Brittany Higgins’ $2.4 million payout and claims she told “elaborate lies” to get it will be considered in Bruce Lehrmann’s defamation trial when judging her general credit as a witness.
Channel Ten’s legal team has accepted the judge can make findings in relation to the matter without her being recalled as a witness.
But Channel Ten’s legal team have argued that it would be irrelevant to the determination of the defamation trial for the judge to make any findings on “whether in substance Ms Higgins had committed a fraud on the Commonwealth of Australia”.
That issue ought not to be adjudicated upon in the defamation trial Channel Ten’s lawyers have argued in submissions although the accepted the matter could be determined by the Judge without Ms Higgins’ being recalled as a witness.
No findings have been made regarding whether Ms Higgins did commit any fraud or dishonesty and news.com.au does not suggest any wrongdoing on her part in securing the payout from the Albanese Government.
Lawyers for Mr Lehrmann, a former Liberal staffer, have argued that Ms Higgins’s evidence about the night she alleges Mr Lehrmann raped her is inconsistent in with the version of events she gave to the Commonwealth as part of a $2.4 million settlement deed.
Ms Higgins’ credibility as a witness is crucial to Network Ten’s defence with the judge raising concerns of credit issues in relation to the evidence of both Ms Higgins and Mr Lehrmann who has vehemently denied raping her at Parliament House.
In final submissions to the Federal Court, previously made public, Mr Lehrmann’s legal team said Ms Higgins had a “preparedness to tell lies”, both to the federal government to receive the settlement and to the ACT courts.
The alleged inconsistencies included claims in the deed that Mr Lehrmann jumped into a cab “without invitation or agreement”, whether Mr Lehrmann had led her to Minister Linda Reynolds’s office, whether Ms Higgins and Mr Lehrmann spoke the day after the alleged rape, and whether Ms Higgins had disclosed the alleged rape to the then-chief of staff Fiona Brown.
“In many places throughout these submissions it has been shown that Ms Higgins’s evidence in this proceeding on multiple elements of the allegation is itself contradicted by other out-of-court representations made, such as to The Project during the two sit down interviews,” Bruce Lehrmann’s barrister’s submission said.
“No confidence can be placed in Ms Higgins’s understanding of her obligation to tell the truth under oath or on the most solemn of occasions,” the submissions said.
New documents published by the Federal Court reveal that Justice Michael Lee, who is presiding over Bruce Lehrmann’s defamation trial, had asked Channel Ten for submissions on how it argues the issue should be addressed.
The correspondence suggests that Justice Lee does plan to address alleged inconsistencies in a deed of settlement and Ms Higgins’ conduct in his judgement which is expected to be delivered within weeks.
Justice Lee notes in the correspondence that Network Ten had submitted that “Mr Lehrmann appears to contend that Ms Higgins’ conduct in making false representations constituted a breach of the warranties” under the deed and “that they were made for the purposes of securing a life changing payment”.
Network Ten’s previous submissions stated that “those extremely serious allegations – in substance that Ms Higgins has committed a fraud on the Commonwealth of Australia – ought not to be adjudicated upon in this proceeding”.
“Critically, it is not part of the responsibility of Network Ten to act in Ms Higgins’ interests in respect of the allegations now advanced against her in respect of the Deed.
“The Court should not make very serious findings of the kind alleged against an unrepresented witness who has not been heard in respect of them”.
Justice Lee writes in the correspondence that these submissions seem to hint at, or suggest, that Network Ten contends that a submission is not open or there would be a failure to comply with the dictates of procedural fairness in the event the Court found it necessary to deal with the submissions made by Mr Lehrmann in relation to the Commonwealth Deed.
“That is, if the Court considered it necessary to make any finding as to whether false representations had been made in the Deed because it is relevant to any general credit finding made in relation to Ms Higgins,‘’ the correspondence states.
“If this is what is suggested (and it is not entirely clear), it should be made plain,‘’ the correspondence on behalf of Justice Lee states.
“In this regard, his Honour accepts it would be extraneous to the issues in this case to make any findings as to the legal characterisation of any findings of any false representations (should they be made), as the submission they were made is only relevant to credit.
“In any event, the Court needs to assess the merits of any argument that is being made (if it is) that further steps would be required to be taken to provide procedural fairness to Ms Higgins to deal with the submissions as to credit made on behalf of Mr Lehrmann as to the Commonwealth Deed.
“Accordingly, his Honour would like to understand, with precision, and by close of business tomorrow, what, if any, point is being made by Network Ten about procedural fairness in dealing with a submission as to the general credit of Ms Higgins arising from representations made in the Commonwealth Deed.”
In response, Channel Ten’s barrister Matt Collins KC writes that Network Ten does not contend that further steps are required to be taken to provide procedural fairness to Ms Higgins in order for the Court to fairly deal with the submissions as to credit made on behalf of Mr Lehrmann.
“In short, Network Ten’s submission was that it would be inappropriate for this Court to make any finding as to the characterisation of Ms Higgins’ conduct contended for by Mr Lehrmann – in substance that she was prepared to tell lies, including elaborate lies, in respect of matters that she warranted to be true and correct with the intention of inducing the Commonwealth of Australia to enter into the Deed which provided for the payment of a life changing settlement sum,‘’ Channel Ten’s barrister Matt Collins KC said.
“With respect, Network Ten’s position is correctly encapsulated in his Honour’s acknowledgement that it would be extraneous to the determination of the issues in this case to make any findings as to the legal characterisation of any findings of any false representations in the Deed (should they be made).
“Network Ten does not contend that the representations in the Deed cannot be considered as part of an assessment of the general credit of Ms Higgins in the limited relevant
sense, which is in short whether it discloses a preparedness to tell lies on solemn occasions that infects the Court’s assessment of the evidence she gave in this proceeding.“