Overview
On 5 April 2023, Bruce Lehrmann, the well renowned liberal staffer fired the first shot in legal proceedings once again. This time, at the Australian Broadcasting Corporation (ABC), over its publication of a speech given by Brittany Higgins and Grace Tame to the National Press Club on 9 February 2022. Lehrmann has filed defamation proceedings in the Federal Court, alleging that the ABC had defamed him by publishing the speech.
The Proceedings
This is of particular interest following the Australian Capital Territory’s director of public prosecutions’ decision to discontinue the sexual assault trial against Mr Lehrmann, as, if Mr Lehrmann had been convicted of the charge of sexually assaulting Ms Higgins, the ABC would have likely been able to rely upon that conviction as proof that Mr Lehrmann sexually assaulted Ms Higgins, because of section 42 of the Defamation Act 2005 (NSW). Without such a conviction, the ABC cannot rely upon that section.
Mr Lehrmann commenced the proceedings against the ABC while awaiting the decision of Justice Michael Lee, in separate defamation proceedings that he had brought against:
a) Network Ten and Ms Lisa Wilkinson; and
b) News Life Media Pty Limited and Samantha Maiden.
The Law
That decision is in relation to an application to extend the time for Mr Lehrmann to have commenced proceedings, because he commenced the proceedings against both Network Ten and News Life Media outside of the short one (1) year limitation period provided under the Limitation Act 1969 (NSW) (and other corresponding State and Territory limitation acts). The burden rested upon Mr Lehrmann to satisfy the Court that it was not reasonable for him to commence proceedings within the applicable limitation period.
The Burden
In supporting his claim to extend the 12-month limitation period, Mr Lehrmann relied upon legal advice that he received to delay defamation proceedings whilst there were criminal allegations against him. The media outlets, in opposition of Lehrmann’s application, argued that Mr Lehrmann had received independent defamation advice that assured him of his good prospects in a claim for defamation.
The Outcome
All in all, pursuant to section 56A of the Limitation Act 1969 (NSW), on 28 April 2023, Justice Lee of the Federal Court of Australia found that it was not reasonable for Mr Lerhmann to commence defamation proceedings within the year from publication, because of the intense criminal proceedings that were live against him, at the time. As a result, Mr Lehrmann was granted an extension on the one-year limitation period. This was based upon the following findings:
- Mr Lehrmann was advised to defer defamation proceedings whilst criminal proceedings were on foot;
- Mr Lehrmann’s priority was the criminal allegations made against him;
- The advice to defer defamation proceedings were unsurprising given previous findings made by the Court;
- Lehrmann’s engagement with the Australia Federal Police was not inconsistent with his broader defence strategy; and
- Mr Lehrmann’s energy was reasonably directed towards his criminal prosecutions.
In all of the cases, that is, in Mr Lehrmann’s proceedings against Network Ten, News Life Media and the ABC, Mr Lehrmann alleges that he has been defamed because those publishers had published material in various forms, which alleges that he raped or sexually assaulted Ms Higgins in the then Minister for Defence, Linda Reynold’s offices in Canberra in 2019, after both Ms Higgins and Mr Lehrmann had attended a social event where they consumed alcohol. This was the case advanced by the Australian Capital Territory’s department of public prosecutions following charges laid against Mr Lehrmann by the Australian Federal Police. Mr Lehrmann has been tried twice for those allegations, with one being thrown out on the basis of misconduct by a juror, and then subject to a retrial, which the department of public prosecutions subsequently discontinued.
At least, with respect to the proceedings Mr Lehrmann has commenced against the ABC, he will not encounter the same limitation problem, because he issued a concerns notice within the 56 days before the applicable limitation period expired, which, pursuant to section 14B of the Limitation Act 1969 (NSW), extends the limitation period up to a maximum of 56 days, thus allowing a plaintiff to commence proceedings within that period of time, notwithstanding that one (1) year has passed since the matter was published.
Next Steps
Now that Lehrmann is able to bring his defamation proceedings against Network Ten and Ms Lisa Wilkinson; and News Life Media Pty Limited and Samantha Maiden, the public’s attention will turn to the substantive defamation proceedings set to commence on 20 November later this year for 4 weeks.
Defamation Advice
The law of defamation generally, and the extremely short period of time in which you must commence proceedings, and how to extend the limitation period if necessary, requires an in-depth knowledge of the technicalities of the law of defamation. Rostron Carlyle Rojas Lawyers have a dedicated defamation legal team ready to assist you, wherever you are located in Australia.
If you have been defamed, have been served a concerns notice, or are considering publishing material that may be harmful to another person, contact us today by email at [email protected] or by phone at 02 9307 8900, and we will be happy to assist.
The blog published by Rostron Carlyle Rojas is intended as general information only and is not legal advice on any subject matter. By viewing the blog posts, the reader understands there is no solicitor-client relationship between the reader and the blog published. The blog should not be used as a substitute for legal advice from a legal practitioner, and readers are urged to consult RCR on any legal queries concerning a specific situation.
