Channel 10 could be liable for Lisa Wilkinson’s legal costs and any damages in her defamation case brought by Bruce Lehrmann if she loses, it can be revealed.
Mr Lehrmann is suing the highly paid TV presenter and Channel 10 over coverage of Brittany Higgins’ rape allegation in February 2021 – which he strenuously denies and have never been proven in court – claiming they were defamatory.
When Ms Wilkinson made the rare choice to break off from Channel 10’s legal team, it was reported she would be paying “out of her own pocket”.
But that will only happen if she wins, an analysis of legal documents and interviews with several legal experts has confirmed.
Lisa Wilkinson is still employed with Network Ten. Picture: Channel 9.
It all centres on one key sentence in the 23-page document filed by top silk Sue Chrysanthou SC which defends the claim against Ms Wilkinson.
That sentence claims Ms Wilkinson “says that she is an employee for the purposes of the Employers’ Liability Act 1991 (NSW)”.
Under that legislation, an “employee is not liable where an employer is also liable” if “an employee commits a tort (in this case, defamation) for which his or her employer is also liable”.
Veteran media lawyer Peter Bartlett unpacked the legal jargon.
He explained if Ms Wilkinson loses the case and is found to have committed defamation against Mr Lehrmann, she will be wiped clean of all legal costs.
Channel 10 boss Peter Meakin was referenced in Ms Wilkinson’s defence
She will be protected financially by Channel 10, who will have to pay for Ms Chrysanthou – as well as their own legal team that is headed by Matt Collins KC.
Ms Wilkinson and her employer are separate respondents to the defamation case, meaning the Federal Court could find one, both or neither liable for damages.
But Mr Bartlett said the caveat of the act is that she won’t be protected if she wins, or in legal terms, is found not to have committed the tort of defamation.
“If she wins, she would have paid her own legal fees and would still be out of pocket. Because normally you would recover 75 or 80 per cent of your costs,” he said.
The criminal charge against Bruce Lehrmann was dropped. Picture: NCA NewsWire/Gary Ramage
Mr Bartlett said in most cases where a media company is sued and their reporter is sued, the media company indemnifies (financially protects) the reporter and they have the same legal representation.
“So here it‘s very unusual … That the reporter has separate representation,” he said.
Another top legal source claimed Ms Wilkinson could be “up to hundreds of thousands of dollars” out of pocket even if she wins due to the gap in the costs paid and damages awarded, which they put slightly lower than Mr Bartlett, at “60 to 70 per cent”.
The source said yet another caveat is that Mr Lehrmann may not have enough money to pay the damages if Ms Wilkinson wins – in which case, Ms Wilkinson may be out of pocket by 100 per cent of her costs.
And to make things more complicated, another legal source said that because Ms Wilkinson is pleading truth in her defence – a defence which takes more resources to prove than others such as qualified privilege (which she is also pleading) – Channel 10 will have to pay Mr Lehrmann even higher damages if she loses.
Lisa Wilkinson (l) is being sued over her reports of Brittany Higgins’ allegations.
The source said that because of this, Channel 10 will likely try to find a legal loophole out of abiding by the act and paying such hefty costs.
They said that essentially, the only way Ms Wilkinson would have guaranteed avoiding financial risk was if she had stuck with Channel 10s lawyers.
Mr Lehrmann was charged with sexual intercourse without consent in August 2021 and pleaded not guilty to the charge that was later dropped.
He has always denied having sex with Ms Higgins and any wrongdoing during the trial.
Ms Wilkinson, who renewed a multi-year contract with Channel 10 in 2021, remains employed with the network but has not appeared on screen since quitting The Project in November.
Her decision to hire her own legal team follows a bruising Logies fallout which resulted in a delay to the criminal trial.
Ms Wilkinson won the Outstanding News Coverage Logie for her coverage. Picture: Channel 9
The TV presenter came under fire after thanking Ms Higgins in her acceptance speech for the Outstanding News Coverage Logie award.
It prompted the Chief Justice of the ACT Supreme Court to delay the trial “through gritted teeth” from June to October, after defence lawyers argued it could prejudice the jury.
After the trial, a letter written by Network 10 executive vice-president Beverley McGarvey claimed that neither the network’s senior legal counsel or Ms Wilkinson realised they had been cautioned about the speech in a meeting with the Director of Prosecutions, Shane Drumgold.
A second trial against Lehrmann was dropped due to Ms Higgins’ mental health. Picture: NCA NewsWire/Gary Ramage
The first trial collapsed following juror misconduct and the DPP ultimately did not proceed, with a second citing Ms Higgins’ mental health.
The defence – which pleads truth and qualified privilege – alleged Ms Wilkinson “at all relevant times” understood Network 10 employed an expert legal team with experience in “defamation and contempt”.
Mr Lehrmann launched legal action on February 7 against Lisa Wilkinson and Network 10, as well as News Corp Australia’s News Life Media and news.com.au’s Samantha Maiden.
He alleged Channel 10 and News Corp’s stories implied four defamatory meanings, including that he “raped Brittany Higgins in [then] defence minister Linda Reynolds’ office in 2019”.
The defence document filed by Ms Wilkinson’s barrister Sue Chrysanthou SC said it will prove Mr Lehrmann’s conduct “amounted to rape”.
Wilkinson ‘understood’ others checked facts‘Amounted to rape’: Lisa’s defence released
News Life Media and Channel 10 are yet to file its defence – the former has a deadline of March 7 and the latter’s deadline is March 8.
Channel 10 declined to comment.