Requests that Bruce Lehrmann pay $2 million in legal fees and $200,000 in security have been rejected until after the appeal is heard.
Six months on from his loss in a landmark defamation case against Network Ten and Lisa Wilkinson, Bruce Lehrmann has been cleared to appeal the verdict.
In Lehrmann v Network Ten Pty Limited, which was handed down yesterday, Justice Abraham found that he wasn’t required to pay a $200,000 security to launch the appeal. She also temporarily put on hold the order of the trial judge that Bruce Lehrmann should pay Network Ten $2 million to cover their legal fees.
The process of giving security is governed by the Federal Court of Australia Act 1976 (Cth), which aims to ensure that the successful party in the original trial is not disadvantaged if the appellant is unable to afford costs in the event of an unsuccessful appeal.
Justice Abraham specifically mentioned section 56, which provides that “the Court or a Judge may order an applicant in a proceeding in the Court, or an appellant in an appeal under Division 2 of Part III [civil proceedings], to give security for the payment of costs that may be awarded against him or her.”
In this scenario, being forced to pay security would mean that if Bruce Lehrmann lost his appeal, Network Ten and Lisa Wilkinson would be entitled to $200,000 to pay for their legal fees, even if Bruce Lehrmann was unable to comply with any orders for costs.
Courts generally have a discretionary power to make a ‘costs order’ to require the unsuccessful party to pay part or all of the successful party’s legal costs and fees, depending on the facts of the case.
This includes “whether the applicant [or appellant] is impecunious [penniless] such that they would not be able to satisfy a costs order against it.”
Bruce Lehrmann argued that he was ‘impecunious,’ as he had been on Centrelink since 2022.
Her Honour commented that “interrelated with impecuniosity is whether an order for security would stifle the litigation.” Referring to an old British case, Cowell v Taylor (1885), she ruled in his favour, as "poverty is no bar to a litigant."
Bruce Lehrmann argued that Network Ten’s strong financial standing meant “$200,000 is subjectively not a considerable sum to lose, noting that it is likely to make far more in advertising revenue in reporting on the appeal proceedings.” Lehrmann contrasted this with his impecuniosity, believing that his poor financial position stemmed from the conduct of Network Ten and Lisa Wilkinson.
He argued that the orders sought by the respondents were “a tactical play to hinder his ability to appeal.” He believed that he deserved a chance to clear his name and that this was in the public interest. His justification was that “criminality inheres in the concept of rape” and although he hasn’t been found guilty of a crime, the public perception of him has been skewed by a “de facto rape trial.”
The respondents both countered this, arguing that “the appellant had had his day in court, relying heavily on the fact that he had instituted the proceedings.” Network Ten specifically mentioned that Mr Lehrmann’s appeal was raising a question of fact rather than a question of law, and justified that this meant the appeal was “not in the public interest.”
Ms Wilkinson took a broader view of public interest, but still argued against Mr Lehrmann, where “she submitted that the question is directed to how the public confidence in the justice system would be affected if the appellant is deprived of challenging the finding because of an order for security for costs.”
Although “she accepted that [it] is informed by broader considerations, including the seriousness of the finding,” Ms Wilkinson still maintained that the original 26-day trial was sufficient enough to allow the public to be confident in the mechanisms of the justice system, without the need for an appeal.
But this depends on “the prospects of success of that person’s claim, or the merits of that claim.” Cautious to avoid “inappropriate … speculat[ion],” she noted that it was later agreed by both Mr Lehrmann and Network Ten that “some of the grounds of appeal were arguable.”
In making her verdict, Justice Abraham ruled on the balance of convenience, which seeks to weigh up the injury that would be suffered by Mr Lehrmann if the order to pay $2 million of costs was enforced and the injury suffered by Network Ten and Ms Wilkinson if the appeal failed and they were unable to attain costs.
She prioritised the risk of Mr Lehrmann being unable to appeal as the most significant factor, especially as “although it [Network 10] has commenced an enforcement process against him, as they were entitled to do so, there is no basis for thinking that it will retrieve the amount owed.”
Despite this, Network Ten and Lisa Wilkinson stand to gain nothing even if the initial verdict is upheld on appeal, as Mr Lehrmann won’t be able to afford to pay their legal fees. Though we can’t predict how the appeal will go, one thing is obvious: With his reputation already damaged, Bruce Lehrmann has nothing to lose.