Lehrmann, a war veteran, may not have the funds to bring an appeal in his defamation case against Ten and Wilkinson. In a recent development, Ben Roberts-Smith agreed to pay nearly $1 million as security to cover the legal costs of Nine newspapers in case he loses his appeal. The Full Court of the Federal Court has yet to deliver its judgment on Lehrmann’s appeal, and Ten and Wilkinson may also request security for costs if he decides to appeal. The parties in the case focused on Ten and Wilkinson’s defence of qualified privilege, which was ultimately found to have not been established by the court.
Lehrmann’s barrister argued that he should be compensated for the time and expense of having to establish that the qualified privilege defences were bound to fail. However, the possibility of costs being awarded on an indemnity basis, as seen in the Roberts-Smith case, was also acknowledged in written submissions. Ten’s barristers countered by stating that the mere fact of being unsuccessful on some issues is not enough to displace the ordinary rule on costs, and that qualified privilege was not a defence that was always doomed to fail.
The defamation case against Ten and Wilkinson was initiated by Lehrmann following an interview with Higgins on The Project in February 2021, which implied that he was guilty of raping her. Lehrmann has consistently maintained his innocence in relation to these allegations. The court found in favor of Ten and Wilkinson’s truth defence, establishing to the civil standard of proof that Lehrmann had raped Higgins. Although Lehrmann has not been convicted of any offence, he has been found to have engaged in a wrongful act based on the court’s ruling.
Lehrmann’s ACT criminal trial for Higgins’ sexual assault was halted in 2022 due to juror misconduct, and he did not face a second trial due to concerns about Higgins’ mental health. The court determined that Lehrmann had been determined to have raped Higgins, as he had been intent on having sex with her, encouraged her to drink, and showed a disregard for her understanding or consent. The outcome of the appeal and any potential costs owed by Lehrmann will be dependent on the judgment of the Full Court of the Federal Court, raising questions about the future of the case and its financial implications for all parties involved.
