Network Ten and News Corp will seek to prove former Liberal Party staffer Bruce Lehrmann raped his then-colleague Brittany Higgins in their defences against a defamation claim.
Mr Lehrmann launched defamation action against Network Ten and News Corp for their February 2021 coverage of rape allegations made by his former colleague.
Both companies filed defences with the Federal Court on Tuesday night, joining journalist Lisa Wilkinson who is also seeking to prove the allegation true as part of her defence.
Ten will rely on the “substantial imbalance of power” between Mr Lehrmann and Ms Higgins while they worked in the office of then-defence minister Linda Reynolds.
The network will claim Mr Lehrmann “was sexually attracted” to Ms Higgins and “attempted to kiss” her in the days leading up to the alleged rape.
Its defence will rely on Mr Lehrmann’s “lies, inconsistencies and consciousness of guilt”, including his differing explanations for going to Parliament House on the night of the alleged rape.
Mr Lehrmann also missed six calls from his then-girlfriend that night, which the network references as being a “consciousness of guilt for having raped” Ms Higgins.
Ten will defend its publishing of Ms Higgins’ allegations as being in the public interest because of Mr Lehrmann’s role as a senior ministerial advisor.
Lawyers say the media company made “reasonable attempts” to contact Mr Lehrmann to obtain his side of the story before the interview went to air but he did not respond.
“Had Lehrmann responded to Ten’s attempts to contact him, Ten would have included Lehrmann’s side of the story, by including his response or the substance of his response, in the matters complained of,” the defence says.
Ten also denies it identified Mr Lehrmann in the original report.
NewsLifeMedia, publisher of news.com.au, whose political editor Samantha Maiden is also named in the suit, similarly said Mr Lehrmann was not identified.
The company said nothing had been provided to support Mr Lehrmann’s allegation, which it denies, that it acted with reckless indifference about whether the claims were true.
Mr Lehrmann was not contacted before publication but News said it was not necessary to contact him because he was not being identified, had already declined to comment to Ten and later told police he had no intention to respond to media inquiries.
The defences come as Mr Lehrmann seeks permission to run the cases, filed in February, more than a year after the publications – well outside the limitation period legally required in defamation disputes.
In a case management hearing before Justice Michael Lee on Wednesday, barrister Steven Whybrow SC said Mr Lehrmann waited to file the case on legal advice because of the ongoing criminal case and his mental health.
Ten’s barrister Matthew Collins KC argued the court should toss the cases because Mr Lehrmann failed to remain “shtum” or rely on his right to silence during the criminal trial.
Wilkinson’s barrister Sue Chrysanthou SC also opposed the extension, saying there was a “gap of many months” between the publications airing in February 2021 and charges being brought in August.
If Mr Lehrmann was concerned about defamation, he could have done something during that period, she said.
The extension of time application will be heard on March 16.
Statements of claim for Mr Lehrmann filed in the defamation action said his personal reputation had been damaged by the allegations.
Mr Lehrmann has consistently denied the allegations.
His criminal trial in the ACT Supreme Court was derailed last year because of juror misconduct.
The prosecutor later dropped the charges because of the impact a second trial would have on Ms Higgins’ mental health.
The ACT government has launched an independent inquiry into the handling of Ms Higgins’ rape allegations by police, prosecutors and a victim’s support service.
By Jack Gramenz, Maeve Bannister and Miklos Bolza in Canberra
