The Full Federal Court of Australia dismissed Bruce Lehrmann's appeal from the primary judgment of Justice Lee, in which his Honour had found that Network Ten and journalist Lisa Wilkinson had established the substantial truth of the imputations conveyed by the broadcast of an interview with Brittany Higgins.
Primary Judgment
In the primary judgment, Justice Lee had made findings of fact on the balance of probabilities that the rape of Brittany Higgins by Bruce Lehrmann had occurred. His Honour found that the truth defence was established and dismissed the defamation claim. Significant costs orders were made against Lehrmann personally.
The Full Court's Decision
The Full Federal Court comprehensively endorsed Justice Lee's approach to the evidence and his findings on the truth defence. The Full Court rejected each ground of appeal, confirming that the primary judge's assessment of the probabilities — finding that, on the balance of probabilities, the rape occurred — was open on the evidence and free from appellable error.
The Full Court also upheld the primary judge's findings on qualified privilege and the cost orders made against Lehrmann personally. Each of the specific errors alleged by Lehrmann on appeal was examined and rejected.
Significance of the Truth Defence
The case is a significant illustration of the operation of the truth (justification) defence in high-profile, contested factual circumstances. The truth defence in defamation is a complete defence: if the defendant establishes that the defamatory imputations are substantially true, the plaintiff's claim fails regardless of the harm caused. The civil standard — the balance of probabilities — applies, which is a lower standard than the criminal standard of proof beyond reasonable doubt.
This explains how a court can find, in civil proceedings, that the rape occurred on the balance of probabilities, notwithstanding that the criminal charge was not prosecuted to verdict. The two proceedings involve different standards, different parties, and different procedural rules.
High Court Special Leave Application
Following the Full Court's dismissal, Lehrmann filed an application for special leave to appeal to the High Court of Australia. The special leave application remains pending. The High Court grants special leave only where the case raises a question of law of general importance or where the interests of justice require it — a high bar in circumstances where two courts have reached consistent findings of fact.
The matter continues to attract significant media attention and has contributed to broader public discussion regarding the interaction of defamation proceedings and criminal justice.
Lessons for Defamation Plaintiffs
The Lehrmann litigation illustrates several important lessons for prospective defamation plaintiffs:
- The truth defence is powerful: If the substance of what was published is true, a defamation claim will fail even if the publication was damaging and distressing to the plaintiff.
- Costs exposure is real: Unsuccessful plaintiffs in defamation proceedings face substantial adverse costs orders. In complex litigation, these costs can be very significant.
- Appeal prospects: Factual findings by a primary judge are very difficult to overturn on appeal. Courts of appeal are reluctant to substitute their own view of the facts for that of the judge who heard and assessed the witnesses.
- Early assessment is critical: Before commencing defamation proceedings, a thorough assessment of the likely defences — including truth — is essential.