Defamation actions have increasingly become a public battleground for high-stakes legal and reputational conflicts in Australia. Politicians and political staffers. Mining magnates and media moguls. War veterans and celebrity surgeons. Recent high-profile cases have highlighted the complex interplay between freedom of speech, the reputations and agendas of both the defaming and the defamed, and the law.
With the prevalence of social media, defamation is no longer exclusively wielded as a weapon by the rich and famous. Through LK Law’s involvement with the Accessible Justice Project (AJP), a low-bono initiative established by LK, our team have assisted clients to defend against defamation actions on a much smaller scale.
In our experience, there is very rarely a neat delineation between right and wrong in defamation actions – they are inherently unpredictable, and a variety of commercial considerations should be taken into account before pursuing one.
The Lehrmann / Higgins “omnishambles”
Are you one of the 40,000 people who were glued to the Federal Court of Australia’s YouTube channel on 15 April 2024 to watch the Bruce Lehrmann defamation verdict? The saga began in February 2021 with a News.com.au article by Samantha Maiden1, and an episode of Network Ten’s The Project with Lisa Wilkinson, which aired Higgins’ allegations that she was raped by a colleague in Minister Linda Reynolds’ office at Parliament House. Later that year, Lehrmann was charged with sexual assault.
Fast forward to June 2022. Days before the criminal trial is set to commence, Wilkinson accepted an award at the Logies for her interview with Higgins, and honoured Higgins’ courage in her acceptance speech. Arguing that Wilkinson’s speech might unfairly sway the jury, Lehrmann’s lawyers succeeded in having the trial delayed until October 2022.
The criminal trial, presided over by Chief Justice Lucy McCallum in Canberra’s Supreme Court, went for 2 weeks and involved 29 witnesses. After a whole week of jury deliberations, her Honour discharged the jury and declared a mistrial, finding that one member had conducted their own research. A retrial was set for February 2023, but in December 2022, the ACT Director of Public Prosecutions announced that the prosecution would not go ahead, as the ongoing trauma posed too great a risk to Higgins’ mental health.
The tables turned. Instead of a retrial in February 2023, Lehrmann launched defamation proceedings against Network Ten and Wilkinson for the episode of The Project, News Corp and Maiden for the News.com.au article, and the ABC for its coverage of a National Press Club address given by Higgins and Grace Tame in February 2022. The claims against News Corp, Maiden and the ABC were settled out of court.
The month-long defamation trial was heard by Justice Michael Lee in the Federal Court in November to December 2023. It comprised a total of 33 witnesses, and culminated in a 300+ page judgment in April 2024, describing the whole ordeal as an “omnishambles”. Finding that Network Ten and Wilkinson succeeded in establishing, to a civil standard, the substantial truth of the defamatory imputations (s. 25, Defamation Act 2005 (NSW)), his Honour ruled that, on the balance of probabilities, Lehrmann raped Higgins in Parliament House. As his Honour noted in the concluding remarks, “Having escaped the lions’ den, Mr Lehrmann made the mistake of coming back for his hat.”
In May 2024, Justice Lee awarded costs to Network Ten and Wilkinson on an indemnity basis, except where they failed to establish the qualified privilege defence (s. 30, Defamation Act 2005 (NSW)). Lehrmann is appealing the decision.
Separately, in August 2023, Senator Linda Reynolds launched a defamation action against Higgins and her now-husband David Sharaz over two social media posts. The trial is set to commence on 24 July 2024. Reynolds also received $90,000 and a formal apology from the ACT Government in settlement of her defamation action against the Government and Shane Drumgold, former ACT Director of Public Prosecutions, regarding a letter penned by Drumgold to the AFP during Lehrmann’s rape trial which accused Reynolds of “disturbing conduct”.2
It wasn’t the first and won’t be the last
Before Lehrmann, there was former soldier and Victoria Cross of Australia recipient Ben Roberts-Smith, former Attorney-General Christian Porter, and media mogul Lachlan Murdoch.
In January 2019, Roberts-Smith sued Fairfax Media, a subsidiary of Nine Entertainment, and 3 journalists, over articles detailing a series of unlawful killings allegedly carried out by Roberts-Smith in Afghanistan. Justice Anthony Besanko dismissed the Federal Court action in June 2023, finding that the media outlets had established the substantial or contextual truth of many of their allegations. An appeal was heard by the Full Court in February 2024 and the decision remains to be seen.
In August 2020, Clive Palmer sued then-Premier of Western Australia, Mark McGowan, over six publications which allegedly conveyed defamatory imputations regarding Palmer and his business interests. In response, McGowan filed a cross-claim against Palmer over nine allegedly defamatory publications regarding McGowan’s conduct as Premier. Two years later, Palmer was awarded $5,000 in damages and ordered to pay the costs of McGowan’s cross-claim, and McGowan was awarded $20,000 in damages at a significant cost to WA taxpayers.
In March 2021, Porter sued the ABC over an article which implicated a cabinet minister in historical sexual assault allegations. The matter was settled out of court in August 2021, and it is understood that no money was exchanged, but that the ABC paid the costs of mediation and placed an editor’s note on the original article to clarify that it did not intend to suggest that Porter had actually committed the alleged offence.
In August 2022, Murdoch, Executive Chair of Nova Entertainment, Chair of News Corp and Chair and CEO of Fox Corporation, sued Private Media, publisher of Crikey, over an article that described the Murdochs as “unindicted co-conspirators” in the US Capitol attacks on 6 January 2021. The action was discontinued in April 2023, and Murdoch paid $1.3 million of Private Media’s legal costs, after Fox News Network settled for US$787.5 million in a US case against Dominion Voting Systems, admitting to broadcasting false statements about the rigging of Dominion’s voting machines during the 2020 US presidential election.
It does not end with Lehrmann either. In the coming months, we’ll see the outcome of Dr Munjed Al Muderis’ Federal Court trial against Nine Network and others, regarding a 60 Minutes episode and articles which allegedly conveyed that he negligently performed surgery and provided inadequate aftercare. The Lehrmann and Roberts-Smith appeals will be decided by the Full Federal Court. Senator Reynolds’ claim against Higgins and her now-husband, David Sharaz, will unfold in the Supreme Court of Western Australia.
It’s not just about the high-profile cases
Through our work with the AJP, we’ve seen the weaponisation of defamation by an alleged domestic violence perpetrator as a vehicle for post-separation abuse and coercive control.
After years of suffering alleged abuse and violence at the hands of her partner, Amie (a pseudonym) made a social media post regarding domestic violence in Australia, sharing parts of her own experiences of domestic violence and her frustrations at the criminal justice system and support for victims (alleged or otherwise) of domestic violence. Her post was a message of solidarity and call to action for those in her small social media community.
She was then contacted by solicitors representing her ex-partner regarding defamation proceedings. Having exhausted her options for other pro-bono assistance, she contacted the AJP who assisted Amie with her defence of contextual truth.
Despite having an intervention order in place to protect her, Amie found herself once again at the mercy of her ex-partner, unable to offer any significant financial settlement and struggling to fully engage with a legal system and court process that re-traumatised her. She understood that these proceedings (and other proceedings she was simultaneously defending) were an extension of his abuse, and that the only way he could continue his control over her was by leveraging the small carve-out in Amie’s intervention order which permitted contact (through solicitors in this case) in relation to court proceedings.
Unlike the high-profile cases mentioned earlier, in Amie’s case, the client had limited financial means and in defending the claim was required to endure ongoing emotional torment as a consequence of this abusive relationship.
Commercial considerations
Whether you’re considering bringing an action in defamation, advising a client on the prospects of their defamation case, or assisting a client to defend an action brought against them, the recent cases (and our experience with the AJP) highlight a number of important commercial considerations:
- Defamation actions are inherently unpredictable, and rarely does a party – even a successful one – emerge unscathed. This is particularly so when it comes to the credibility of key witnesses. In Lehrmann’s action, Justice Lee’s costs judgment opened with, “There are no real winners in this litigation.”3 Additionally, the larger an action grows, the harder it becomes to limit unexpected detours and collateral damage. Higgins’ criminal action prompted Lehrmann’s defamation action, which led to Wilkinson’s cross-claimagainst Network Ten, and Reynolds’ claims against Higgins and Sharaz, the ACT Government and Drumgold.
- Courts are becoming less tolerant of parties who misuse public resources for improper purposes or tactical games. Defamation law is designed to balance the right of free speech with the right to be protected from untruthful attacks against an individual’s reputation. If the overriding purpose of a proposed defamation action is something other than seeking damages for reputational harm resulting from a defamatory publication, such as stifling truthful (or substantially truthful) criticisms, or in the case of our Accessible Justice Project client, as a means of exerting power and perpetuating abuse, this will not go unnoticed by the Court.
- The financial implications of defamation actions – even successful ones – can be significant. Beyond the obvious (legal fees), there are a variety of factors taken into consideration by the Court awarding damages and costs. Section 37N(4) of the Federal Court of Australia Act 1976 (Cth), for example, requires the Court to take into account any failure by a party to comply with the overarching purpose of civil practice and procedure, namely “to facilitate the just resolution of disputes according to law as quickly, inexpensively and efficiently as possible.”4 Even though Network Ten and Wilkinson successfully established the substantial truth defence against Lehrmann’s claims, they were not awarded costs with respect to ten affidavits addressing the failed statutory qualified privilege defence.5
The decision to bring or defend a defamation action ultimately requires careful consideration and a thorough understanding of the commercial and other risks involved. If the high-profile cases have taught us anything as a plaintiff, it is this: think twice.
- Samantha Maiden, News.com.au (15 February 2021): https://www.news.com.au/national/politics/parliament-house-rocked-by-brittany-higgins-alleged-rape/news-story/fb02a5e95767ac306c51894fe2d63635
- Penny Travers and Patrick Bell, ABC News (4 March 2024): https://www.abc.net.au/news/2024-03-04/senator-linda-reynolds-settlement-defamatory-act-government/103540966
- Lehrmann v Network Ten Pty Limited (Costs) [2024] FCA 486, [1].
- Palmer v McGowan (No 6) [2022] FCA 927, [4].
- Lehrmann v Network Ten Pty Limited (Costs) [2024] FCA 486, [46].