In her written defense, Wilkinson does not dispute that the central defamatory claim of rape was conveyed, warning that they do not admit that Lehrmann has been identified by the broadcasts.
Lehrmann was not named by Ten or News Corp, but Lehrmann’s attorneys argue his identity would have been known to his political associates, friends and family, and the publications invited readers and viewers to “speculate” and seek comment from third parties online.
Wilkinson’s lawyers say she “does not know and cannot admit that the applicant (Lehrmann) was reasonably identified on February 15, 2021 by a viewer of the first issue.”
They add that they “sought Lehrmann identification data … and those particulars have not been sufficiently supplied”. However, Wilkinson “admits that if Lehrmann was so reasonably identified by a viewer on February 15, 2021, the first issue carried an attribution that Lehrmann raped Brittany Higgins” in Parliament House in 2019.
If the case goes to trial and all defenses are considered, federal court Justice Michael Lee, who is presiding over the case, will have to decide whether Wilkinson’s legal team has proven that the rape occurred in terms of probabilities, i.e. more likely then not that it did.
In a criminal trial where an accused’s liberty hangs in the balance, the prosecution is held to a much higher standard and must prove guilt beyond a reasonable doubt.
Lehrmann was mentioned 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 altogether amid concerns about Higgins’ mental health. Lehrmann has always maintained his innocence.
Attorneys for Wilkinson say in her written defense that “Lehrmann was given multiple opportunities to respond before the first issue aired,” including two emails.
“Any such approach … was timely, fair and reasonable, but despite that, Lehrmann chose not to respond at all,” the defense says.
An allegation of recklessness by Lehrmann in his statement of claims against Wilkinson “is baseless, unwarranted, unsupported by any fact and must be withdrawn,” her attorneys say.
Naming journalists as respondents to a defamation case does not mean that they will be personally liable for any damages. Ten and News Corp would handle such an order.
Wilkinson’s attorneys also seek to rely on the defense of qualified privilege, which relates to public interest publications, where a publisher acted reasonably.
They say “Wilkinson is an experienced, accomplished and meticulous journalist of over 40 years’ experience” who has “interviewed 10 Australian Prime Ministers and several other world leaders, reporting from disaster zones and reporting live breaking news daily”.
The attorneys have detailed Wilkinson’s sources, adding that “to Wilkinson’s knowledge, extensive fact-checking of Higgins’ allegations was conducted over several weeks” by Ten Network, including senior attorneys, senior news and current affairs Peter Meakin, and The projectThe head of Longform Feature Stories.
“Wilkinson understood that there was a consensus among those individuals and Wilkinson that Higgins was a credible witness,” the defense said.
The defense adds that “Wilkinson understood at all relevant times that Network 10 employed an expert legal team experienced in pre-publication consulting, including defamation and contempt”.
Lehrmann’s lawyers refer in its statement of claim to Higgins’s evidence in ACT’s Supreme Court last year suggesting that Wilkinson and Maiden “fight so that come Walkleys Time, which could claim some,” in a clear reference to the timing of the release of the release of the release of the release The stories in 2021.
They argue that the hurt and damage to Lehrmann was compounded by the fact that the journalists, in their words, wanted to “exploit” the allegations for “professional profit”.
But Wilkinson’s lawyers say in her defense that “Wilkinson had no contact with Samantha Maiden … regarding Higgins, her allegations, exclusivity or otherwise prior to the airing of the first issue or at any other relevant time thereafter”.
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