Former Liberal staffer Bruce Lehrmann has filed an application for special leave to appeal to the High Court, seeking to overturn the Full Court's dismissal of his appeal from Justice Michael Lee's decision in his failed defamation proceeding against Network Ten and journalist Lisa Wilkinson. The primary judgment is well known: Ten and Wilkinson succeeded on justification (truth), with Justice Lee finding, on the balance of probabilities, that the sexual assault allegation broadcast on The Project was substantially true.
The Procedural Fairness Ground
The present procedural step matters for practitioners because it highlights an increasingly common appellate frame in large defamation trials: the attempt to recharacterise factual findings as process error. As reported, Lehrmann's application alleges the primary judge engaged in impermissible "independent research" and relied on extraneous materials, said to have compromised impartiality and procedural fairness. If special leave were granted, the High Court's treatment of those arguments could affect how trial judges manage external context in modern media cases, where publication ecosystems, digital artefacts, and contemporaneous reporting can be difficult to cabin.
Justification: A High-Risk, High-Reward Defence
For defendants, the case remains a reminder that justification can be a high-risk, high-reward defence: if made out, it is complete; if not, it can worsen damages and costs. For plaintiffs, the matter illustrates that where justification is pleaded and litigated to judgment, reputational vindication objectives can be overtaken by the forensic reality that the defendant's burden is only the civil standard — yet the reputational consequences may be far closer to those of a criminal finding.
Costs exposure also remains a practical pressure point, with substantial costs figures having been publicly discussed in the broader litigation arc. The practical lesson for any plaintiff contemplating high-stakes media defamation litigation is that the financial and reputational risks of an adverse justification finding must be weighed carefully at the outset.
Implications for Practitioners
The Lehrmann litigation — now stretching across primary trial, Full Court appeal, and High Court special leave application — has several ongoing implications for defamation practitioners:
- The civil standard and reputational consequences: A justification finding at civil standard can carry consequences that feel close to a criminal verdict, yet the evidentiary threshold is significantly lower. Plaintiffs must understand this asymmetry before committing to litigation where the defendant will plead truth.
- Independent research and external materials: The "independent research" ground raises genuine questions about how judges in complex media trials deal with publicly available context — social media artefacts, prior coverage, digital publication trails — that neither party formally tenders. The High Court, if it grants leave, may provide guidance that affects case management directions across the jurisdiction.
- Appellate limits on factual findings: The Full Court's dismissal of the appeal reflects the well-established principle that appellate courts do not readily disturb findings of fact, especially credibility findings. The High Court special leave process imposes a further filter: leave is only granted where the matter involves a question of law of public importance or where the interests of justice require it.
- Costs in high-profile cases: The ongoing litigation is a reminder that costs in large defamation proceedings can exceed any likely damages award. Early strategic assessment of litigation objectives is essential.
What Happens Next
The application for special leave will be considered by the High Court. The Court may grant leave (allowing a full appeal), refuse leave (ending the matter), or in some instances seek a response and further submissions before deciding. At this stage, there is no certainty that the High Court will grant leave, and the outcome of a full appeal — if leave were granted — would be far from predetermined. The matter will continue to be monitored as a leading illustration of justification defence dynamics and appellate procedure in media defamation.
For comprehensive background on the defamation legal framework, see our Defamation Law Guide and the Serious Harm Threshold analysis.