The Federal Court has previously heard Seven paid Lehrmann’s rent for 12 months as part of the deal, but Wilkinson’s barrister, Sue Chrysanthou, SC, said on Tuesday that “it would appear that there was months more of rent paid for by Network Seven in Mr Auerbach’s name”.
Under the interview deal inked in April 2023, Lehrmann agreed to provide exclusive access to “all information, documents, film, video, photographs, items and assistance reasonably requested by Seven” relevant to the interview.
Asked in court last year whether he gave Seven material in these categories, Lehrmann said: “No, I just gave an interview.”
Extract from Lehrmann’s exclusivity deal with Seven, tendered in his Federal Court defamation case.Credit: Federal Court of Australia
Higgins’ text messages
Collins told the court on Tuesday that there was a question about whether Lehrmann gave Seven 2321 pages of text messages sent between Higgins and her ex-boyfriend Ben Dillaway over a period of years, which had been handed over to the Australian Federal Police under a search warrant as it investigated Higgins’ claim she was sexually assaulted by Lehrmann in Parliament House.
Brittany Higgins’ ex-boyfriend Ben Dillaway outside the Federal Court in Sydney last year.Credit: Kate Geraghty
Collins said that “these are deeply personal exchanges between Ms Higgins and her former boyfriend that are not otherwise in the public domain and which are the subject of implied undertakings”.
He alleged distributing those “intimate” and “private messages” would amount to an abuse of process because disclosing them “can only have been calculated to put pressure on witnesses” before the defamation case. Higgins gave evidence in the defamation trial for Ten.
Collins said this conduct, if accepted, would be an “outrageous contempt of court”.
He said Auerbach’s evidence identified the Dillaway texts as well as messages from author and Sydney Morning Herald columnist Peter FitzSimons, who is married to Wilkinson, as having been handed over by Lehrmann, but the “obvious inference … is that it went well beyond that”.
Matthew Richardson, SC, acting for Lehrmann, said the allegations raised on Tuesday were “really lipstick on a pig”, prompting Lee to reply that it was “a bit more than that” and involved a suggestion that Lehrmann had not been “playing with a straight bat in answering questions” in court.
Richardson said that this was “exactly right” and “obviously a lie under oath is an exceptionally serious matter” but both sides, namely Higgins and Lehrmann, were already accused of telling “dozens of lies” by the opposing side.
Asked by Lee why sunlight was not the best disinfectant in this case, Richardson replied: “Mr Auerbach has been dancing in the sunlight for two weeks.”
Richardson said the evidence before the court was that the 12 months of rent totalled about $105,000 and a separate rental arrangement for about three weeks, not months, cost about $12,000.
In her interview with The Project in 2021, Higgins accused an unnamed colleague of raping her in March 2019 in the office of the then-defence industry minister, Linda Reynolds, for whom they both worked as advisers.
Lehrmann claims the Higgins interview defamed him by suggesting he was guilty of raping Higgins.
He has always maintained his innocence.
Ten and Wilkinson’s chief defence in the case is truth, meaning they are seeking to prove to the civil standard – on the balance of probabilities, meaning it is more likely than not – that he raped Higgins. This is lower than the criminal standard of beyond reasonable doubt.
Lehrmann’s ACT Supreme Court criminal trial for sexual assault was aborted in 2022 owing to juror misconduct and a second trial did not proceed owing to concerns about Higgins’ mental health.
Brittany Higgins outside the Perth Supreme Court in March.Credit: Trevor Collens
Collins told the court on Tuesday that only some of the material contained in a Federal Police e-brief, provided to Lehrmann in his capacity as the accused in the criminal trial, was in fact used in the eventual trial. He said evidence before Lee would suggest just 17 of the 2321 pages of texts between Higgins and Dillaway “was tendered in the criminal trial”.
Attack on Lehrmann’s credibility
Ten argued Auerbach’s evidence was also relevant to whether Lehrmann was a credible witness in the defamation case, in light of his evidence that he did not give documents to Seven.
Former Seven producer Taylor Auerbach last week.Credit: James Brickwood
Lee has already indicated that it appears parts of the evidence of Lehrmann and Higgins “simply can’t be accepted”, meaning it is possible that adverse comments will be made about the credibility of both of them in his final judgment.
The masseuse claim
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Auerbach first emerged as a bit player in the legal saga after news.com.au’s Samantha Maiden reported last month that “two Thai masseuses were booked, one for Mr Lehrmann and another for a Seven employee” in the early hours of Saturday, November 26, 2022.
Auerbach, widely reported to be the Seven employee who booked those services, threatened to sue Lehrmann for defamation after the former federal Liberal staffer responded to Maiden’s report with a statement describing the allegation as “an untrue and bizarre story from a disgruntled ex-Network Seven producer”.
Auerbach sent a concerns notice – the first step in initiating defamation proceedings – to Lehrmann on Wednesday. A concerns notice allows a party accused of making a defamatory comment to take remedial action before proceedings are filed.
Auerbach’s solicitor, Rebekah Giles, said in the concerns notice that Lehrmann’s press statement conveyed the defamatory meaning that “Taylor Auerbach lied to the press about Bruce Lehrmann being bought a massage by a Seven Network employee”.
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