The defense of the truth
Wilkinson’s lawyers, led by Sydney defamation lawyer Sue Chrysanthou, SC, say in her written defense that she does not admit that Lehrmann was identified by a viewer of the broadcast, who did not name him.
However, Wilkinson “admits that if Lehrmann was so reasonably identified by a viewer on February 15, 2021 … (the broadcast) contained an allegation that Lehrmann had raped Brittany Higgins” at Parliament House in 2019.
Wilkinson seeks to rely on a qualified privilege defense, a defense related to public interest publications where a publisher acted reasonably. But, crucially, she also tries to rely on a defense of the truth.
The written defense contains a series of allegations about Lehrmann’s conduct on the night of March 22, 2019, saying: “Lehrmann’s conduct … amounted to rape of Higgins in Parliament House in 2019”.
The truth is a high bar
Should it come to trial and the truth defense is considered, Wilkinson’s lawyers will have to prove on a probabilistic basis – meaning more likely than not – that Lehrmann raped Higgins in Parliament House in 2019.
While this is beyond reasonable doubt less onerous than the criminal standard of evidence, the so-called Briginshaw Principle applies in civil cases involving serious charges and requires courts to exercise caution when making serious findings.
Unlike a criminal trial, Lehrmann has no right to remain silent and a judge can draw negative conclusions if he does not testify. He is expected to appear on the witness stand and be questioned by attorneys for Wilkinson and Ten.
Professor David Rolph from the University of Sydney, an expert on defamation law, said: “In our legal system, the burden of proof is on the defendant. The defendant will have to prove that the allegations are essentially true on a probabilistic basis, but taking into account the seriousness of the allegations.
“The defendant will have to prove the truth by reference to admissible evidence.”
The plaintiff does not have to prove that an allegation is false.
It is not uncommon for media companies to try to prove serious crimes in defamation cases. The Sydney Morning Herald And The age trying to defend a defamation suit brought by war veteran Ben Roberts-Smith by alleging that he committed war crimes in Afghanistan. Roberts-Smith vehemently denies the allegations. Federal judge Anthony Besanko reserved his decision last year.
In 2014, Sydney newspaper The Daily Telegraph indicated it would seek to rely on a truth defense in a defamation case brought against them by Gordon Wood, who was acquitted in 2012 of the murder of his girlfriend Caroline Byrne. He accused the Telegraph to label him a murderer. The libel case was eventually settled out of court.
And in 2009, The Australian successfully defended a defamation suit brought by Serbian paramilitary leader Dragan Vasiljkovic. The NSW High Court found that the paper had proved Vasiljkovic to be a death squad commander who authorized the rape of women and girls.
Jason Bosland, Associate Professor at the University of Melbourne Law School, director of the Media and Communications Law Research Network, said the truth defense “requires the substance of the allegation to be established”.
“That standard will be harder to meet if the accusation is serious.”
Jason Bosland, University of Melbourne Law School
“In this case, Lisa Wilkinson is trying to do that by establishing that Lehrmann did, in fact, rape Brittany Higgins,” Bosland said.
“The strength of the evidence you need to establish a given fact on a probable basis depends on the nature of the allegation.
“That standard will be more difficult to meet if the accusation is serious. For example, an accusation of criminal behavior.”
Who pays Wilkinson’s costs?
Wilkinson, who has been the subject of much media attention to the lawsuit, has opted to notify her own legal team, led by Chrysanthou, while Ten has notified Melbourne-based Matt Collins, KC.
It raises the prospect that the Federal Court will make different findings against Wilkinson and Ten regarding their legal responsibility for the broadcasts. Wilkinson left The project last year, but remains an employee of Ten.
Her lawyers say in her written defense that Wilkinson is “an employee within the meaning of the Employers’ Liability Act,” a NSW law that sets out the circumstances in which an employer is liable for the conduct of their employees, including torts such as libel. .
That law says that an employer is “liable to indemnify the employee for the liability of the employee” in certain circumstances, and the usual position would be that Ten would be liable for Wilkinson’s costs and any damages.
News Corp defends separate case
Lehrmann has filed a separate libel claim against News Life Media, the News Corp company behind news.com.au, over two articles by political editor Samantha Maiden, also published February 15, 2021. News and Maiden are expected to file in to dawn.
Lehrmann was named in the media on August 7, 2021, after being charged with one charge of non-consensual sexual intercourse.
He pleaded not guilty to the charge. His trial was aborted last October due to juror misconduct and the charges were later dropped in full due to concerns about Higgins’ mental health. Lehrmann has always maintained his innocence.
The parties in both libel suits will appear in court on March 16 for a preliminary hearing.
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