Hearing for 2000-page affidavit underway ahead of Bruce Lehrmann defamation trial judgement

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Lawyers representing Channel Ten have won a bombshell bid to reopen the Bruce Lehrmann defamation trial, with the judgment delayed to next week.

Federal Court Justice Michael Lee has indicated that Taylor Auerbach, whose affidavit is at the centre of his decision to reopen the case, will take the stand at 2:15pm on Thursday.

According to the affidavit, thousands of pages of “deeply personal” exchanges involving Brittany Higgins were leaked to Seven’s Spotlight program.

Channel Ten’s barrister Matt Collins KC opened his submissions at 5pm by revealing the affidavit prepared by Taylor Auerbach included more than 2,000 pages of private text messages between Ms Higgins and her former boyfriend, Ben Dillaway.

“The application we agitate is unusual and exceptional,’’ Dr Collins said.

“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 in our submission,’’ he said.

Mr Lehrmann’s legal team indicated they would oppose the application.

Channel Ten indicated the material was leaked contrary to an implied undertaking in the criminal trial that the matter could not be used for another purpose.

Judgment delayed

Justice Michael Lee told the court at 6:20 pm that it was “increasingly clear” that the affidavit included fresh material and he would not be able to deliver the judgment on Thursday.

“The quicker we resolve this the better,’’ he said.

“I think there is intense public interest in this.

“Now it looks increasingly like if there’s going to be a cross examination, I won’t be in a position to be able to deliver a judgment on Thursday.”

Justice Lee said he would be unable to deliver a judgment until at least next week.

Beware the man with nothing to lose

Dr Collins indicated that Auerbach’s affidavit was accusing Mr Lehrmann of leaking the material to Spotlight.

This he argued was “an abuse of process.”

“In the lead up to this defamation trial and after the criminal proceedings had terminated Mr Lehrmann, chose to go on national television,’’ he said.

“He told a series of falsehoods to a national audience on Spotlight.

“It is in our submission, the definition of an abuse of process.”

He pointed to Bruce Lehrmann’s own words on June 4, 2023 in the first Spotlight program that went to air.

The program included hundreds of hours of CCTV material, audio of police interviews never released during the trial.

“Plainly enough, there was other material also in a certain network’s possession,’’ he said.

During that interview, Mr Lehrmann said: “Beware the man with nothing to lose.”

“Everything needs to be out there in the open,’’ he said.

The program ended with Mr Lehrmann predicting there was “more to come”.

Man in the mirror

In the lead-up to securing the exclusive in early 2023, Spotlight arranged accommodation for Mr Lehrmann in an apartment in Randwick.

The Auerbach affidavit claims that during that period of time the accommodation was booked in the producer’s name on a Seven credit card.

In a stunning submission, Lisa Wilkinson’s barrister Sue Chrysanthou told the court that a photograph would show the executive producer of the Spotlight program in the reflection of a laptop.

The image will show, she told the court, the Spotlight executive producer Mark Llewellyn’s face captured in the reflection taking photographs of Ms Higgins text exchanges in a conversation with Lisa Wilkinson’s husband Peter Fitzimmons.

Channel Ten’s barrister indicated that if Justice Lee decides to reopen the case it is its intention to call Auerbach to give evidence.

Lisa Wilkinson’s barrister, Sue Chrysanthou, indicated that Auerbach was flying back to Australia from New Zealand in anticipation of if he is called to give

“We would propose to call Mr. Auerbach,’’ Dr Collins said.

“He would need to be exposed to cross examination.”

Lehrmann’s legal team responds: ‘Lipstick on a pig’

Earlier, Dr Collins accused Mr Lehrmann of an “outrageous contempt of court” when leaking confidential information to Seven.

Dr Collins told the Federal Court he had intentionally tried to undermine the credit of witnesses in the defamation case.

But Mr Lehrmann’s barrister Matthew Richardson SC raised a number of problems with the affidavit and the arguments put by Channel Ten to reopen the case.

“And what I want to say now is it’s really lipstick on a pig one way or another,’’ Matthew Richardson SC said.

“This is an allegation about an applicant, breaching his Harman undertaking by providing documents to the media and lying about it.

“That’s the substance of what is being argued.”

Justice Lee then interjected, “it’s a bit more than that.”

“It’s also not playing with a straight bat,’’ Justice Lee said.

Justice Lee said in the matter, he wanted to “let sunlight be the best disinfectant.”

Mr Richardson then interjected that Auerbach “has been dancing in the sunlight for two weeks.”

The quip sparked raucous laughter in the Federal Court.

Ten says texts between Higgins and Fitzsimons leaked

Dr Collins then revealed that some of the material canvassed in the affidavit included how Network Ten says Spotlight obtained material from a Cellebrite report of Ms Higgins’ personal phone. Cellebrite is a digital intelligence software program.

The entire contents of Ms Higgins’ phone were provided to police during the investigation and a Cellebrite report prepared capturing every photograph, text message and WhatsApp conversation on her phone.

The contents were then relentlessly leaked to the media in a steady stream of stories since June, 2023.

The leaks detailed messages between Ms Higgins and Lisa Wilkinson’s husband, Peter Fitzsimons.

In May, 2023, it was reported that leaked text messages revealed Mr Fitzsimons and Ms Higgins’ fiancé David Sharaz discussed the best way to spin her $325,000 book advance so that the public wouldn’t think she was “making millions.”

The group texts were sent about two hours before it was announced that Penguin Random House had won the rights to publish Ms Higgins’ memoir.

Mr Fitzsimons, who was acting as Ms Higgins’ pro bono literary agent, told her in March 2021 that she would receive a $325,000 advance from Penguin Random House, a court previously heard.

He wrote: “[The SMH] clearly have a source from one of the publishers that didn’t get over the line.

“They know a little detail. But, much better that they break it than News Limited. It won’t have a negative spin.”

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The Channel Ten barrister submitted that the Spotlight program had obtained the material although it’s not clear it was used in the broadcast.

“Material that had not previously been in the public domain was broadcast, and it was material that was contained within the … police brief,’’ he said.

Judge cuts short Easter arrangements

The judge in Bruce Lehrmann’s defamation trial insisted on reading the explosive affidavit sworn by ex-Spotlight producer Auerbach before agreeing to hold an interlocutory hearing on whether to re-open the case.

Whatever Justice Michael Lee read in its 2000 pages – the document contains Auerbach’s account of Mr Lehrmann’s dealing with the Spotlight program – it was enough to cut short his Easter arrangements and return to Sydney.

But for Network Ten, which has launched the last-minute salvo, there were never any guarantees that Justice Lee would reopen the case or that the document would be published, as all other documents in the case have been, on the public file.

In less than 48 hours, Justice Lee is due to hand down his judgement in the defamation trial, although that could change if he decides to reopen the trial.

Mr Lehrmann has, via his legal team, previously rejected the “outrageous” suggestion that he leaked to Spotlight.

The matter may be relevant to Ten’s legal team because it could go to credibility.

Any suggestion Mr Lehrmann was the source of the leaks could go to his credibility as a witness and may be relevant with regard to any damages.

Auerbach can offer no evidence of what occurred when Ms Higgins and Mr Lehrmann went back to Parliament House. At its highest the fresh evidence goes to his credibility as a witness.

Justice Lee’s urgent hearing on the contents was live streamed from 5pm on YouTube following an application from Ten to reopen the defamation trial based on “fresh evidence” from Auerbach.

Mr Lehrmann has already expressly denied leaking to the Spotlight program when he was questioned by high-profile barrister Sue Chrysanthou SC, representing Ten’s Lisa Wilkinson.

“Could you please turn to volume 11? That’s the agreement I was just asking you about?’’ Ms Chrysanthou asked last year.

“In addition to giving the interviews, you also agreed to give all information, documents, film, video, photographs, items and assistance?”

“Yes,’’ Mr Lehrmann replied.

“And did you do so?’’ she asked.

“No, I just gave an interview,’’ he replied.

But before he could continue, Justice Lee intervened, asking “sorry, why is this relevant?”

“We’ve got an objective theory of contract. We know what the contract says,’’ Justice Lee said.

Ms Chrysanthou was stopped in her tracks.

“Thank you, your Honour. Can I mark the contract for identification?”

Thai masseuse drama

It follows news.com.au revealing that Auerbach had spent thousands of dollars on a company credit card to book two Thai masseuses in the company of Mr Lehrmann and another man in multiple transactions of $1000.

The charges were made without the knowledge of consent of anyone at Seven and Auerbach later apologised and agreed to pay the money back personally.

Mr Lehrmann denies getting a massage.

But when he did so he accused “a disgruntled ex-Spotlight producer” of fuelling the story, prompting Auerbach to seek legal advice.

That legal advice appears to have involved providing information to his lawyers in the form of an affidavit that is now before the court.

Justice Lee must consider whether or not to publish the affidavit and whether or not to recall Mr Lehrmann to give evidence.

The judge may decide to disregard the affidavit and proceed straight to judgment, which is scheduled for 10.15am on Thursday.

A second option is that he could allow for Mr Lehrmann’s legal team to make written submissions on the affidavit.

The third option would be to put Auerbach in the witness box and even recall Mr Lehrmann to give evidence as well.

Lehrmann emerges on Easter Monday in sandals

Meanwhile, a smiling Mr Lehrmann surfaced in Sydney after dark on Easter Monday ahead of Ten’s sensational bid to reopen the trial.

After spending the day locked inside his Balgowlah home where he is living rent-free for a year under a deal with Seven, Mr Lehrmann surfaced on Monday evening to make the 20-minute drive to Paddington.

Mr Lehrmann was joined by two mates including sailor Rob Porter. He wore sandals and a polo shirt for the casual outing ahead of an impending legal showdown.

A form of ‘public violation’

In July 2023, Ms Higgins described the ongoing publication of her private text messages provided to various parties as part of legal processes, including police, prosecutors and Bruce Lehrmann’s defence team during the trial, as “a form of public violation”.

“You can continue to leak every text message, WhatsApp, and emails from my phone,’’ she said.

“Yes, it’s embarrassing. It is such an intimate (and ongoing) form of public violation + humiliation.

“However I refuse to be intimidated or retreat into myself. So, see you in the defamation trial come October.”

On another occasion, she also said on social media: “Stop publishing the private contents of my phone.

“I took a photo of an old page in my diary on the 7th of July 2021.

“It is now being referenced in an article in The Australian. This is the third time private images, texts and WhatsApps from my phone have been published by this particular news outlet.

“I voluntarily provided this material to the police to help them form the brief of evidence and none of it was tabled in court.

“Therefore, no journalist should have seen the photo of my diary.”

Ms Chrysanthou told the Federal Court in June last year that an “orchestrated campaign” appeared to be underway to influence defamation proceedings.

“The publicity of the last few days could only have been calculated to put pressure on witnesses not to co-operate,” Ms Chrysanthou said.

She suggested in court that Mr Lehrmann be asked if he was involved in leaking the text messages to the media.

“We’ve made inquiries of all other parties,” she said.

But Mr Lehrmann’s barrister, Matthew Richardson SC, said his client “absolutely denies” the suggestion he was involved in leaking evidence which he described as a “grave and serious allegation”.

Ghosts of affidavits past

Spotlight executive producer, Mark Llewellyn, made explosive and embarrassing allegations involving some of the Nine Network’s most senior figures himself 18 years ago in an infamous affidavit that claimed then CEO Eddie McGuire had discussed wanting to “bone” – which in his mind meant sack – Today host Jessica Rowe.

The legal bunfight emerged after a sensitive affidavit sworn by Mr Llewellyn was leaked to the media, and Nine failed to prevent publication of the affidavit in the NSW Supreme Court.

At the time, in 2006, he was trying to end his contract with Nine and defect to Channel 7.

Mr Llewellyn’s affidavit detailed conversations with new Nine boss Eddie McGuire and executive director Jeffrey Browne about when to “bone” Rowe.

“She’s a laughing stock and if we keep her on air we will be the laughing stock,” Mr Browne allegedly said.

In a meeting on May 31 the pair allegedly confronted Mr Llewellyn with the “s*** sandwich” of a $350,000 pay cut and demotion, Mr Browne putting the ultimatum: “There are three ways you can play this.

“You can tell us to f*** off, which is not a helpful answer, or you can say yes and be part of our team going forward.

“Or you can say you’ll think about it, which isn’t the greatest answer for us either.”

The network had obtained an injunction to try to keep it secret but ultimately failed to keep it under wraps.

Federal Court Justice Steven Rares formally discharged the application and the document was put on the public record.