 The hearing of these applications was fixed at the earliest opportunity. This course was consistent with facilitating the just resolution of these disputes according to law and as quickly, inexpensively, and efficiently as possible: see s 37M of the Federal Court of Australia Act 1976 (Cth) (FCA Act). Further, unlike some other contexts where limitation defences can give rise to issues for determination likely to overlap with issues at trial (such as when a claimant first suffered damage), the oft-noted dangers of separate determination of limitation issues do not presently loom.
34 As is commonly the case, the affidavit evidence in support of the extension was by a solicitor on information and belief. It is to state the obvious to remark that at a final hearing, such evidence would be excluded by the general hearsay rule in s 59 of the EA, but the exception in s 75 provides that the hearsay rule does not apply in interlocutory proceedings “if the party who adduces it also adduces evidence of its source”.
35 Depending upon the facts in issue on the interlocutory application, and whether the making of a relevant representation is bona fide in dispute, the adduction of hearsay evidence of a representation can conceivably occasion unfairness. Any such unfairness, of course, can be remedied, in an appropriate case, in at least three ways: first, by discretionary exclusion under Pt 3.11 of the EA on the basis, for example, that the probative value of the relevant representation is substantially outweighed by the danger that the evidence might be unfairly prejudicial to the respondent (see s 135(a)); secondly, by discretionary limitation under Pt 3.11 of the EA if there is a danger the representation would be unfairly used to prove the truth of the disputed out of court representation (see s 136(a)); or thirdly, by making a reasonable request under Pt 4.6 of the EA for the purpose of determining a question that relates to a representation by requesting the claimant to call as a witness the person who made the representation (see s 166(f)).
36 As to the third of these potential responses, the opponents made what they asserted were reasonable requests to call Mr Lehrmann, and, in the case of Ms Wilkinson, to call Mr Lehrmann’s former solicitor, Mr Warwick (“Rick”) Korn. In support of the requests, the opponents referred to Joukhador (at 14 [62]) where the Full Court rejected a submission that the respondent in that case was deprived “of the opportunity to test the evidence” of the claimant’s circumstances because of hearsay evidence. In doing so, the Full Court observed a request could have been made to the claimant to call himself and, if the claimant refused without reasonable cause, an order could have been made under s 169(1) of the EA to order the claimant be called as a witness or exclude the evidence the subject of the request. Rather than relying on s 166(f), the requests of the opponents were initially made by reference to ss 166(c) and (d). This is unsurprising, as there is evidently a slip in the reasons of the Full Court as ss 166(c) and (d) were referenced in Joukhador (which are directed to requests made in relation to documents or things, usually business records) and not to s 166(f), which relates to previous representations more generally. But the larger point made by the Full Court, as to the ability to make a reasonable request, was appropriately relied upon by the opponents as a way of ameliorating the perceived unfairness of controversial hearsay evidence being contained in the solicitor’s affidavits.
37 A difficulty was that the requests were not made in an orthodox form. It is fundamental to appreciate that s 166(f) provides for a request made to another party “in relation to evidence of a previous representation”. Hence, there are three requirements under s 167(a): first, there must be a request; secondly, the request must be reasonable; and thirdly, the reasonable request must be made “for the purpose of determining a question that relates to” a previous representation: Kirby v Centro Properties Ltd (No 3) [2012] FCA 221; (2012) 289 ALR 321 (at 323 [6] per Gordon J). The need to specify the relevant representation or representations with precision (which the Dictionary to the EA defines as “a representation made otherwise than in the course of giving evidence in the proceeding in which evidence of the representation is sought to be adduced”) is basal. Part of the reason is because assessing whether the request was “reasonable” involves assessing whether there is some rational basis to contest the accuracy of the representation or the evidence upon which it was based; it is also critical because s 169, entitled “Failure or refusal to comply with requests”, outlines what the Court may do if a party has, without reasonable cause, failed or refused to comply with a request, including making an order that the evidence in relation to which the request was made (that is, the representation) not be admitted in evidence (ss 169(1)(c), 169(3)).
38 I commenced the hearing by specifically asking Mr Whybrow SC, then appearing for Mr Lehrmann, to identify all the evidence proposed to be relied upon in chief with precision. He referred only to the affidavits sworn by Mr Lehrmann’s solicitor, Mr Paul Svilans and some business records. At my request, some specificity was then provided by the opponents as to the representations in the affidavits the subject of the requests, and then very lengthy debate ensued, in the context of objections to Mr Svilans’ affidavits, about the reasonableness of the requests, and about what orders should be made if I concluded the refusal to comply with the requests was unreasonable. Both prior to and during these exchanges, I expressed a preliminary view that I would not be disposed to make an order that any witness be called (particularly Mr Lehrmann), and the appropriate way of dealing with any proven unfairness would be the exclusion from evidence of representations bona fide in dispute (that is, disputed on an apparently cogent basis). I received evidence on the voir dire to assist in ascertaining the existence of any such dispute.
39 But to my surprise, and to the evident bewilderment of those acting for the opponents, a forensic volte-face then took place: Mr Whybrow announced he was calling Mr Korn and foreshadowed a deferral of the hearing because Mr Korn was apparently detained in a court at Lidcombe. An adjournment took place to confirm instructions, and arrangements were made, in consultation with counsel, for an extra hearing day to be secured to accommodate Mr Korn. Arguments as to hearsay evaporated because direct evidence of the controversial representations was to be called.
40 The proposed adjournment was opposed, and the spectre of an adverse costs order was raised, but prior to dealing with the adjournment, the position of Mr Lehrmann changed yet again. Mr Whybrow now advised that he would, after all, call Mr Lehrmann. Again, it followed from this belated forensic choice that the time spent hearing detailed arguments as to the admissibility of the controversial hearsay evidence had been a waste of time.
41 In any event, after this toing and froing, Mr Lehrmann gave evidence in chief, was extensively cross-examined, and was then re-examined. The first day of the hearing then concluded. The only other evidence tendered by senior counsel for Mr Lehrmann was a range of SMS and instant messages.
42 That left Mr Korn. Despite earlier indications to the contrary, after receiving further instructions, Mr Whybrow foreshadowed that Mr Korn would not be called when the matter was to resume, part-heard, on 23 March 2023.
43 Given senior counsel’s position on adducing evidence in chief had moved around like mercury on a plate, I wished to obtain some clarity as to the balance of the evidence that would be called prior to the resumed hearing. Mr Whybrow did not oppose an order requiring any affidavit from Mr Korn to be filed by 5pm on 21 March 2023. Mr Lehrmann’s solicitors confirmed on that day that Mr Korn would not be called.
44 When Mr Richardson SC appeared for Mr Lehrmann for the first time on 23 March 2023, he proceeded to tender an additional document and closed his client’s case in chief.
C.2 The Additional Evidence and Evidentiary Record Generally
45 The opponents adduced affidavit evidence without objection, mostly exhibiting contemporaneous materials, being the affidavit of Ms Marlia Saunders affirmed 10 March 2023 and the affidavit of Mr Anthony Jefferies sworn 10 March 2023. Some other documents were tendered by Ms Wilkinson (including a statement of claim in an unrelated proceeding). There was no case in reply.
46 I will come to the findings I make on the basis of the evidence below. But first, in order to understand the relevance of the findings, it is worth briefly identifying the bases upon which Mr Lehrmann brings these applications.
D THE MATTERS RELIED UPON BY MR LEHRMANN
47 Mr Lehrmann initially contended it was not reasonable for him to have commenced proceedings in the year following publication for three reasons: first, in the light of advice he was given to wait until criminal allegations against him had been resolved; secondly, the overlap between the subject matter of the criminal charges and the substance of the defamatory imputations; and thirdly, the strain of the allegations and related medical issues.
48 This position was refined somewhat when Mr Richardson SC appeared.
49 Mr Richardson submitted first, that the laying of criminal charges in August 2021, just prior to the six-month mark from the date of the publications, is enough for Mr Lehrmann to establish the statutory threshold under s 56A. It was said that the mere circumstance of the possibility of a conviction is enough to entitle an applicant to the benefit of an extension: Joukhador (at 12–13 [56]). The prospect of a conviction is especially significant in a case such as this, where the overlap between the defamation case and the criminal trial is “profound”.
50 Secondly, even if the earlier period preceding charges is relevant, Mr Lehrmann relied upon the criminal law advice of Mr Korn and the sense of that advice was obvious. Further, it was said that voluntarily participating in an AFP interview and assisting with an ongoing investigation did not entail some ongoing waiver of the right to silence.
E EVIDENTIARY FINDINGS
51 It is prudent to avoid factual and credit findings unnecessary to the disposition of these applications. Notwithstanding all senior counsel for the opponents cross-examined Mr Lehrmann, they (mostly) resisted the temptation to stray beyond legitimate topics for cross-examination on the applications.
52 It is worth dividing this section of these reasons in three by first, stating briefly the principles relating to fact finding of importance to this case; secondly, making several uncontroversial factual findings; and thirdly, turning to the four broad topics of factual disputation that assumed significance.
E.1 Relevant Principles
53 At the risk of stating the obvious, my ultimate task is evaluating whether I am satisfied it “was not reasonable in the circumstances” for Mr Lehrmann to have commenced proceedings “within [one] year from the date of the publication”. In making adjectival findings of fact relevant to this evaluation, I am required to be satisfied of the existence of the relevant fact on the balance of probabilities. In this case, this largely involves finding primary facts, but also includes findings of secondary facts based on inferences from primary facts, any inferences that should be drawn from the absence of evidence, and impressions obtained from the hearing of the limited oral evidence. In the process of fact finding, two matters assumed particular importance in the submissions of the opponents.
54 The first is the patent inconsistency between the oral evidence of Mr Lehrmann and some contemporaneous representations he made on the evening of 15 February 2021. In Transport Workers’ Union of Australia v Qantas Airways Limited [2021] FCA 873; (2021) 308 IR 244 (at 251–253 [16]–[23]), I explained that what usually matters most in fact finding is the proper construction of contemporaneous documents as may exist, and the probabilities that can be divined from those documents and any other objective facts. But, as I then noted, the approach of giving great weight to contemporaneous representations, at least in part, has an unstated assumption: that is, that the contemporaneous documents emerged guilelessly and were the unvarnished product of dealings between those communicating. I further explained that the confidence that can be placed in the narrative emerging from the contemporaneous record is increased when the relevant documents can be seen as the unfiltered and sufficiently complete record of what people were thinking and doing in “real time”.
55 In the end, the weight to be given to the contemporaneous representations of Mr Lehrmann necessarily involves consideration of, among other things, their consistency with other evidence, the undisputed facts and the inherent probability or improbability of the evidence: see generally in this regard, Sir Richard Eggleston’s work, Evidence, Proof and Probability (Weidenfeld and Nicolson, London, 1978) (at 155–157).
56 The second matter that assumed importance was the unexplained failure of Mr Lehrmann to call Mr Korn as a witness and whether this should lead to an inference that the uncalled evidence would not have assisted Mr Lehrmann, that is, the present applicability of the “rule” in Jones v Dunkel (1959) 101 CLR 298 (at 320–321 per Windeyer J).
57 I have explained the basis and content of the rule at length elsewhere: see, for example, Quintis Ltd (Subject to Deed of Company Arrangement) v Certain Underwriters at Lloyd’s London Subscribing to Policy Number B0507N16FA15350 [2021] FCA 19; (2019) 385 ALR 639 (at 702–703 [251]–[257]). There is no reason why the rule in Jones v Dunkel cannot be applied in an interlocutory proceeding in which facts are required to be found: see Bray v F Hoffman-La Roche Ltd [2002] FCA 243; (2002) 118 FCR 1 (at 41 [128] per Merkel J). This view is consistent with the observation of Mansfield and Gilmour JJ in Ashby v Slipper [2014] FCAFC 15; (2014) 219 FCR 332 (at 344 [62]), that where an interlocutory application requires the moving party to demonstrate the elements of a contention, inferences, being affirmative conclusions from circumstances otherwise proved in evidence, are part of the process by which the Court determines whether it has been persuaded.
58 It is worth noting, however, that the rule does not operate to require a party to give merely cumulative or corroborative evidence: SAMM Property Holdings Pty Ltd v Shaye Properties Pty Ltd [2017] NSWCA 132; (2017) 345 ALR 633 (at 666 [163] per Gleeson JA). This is a qualification on the rule and its scope is best understood with reference to a line of authorities from the United States (see Gafford v Trans-Texas Airways 299 F 2d 60 (1962); Ballard v Lumbermens Mutual Casualty Co 148 NW 2d 65 (1967); Strickland Transp Co v Douglas, 37 Tenn App 421, 264 SW 2d 233) surveyed by Campbell J (with whom Beazley JA and Pearlman AJA agreed) in Manly Council v Byrne [2004] NSWCA 123 (at [61]–[66]). A relevant factor in considering whether an adverse inference ought to be drawn is to consider the importance or “superiority” of the missing testimony as compared with what is already before the Court: see also Wigmore J, Evidence in Trials at Common Law (3rd ed, rev J Chadbourn, Little Brown, 1978) Vol 2, § 287.
59 Mr Richardson sensibly did not dispute it would be appropriate to draw a Jones v Dunkel inference given: (1) the importance of the advice; (2) Mr Lehrmann’s express waiver of privilege in the relevant communications constituting the advice; (3) the fact a request had been made pursuant s 167 of the EA that Mr Korn be called; (4) the reality that Mr Korn was a solicitor and the person giving the asserted advice; and (5) the fact that his predecessor senior counsel had notified the Court he was going to call Mr Korn (before back flipping upon instructions without explanation). No doubt in making this concession Mr Richardson recognised that any such inference does not convert conjecture into suspicion and its importance needs to be considered in the light of all the relevant evidence considered below. Further, the application of the rule in Jones v Dunkel in the present case is not to infer that the uncalled evidence of Mr Korn would have been adverse to Mr Lehrmann, but rather that it would not have assisted him: Kuhl v Zurich Financial Services Australia Ltd [2011] HCA 11; (2011) 243 CLR 361 (at 384–385 [63]–[64] per Heydon, Crennan and Bell JJ).
E.2 Uncontroversial Findings
60 Several aspects of the evidence are either unchallenged or sufficiently plain to be beyond real contention. The findings based upon this evidence can be recorded as follows.
Events of 15 February 2021
61 Mr Lehrmann became aware of the first article authored by Ms Maiden and the forthcoming television programme aired on Network Ten (an episode of The Project) during the course of the day on 15 February.
62 At 11:29am, a friend of Mr Lehrmann, Mr Harry Hughes, sent Mr Lehrmann a message with a hyperlink to the article titled “Young staffer Brittany Higgins says she was raped at Parliament House” (the first matter in the News Proceeding) asking, “Know this chick?”, to which Mr Lehrmann replied at 11:39am: “Yeah worked with her briefly. Was at team drinks etc”. Around 12:40–12:45pm, Mr Lehrmann engaged in an exchange with another friend, Mr John Macgowan, to similar effect, including a message from Mr Macgowan asking whether Mr Lehrmann had any “[gossip] on who the Canberra rape guy is”, to which Mr Lehrmann replied, “No idea mate in the slightest”, “I haven’t been approached”, and “I haven’t had any approaches despite being around then”.
63 It is unnecessary to make a finding about precisely when on the day Mr Lehrmann knew the allegations in the article were about him, but upon this realisation, Mr Lehrmann was outraged, and his first thought was of the possibility of bringing defamation proceedings against the author.
64 At approximately 2pm, Mr Lehrmann was for the first time informed that “government sources” were identifying him as the man accused of sexually assaulting Ms Brittany Higgins. His work supervisor, Mr Joshua Fett, informed Mr Lehrmann that Ms Rosie Lewis, a journalist at The Australian, had emailed Mr Fett to this effect. Mr Lehrmann does not have a copy of the email from Ms Lewis to Mr Fett, as Mr Fett forwarded it to Mr Lehrmann’s work email address, to which he no longer has access. Mr Lehrmann was immediately suspended from his employment on fully paid leave, pending an internal review.
65 In response to being informed he was the subject of a criminal investigation, Mr Lehrmann immediately “reached out to Mr Hughes to seek criminal legal advice”: T72.39.
66 After several communications, and shortly before 4pm, Mr Hughes and Mr Macgowan ascertained the availability of a criminal solicitor, being Mr Korn, and provided his contact details to Mr Lehrmann. Mr Macgowan sent a message to Mr Lehrmann at 3:46pm stating, “[Mr Hughes] knows a guy, Rick [K]orn, best of the best, he’s done this stuff before … going to send you a number he’s expecting a call”, and at 3:47pm, Mr Hughes sent two messages to Mr Lehrmann stating, “I have spoken to John. A very close friend of mine is a specialist in these matters, Rick Korn ... I’ve just spoken to Rick and hes [sic] expecting your call ASAP – he needs you to call him right this second as theyre [sic] is the whole issue of her going on The Project tonight”, and “you need to call him right now mate”.
67 Mr Lehrmann and Mr Korn spoke on the phone for a couple of minutes at about 4pm, following which Mr Lehrmann sent a message to Mr Hughes stating, “Heading to him now mate, he’s cleared his arvo for me”.
68 Mr Korn did more than clear his afternoon. Mr Lehrmann attended Mr Korn’s office and remained there for somewhere between six and eight hours, including for the duration of the airing of The Project, which Messrs Lehrmann and Korn watched together. The only extant contemporaneous record of what passed between Mr Korn and Mr Lehrmann is the messages sent and received by Mr Lehrmann while he was in Mr Korn’s office. The veracity of those communications is hotly contested and will be returned to below, but it is well to record some of the notable messages sent by Mr Lehrmann:
(1) to his then girlfriend, Ms Greta Sinclair, from 5:56pm to 7:39pm: “I’m still with Warwick Korn who has accepted to be my lawyer”; “He’s very good”; “You can Google him he seems good”; “Doesn’t want any money”; “Reckons defamation is a definite”; “If I am named tonight he says I’m up for millions as defamation”; “Warwick doesn’t think I will be named”; “If I am then he [sic] Channel 10 as well as the government/department are up for a lot of money”; and “I am a pawn Rick says as part of a bigger political hatchet job”;
(2) to Ms Sinclair from 8:55pm to 9:00pm, following the broadcast of The Project: “I’m just getting reassurances”; “Criminal he says is off the cards completely”; “One its false and second they have nothing”; “But we [have] civil”; “But I want to know if someone calls me I refer them to Rick” and “And he said tonight I won’t see the light of a courtroom this is outrageous”; and
(3) to Ms Tahlia Robertson, a friend who was at the time a lobbyist employed by Barton Deakin: “I’ve got two lawyers now” – “criminal” and “who say it’s joy [sic] his realm yet” (he subsequently clarifies that he meant “not”), “And another who’s says [sic] I’m up for a “bit” of money”; “He said I’m clear from criminal completely”; “I’ve got criminal and a defamation”; “Retained formerly” (which Mr Lehrmann accepted was intended to read “retained formally”: T101.45–46); and “I won’t be going to prison and we have 2 lined up for civil”.
69 Shortly after 10pm, Mr Lehrmann read the article published by Ms Maiden entitled “Parliament House alleged rape: How Brittany Higgins horror night unfolded” (the second impugned matter in the News Proceeding).
Late February to May 2021
70 Mr Lehrmann was admitted to Royal North Shore Hospital (RNSH) on 16 February. Medical records detail that Mr Lehrmann experienced suicidal ideations and required half-hourly observations throughout the night and into the next morning.
71 The following day, RNSH’s Psychiatry Registrar sent a referral for Mr Lehrmann to the Northside Clinic, where he admitted himself on 18 February for a planned 21-day mental health admission (although, as it happened, he was discharged 12 days later).
72 On 18 February, the AFP issued a public statement confirming that there was an “open investigation” into the allegations.
73 In early March, Mr Lehrmann’s mother arranged to relocate him from Sydney to live with her in Queensland. The documentary evidence confirms Mr Lehrmann commenced treatment with a psychologist from at least late March, which continued until at least June.
74 In mid-March, Mr Lehrmann began keeping what he described as the “Higgins matter blue notebook” in which he recorded notes about, among other things, the allegations made by Ms Higgins.
75 On 22 March, the AFP Commissioner issued another public statement announcing that he had advised Mr Phil Gaetjens (Department of Prime Minister & Cabinet) (PMC) to stop conducting interviews until the AFP could determine whether the criminal allegations would traverse matters covered by the PMC investigation.
76 On 7 April, the AFP announced that a team of five officers had been assembled to investigate Ms Higgins’ allegations.
77 In or about mid-April, Mr Lehrmann received a telephone call from his mother informing him that the AFP had attended her home and indicated they would like to speak with him about the allegations made by Ms Higgins.
78 A day or two later, Mr Lehrmann received a call from Detective Inspector Marcus Boorman, the lead officer, who confirmed the AFP wished to speak with him. Mr Lehrmann informed Detective Inspector Boorman that he had been advised not to speak with anyone at this stage, and that he would have Mr John Korn, a barrister and father of Mr Warwick Korn, contact him as soon as possible.
79 Mr Lehrmann spoke with the Messrs Korn concerning the phone call from the AFP.
80 On 19 April, Mr Lehrmann voluntarily attended an interview with the AFP and provided the entirety of the contents of his mobile phone to the police who had obtained a warrant for its seizure. Mr Lehrmann voluntarily provided his personal bank statements and a hand-drawn plan of a ministerial suite to the AFP. Mr John Korn attended police premises with Mr Lehrmann but did not attend the interview.
81 On 24 May, the AFP Commissioner stated that a brief of evidence was to be provided to the DPP imminently.
June 2021
82 Mr Lehrmann’s employer terminated his employment in late June following an internal review process, which had been delayed and extended because of Mr Lehrmann requiring medical treatment and a period of medical leave. The company had earlier contacted Mr Lehrmann requesting medical records (as Mr Lehrmann had not provided them with documentation since February). Mr Lehrmann responded providing correspondence from his treating general practitioner and psychologist; the former noted that Mr Lehrmann was “currently being treated for a condition that precludes him to return to normal function” but he was “capable of working in an alternate environment, including remotely”, and the latter expressed support for Mr Lehrmann as being “fit to return to normal work”, recommending “a gradual return to normal duties”.
August 2021 and following
83 On 6 August, news.com.au published an article written by Ms Maiden entitled “Alleged Brittany Higgins attacker denies the allegations”. The article refers to a statement made by Mr John Korn that Mr Lehrmann “absolutely and unequivocally denies that any form of sexual activity took place at all” and would “defend the charge”.
84 On 7 August, Mr Lehrmann was charged with one count of sexual intercourse without consent. On the same day, he was publicly identified by the mass media as the person accused by Ms Higgins.
85 The criminal proceeding instituted against Mr Lehrmann was listed for mention in the Australian Capital Territory Magistrate’s Court on 16 September. Mr Warwick Korn appeared on behalf of Mr Lehrmann and informed the Court that Mr Lehrmann would plead not guilty.
Later period and following the expiration of the limitation period
86 Although my focus must be on the circumstances within the one-year limitation period in considering the relevant test, if an entitlement to an extension is established, the question of discretion as to the length of the extension arises. In this context it is appropriate to make some post-expiry factual findings.
87 Both prior to expiry and afterwards there was extensive media reporting and public commentary by prominent personalities about the allegations made against Mr Lehrmann: R v Lehrmann (No 3) [2022] ACTSC 145; (2022) 369 FLR 458 (at 459 [2] per McCallum CJ). On 18 March 2022, Mr Lehrmann filed an application in the Supreme Court of the Australian Capital Territory for a permanent stay of the prosecution and, in the alternative, an order postponing or delaying the trial. He also sought (highly unorthodox) orders requiring various media entities “un-named and not joined as respondents to the application” to “take down any such material they have published or caused to be published” and restraining “any media outlet from publishing any material of and concerning [Mr Lehrmann and/or Ms Higgins] that relates to or refers to directly or indirectly the present criminal proceedings or any part of the subject matter to which those proceedings relate”: see R v Lehrmann (No 2) [2022] ACTSC 92 (at [4]–[5] per McCallum CJ). These applications were refused on 29 April 2022.
88 The trial was listed to commence on 27 June 2022 and Mr John Korn was retained as counsel. In about May, Mr John Korn suffered a medical episode and Mr Lehrmann engaged different counsel and a new firm of solicitors.
89 At the “Logie Awards” ceremony on 19 June, Ms Wilkinson gave a speech concerning her interview of Ms Higgins on The Project. The speech was broadcast on national television and was the subject of extensive further public commentary. The speech was delivered notwithstanding the criminal trial was set to commence eight days later and the fact that Ms Wilkinson “may be taken to be aware that she [was proposed] to be called as a Crown witness”: R v Lehrmann (No 3) (at 461 [19] per McCallum CJ). A further application was then made for a temporary stay of the trial. The Chief Justice noted (at 459 [2]) that the case against Mr Lehrmann had attracted a level of attention that was “certainly extreme”.
90 The trial, delayed upon the order of the Chief Justice, commenced before her Honour and a jury in early October 2022. Mr Lehrmann did not give evidence. The jury was discharged following juror misconduct during deliberations in late October.
91 The DPP foreshadowed a second trial in early 2023, before later taking the step of announcing at a press conference on 2 December 2022 that the Crown would no longer be proceeding. A Notice Declining to Proceed was filed, bringing the prosecution of Mr Lehrmann to an end.
92 Mr Lehrmann first met with representatives from the firm of solicitors representing him in the present proceedings, Mark O’Brien Legal (MOBL), on 12 December 2022. On 16 December, MOBL sent letters of demand to the producer of The Project, Network Ten, News Life and Ms Maiden.
93 Ms Wilkinson was not sent a letter of demand or concerns notice. She was informed of the letter received by Network Ten on 16 December but was told it did not directly concern her and Network Ten did not seek instructions from Ms Wilkinson in relation to the letter or any response to it.
94 The solicitors for Network Ten and the respondents in the News Proceeding sought extensions of time to respond to the letters. Mr Lehrmann agreed to extend the time for a response to 20 January 2023, conditional upon each of the respondents not relying upon that extension in any opposition to an extension of the limitation period.
95 On 20 January, the solicitors for Network Ten, News Life and Ms Maiden informed Mr Lehrmann’s solicitors they had rejected the settlement offer in the letter, and no offers of amends were made.
96 On 7 February, Mr Lehrmann instituted the present proceedings. Ms Wilkinson did not have notice of any defamation action against her by Mr Lehrmann until 12:50pm the following day.
E.3 Evidentiary Findings on Contested Issues
97 Significant controversy exists as to several evidentiary matters that can be broadly grouped into the following three topics or issues:
(1) the content of any advice given to Mr Lehrmann on 15 February 2021 and, in particular, whether advice was given by Mr Warwick Korn to Mr Lehrmann on that date that he should not commence any defamation proceedings until any criminal allegations against him were resolved and whether he obtained any other advice from another practitioner (15 February Issue);
(2) the fact and content of any other advice as to proposed defamation proceedings given by Mr Warwick Korn during the limitation period (Subsequent Advice Issue); and
(3) (less importantly) whether there were financial impediments to Mr Lehrmann commencing defamation proceedings (Financial Issue).
98 I will deal with each of these matters in turn, but I will initially deal with the submission that there was no evidence in chief adduced that Mr Lehrmann was aware of the progressive announcements by the AFP throughout March, April, and May as to the conduct of the investigation into the allegations. Although literally correct, this was an unrealistic submission. Inferences to be drawn from a failure to address a matter in evidence in chief (as explained by Handley JA in Commercial Union Assurance Co of Aus Ltd v Ferrcom Pty Ltd (1991) 22 NSWLR 389 (at 418–419)) must only be applied in a way that accords with an understanding of ordinary human experience and common sense. The notion that it was more likely than not that Mr Lehrmann was unaware of any information that was publicly obtainable as to the course of the AFP investigation (and presumably uninterested in finding out), when he was at the centre of a maelstrom and sufficiently concerned to have engaged legal representation as to the criminal allegations is, to put it mildly, farfetched.
15 February Issue
99 As noted above, the opponents submit that the contemporaneous SMS and instant messages disclose representations by Mr Lehrmann that he retained another solicitor for the purposes of obtaining defamation advice. It is said that Mr Lehrmann had been informed that any allegations would not materialise into criminal charges and that he had an actionable defamation claim, which would sound in substantial damages. The SMS and instant messages suggest no legal advice was given to the effect that Mr Lehrmann should defer defamation proceedings.
100 The opponents contend this conclusion is supported by the following: (1) Mr Lehrmann’s difficulty in recollecting events, and the implausibility of him fabricating information as to the legal advice he received given his closeness with Ms Sinclair and Ms Robertson; (2) it is said that upon Mr Lehrmann reading Ms Maiden’s first article, and viewed in the light of his messages to Mr Macgowan (whom he referred to elsewhere as “Media John”), it is probable that Mr Lehrmann was focussed upon its alleged defamatory nature; (3) as Ms Wilkinson submits, Mr Lehrmann admitted in cross-examination that he intended to sue Ms Wilkinson in defamation from when he first watched the programme; (4) it is improbable that Mr Lehrmann fabricated the existence of a defamation lawyer simply to put on a “brave face” for Ms Robertson, and that the more probable inference is that Mr Robertson or Mr Macgowan put Mr Lehrmann in touch with a solicitor specialising in defamation, and the messages faithfully record the advice Mr Lehrmann received; and (5) Mr Lehrmann’s subsequent conduct is inconsistent with the alleged advice, particularly in the light of the extracts from the “Higgins matter blue notebook” in which he recorded, among other things, the name “Wilkinson” (connected with dashes to the names of high-profile defamation claimants “Jarrett [sic]” (Mr John Jarratt) and “Rush” (Mr Geoffrey Rush)) and the names of various journalists who had authored articles Mr Lehrmann was “outraged at”: T113.40–114.5.
101 Despite the vigour with which they were advanced, there was a decided air of unreality about all these submissions.
102 It is evident that Mr Lehrmann urgently saw Mr Korn because he perceived he needed a solicitor specialising in criminal work. This is unremarkable given he had received information that day, via an apparently reliable source, that he was the subject of serious criminal allegations, and he knew the media were interested in the incident.
103 There are a number of aspects of what went on between Mr Lehrmann and Mr Korn in their marathon conference, apparently lubricated by whiskey and punctuated by Mr Lehrmann’s texting, that are unclear. Despite Mr Lehrmann’s evidence, I am not convinced that some notes were not taken (although they apparently no longer exist) and the precise content of the communications that passed between Mr Lehrmann and Mr Korn is less than pellucid. I am satisfied, however, that the representations made by Mr Lehrmann during the evening by way of SMS and instant messages are an insecure foundation for ascertaining the substance of the advice given by Mr Korn to his client.
104 As noted above, the opponents stressed that the closeness of the relationship between Mr Lehrmann and Ms Sinclair meant it was unlikely he would be untruthful to her. But the subject of the relevant messages was what would likely happen as a consequence of an allegation Mr Lehrmann was a rapist. Although the opponents’ submission is understandable forensically, accepting it would be unworldly. Being accused of rape is not commonplace. Irrespective of the underlying truth of the accusation, a rational understanding of human nature suggests it does not unduly stretch the bounds of credulity to think that one might seek to downplay the seriousness of such a startling allegation to one’s girlfriend.
105 Similarly, the notion Mr Lehrmann would reassure a female friend as to the unlikelihood of an allegation of seriously criminal and immoral conduct being given credence by prosecuting authorities is hardly surprising.
106 Any exaggerations as to the skill and professionalism of Mr Korn, the falsehoods as to apparently considered advice being given regarding prospects of receiving huge damages for defamation, and the reassurances that charges are “off the cards”, are explicable contextually. Mr Lehrmann’s attempt to add verisimilitude to his narrative by inventing another practitioner giving defamation advice that evening is elaborate, and says something about his level of candour in his dealings with his friends, but must be seen through the prism of a man under stress, flailing around during an unorthodox conference and drinking session, and saying what he thought he needed to say to put the best “spin” on what he perceived to be an appalling situation (whatever be the true position as to the alleged sexual assault).
107 Consistently with his oral evidence, Mr Lehrmann was fashioning some of his comments to suit the perceived exigencies of the moment. It was understandably put to Mr Lehrmann on several occasions that the logic of his evidence was that he had been “fabricating” advice and “lying” to his interlocutors. In large part, these characterisations were accepted. Mr Lehrmann’s senior counsel downplayed these false messages as “white lies”. It is unnecessary for present purposes to describe the conduct in any particular way. It is also unnecessary to reach a definite conclusion as to whether handwritten notes were taken at the conference by Mr Korn, being notes that are no longer in existence (and whether Mr Lehrmann’s somewhat inconsistent evidence on this topic can be explained away by faulty recollection). What presently matters is that I am satisfied Mr Lehrmann was being untruthful when he recounted advice criminal liability was off the table, and the only real issue was defamation and how much he obtain in damages.
108 Dealing with the other submissions identified above, although Mr Lehrmann admitted he intended to sue Ms Wilkinson from the start and subsequently recorded the name “Wilkinson” in connexion with high-profile defamation cases, this does gainsay the conclusion I reach by reference to the whole of the evidence, and the inherent probabilities, that the immediate and overriding concern for Mr Lehrmann as at 15 February was the criminal allegations – it was the whole point he was urgently conferring with a criminal solicitor. I do not consider that it is at all likely Mr Robertson or Mr Macgowan put Mr Lehrmann in touch with a solicitor specialising in defamation on 15 February. Indeed, I would go further and add I am affirmatively satisfied this was not the case. Further, although I accept Mr Lehrmann may not have had an excellent recollection of the details of the evening and did not recount his communications with Mr Korn in a detailed first person narrative, he was firm in his evidence as to the substance of what was conveyed.
109 When one rejects the notion of an unnamed defamation practitioner being involved, one then comes to the opponents’ suggestion it may have been Mr Korn who gave bullish defamation advice.
110 A famous story is told of Lord Birkenhead LC when, as F.E. Smith, he first moved his prodigious practice from Liverpool to London. Late one evening, Smith was given a stack of papers by a solicitor and asked to have his opinion on an important proposed libel action ready by next morning. Aided by two dozen oysters and a bottle or two of champagne, he had an all-night session with the papers and next morning gave his instructing solicitor a two-line opinion: “There is no answer to this action for libel, and the damages must be enormous. F.E. Smith.”
111 Although I have been deprived of Mr Korn’s evidence, and despite the terms of some of Mr Lehrmann’s messages, I harbour doubt that Mr Korn was as prompt and robust as F.E. Smith about his client’s prospects as to the recovery of damages for loss to reputation. Mr Korn was consulted because of his supposed expertise in criminal defence work. Mr Lehrmann’s evidence as to the limited advice of Mr Korn about defamation proceedings accords with the inherent likelihood that Mr Lehrmann was advised by a criminal solicitor, in some form of words or another, that the priority was to resolve the criminal allegations and any fightback to restore his reputation by defamation had to wait. No-one with experience advising persons facing potential serious criminal charges would be the least surprised to learn that advice of this tenor would be given by a solicitor specialising in criminal law.
Subsequent Advice Issue
112 Mr Lehrmann told the Court that he often raised media reports with Mr Korn: “Every time an article would come out or a Four Corners report or whatever, there was outrage … and it was a mixture of being upset, angry and I wanted to fight back against the media”: T68.7–11. Mr Lehrmann gave evidence, expressed in general and unparticularised terms, that Mr Korn “kept maintaining his position that any defamation would be considered after a resolution to the criminal matter”: T68.17–19. The opponents ask the Court to infer that no competent solicitor would have repeated that advice, particularly after Mr Lehrmann was charged and publicly named on 7 August 2021 (within the limitation period for all the pleaded causes of action). It is submitted this inference is supported by the fact that Mr Lehrmann, within the limitation period, and among other things, voluntarily assisted the AFP in its investigation and expressed a view that he had not formally engaged barrister Mr John Korn at the time of the police interview because the matter “has just been a media report”. In these circumstances, it is said to be improbable that Mr Warwick Korn continued to give advice to defer defamation proceedings.
113 Again, this submission is unpersuasive. Mr Korn was a solicitor acting for a client who, if charged and convicted, risked being sentenced to a substantial period in gaol. His job, like any solicitor in that position, was to advise his client against taking any step that could possibly be contrary to his interests in seeking to ward off or defend any criminal proceedings. Commencing defamation proceedings was secondary to Mr Lehrmann’s then priority of avoiding prosecution, and if that was unsuccessful, securing an acquittal. Even if, as seems likely from the chronology, Mr Lehrmann was acting in accordance with the advice of the Korns in giving a record of interview, I am satisfied it was because Mr Lehrmann believed it would assist in seeking to persuade the AFP not to recommend prosecution.
114 At bottom, the inescapable fact remains that Mr Lehrmann did not take any steps to vindicate himself or tell his story publicly until after the criminal proceeding was resolved. This is despite all the evidence adduced by the opponents that Mr Lehrmann wanted to vindicate himself. One asks the obvious question: why? The most straightforward, plausible, and overwhelmingly likely explanation is that this course was consistent with heeding Mr Korn’s advice.
115 This conclusion is consistent with rejecting the submission, repeated many times by the opponents, that Mr Lehrmann believed or was advised that criminal prosecution was “off the cards”. As noted above, Mr Lehrmann perceived had a reason to say such a thing on 15 February, but that does not make it true. Additionally, the suggestion anyone could have rationally concluded criminal prosecution was “off the cards” cannot be right considering what happened after 15 February. Three days later, the AFP issued a public statement confirming that there was an open investigation followed by a consistent statement on 22 March and confirmation on 7 April that a team of five officers were investigating (and subsequent publicity being given to the delivery of a brief to the DPP). Irrespective as to whether Mr Lehrmann’s lawyers considered the AFP would recommend prosecution to the DPP, these were statements made to the public in a highly charged environment confirming a detailed investigation was ongoing. What responsible criminal lawyer (recognising the different roles of the AFP and the DPP) could ever give a guarantee in the prevailing environment that a prosecution was “off the cards”? Any adverse inference drawn must accord with common sense and rise above mere speculation. Moreover, the suggestion of the opponents that I would conclude that Mr Lehrmann and Mr Korn did not know of the public developments concerning the investigation and a possible prosecution borders on the risible.
116 I make this finding (and my finding in relation to the 15 February Issue) by reference to all of the evidence, assessed in the light of the objective circumstances and inherent probabilities. I have also reached a level of satisfaction as to these facts notwithstanding I have drawn the inference that the uncalled evidence of Mr Korn would not have assisted Mr Lehrmann. Disputed questions of fact must be decided according to the evidence that the parties adduce, not according to some speculation about what other evidence might possibly had been led. The uncalled evidence can properly be taken into account in determining whether Mr Lehrmann has proved a fact in issue to the requisite standard but, as I noted above, Jones v Dunkel does not enable me to infer that the evidence of Mr Korn would have been positively adverse to Mr Lehrmann: see Australian Securities and Investments Commission v Hellicar [2012] HCA 17; (2012) 247 CLR 345 (at 412–413 [165]–[167] per French CJ, Gummow, Hayne, Crennan, Kiefel and Bell JJ, 432 [232] per Heydon J).
Financial Issue
117 The opponents submit that Mr Lehrmann’s suggestion in cross-examination that he did not have financial capacity in 2021 to commence defamation proceedings should be rejected. Mr Lehrmann’s asserted impecuniosity (which, although emerging in cross-examination was not the subject of any real challenge) does not seem to me to be a matter of significance. Given his then priorities, is it unsurprising he did not go around trying to find a defamation practitioner willing to act on a speculative basis. I accept, however, to the extent it matters, Mr Lehrmann did not consider he had the financial wherewithal to divert any limited resources he had to commence civil litigation.
F THE OPPONENTS’ SUBMISSIONS
118 I have already dealt with the opponents’ submissions insofar as they are based on the three evidentiary issues identified in the last section of these reasons. But more broadly, Mr Lehrmann’s conduct during the limitation period is said to have been not reasonable for the following additional reasons.
119 First, it is said Mr Lehrmann has not demonstrated how commencing defamation proceedings might have prejudiced his defence. By the time Mr Lehrmann gave his police interview (which itself was the product of a forensic decision made with the benefit of legal advice) or at the latest when his counsel gave a public statement setting out the basis of Mr Lehrmann’s defence, there was no prejudice capable of being caused by commencing a defamation action. In addition to choosing not to exercise what was described as “his right to silence”, Mr Lehrmann co-operated with the criminal investigation and answered every question asked of him: those answers were able to be used in any future criminal prosecution. Put bluntly, and to adapt my language in Landrey (at [40]), the opponents assert that Mr Lehmann stayed anything but “shtum”.
120 Secondly, Ms Wilkinson made the further submission that the question under s 56A of the Limitation Act is not whether it was reasonable for Mr Lehrmann to commence in this Court but in any court, including the Supreme Court of Queensland, where a plaintiff could commence but then defer serving process for a year and, even then, seek further extensions.
121 Thirdly, assuming Mr Lehrmann’s evidence was accepted, a reasonable person would have ensured any prospective defamation actions were not compromised, including by obtaining advice from a defamation lawyer (or, as Ms Wilkinson submits, considering non-litigious options, such as sending a concerns notice or letter of demand). Instead, Mr Lehrmann waited for approximately 20 months before contacting a defamation lawyer and relied upon limited conversations with a criminal solicitor.
122 Fourthly, following Mr Lehrmann’s discharge from RNSH, there is an absence of evidence of ongoing health concerns other than visits to psychologists over the subsequent months, particularly in the light of the fact that from March 2021, Mr Lehrmann was able to plan a public relations campaign and prepare a list of publishers to target for potential defamation claims (see above at [100]). Ms Wilkinson also contends that his participation in the AFP interview is an indicator that his health presented no bar to commencing defamation proceedings, and that the medical evidence, taken at its highest, suggests that Mr Lehrmann was capable of full-time work by the end of June.
G CONSIDERATION OF THE OPPONENTS’ SUBMISSIONS
123 Having rejected in Section E.3 the findings the opponents urged in relation to the disputed evidence and the submissions based on those premises, I will now deal with the additional contentions identified in the preceding section.
G.1 No Prejudice
124 I accept Mr Lehrmann said things about the allegations, as did his counsel. But I reject the assertion that by the time Mr Lehrmann gave his police interview (or later when his counsel gave a public statement), there was no risk of prejudice to Mr Lehrmann because he had not maintained his “right to silence”.
125 As I said in Landrey (at [48]), the privilege against self-incrimination is a basic and substantive common law right and reflects the long-standing antipathy of the common law to compulsory interrogations about criminal conduct: Lee v New South Wales Crime Commission [2013] HCA 39; (2013) 251 CLR 196 (at 202 [1] per French CJ). The importance of a person being able to avoid taking a positive step which may tend to bring them into “the peril and possibility of being convicted as a criminal” (Lamb v Munster (1882) 10 QBD 110 (at 111 per Field J)) (except by express statutory abrogation) is central to our criminal justice system.
126 The expression the “right to silence” is useful shorthand but, as is often the case with shorthand expressions, is incomplete. As Gageler and Keane JJ observed in Lee (at 313 [318]), quoting in part Azzopardi v The Queen [2001] HCA 25; (2001) 205 CLR 50 (at 57 [7] per Gleeson CJ), it is a “‘convenient description of a collection of principles and rules: some substantive, and some procedural; some of long standing, and some of recent origin’, which differ in incidence and importance”. Relevantly here, they include: the right of any person to refuse to answer any question except under legal compulsion; the privilege of any person to refuse to answer any question at any time on the ground of self-incrimination; and “the right of a person charged with a criminal offence to a fair trial, ‘more accurately expressed in negative terms as a right not to be tried unfairly or as an immunity against conviction otherwise than after a fair trial’”: Lee (at 313 [318]). This last aspect reflects a broader consideration that a criminal trial is an accusatorial process in which the Crown bears the onus of proving the guilt of the accused beyond reasonable doubt: X7 v Australian Crime Commission [2013] HCA 29; (2013) 248 CLR 92 (at 118 [42] per French CJ and Crennan J).
127 The opponents placed great reliance on the AFP interview and the statement by his counsel. But it is worth emphasising the chronology. It was on 19 April that Mr Lehrmann voluntarily attended an interview, but not until 24 May that the AFP Commissioner stated that a brief of evidence was to be provided to the DPP. It was on 6 August that it was reported Mr John Korn said Mr Lehrmann denied that any form of sexual activity took place, and it was on the following day that Mr Lehrmann was charged.
128 There is an important difference between the investigative stage and any subsequent prosecution. Obviously enough, the criminal justice system operates on the basis that when allegations of sexual assault are made, a prosecutor’s role is independent of police and notwithstanding any cooperation and consultation, any decision as to whether a prosecution should commence, and then be maintained, is to be made independently by the DPP.
129 On the evidence before me, Mr Lehrmann was engaging with the AFP at the investigatory stage. He was evidently entreating the police not to proceed and seeking to persuade those responsible for the investigation (to the extent they required persuasion) to form the view there was an insufficient basis to proceed. Notwithstanding publication of material and public commentary not in evidence, the material in evidence before me does not disclose the dealings between the AFP and the DPP, the material upon which the ultimate decision was made to prosecute by the DPP or any post-charge communications between the AFP and Mr Lehrmann’s lawyers.
130 What presently matters is that Mr Lehrmann made the decision to engage with the AFP and tried and failed to stop a prosecution. But once the DPP made its decision to prosecute, Mr Lehrmann, as was his continuing right, elected to remain silent, including by declining to give any evidence at his trial.
131 An assertion was made that the record of interview was later used by the Crown (and hence prejudiced Mr Lehrmann’s defence). This is irrelevant. With the benefit of hindsight, given prosecution did eventuate, it might have been a sounder approach not to be interviewed: after all, one is a slave to what one says but the owner of one’s silence. But I am unaware of dealings between the AFP and those advising Mr Lehrmann and cannot speculate as to the factors informing the decision to be interviewed. What is important is not eliding the period when he was trying to forestall a prosecution (and in doing so providing his account of what occurred) and the later period when he was defending a prosecution. When this is understood, the maintenance by Mr Lehrmann of his “right to silence” is put into its proper context.
132 In the counterfactual, it is tolerably clear that had the defamation cases proceeded through their normal interlocutory stages and to a trial, there was an inevitability of Mr Lehrmann being obliged to give discovery and a likelihood he would have to give sworn answers to interrogatories. Affidavit evidence would also likely have been ordered (although not necessarily as to the details of the alleged rape) but, at the very least, a proof would have been ordered to be served detailing the evidence he would give as to the matters the subject of any truth defence. It is almost inconceivable that if the matter came on for hearing, Mr Lehrmann would not have given evidence, and then he would be subject to cross-examination as to the circumstances of the alleged sexual assault of Ms Higgins. Any cross-examination of Mr Lehrmann would not, of course, been limited to matters raised in his interview with the AFP.
133 To the extent these steps may have occurred prior to the conclusion of the close of evidence in the criminal trial (and any retrial following a successful conviction appeal) this would have undermined Mr Lehrmann’s defence strategy. Defamation proceedings would have not only exposed him to discovery obligations and potential interrogation, but in any pleadings or particulars he would be obliged to make representations that would be available to be deployed against him. The only ways identified to eliminate or reduce risk were to: (1) refrain from commencing proceedings; (2) commence but not serve or secure an immediate stay after commencement; or (3) proceed and make serial claims asserting his privilege against self-incrimination.
G.2 Alternative Steps
134 The opponents pointed to the availability of each of the last two options, with a particular emphasis on commencing and seeking a stay.
135 As to a stay, this course was open and could have worked. Although there would have been cogent and powerful arguments in support of a stay, there would have been no certainty it would necessarily have been ordered for the period sought or extended in circumstances where there was a conviction subject to a subsequent appeal (and a possible retrial), particularly in circumstances where the stay was opposed. If a stay was not granted or was dissolved, Mr Lehrmann would have had to countenance the prospect of discontinuing the proceedings (coupled with a likely adverse cost order) or compromise the forensic position he had adopted as to the criminal proceeding.
136 As to Mr Lehrmann identifying another forum where he could defer service without seeking a stay, again, this course might have worked but it was, of course, equally open to commence in this Court and seek an ex parte order to defer service.
137 The expedient of commencing proceedings and deferring service has a long history in State and Territory Courts with rules of court allowing such a course. It has often happened to preserve limitation periods where litigation funding has not been finalised or the case is somewhat speculative and the hearing of another, further advanced case might bear upon the merits of the unserved proceeding. One should not assume, however, that such a course would necessarily have worked. As I explained in Kadam v MiiResorts Group 1 Pty Ltd (No 4) [2017] FCA 1139; (2017) 252 FCR 298 (at 300–301 [1]–[4]), over the last 20 years, almost every Australian jurisdiction has introduced a provision by way of legislation or rules of court, setting out the “overriding” or “overarching” purpose of procedural rules: see Pt VB of the FCA Act; ss 56, 57 and 58 of the Civil Procedure Act 2005 (NSW); r 3.1 of the Uniform Civil Rules 2020 (SA) (formerly r 3 of the Supreme Court Civil Rules 2006 (SA)); s 5A of the Court Procedures Act 2004 (ACT) (formerly r 21 of the Court Procedures Rules 2006 (ACT)); r 5 of the Uniform Civil Procedure Rules 1999 (Qld); ss 7 and 8 of the Civil Procedure Act 2010 (Vic); r 1.14 of the Supreme Court (General Civil Procedure) Rules 2005 (Vic); and r 1.10 of the Supreme Court Rules 1987 (NT). Considerations of public and private efficiency necessitated major reform by ensuring that once commenced, litigation is to be conducted as quickly, inexpensively, and efficiently as possible. The days of cases languishing in the list for many years, a commonplace a generation ago, have largely passed. The philosophy reflected in the overarching purpose obligations recognises, among other things, the reality that unresolved litigation occasions vexation and stress for those defending litigation, which is prolonged the longer the litigation lasts.
138 Ms Wilkinson’s submissions assumed that all respondents would have been prepared to countenance uncomplainingly the unserved litigation not progressing and potential liability remaining unresolved. No evidence was adduced to support this submission, and, in my experience, it is far from unknown for the strategy of deferring service to be undermined by a defendant, aware of the existence of the unserved process, filing a notice of appearance and pushing the matter on (forcing a reluctant litigant to either proceed or to discontinue subject to a costs order). Of course, a stay could be sought upon any appearance being filed, but the assumption of Ms Wilkinson that this course was somehow a foolproof method of protecting the position of Mr Lehrmann is simplistic. The course of commencing and deferring service was an available option, but not one attended by significantly less risk than commencing and seeking a stay.
139 As to the more particular submission that it was unreasonable for Mr Lehrmann not to have commenced proceedings in the Supreme Court of Queensland, as Allsop CJ and Besanko J explained in Wing v Fairfax Media Publications Pty Limited [2017] FCAFC 191; (2017) 255 FCR 61 (at 71–72 [31]–[32]), there is no “natural forum” for defamation. It was equally open to Mr Lehrmann to commence defamation proceedings in this Court. On advice, he decided to do so. It is difficult to see why Mr Lehrmann was required to choose a forum in which he evidently does not wish to litigate simply to preserve his right to litigate.
140 Whatever way one looks at it, for Mr Lehrmann to have started defamation proceedings absent the resolution of the criminal allegations would have been for him to take a step into the unknown. Everything might well have worked out, and all respondents may have been passive, but one cannot discount as misconceived advice that taking the risk of starting was imprudent and distracting while criminal allegations were unresolved.
141 Moreover, Mr Lehrmann was entitled to be cautious given the stakes: it may have worked to protect his position at an initial trial, but what if it did not? Or what if it initially worked, but he was convicted and appealed and faced a retrial some time down the track? It takes little imagination to predict the sort of robust submissions that would be made by counsel appearing for the opponents if the civil proceedings were sought to be deferred for an extended period, including following conviction but prior to any appeal.
142 Contrary to the submissions of the opponents, it would have been problematical to give an assurance that one could necessarily control or predict the timing of the defamation case, or the nature of its demands. The vicissitudes inherent in such litigation mean that when Mr Lehrmann was charged with a serious criminal offence in August 2021, there was a non-fanciful and hence real risk of prejudicing his defence of the unresolved criminal charges if he chose to commence civil proceedings which went to the very heart of the allegation that he sexually assaulted Ms Higgins.
143 Moreover, there was a further reason to be hesitant. If Mr Lehrmann had been convicted, it would have been conclusive evidence that he sexually assaulted Ms Higgins, which would necessarily have meant defences of justification or contextual truth would be made out and the proceedings dismissed with costs. As McCallum J noted in Houda v State of New South Wales [2012] NSWSC 1036 (at [29]), the question of whether it was not reasonable to commence defamation proceedings necessitates consideration of more than just the known existence of the elements of the cause of action, but also careful consideration of available defences. If Mr Lehrmann had sued in defamation and was unsuccessful in his defence of the criminal proceedings, he was exposing himself to not only added stress but also a potentially swingeing adverse costs order. Despite the submissions of the opponents to the contrary, it was quite open to a competent practitioner to advise Mr Lehrmann, as a private individual with limited resources and facing personal strain, to avoid opening a battle on two fronts: against the Crown on one hand, and media organisations on the other.
144 For completeness, I should deal with the notion that if Mr Lehrmann was not successful in obtaining a stay, he could have run the cases and sought a certificate under s 128 of the EA when it was necessary to maintain his privilege against self-incrimination. This was not a realistic submission. At the risk of considerable understatement, this would hardly have been an effective or propitious way of conducting a defamation action.
G.3 Failure to Obtain Specialist Advice
145 The opponents spent considerable time developing the contention that Mr Lehrmann should not be granted an extension of time because he failed to act on his intention to sue in defamation by seeking specialist advice or considering non-litigious options within the limitation period. As Dr Collins put it in cross-examination, he “needed a defamation lawyer, not a criminal defence lawyer”: T102.23–25. The Court was told that a reasonable person in Mr Lehrmann’s position would have taken steps to protect any prospective defamation actions. Any competent defamation lawyer would have drawn the strict limitation period to Mr Lehrmann’s attention and advised him to take steps to commence proceedings within time.
146 I have already addressed the substance of this point, but it is worth making the following additional points.
147 First, much was made of Mr Lehrmann’s interest in commencing defamation proceedings, but the mere fact that he was interested is not really to the point. What is critical is that despite his interest, Mr Lehrmann chose not to commence proceedings. I am satisfied that given the stakes and the criminal law advice he received, and irrespective of his level of knowledge of the Defamation Act providing for a tight limitation period, he would not have run the risk of commencement.
148 Secondly, the repeated reference to the status of defamation lawyers as though they are members of a cloistered guild endowed with some form of abstruse knowledge was overdone. It does not take a savant to ruminate upon whether taking non-fanciful risks, by starting collateral fights, might or might not be a good idea. There may, of course, be cases where there are sound forensic reasons to commence a defamation proceeding even when criminal allegations are unresolved (for reasons unnecessary to detail, the longest running defamation case in Australian history, the litigation between Mr John Marsden and Amalgamated Television Services Pty Ltd, is a case in point). Ms Chrysanthou SC referred to examples of cases in which she had appeared where the forensic choice to proceed had been made. That is all well and good, but each case is different (and this is no ordinary case for a number of reasons).
149 The legislative intention of the Limitation Act is not that a claimant is required to commence “within one year at all costs” (to quote the Full Court in Joukhador at 12 [52]). I reject the submission of the opponents, expressed in various ways, that the advice given by Mr Korn was self-evidently unreasonable. Moreover, from the perspective of Mr Lehrmann, who was facing the immediate threat of a grave allegation attracting vast publicity and strong community feeling, his priority was taking advice from the solicitor in whom he reposed confidence to protect his liberty.
G.4 Relevance of Medical Issues
150 As explained in Section F above, the opponents submitted that save for a brief hospital admission and Mr Lehrmann’s voluntary admission to the Northside Clinic in late February, there is no evidence that Mr Lehrmann’s mental health was so deleteriously affected in the days, weeks and months following the publication of the impugned matters that it was not reasonable for him to commence defamation proceedings within the limitation period.
151 That Mr Lehrmann’s health suffered somewhat because of the accusations and media attention was not the subject of direct challenge and is relevant and must be accounted for in considering the whole of the circumstances. In oral reply, Mr Richardson explained that Mr Lehrmann relies upon his medical issues not as an independent ground, but as a piece of evidence which cohered to render circumstances such that it was not reasonable for him to commence proceedings. This is consistent with the limited and non-determinative weight I give to it below.
H EVALUATION
152 The primary approach finally urged upon me on behalf of Mr Lehrmann (identified at [49] above) is inappropriate. I cannot simply focus on the period following the laying of criminal charges in August 2021, and conclude this is enough to entitle Mr Lehrmann to the benefit of an extension because of what was said by the Full Court in Joukhador (at 12–13 [56]). As I have explained, it is necessary to make findings as to the material facts over the whole of the limitation period and then step back and evaluate by reference to all the relevant circumstances.
153 In dealing with the arguments advanced by the opponents, I have already canvassed and weighed the relevant circumstances. With that said, and at the risk of repetition, it is worth drawing together and summarising the most significant of these related reasons in reaching the level of satisfaction that it was not reasonable in the circumstances for Mr Lehrmann to have commenced actions in relation to the impugned matters within one year.
154 First, Mr Lehrmann received express advice on 15 February 2021, repeated throughout the limitation period, that he should defer any defamation proceedings and relied upon that advice. Like the circumstances considered by McCallum J in Spedding v Dailymail.com Australia Pty Ltd [2018] NSWSC 1963 (at [36]–[37]), in this case, it would not have been reasonable for Mr Lehrmann to have acted contrary to this advice. As noted above, his priority was to heed the counsel of the solicitor charged to give advice on the problem of most concern to him. If he had further funds and the advice was uncertain or hesitant, then no doubt he could have sought further advice of a specialist nature, but I do not consider it is reasonable to expect him to have acted contrary to the advice given to him at a time when his resources and energies were being directed to resolving the criminal allegations.
155 Secondly, this was a case where prosecution was always a possibility up until it was preferred, notwithstanding Mr Lehrmann’s attempts to paint a contrary and rosier picture on 15 February. Despite answers given in cross-examination as to the importance to him of bringing defamation proceedings from the start, Mr Lehrmann’s actions reflect the fact that his real priority, even before prosecution, was the criminal allegations and, in recognising this priority, he engaged and then listened to a specialist criminal defence solicitor recommended by a trusted friend.
156 Thirdly, the advice to defer fighting on two fronts was unsurprising; civil proceedings could expose Mr Lehrmann to forensic examination of matters bearing upon guilt or innocence, hence prejudicing his defence of the criminal charge; deferring proceedings was also consistent with husbanding resources.
157 Fourthly, and relatedly, engaging with the AFP in an apparent effort to ward off prosecution was not inconsistent with Mr Lehrmann’s broader defence strategy of not taking what was perceived as being an unnecessary step of commencing a defamation cases. This is a world away from Landrey where the claimant engaged actively with collateral litigation (even to the extent of unnecessarily exposing himself to cross-examination at an interlocutory stage in civil litigation on the same allegations).
158 Fifthly, even if it is correct to say that the relevant circumstances must be “relatively unusual”, “special” or “compelling” (see [11] above), the circumstances cohering in this case can be so described. At the risk of repetition, Mr Lehrmann was in the unusual position of directing his energies and resources in acting on advice to maximise his chances of avoiding, and then defending, one of the highest profile and commented upon prosecutions in recent memory.
I THE DISCRETION
159 I turn now to matters relevant to the exercise of the discretion to extend the limitation period up to a period of three years.
160 Of the opponents, only Ms Wilkinson dealt with the issue of discretion by submitting the Court should not exercise its discretion to extend the limitation period beyond 14 days after the DPP discontinued its prosecution of Mr Lehrmann.
161 Ms Wilkinson made a number of related points, each of which I have considered. At the risk of oversimplification, they can be grouped into five main propositions: first, Mr Lehrmann did not issue a concerns notice, demand or complaint against Ms Wilkinson within the limitation period, and had he done so, Ms Wilkinson would have been on notice and could have “arranged her affairs” accordingly; secondly, Mr Lehrmann’s causes of action against Ms Wilkinson had, upon expiry of the limitation period, been “extinguished”; thirdly, Mr Lehrmann made a forensic decision not to issue a concerns notice to Ms Wilkinson in December 2022, despite sending a letter to Network Ten, News Life and Ms Maiden; fourthly, and relatedly, Mr Lehrmann was under an obligation to take genuine steps to resolve the dispute against Ms Wilkinson before commencing proceedings against her, but he did not do so; and fifthly, Network Ten, as Ms Wilkinson’s employer, is vicariously liable and Mr Lehrmann can proceed with his case in the same manner (and with the same outcome), irrespective of whether proceedings are maintained against Ms Wilkinson (and there is a greater presumed prejudice in delay as compared with a corporate respondent).
162 None of these points are irrelevant, but comments ought to be made in relation to the weight of each of them.
163 I do not think the failure of Mr Lehrmann to issue a concerns notice to Ms Wilkinson is as significant as suggested. Mr Lehrmann issued a letter of demand to Network Ten on 16 December 2022, which was forwarded to Ms Wilkinson that same day. The letter contained a settlement offer, which was not accepted, and it was consequent upon that refusal that Mr Lehrmann instituted these proceedings. While in some cases it may be possible to demonstrate substantive prejudice flowing from a claimant’s decision to issue a concerns notice to respondent A, and not respondent B, in circumstances where there was some evidence steps were taken by respondent B on the assumption an election had been made to commence against only against respondent A, there is no evidence this is such a case.
164 In written submissions, and again during the course of oral submissions, relying on observations of McColl JA in Barrett (at 495 [84]), it was suggested that depriving Ms Wilkinson “of the benefit of [Mr Lehrmann’s causes] of action having been extinguished was a relevant factor” (emphasis added) to the exercise of discretion. I raised with senior counsel for Ms Wilkinson whether this characterisation was necessarily correct, notwithstanding the applicable surrogate federal law relating to limitation picked up by s 79 of the Judiciary Act 1903 (Cth) in these cases is the Limitation Act of New South Wales.
165 In making this comment I recognised that unlike the traditional position at common law and legislative choices made elsewhere in Australia, in New South Wales, the expiry of a period of limitation extinguishes the right and does not just bar the remedy (see ss 63–67 of the Limitation Act). For certain purposes, this can be a distinction with a real difference. For example, as Gummow and Kirby JJ explained in The Commonwealth v Mewett (1997) 191 CLR 471 (at 534–535), in the usual case, a bar does not go to the “jurisdiction of the court to entertain the claim but to the remedy available and hence to the defences which may be pleaded”. Hence, absent an appropriate plea, the matter of the statutory bar does not arise for consideration. Their Honours suggested (at 534–535) that this might not be correct “where the limitation period is not annexed by statute to a right which it creates so as to be of the essence of that right”.
166 But the reality of the distinction does not mean it is correct for present purposes to place too much emphasis upon the fact that Mr Lehrmann’s causes of action have been “extinguished” in the sense in which that word is usually understood. Indeed, different views have been expressed about the appropriate legal characterisation of the position in circumstances such as the present. In Mewett, Dawson J expressed the following view (at 509):
When the statutory scheme is examined as a whole, it is apparent that, whilst a period of limitation for a cause of action may be extended under the New South Wales Act, the cause of action is not extinguished by s 63(1) because there is no expiration of a limitation period fixed under the New South Wales Act. Such a limitation period remains to be determined by way of an application for extension of time. The cause of action continues in the meantime, statute-barred under s 14(1) but not extinguished under s 63(1).
167 Toohey J (at 517) and McHugh J (at 533) took a different view (consistent with the views expressed by the Court of Appeal of New South Wales) being that upon an extension being granted the earlier extinguishment is annulled, and the right is to be treated as though it had never been extinguished. I was not assisted by any submissions as to this characterisation issue, but it seems to me to be peripheral. The essential matter for present purposes is that if there was an “extinguishment”, it was a state of affairs always subject to an application for extension and Ms Wilkinson’s characterisation of the legal position, although probably accurate, does not add a great deal. Put simply, Ms Wilkinson’s legal position upon expiry was always subject to the making of an extension application by Mr Lehrmann.
168 Dealing generally with the failure to take pre-litigation steps to resolve the dispute with Ms Wilkinson, it is unclear why a decision was made not to issue a concerns notice or letter of demand to Ms Wilkinson in December 2022; it may be no more complicated than Mr Lehrmann having no intention of ever settling with Ms Wilkinson. But despite Mr Lehrmann only sending such a notice to the other opponents, this did not prevent Ms Wilkinson making an offer in response to the statement of claim when it came to her attention if she was disposed to do so. I assume she did not do so because Ms Wilkinson has, through her senior counsel, given every indication she wishes to defend the Network Ten Proceeding stoutly. In the absence of any evidence, it is a little difficult to see how not taking pre-litigation attempts to resolve the dispute with Ms Wilkinson has occasioned prejudice of any significant weight. What is meant by Ms Wilkinson “arranging her affairs” on the basis she was not going to be a party is not only unsupported by evidence, but is difficult to understand, even in the abstract.
169 Mr Lehrmann was obliged under s 6 of the CDR Act to identify the steps he had taken to resolve the issues prior to the commencement of proceedings. The Court may, in performing functions or exercising powers in relation to civil proceedings before it, take account of whether Mr Lehrmann took genuine steps to resolve the dispute: s 11 of the CDR Act. It is appropriate that I do so; it just does not seem to take the matter very far, given settlement prior to litigation was unlikely and the absence of any evidence of other specific prejudice.
170 Mr Lehrmann took somewhat longer than he did with the other opponents to make plain he was suing Ms Wilkinson. This does put her in a different category, but again I do not think it matters greatly.
171 For present purposes, I will proceed on the asserted basis that Network Ten is vicariously liable for any damages that flow from Ms Wilkinson’s wrongs should Mr Lehrmann be successful. This means that not extending the period as against Ms Wilkinson would cause less prejudice to Mr Lehrmann than would otherwise be the case; but joining the individual alleged wrongdoer perceived by the claimant as responsible for the hurt to feelings and damage to reputation, is far from uncommon. Subject to responsible use of court resources, a legitimate purpose of litigation is seeking public vindication against an individual perceived as having committed an actionable wrong. The “greater presumed prejudice” asserted on behalf of Ms Wilkinson, as compared with a corporate respondent, was not really articulated. If it relates to costs, there is no evidence before me as to why Ms Wilkinson is separately represented from the entity she contends is vicariously liable for any damages she is liable to pay should Mr Lehrmann prevail. There may be a very good reason for separate representation, but the evidence does not presently reveal it. To avoid any confusion, it is worth recording I have taken the submission made by Ms Wilkinson as to Network Ten’s vicarious liability for any damages award made against her at its highest; it should not be presumed this submission is necessarily correct as a matter of law.
172 Returning to delay generally, I note no reliance was placed by Mr Lehrmann on the fact that the commencement of proceedings against all the opponents, including Ms Wilkinson, was later than would otherwise have been the case but for the Chief Justice being required to defer the commencement of the criminal trial for the reasons her Honour gave in R v Lehrmann (No 3) (see [89] above). Any delay in the trial necessarily meant a delay in resolving the criminal proceedings and hence any defamation action. In the absence of submissions on this point, however, I have not had regard to this matter in the exercise of my discretion.
173 I have not heard any evidence touching upon the underlying allegations made by any party or formed any views as to their merits. It has been unnecessary for me to make any general findings as to credit. For all I presently know, Mr Lehrmann’s substantive case may be good, or it may be bad. For present purposes, what is relevant is that it is not suggested by any of the opponents that the issues joined do not give rise to triable issues such that it would be inutile to grant an extension until commencement.
174 As I noted earlier, while the discretion under s 56A(2) is a broad one, it is confined by the duty to act judicially and by reference to the scope and purposes of the Limitation Act. In exercising that duty, scope is left to give effect to the justice of the case, including by looking to every relevant fact and circumstance: Barrett (at 495–496 [87] per McColl JA).
175 The discretion is exercised in the context that it was not reasonable in the circumstances for Mr Lehrmann to have commenced actions in relation to the impugned matters within one year. It follows from the above, to the extent it mattered (and all parties were in unison in saying it did not), I would also have been satisfied it is “just and reasonable” to allow the actions to proceed in all of the circumstances of the case (to adopt the present words of s 56A).
176 Added to the mix is the weighty consideration that Mr Lehrmann was not dilatory following the DPP’s announcement on 2 December 2022 that charges had been withdrawn. In the nine-week period following the DPP announcement and prior to commencing proceedings, Mr Lehrmann acted sufficiently promptly and reasonably by, among other things, conferring with his solicitors on 12 December 2022, issuing a letter of demand (other than in respect of Ms Wilkinson) and then corresponding with the solicitors for Network Ten and News Life in January 2023 in respect of the settlement offer contained in the letter. Even though he did not engage with Ms Wilkinson prior to commencement, the logic of Ms Wilkinson’s submissions is that he should have started the case against her by 16 December 2022. This does not make sense. It would have been quite odd that in order to safeguard his position, Mr Lehrmann was required to commence against Ms Wilkinson in December, and then commence a separate proceeding in the new year after the correspondence with the solicitors for Network Ten had concluded (with the result that three proceedings would have been commenced against the opponents, including two making identical allegations).
177 Taking all the submissions made by Ms Wilkinson into account both individually and collectively, the weight of the considerations in favour of extension outweigh those that, at least to some extent, militate against such a course. Accordingly, the appropriate exercise of discretion by reference to all the circumstances, including the truncated limitation period and the scope and purposes of the Limitation Act generally, is to extend the limitation period in the Network Ten Proceeding as against Ms Wilkinson up until the time when it was commenced.
178 The same goes for the balance of the opponents. As noted above, they did not really develop any reason as to why an extension should not be granted to the time of commencement in the event I was against their submissions as to the evaluative assessment of circumstances during the limitation period.
J ORDERS AND A FURTHER MATTER
179 I will make the interlocutory orders sought by Mr Lehrmann in his originating application. As I have done in other defamation cases where I have determined separate issues relating to meaning, subject to hearing from the parties, I propose to make an order extending the time for filing any application for leave to appeal for a period of 28 days after final orders are made in both proceedings. This will assist in making it unnecessary to bifurcate the matter should any of the opponents decide to challenge the extension.
180 These are proceedings which, by their very nature, should be heard and determined with celerity. Recently, a further proceeding was commenced canvassing similar issues, being Lehrmann v Australian Broadcasting Corporation (NSD 316 of 2023). Subject to hearing from the parties, there is no reason why all three proceedings should not be heard concurrently.
181 I will proceed now to hear submissions as to costs. I have already heard argument, however, on whether Ms Wilkinson should pay Mr Lehrmann’s costs of the application to set aside the oppressive notice to produce the subject of my earlier judgment: Lehrmann v Network Ten Pty Limited (Notice to Produce) [2023] FCA 250. It suffices to note that none of the matters raised by Ms Chrysanthou in opposition to the usual order justify its displacement. A notice to produce should never have been served in those terms and, when challenged, should not have been defended.
182 I will also now receive submissions (including from the legal representatives of the Australian Broadcasting Corporation) as to what orders should be made to ready all three proceedings for final hearing with alacrity.
183 There is a further matter that might conceivably impact upon the timing of a trial and upon orders as to the form of the evidence in chief. In Wing, Allsop CJ and Besanko J explained (at 72–73 [37]) that although trial by judge alone is the normal mode of trial in a civil proceeding in this Court, there is a discretion to direct a trial with a jury of either all or some of the issues of fact in a civil proceeding.
184 The power to order a jury conferred under s 40 of the FCA Act “is a broad one” (Wing at 72–73 [37]), constrained only by the criterion that, in the language of the section, the “ends of justice appear to render it expedient to do so”. The real question is: given the nature of the issues or allegations and the other circumstances of the case, and notwithstanding the normal mode of trial is by judge alone, would a trial by jury “promote, further or be conducive to the attainment of justice”?
185 Their Honours went on to explain that there might be good reason for ordering a jury in a case where there was a real issue about whether changing community standards meant imputations, historically considered defamatory, would still be defamatory: Wing (at 75 [45]). But this example was not exclusive, and their Honours accepted that it is impossible to be definitive as to when a particular case may fall within the class of cases where it would be proper to exercise the broad discretion to order a jury: Wing (at 75 [45]). The other member of the Full Court, Rares J, expressed similar, indeed more expansive, views (at 77–78 [55]–[56]): see also Barilaro v Shanks-Markovina (No 3) [2021] FCA 1100; (2021) 393 ALR 469.
186 Just because some aspects of these cases are suitable for trial with a jury does not necessarily mean those issues are not suitable for determination by a judge sitting alone. To justify a direction, there must be something more. The public interest in having these proceedings determined fairly and in a manner that promotes confidence in the administration of justice transcends the interests of the parties. The experience of the common law is that allegations of the type made in the opponents’ truth defences involve, in a different curial context, fact finding of a particular character usually (although far from invariably) conducted by a jury comprised of ordinary men and women. The jury as a deliberative body brings to the discharge of their collective role the jury members’ varying perspectives and, one hopes, a collective common sense based upon ordinary and different human experiences. A judge would also bring the judge’s singular perspective and experience to fact finding; but is such a tribunal the best way of resolving all aspects of this controversy?
187 It is perhaps arguable that the ends of justice, including public confidence in the resolution of these disputes, might be promoted if a jury hears and determines at least some factual issues, rather than a judge. Having said this, given the vast publicity already afforded to these allegations, the multiplicity of proceedings and other logistical matters, I am sensible of potential difficulties in ordering a jury.
188 I presently express no preference as to whether the Court should direct a trial by jury in these proceedings (and, if so, what issues of fact should be determined by a jury) but given the matters referred to above, I would be assisted by any written submissions on this topic.
I certify that the preceding one-hundred and eighty-eight (188) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Lee. |
Associate:
Dated: 28 April 2023
