Lisa Wilkinson says Ten left her 'isolated, unprotected and abandoned'

“At the time, my most recent contract as co-host of The Project had only been signed 11 months before and still had more than two years to run,” she said.

She remains employed by Ten but said that, as far as she was aware, “no steps have been undertaken” for her to appear in an interview series as envisaged in her contract.

Lisa Wilkinson leaves court in November last year, flanked by her barrister Sue Chrysanthou, SC (left), and Ten’s barrister, Matt Collins, KC.Credit: James Brickwood

Wilkinson said McGarvey had texted her at 11.07pm after the Logies: “Beautiful speech.”

After she left The Project, McGarvey texted Wilkinson about her farewell comments on the program: “Perfect delivery, you spoke from the heart and it was a beautiful sentiment and you are so generous to your colleagues. Thank you. The media should all be kind, you deserve it.”

Federal Court Justice Michael Lee reserved his decision in the defamation case in December last year after a month-long trial. He indicated on Tuesday that he is likely to deliver his decision in March.

The hearing resumed on Tuesday as Wilkinson pursued Ten to cover her legal costs of defending the lawsuit. Lee will also rule on costs as part of the case.

The Federal Court heard on Tuesday that Ten CEO Beverley McGarvey texted Lisa Wilkinson after her departure from The Project in November 2022.

Before he was retained to act for Ten in Lehrmann’s defamation case, Collins had appeared on Seven’s Sunrise program and described Wilkinson’s acceptance speech on June 19, 2022, when The Project won a Logie for the Higgins interview, as “ill-advised” in light of Lehrmann’s imminent trial. Wilkinson praised Higgins in the speech for her “unwavering courage”.

The former Project host told the court on Tuesday that she had taken significant steps to ensure the speech was legally responsible.

Lehrmann’s lawyers have pointed to the speech as a factor supporting aggravated damages in his defamation case.

Lehrmann’s ACT Supreme Court criminal trial for the alleged sexual assault of Higgins was due to proceed on June 27, 2022, but the speech led to the trial being delayed for three months to avoid prejudicing the jury.

Lehrmann’s trial was ultimately aborted in October 2022 due to juror misconduct and the charge against him was later dropped altogether owing to concerns about Higgins’ mental health. He has always maintained his innocence.

In an affidavit filed in court, Wilkinson said she did not want Collins representing her in the defamation case in light of his comments, but felt that Ten gave her “no choice”.

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Asked by Lee on Tuesday if Ten said its advice about the speech was “anything other than completely inappropriate”, the network’s barrister, Robert Dick, SC, said that “we don’t accept that it was completely inappropriate”. He said Ten accepted that ultimately it “gave rise to a real risk of contempt, and it was unfortunate”.

Wilkinson said in an affidavit that the executive producer of The Project had texted her before the Logies that the speech was “all good” with Tasha Smithies, Ten’s senior litigation counsel.

Smithies gave evidence on Tuesday that Wilkinson showed her the draft speech on her iPad.

“You advised her that the speech was okay?” Wilkinson’s barrister, Michael Elliott, SC, said.

“Yes,” Smithies said.

Elliott put to Smithies that if Ten had told ACT Chief Justice Lucy McCallum, who presided over the criminal trial, that Wilkinson “had not acted against a warning, but had prudentially sought and obtained legal advice”, it would have “cast her in a more sympathetic light before the court”.

“Yes,” Smithies said.

Smithies agreed under questioning by Lee that telling the judge that Wilkinson had delivered her speech after receiving legal advice would have meant it was less likely a contempt charge would have been brought against the journalist.

“Would you accept it would make it more likely that a contempt charge might be made against Channel Ten?” Lee said. “Yes,” Smithies said.

The court heard that Ten issued a statement after the Lehrmann trial was delayed, in which it said it “fully supports Lisa Wilkinson” and “both Network Ten and Lisa Wilkinson take their legal obligations very seriously, including in the preparation and delivery of her speech given at the Logies event”.

Wilkinson said in an affidavit that she did not believe this statement was adequate.

She told the court that the statement was “very legally considered” and “missed out on the exact fact that I had been begging them to make clear publicly, and that was: they had asked me to give the speech, they had been involved in legalling that speech right up until ... the afternoon of the Logies, that speech had also been approved by the CEO ... [and] the head of network communications”.

Wilkinson filed proceedings against Ten last year after a dispute arose about Ten’s legal obligation to cover her costs of defending the defamation case. By September, the invoices had totalled $723,555.

It is not in dispute that Ten will be liable to cover any damages payout if Lehrmann wins the defamation case, as well as any order to pay Lehrmann’s legal costs.

Bruce Lehrmann outside the Federal Court in Sydney on Tuesday.Credit: Kate Geraghty

The key issue to be determined by the court is whether it was reasonable for Wilkinson to be represented by separate lawyers. An employer would ordinarily cover the costs of an employee defending legal action that arose out of conduct in the course of their employment, but it is usual for the employee to be represented by the same lawyers as their employer.

Wilkinson said in an affidavit that she was “gutted” when she realised Ten would argue that it did not have any obligation to indemnify her for her legal costs because she was separately represented, and she felt their position was “intentionally cruel”.

In The Project interview, Higgins accused an unnamed former colleague of sexually assaulting her in Parliament House in March 2019. Lehrmann was named in the media in August 2021, six months after the Ten interview, when he was charged with sexual intercourse without consent.

Lehrmann’s lawyers say he was identified by Ten by the descriptions given of the alleged perpetrator, and that the broadcast suggested he was guilty of raping Higgins in the office of then-defence industry minister Linda Reynolds, for whom they worked as advisers.

In the event the court finds Lehrmann was identified, Ten and Wilkinson admit the central claim of rape was conveyed and are seeking to rely on a range of defences, including truth. Under the truth defence, they must prove on the balance of probabilities that Lehrmann raped Higgins.

While this is less onerous than the criminal standard of proof beyond reasonable doubt, the so-called Briginshaw principle applies in civil cases involving serious allegations and requires courts to proceed cautiously in making grave findings.

The court heard on Tuesday that Glenn Logan, the operator of a YouTube channel which re-broadcast parts of the Lehrmann defamation trial in contravention of court orders, will face contempt charges.

A lawyer appearing on Logan’s behalf in court said he admitted the acts but was “genuinely remorseful”. He accepted he had acted recklessly but he never would have deliberately breached court orders, his lawyer said.

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