Bruce Lehrmann’s lawyers say their client should receive “substantial damages” even if the judge in his defamation trial finds he was dishonest on “occasions”.
Lehrmann’s legal team filed a 136-page written submission with the Federal Court of Australia, which was made public on Friday.
They accepted that Justice Michael Lee could make adverse findings about the former Liberal staffer’s honesty.
But they said that did not mean Lehrmann’s reputation had not been damaged when Network Ten aired allegations by Brittany Higgins that she was raped in Parliament House in Canberra.
“Findings that Mr Lehrmann was on occasions dishonest, whether to his employer, the police or this court, are a serious matter which reflect poorly on him,” the submission said.
“But they are a very different thing from the allegation that he raped a young woman, and it cannot seriously be suggested that such findings would mean that the publication of the rape allegation, on national television, caused no or little real damage to his true reputation.”
Lehrmann is suing Ten and journalist Lisa Wilkinson over the February 2021 episode of The Project when his ex-colleague Higgins was interviewed about her alleged rape in March 2019.
He was not named in the television report. Lehrmann has always denied any sexual contact occurred.
Lehrmann’s team noted the court was assessing damages in the context that Ten and Wilkinson published imputations to the effect that he raped Higgins in the office of then-Liberal minister Linda Reynolds.
” … and they have failed to prove that those imputations are substantially true,” the submission added.
His team said even if the court made a finding, “in theory”, that intercourse took place but Higgins was incapable of consenting “because of her state of intoxication” and Lehrmann did not know she could not consent, that should “not lead to an award of damages that is less than substantial”.
“The distinction between findings of that kind and a finding that rape occurred … is real and significant,” their submission said.
“Where the allegation is so serious, the distinction should not be elided by a low award of damages which signals that what was published was ‘close enough’.”
Final oral submission from all parties in the defamation trial concluded on December 22.
The hearings took 22 days with Lehrmann and Wilkinson appearing in court daily.
Lehrmann and Higgins each gave testimony over several days.
Both suffered significant attacks on their credibility over their differing versions of what occurred.
The defamation trial was the first time Lehrmann had given evidence under oath about what he claimed happened or did not happen, as he had the right to remain silent during a prior criminal trial.
Lehrmann’s legal team argued Higgins made up the rape allegation to save her job after she was found naked, alone and passed out in the office.
Ten and Wilkinson have run three defences, saying Lehrmann was not identifiable in the report, that it was true the alleged rape occurred, and that they acted reasonably in publishing a news report of public interest.
Lehrmann’s criminal trial in the ACT Supreme Court on a charge of raping Ms Higgins was derailed by juror misconduct in October 2022.
Lehrmann has been charged with allegedly raping another woman twice in Toowoomba in October 2021 and remains before Queensland courts.
He has not entered a plea but lawyers have indicated he denies that allegation.