Lisa Wilkinson challenges finding she acted unreasonably in broadcasting Brittany Higgins’ rape allegation | Defamation law (Australia)

Lisa Wilkinson has challenged Justice Michael Lee’s finding that she acted unreasonably in broadcasting an allegation of rape, according to her submissions on a notice of contention filed in Bruce Lehrmann’s upcoming appeal.

Lehrmann lost his sprawling $10m defamation case last April when the former Liberal party staffer was found on the balance of probabilities to have raped Brittany Higgins in Parliament House in 2019. In October Lehrmann was allowed to appeal.

Lee upheld the defence of truth, but found Wilkinson and Network Ten failed to establish the qualified privilege defence.

That section 30 defence, at the time of broadcast in 2021, was that they acted reasonably and in the public interest, in airing the rape claims in an interview with Higgins on The Project.

It provided a defence to journalists who published defamatory matter in the public interest if it was reasonable.

That means that journalists can get something wrong, defame a person, damage their reputation irreparably, and still not be liable in defamation.

In submissions to the appeal, Wilkinson now asserts the public interest defence “should have been found to have been established” in the original judgment.

In documents filed in the federal court, Wilkinson’s barrister, Sue Chrysanthou SC, argued Lee erred in his finding that her client’s conduct in broadcasting an allegation of rape was improper and unjustifiable.

Lee found that the public interest defence would not have been established if the truth defence had failed, because her conduct in “conveying the defamatory imputations of rape fell short of the standard of reasonableness”.

Wilkinson says she “had a reasonable basis to believe the truth of the very serious rape allegation” after reviewing the material Higgins gave her and after speaking to the former staffer on several occasions.

Her “belief was reasonably based on her assessment of Ms Higgins and on objective factual material that was, to her knowledge verified, and she did believe in the truth of the rape allegation at the time of publication”.

Wilkinson was “reassured” by the publication of an article by news.com.au journalist Samantha Maiden on the Monday morning several hours before the broadcast of The Project that evening.

“It was reasonable for her to rely on her experienced producer [Angus] Llewellyn” to carry out the task of ensuring a right of reply from Lehrmann was obtained and the requisite fact-checking was undertaken.

In his judgment Lee wrote “even though [Ten and Wilkinson] have legally justified their imputation of rape, this does not mean their conduct was justified in any broader or colloquial sense”.

Although Lehrmann was not named during the broadcast, Lee said he was identifiable.

Wilkinson’s arguments in her submissions include that she was not responsible for the final product which went to air and she was subject to directions by Ten. Wilkinson said she understood that The Project’s producers “undertook extensive factual checking, review and decision making before the broadcast”.

“It was plainly reasonable for Wilkinson to rely on [Ten’s editorial] processes, conducted by a producer that she (and the rest of the team) considered to be experienced, highly capable and professional,” the submission said. “His Honour erred in failing to have regard to this body of evidence in making findings about Wilkinson’s reliance on Mr Llewellyn in this regard.”

In relation to the legal advice received by Ten before broadcast, Wilkinson says she “is not and has never been a lawyer, nor does she have any legal training”.

“She gave uncontested evidence of these matters, and further of her reliance on what she considered (at the time of Broadcast) to be the expert, experienced and conservative advice of the Network 10 lawyers,” the submission said.

The submission defends Wilkinson’s role in gaining a right of reply from Lehrmann.

Lee was critical of Wilkinson for her acceptance speech when she won a Logie for the Project interview which he said conveyed the message that Higgins was credible and to be believed, and therefore, by necessary implication, that her allegation of rape was true.

Wilkinson said should the appeal be allowed, her Logies speech does not aggravate damages.

“The primary judge erred in finding that an employee journalist, who sought and received firm legal advice (more than once) about the contents of a televised speech she was directed to give on behalf of her employer was improper and unjustifiable such as to warrant an award of aggravated damages,” the submission said.