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Why was Bruce Lehrmann given the all-clear to sue media for defamation? A media law expert explains


Former Liberal Party staffer Bruce Lehrmann has been cleared proceed with defamation proceedings to various media outlets and journalists regarding coverage of Brittany Higgins’ rape allegations.

Lehrmann has always maintained his innocence and no finding has been made against him. The rape trial was dropped last year after juror misconduct, and a second trial was not continued for fears for Higgins’ mental health.

Lehrmann is suing Ten Network and former The Project host Lisa Wilkinson, as well as News Life Media (the publisher of news.com.au) and journalist Samantha Maiden.

In New South Wales since 2002, and throughout Australia since early 2006, the statute of limitations for libel claims is one year. However, the court has the power to extend the statute of limitations by up to three years.

Lehrmann needed the court to extend the statute of limitations because both Maiden’s story on news.com.au and Wilkinson’s interview with Higgins about The Project took place in mid-February 2021. Lehrmann began his defamation suit almost two years later in the Federal Court.

Judge Michael Lee of the Federal Court of Australia on Friday extended the statute of limitations in these two defamation suits brought by Lehrmann.

As Justice Lee noted at the beginning of his judgment:

Any conscious person with an interest in newsworthy happenings in Australia would be familiar with the general background of the current disputes.

To extend the statute of limitations, Lehrmann had to convince the court that it was “not reasonable in the circumstances” for him to bring his action within the one-year statute of limitations.

If convinced, the court would need to extend the statute of limitations, although it had discretion to determine the length of the extension.

Judge Lee was convinced that it was “not reasonable in the circumstances” for Lehrmann to bring a defamation suit within the one-year statute of limitations.

This was mainly because it was not reasonable to start libel proceedings while the criminal charges had not yet been resolved. This was the legal advice that Lehrmann received from the attorney with criminal expertise he consulted.

Read more: Why was the Lehrmann trial aborted and what happens next?

As Justice Lee said:

Either way, if Mr. Lehrmann had initiated defamation proceedings without the criminal charges resolved, he would have taken a step into the unknown. Everything could have worked well and all respondents may have been passive, but the advice that taking the risk was careless and distracting to begin with while the criminal charges remained unsolved cannot be dismissed as misunderstood advice.

Justice Lee’s decision followed a Full Federal Court decision in Joukhador v Ten Network Pty Ltd in 2021.

In that case, the court stated that, in general, when a person is facing a criminal charge and the publication to which the prosecution relates raises an issue about the person’s guilt or innocence, it will usually not be reasonable to initiate defamation proceedings within the one-year statute of limitations.

Justice Lee therefore extended the statute of limitations in both proceedings.

In April of this year, Lehrmann also started defamation proceedings against the ABC. It concerned the broadcast of the National Press Club speech by Higgins and Grace Tame in February 2022.

Judge Lee indicated that he was inclined to hear all three proceedings together.

Justice Lee also raised the prospect that the case might be suitable for jury trial. This is important because civil trials in Federal Court are supposedly heard by a judge sitting alone. However, the court has the power to order a trial by jury if “the purposes of justice appear to make it expedient”.

The Federal Court has only ordered a jury trial in civil suits once before. In 2009, Judge Rares ordered a jury trial in a defamation suit against The Daily Telegraph for reporting allegations of sexual servitude (the case was subsequently settled before trial).

Judge Lee sought comments from the parties on whether there should be a jury trial in this case. Jury trials usually take longer and are therefore more expensive than trials by a judge alone.

Read more: In the age of social media, can juries still do justice to high-profile cases?

If a defamation case is brought before the Supreme Court of any state (other than in South Australia), either party may choose to be tried by a jury. Juries are not available in defamation cases in the territories.

The possible trial date is mid-November this year and will take about four weeks.

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