Bruce Lehrman has lost his appeal against the verdict in his defamation claim against Network Ten and journalist Lisa Wilkinson.
Justice Michael Wigney said that the primary judge did not err in his ruling that Higgins’s claims that Lehrman had raped her inside the Capitol were established according to the civil standard, and that the decision was not unfair to Lehrman.
“The full court finds that the manner in which the primary judge handled and scheduled the proceedings was not procedurally unfair to Mr. Lehrman,” Wigney said in his summary.
Wigney said the full court also accepted the argument from Wilkinson and Network 10 lawyers that Lehrman knew Higgins had not consented to sexual intercourse.
Justice Michael Lee found during the defamation trial that Lehrman was negligent of this consent, but Wigney said: “The full court finds, based on the undisputed findings made by the primary judge, that the only reasonable inference that Mr. Lehrman could draw from the facts known and observable at the time was that he had sexual intercourse with Ms. Higgins, that Mr. Lehrman focused his mind on whether Ms. Higgins was consenting to sex, He knew she was not consenting, but proceeded anyway.”
Wigney granted summary judgment on behalf of the full court – himself and Justices Craig Colvin and Wendy Abraham.
Neither Lehrman nor Wilkinson were in courtroom 19E in the Sydney federal court, but they were represented by solicitors Zali Burrows and Sue Chrysanthou SC. Matt Collins Casey was in court for his client Ten.
Lehrman has been ordered to pay costs.
Wigney rejected all four grounds of appeal: that it was procedurally unfair to Lehrman; A normal person watching the project might have thought she had committed a violent rape in the absence of consent; that Lee made a mistake in finding Network 10 and Wilkinson had abandoned the burden of proof in relation to the rape; And if he had won, he would have been awarded a prize of more than $20,000.
“Mr. Lehrman was also well aware that the case against him included claims that he was negligent regarding Ms. Higgins’s consent,” Wigney said.
“The Full Court found that an ordinary, reasonable viewer of the broadcast would understand rape as sexual intercourse without the victim’s consent, with the perpetrator either knowing that the victim was not consenting or being careless as to whether or not they were consenting.”
The former political staffer was seeking to overturn Lee’s 2024 decision, which rejected her claim and found on a balance of probabilities that he had raped Higgins in 2019.
The 30-year-old sued Tan and Wilkinson for defamation over an interview with Higgins on The Project in 2021.
But Lee found Higgins’ claims that Lehrman had raped her inside the Capitol two years earlier met the civil standard.
Lehrman appealed against the findings during a two-day hearing in August, arguing that the judge had erred in convicting Tan and Wilkinson when he was legally justified in charging her with rape.
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The appeal judges of the Full Court of Justice were told that Lee’s factual findings differed from those in the case prosecuted against Lehrman, including that he had committed a “non-violent” rape against Higgins.
Lehrman’s attorney, Zali Burroughs, said, “The primary judge found that the rape occurred in a particular manner that was not put into evidence before Mr. Lehrman, and he was surprised by the nature of the rape.”
But the verdict depicted a violent rape, argued Tenn’s barrister, Matt Collins Casey, labeling the suggestion that Lehrman might have testified differently as “astonishing”.
“The sting of the (expletive) stigma lies in the act of sexual intercourse without consent, not in any of its details,” Collins said at the appeal hearing.
Both sides took issue with the definition of rape employed by Lee, with Burroughs saying that it was inconsistent with a normal person’s understanding.
Tan and Wilkinson urged the appeals judges to find that Lehrman was not only reckless as to Higgins’ consent – as Lee found – but that he knew she was not consenting.
The criminal trial on rape charges was dropped in 2022 due to juror misconduct. Lehrman has always maintained his innocence.
A Network 10 spokesperson said, “Justice Lee’s decision was strongly supported by the unanimous decision of the full Federal Court”.
The spokesperson said, “The verdict is a victory for truth and reiterates that Network 10 succeeded in proving that Brittany Higgins’ allegations of rape were true. It is a vindication for the courageous Brittany Higgins who gave a voice to women across the country.”
Lehrman’s lawyer said outside court that his client maintained his innocence and would seek advice on whether to appeal his defamation damages to a higher court.
Burrows told reporters that Lehrman was “overwhelmed” by the decision and that she was concerned about his mental health.
“He is a young man who has been accused of rape in Parliament House and maintains his innocence,” she said.
“We respect what the court has said, but everyone must consider, even the shameless politicians who abuse him for an agenda and everyone else, that Bruce’s life has been destroyed.
“I would just like to say that I hope Bruce will be seen as an inspiration to those who say they have been wrongly accused, as he will seek advice on special leave (to appeal to the High Court) in their pursuit of justice.”
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