Lehrmann’s rainbow
Justice Wendy Abraham’s decision allowing Bruce Lehrmann to duck out of providing security for costs for his defamation appeal is the latest get out of jail card for Australia’s “most hated and recognisable man”.
In addition, the costs order of $2 million payable to Network Ten has been stayed. Christmas came early for Brucie.
This is the trouble with so many defamation cases against the media. An odious applicant wants to sue a news organisation but has no money. There is no prospect of a successful media respondent or defendant getting back some of their costs in the event the claim is unsuccessful.
The publisher can just whistle, along with the company shareholders. The unpaid costs are another blow inflicted on the dwindling resources at the disposal of journalism. It also encourages ne’er-do-wells to bring spurious cases.
This doesn’t bother Justice Abraham. In one paragraph of her reasons [para 67] she said she was “conscious that the respondents will incur costs should this appeal proceed which, if any costs orders are made in their favour, will likely be unrecoverable”.
Nonetheless she was unpersuaded that an order for security ought to be made.
As for granting a stay on the overall costs order of $2 million she considered that if the appeal succeeds any costs order that was the basis of the bankruptcy would most likely be be overturned.
If there were no stay, Lehrmann would likely be declared bankrupt and that would affect his prosecution of an appeal.
“That the first respondent asserts Mr Lehrmann has no ability to obtain money in any event is of no moment. If he were to succeed on appeal, the consequences on a sequestration order are unclear, although it would necessarily involve further proceedings (as the sequestration order would still stand).”
A rainbow has struck Brucie on the backside.
Unfortunately, Lehmann’s brief, Ms Zali Burrows, has been having her own troubles on the costs front in an dispute with law shop Macpherson & Kelley – as we reported last March.
Even so, she is having considerable success, batting away objections from smooth operators Matt Collins KC and Celebrity Sue Chrysanthou SC.
There were the usual noises that poverty should not be a bar to “access to justice”, even for awful people, and that Lehrmann at least has an arguable case.
Regrettably, Justinian’s sister publication the Gazette of Law & Journalism, is partly responsible for this state of affairs.
Graham Hryce: Lehrmann’s central plankThe Gazette has been publishing articles from defamation lawyer Graham Hryce who argued that Justice Lee got the justification defence wrong with a flawed interpretation of the word “rape”.
Lehrmann’s submissions on security for costs pick up Hryce’s point that “how the rape occurred is very different from the facts found by Lee J”. Those facts were not run by Network Ten, and he further contends it was a case that was not put to the applicant or to Brittany Higgins.
Hryce argues that by pinning the natural and ordinary meaning of the word “rape” to s.54 of the Crimes Act 1900 (ACT) was a mistake, because it includes the notion of “non-advertent recklessness” – something that would not be part of the ordinary reasonable reader’s understanding of “rape”.
Further, Lee J rejected Higgins perfectly cojent evidence that she told Lehrmann, who was on top her, “No” – on three occasions.
If he had not rejected her word on that then he would not have had to fall back on the ACT’s specific and exotic interpretation of rape arising from the legislation.
This, Hryce says, “was clearly the source of Justice Lee’s erroneous reasoning – focusing unduly as it does upon the ACT criminal law relating to rape – in relation to his key finding that the truth defences had been made out”.
Justice Abraham ventilated this angle in her reasons last week:
“The appellant submitted that each of the grounds of appeal are arguable. In relation to the first ground, he submitted that how the rape occurred is different from the facts found at trial, the first respondent did not run that case, and it was a case that was not put to him nor Ms Higgins, which amounts to a denial of natural justice and procedural fairness. He identified what is said to be some of the differences. He submitted that an article – Hryce G, ‘Did Justice Lee get it wrong?’, Gazette of Law and Journalism(7 May 2024) – supports the merits of the second ground.”
Unforgivably, it would not appear that a colleague of Justinian have provided the central plank for Lehmann’s appeal.
We were convinced that Lee J set out the findings about the Parliament House rape very persuasively: Bruce adopting his usual modus operandi and plying a young woman with a surplus of drinks; getting handsy with her as the evening wears on; passionate snogging; back to Parliament House in the small hours to get his keys/drink whisky/do work; leave in a hurry with Ms Higgins comatose and semi naked on Sen Reynolds’ (Lib. WA) couch; ignoring his girlfriend’s repeated phone calls; and being “non-advertently reckless” about whether there was consent or not; and making up a pack of lies about what happened.
Close observers of the fiasco are anticipating Guy Reynolds SC sweeping in to save the day for Loathsome Lehmann. He has now taken the reins from Kieran Smart SC and is advising Mark Latham, another odious individual and unsuccessful defamation defendant. Latham now has Bruce’s dream team, Burrows & Reynolds
God knows what will happen once Lehrmann gets into the maw of the Full Feds. If there is an order for a retrial (à la Chelmsford) we may as well stick forks in our eyes.