The dismissal of a high-profile defamation appeal has cemented a major legal victory for Channel 10, its former star presenter Lisa Wilkinson and the producers of the now axed program The Project at the centre of an interview that reshaped the national conversation about workplace sexual assault.
The full bench of the Federal Court has rejected Bruce Lehrmann’s appeal against a ruling that found, on the balance of probabilities, that he raped his then colleague Brittany Higgins inside Parliament House in Canberra in 2019, in a case that arose from an interview broadcast on Network 10’s The Project in 2021.
The former Liberal staffer had sued Network 10 and Lisa Wilkinson for defamation over the program’s interview with Higgins, which did not name him but was later agreed to have identified him. In 2024, Justice Michael Lee dismissed his claim, holding that the broadcaster and presenter had made out a truth defence by proving, on the civil standard, that he had raped Higgins.
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On Wednesday, three appeal judges — led by Justice Michael Wigney — unanimously upheld that decision, dismissing all four grounds of appeal advanced by Lehrmann and leaving Justice Lee’s core findings not just intact, but in key respects strengthened in favour of Wilkinson and Network 10.
“The only reasonable inference to be drawn by the facts known and observable to Mr Lehrmann at the time that he had sexual intercourse with Ms Higgins, is that he did turn his mind to whether Ms Higgins consented to sex, was aware that she was not consenting, but proceeded nonetheless,” Justice Michael Wigney said in his summary of the judgment.
“The acceptance of that contention provides another basis for upholding the primary judge’s finding that Mr Lehrmann raped Ms Higgins and that the truth defence pleaded by Network 10 and Ms Wilkinson had been made out.“
Appeal court finds ‘actual knowledge’ of lack of consent
Where Justice Lee had characterised Lehrmann’s conduct as “non-advertent recklessness” regarding consent, the appeal bench went further, accepting submissions from Network 10 and Wilkinson that the primary judge ought to have found actual knowledge that Higgins was not consenting.
In their written reasons, the judges described the scene in the ministerial office after a night of drinking.
“The circumstances then presented to Mr Lehrmann, as found by the primary judge, screamed loudly to anyone with normal faculties that the very drunk, passive and silent woman, prone to drowsiness and with significant impact on her cognitive abilities, who was his junior colleague at work and who was not in any kind of personal relationship with Mr Lehrmann, had not consented to sexual intercourse,” the appeal judges said in their 36-page judgment.
“Having considered with some care all of the detailed findings made with due deliberation by the primary judge and with due regard to the seriousness of the finding, in our respectful view, his Honour should have found actual knowledge on the part of Mr Lehrmann that Ms Higgins did not consent to sexual intercourse,” they added.
The bench found Lehrmann was not inebriated when he took Higgins back to the office and was aware that she was “a very drunk, passive and silent woman” with impaired cognition, that they were not in a sexual relationship and that she had not expressed consent.
Justice Wigney told the court that Lehrmann had not been ambushed by an unexpected case theory.
“The court found that the primary judge did not err in any of the ways alleged by Mr Lehrmann in the grounds of appeal and the submissions in support of him,” he said.
“The full court has found that the way in which the primary judge dealt with and determined the proceedings was not procedurally unfair to Mr Lehrmann.”
He noted that Lehrmann had long been on notice that the case against him included a claim that he had been reckless as to Higgins’ consent, and that the hypothetical ordinary viewer of The Project broadcast would understand the word “rape” to mean sexual intercourse without consent, where the perpetrator either knew the victim was not consenting or was reckless to that possibility.
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A decisive legal win for Wilkinson and Network 10
The appeal judgment marks a significant vindication for Wilkinson and Network 10, whose truth defence has now been upheld twice and whose characterisation of Lehrmann’s mental state at the time of the assault was expressly preferred by the appeal court.
Outside court, Wilkinson’s barrister Sue Chrysanthou SC said her client was relieved the matter had finally concluded.
“She is utterly delighted by the outcome,” Chrysanthou told reporters.
“She’s so grateful to the court for its diligence and efficiency in delivering this judgement in an extremely complicated matter.
She’s particularly happy about the court’s acceptance of her contentions in relation to the nature of the assault.”
A spokesperson for Network 10 framed the decision as confirmation that the broadcaster had been justified in airing Higgins’ account.
“Justice Lee’s judgment was resoundingly endorsed by the unanimous decision of the full Federal Court.
The judgment remains a triumph for truth and reiterates that Network 10 prevailed in proving that Brittany Higgins’ allegations of rape were true.
It remains a vindication for the courageous Brittany Higgins who gave a voice to women across the nation,” the spokesperson said.
The court also considered the alternative defence of qualified privilege, which protects certain publications made reasonably in the public interest. While it was not necessary to decide the appeal, the judges indicated that Justice Lee should have given more weight to the steps Wilkinson and Network 10 took before broadcast, including Higgins’ report to the Australian Federal Police and questions put to witnesses by the network.
They said Wilkinson had material to support her conclusion that Higgins “was being truthful when she gave her account of the rape”, and that these matters should have been factored into the assessment of whether her conduct was reasonable.
Costs orders and a clouded financial future
The loss of the appeal leaves Lehrmann facing a substantial costs burden. He has already been ordered to pay Network 10 around $2 million over the original defamation case, a debt that has been on hold pending the outcome of the appeal. The full court has now ordered him to pay the further costs incurred by Network 10 and Wilkinson in defending the appeal.
In the appeal hearing in August 2024, his solicitor Zali Burrows told the court her client could not afford senior counsel and had limited funds. After Wednesday’s ruling, she reiterated concerns about his financial and personal position and said he remained adamant he had been wrongly accused.
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Outside the Federal Court in Sydney, Burrows said her client was “overwhelmed” by the decision and flagged a possible bid for special leave to the High Court.
“He is a young man who is accused of rape in Parliament House and he maintains his innocence,” she said.
“We respect what the court has said, but everyone should reflect, even the shameless politicians who abuse him for an agenda and everyone else, that Bruce’s life has been destroyed.
I’d just like to say that I hope Bruce is seen as an inspiration to those who say they’ve been wrongly accused, because he will be seeking advice on special leave [to appeal to the high court] in his pursuit for justice.”
She also indicated Lehrmann would seek support from backers to help meet any legal debts.
Long-running saga that began with a TV interview
The civil findings come against the backdrop of a criminal case that never ran to verdict. Lehrmann was charged with rape and faced trial in the ACT Supreme Court in 2022, but the proceedings were abandoned due to juror misconduct. There have been no criminal findings against him, and he has consistently denied raping Higgins.
It was the 2021 interview on The Project that propelled Higgins’ allegations into the public arena, triggering political upheaval in Canberra, workplace reviews and, ultimately, Lehrmann’s defamation proceedings. Those proceedings have now produced two detailed judgments — at first instance and on appeal — both concluding that Network 10 and Wilkinson proved the truth of the rape allegation to the civil standard.
For Wilkinson, who stepped back from television duties in the wake of the controversy, the appeal court’s decision clears the final major legal hurdle arising from the broadcast. Chrysanthou said her client was looking forward to “moving on” and would not be commenting on Lehrmann’s capacity to pay the mounting costs orders.
For Network 10, the ruling reinforces the broadcaster’s public-interest framing of its journalism, with the judges’ comments on both truth and qualified privilege likely to be closely studied by media lawyers and investigative reporters.
SOURCES: ABC and The Guardian
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