“[Where] the evidence is inadequate, it may simply not be possible to judge the likelihood that something happened reliably enough to reach a rational conclusion one way or the other on the balance of probabilities,” she said in written submissions.
Zali Burrows arrives at the Federal Court in Sydney on Wednesday.Credit: Louise Kennerley
Lee found that Ten and Wilkinson had proven to the civil standard – on the balance of probabilities – that Lehrmann was “hell-bent on having sex” with Higgins, had encouraged her to drink, and did “not care one way or another” whether she consented.
He concluded that Lehrmann had raped Higgins in the early hours of March 23, 2019, in the office of their boss, the then Liberal defence industry minister Linda Reynolds.
In a later decision, Lee ordered Lehrmann to pay $2 million to Ten to cover some of its legal costs of defending his failed lawsuit. The unemployed law student does not have the means to pay that sum.
Notwithstanding the costs orders in its favour, Ten is left with a multimillion-dollar legal bill for defending the lawsuit and the appeal. The broadcaster agreed earlier this year to pay $1.15 million to Wilkinson, its former employee, to cover some of the costs of her separate legal team.
Both Ten and Wilkinson, via their barristers Dr Matt Collins, KC, and Sue Chrysanthou, SC, successfully argued that the appeal court could go further than Lee and find Lehrmann knew Higgins did not consent to sex. This was because Lee had found Lehrmann knew Higgins was “very drunk”.
Sue Chrysanthou, SC, arrives at the Federal Court in Sydney on Wednesday for the Lehrmann appeal decision.Credit: Louise Kennerley
Lehrmann maintained during the defamation trial that he did not have any sexual contact at all with Higgins.
His ACT Supreme Court criminal trial over Higgins’ alleged rape was aborted in 2022 due to juror misconduct. The charges were later dropped owing to concerns about Higgins’ mental health.
