Lehrmann v Network Ten Pty Limited (Trial Judgment) [2024] FCA 369

FEDERAL COURT OF AUSTRALIA

Lehrmann v Network Ten Pty Limited (Trial Judgment) [2024] FCA 369 File number: NSD 103 of 2023

Judgment of: LEE J

Date of judgment: 15 April 2024

Catchwords: DEFAMATION – the Lehrmann imbroglio – underlying controversy a cause célèbre – where applicant sues in defamation over a special edition of The Project programme broadcast by Network Ten – where publications televised and published online – where imputations the applicant raped Ms Higgins in Parliament House in 2019 – where substance of each matter relevantly identical – imputations conveyed DEFAMATION – identification – where respondents contend the programme did not identify the applicant – where applicant is unnamed in programme – observations as to relevant principles – whether persons with special knowledge of the applicant reasonably understood the publication to concern him – extent of identification – where identification witnesses called – gossip and rumour – identification established DEFAMATION – defences – substantial truth – s 25 of the Defamation Act 2005 (NSW) – where evidence of two key witnesses unsatisfactory – consideration of relevant principles – requirement to prove rape as that concept is understood by the ordinary viewer of publication – elements of rape considered – non-consent and knowledge elements – recklessness – where applicant indifferent to the rights of Ms Higgins as to ignore the requirement of consent – where applicant raped Ms Higgins – defence established DEFAMATION – defences – statutory qualified privilege – s 30 of the Defamation Act – proper construction – consideration of relevant principles – separate assessment of conduct of the respondents – distinguishing features of Ms Wilkinson's conduct – conduct of respondents not reasonable in publication of defamatory matter DEFAMATION – observations as to other defences – common law justification – Lange defence – common law qualified privilege EVIDENCE – observations as to fact-finding, onus and standard of proof – difference between civil and criminal standards – credit findings concerning complainant of sexual assault – contemporaneous representations – whether Court bound to accept account of either of the principal witnesses – discussion of need for nuance in credit findings and the flaw in falsus in uno, falsus in omnibus approach – implied admissions and "consciousness of guilt" – Edwards lies DAMAGES – consideration of counterfactual where substantial truth defence not established – principled approach to assessment including consideration of whether it is licit to award no damages – approach to assessment where lack of apparent connexion between the respondents' wrong and real cause of distress and hurt – where actual damage to reputation only slight because applicant only entitled to be compensated for the reputation he deserves – improper conduct established – where augmentation of damages occasioned by aggravating conduct comes from a low base – modest award of compensatory damages notwithstanding objective gravity of imputations