Thomson Geer partner Justin Quill, one of Ten’s solicitors, said outside court after Lee read a truncated version of his decision on April 15 that “the way in which judges and barristers pick apart and dissect what journalists did or didn’t do in applying a legal threshold or legal test of reasonableness is quite often divorced from reality”.

Quill’s comments were a reference to Ten and Wilkinson’s fallback defence of qualified privilege, which Lee found would not have been successful had the media parties needed to rely on it.

Lee said on Wednesday that he did not consider his examination of the issues to be devoid of or divorced from reality. He said that, apart from the “discourtesy” of making public comments, they were “quite misleading” in some respects.

But Collins replied that this was not a matter that could properly bear upon how costs ought to be decided in the case.

Deadline for appeal

Lehrmann has until May 13 to file an appeal against Lee’s decision, but it is not yet clear if he has the funds to bring an appeal.

War veteran Ben Roberts-Smith agreed to orders requiring him to pay almost $1 million as security to cover the legal costs of Nine newspapers in the event he loses his appeal against his own devastating defamation loss.

That appeal has been heard, but the Full Court of the Federal Court has yet to deliver its judgment.

Ten and Wilkinson may also seek security for costs from Lehrmann if he lodges an appeal.

The parties spent some time in Lehrmann’s defamation case on qualified privilege, which relates to publications of public interest where a media company and its journalists can show they acted reasonably.

Lee found that defence would not have been established if it had been required.

Lehrmann’s barrister, David Helvadjian, said in written submissions that it would be “open to this court to conclude that [he] ... should be compensated for the time and expense in having to establish that the qualified privilege defences were bound to fail”. However, Helvadjian also acknowledged that costs might be awarded on an indemnity basis, based on the Roberts-Smith case.

Ten’s barristers said that the “mere fact that the successful party has been unsuccessful on some issues will ordinarily not be sufficient to displace the ordinary rule” on costs, and qualified privilege “was not a defence that was always doomed to fail”.

The defamation case

Lehrmann launched defamation proceedings against Ten and Wilkinson last year over a February 2021 interview with Higgins, helmed by the veteran presenter and aired on the network’s flagship current affairs program, The Project.

He alleged the media parties defamed him by suggesting he was guilty of raping Higgins, his then colleague, in the office of the Liberal defence industry minister at the time, Linda Reynolds, for whom they worked as advisers. He has always maintained his innocence.

The truth defence

Ten and Wilkinson’s centrepiece defence of truth was upheld by Lee. He found to the civil standard, meaning the balance of probabilities, that Lehrmann raped Higgins.

The former Liberal staffer was “hell-bent on having sex” with Higgins, had encouraged her to drink, and did “not care one way or another whether Ms Higgins understood or agreed to what was going on”, Lee said.

Lehrmann’s ACT criminal trial for Higgins’ sexual assault was aborted in 2022 owing to juror misconduct and he did not stand trial for a second time due to concerns about Higgins’ mental health.

Lee made clear that “Mr Lehrmann remains a man who has not been convicted of any offence, but he has now been found, by the civil standard of proof, to have engaged in a great wrong”.

The judge asked Ten’s barrister on Wednesday to make submissions about why Lehrmann should be ordered to pay the network’s costs beyond the truth defence.

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