Explosive new evidence in Bruce Lehrmann defamation trial

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Explosive new evidence detailing claims of how Channel 7 obrained Brittany Higgins’ private text messages is at the centre of a last-minute legal application to reopen the Bruce Lehrmann defamation case.

The claims are contained in a sworn affidavit prepared by former Spotlight producer Taylor Auerbach, which is believed to name Mr Lehrmann as the source of leaks to the program.

News.com.au does not suggest that Mr Lehrmann has provided the documents to the Seven Network, only that Auerbach, the producer on the program, claims that he did in a sworn affidavit. The claims have not been tested, nor has the affidavit been read into evidence.

Mr Auerbach emerged in recent weeks as the Spotlight producer who booked two Thai masseuses on a Seven Network credit card. Mr Lehrmann denied receiving a massage and said the story was bizarre and untrue and fuelled by a “disgruntled ex Spotlight producer”.

Auerbach then engaged lawyers and threatened to sue Mr Lehrmann for defamation.

The new material is expected to detail Seven’s talks with Mr Lehrmann in the lead-up to signing a deal, including a trip to Tasmania documented on Spotlight executive producer Mark Llewellyn’s public Instagram account in December 2022.

In multiple images uploaded to Instagram, Mr Llewellyn is photographed on a plane travelling to Tasmania with Auerbach in a post where he states: “I’ve always said travel broadens the mind.”

During the trip, Mr Lehrmann played golf with Auerbach, around a fortnight after the producer claims he ordered two Thai masseuses on a Seven credit card without the knowledge of consent of anyone at the network.

Seven claims Auerbach was disciplined just weeks before the producer was photographed on a plane with his boss en route for further talks with Mr Lehrmann.

The bombshell revelations relate to documents provided to Spotlight, including material from a police Cellebrite report of Ms Higgins’ phone.

News.com.au does not suggest the Australian Federal Police were the source of the leaks.

Mr Lehrmann has previously denied providing documents or photographs to the program in his evidence to the Federal Court.

The Federal Court is set to hear the application lodged by the Ten Network to reopen the Bruce Lehrmann defamation trial on the eve of Justice Michael Lee’s April 4 judgment.

While further details are not yet known, the test to reopen a case generally relies on a legal argument that fresh evidence has come to light that was not available during the trial.

Brittany Higgins’ leaked private phone records

Mr Lehrmann’s lawyers have previously told the Federal Court that he is not responsible for the leaking of Ms Higgins’ private phone records that were obtained under subpoena during the criminal trial.

An extraordinary legal whodunit emerged in the wake of the leak of a six-hour tape of Ms Wilkinson, Ms Higgins, her partner David Sharaz and executive producer Angus Llewellyn giving their “unplugged” views on high-profile figures.

It was first broadcast by Seven as part of an interview special with Mr Lehrmann and included Ms Wilkinson describing former Defence Minister Linda Reynolds as “a nobody” and an “idiot”, and saying “who is this f***king woman”.

Separately, thousands of text messages on Ms Higgins’ iPhone were leaked to Seven and other media outlets.

In the Federal Court, Barrister Sue Chrysanthou SC, acting for Ms Wilkinson, and Matt Collins KC for Ten previously highlighted the barrage of media stories including Ms Higgins’ private texts.

They asked for the Federal Court to act to compel Mr Lehrmann to answer questions about whether he was involved in the leaks at a hearing before Justice Michael Lee – a request he denied.

“All we seek to do, and it’s relevant to credit and it’s relevant to damages, is ask the applicant (Mr Lehrmann) if he had anything to do with it,” Ms Chrysanthou SC said.

“That’s the purpose of the interrogatories.

“Someone is engaging in a concerted campaign to produce misleading material to the media in order to impugn the respondents and witnesses that the respondents could call in the defence to these proceedings in November.”

But Matthew Richardson SC told the court he was instructed that Mr Lehrmann was not involved and Ten had “no idea” who was leaking the material.

“In correspondence last night, and in the written submissions provided to your honour, the allegation was made, it was the obvious inference that my client had provided materials to Seven even in breach of his Harman obligations. He absolutely denies that. It is a grave and serious allegation. It’s aggravating the damages, in this case,” Mr Richardson said.

Justice Lee ultimately declined to order the interrogatories in the form proposed.

Ms Chrysanthou SC said the Seven broadcast was an attempt to target Wilkinson and her producer and “to paint them as villains”.

Dr Collins KC said Mr Lehrmann had told Seven he wanted to “light some fires” and had complained he had “enough s*** shoved down his throat”.

“Mr Lehrmann intends to run a public campaign against Ms. Higgins,” Dr Collins KC said.

“He’s a man who says he has nothing to lose. He says he’s acting contrary to legal advice. This is a trial coming before your honour in a relatively few short months, measured in weeks rather than months, the publicity of the last few days in our respectful submission, can only have been calculated to put pressure on witnesses, not to co-operate with the respondents.”

Mr Lehrmann is suing over the original Ten report that did not name him in relation to Ms Higgins rape allegation. He was never convicted of the sexual assault charge, which was later dropped, and he maintains his innocence.

Leaked texts where Sharaz called Morrison a c**t

The leaked texts include private discussions with Wilkinson’s husband Peter FitzSimons over a $325,000 book deal and Mr Sharaz describing former prime minister Scott Morrison as a “c**t”.

The leaked audio tape was originally obtained when Ten was subpoenaed in the criminal trial and was never made available as part of a Board of Inquiry into the trial.

Any lawyer who obtained the leaked material through the criminal trial or the board of inquiry would be precluded from providing it to others under what is known as the Harman undertaking.

News.com.au does not suggest that any lawyer associated with the case did so.

What is the Harman obligation?

The rule in Harman v Secretary of State for the Home Department [1983] 1 AC 280 (Harman) precludes a litigant from making collateral use of documents obtained through the court’s compulsory processes such as subpoenas.

The rule states: “[W]here one party to litigation is compelled, either by reason of a rule of court, or by reason of a specific order of the court, or otherwise, to disclose documents or information, the party obtaining the disclosure cannot, without the leave of the court, use it for any purpose other than that for which it was given unless it is received into evidence.”

What Seven has said about the Harman obligation

Spotlight producer Steve Jackson was nominated as a finalist in the Walkley Awards for Excellence in Journalism over the program, a nomination that was later rescinded after it emerged Seven had paid Mr Lehrmann’s rent for a year.

It is not prohibited in the journalism awards to pay for an interview but it must be transparently disclosed.

In a letter of complaint to the Walkleys at the time obtained by news.com.au, Jackson wrote to “formally register our disappointment that The Walkley Foundation – a body with a rich and proud history of supporting whistleblowers and journalists’ right to protect confidential sources – has attempted to speculate on the potential identity of confidential sources involved in our Spotlight entry.

“Further, the Foundation has deemed it appropriate to ask Spotlight to comment on the identity of its confidential sources, via your request on the phone to officially address whether any of them were subject to the ‘Harman undertaking’ regarding any material broadcast in our report.

“Responding to this request is fraught with ethical danger, given it could reveal whether any of Spotlight’s confidential sources were a party to legal proceedings involving Brittany Higgins and Bruce Lehrmann.

“It is extremely disappointing to even be asked given the Foundation’s strong stance on the importance of maintaining source confidentiality and the fact that the accuracy and authenticity of the material included in our report is not in dispute.

“However, in the interest of full transparency, Spotlight will confirm, as it has already done publicly, that the program did not obtain any material as a result of any person providing confidential documents obtained on subpoena or through the criminal discovery process.

“In other words, there has been no breach of any implied undertaking in the provision of materials to Spotlight of which we are aware.”