Costs in Lehrmann matter to be referred to referee

Following the judgment of Justice Lee in Lehrmann v Network Ten Pty Limited on 15 April 2024, the parties’ legal representatives were back in court on 1 May 2024 to determine the outstanding matter of costs.

In their written submissions, counsel for Network Ten submitted that “Mr Lehrmann brought this proceeding on a deliberately wicked and calculated basis,” an act which they described as a “clear abuse of process”. Network Ten submitted that Lehrmann caused the parties to incur the cost of defending the proceeding to disguise the truth that he raped Brittany Higgins.

Counsel for Network Ten, Matthew Collins KC led oral submissions seeking to persuade his Honour Justice Michael Lee to exercise the court’s discretion to award Network Ten costs on an indemnity basis. Network Ten sought indemnity costs from the commencement of the proceeding, or on an indemnity basis from 31 August 2023. Network Ten submitted that Lehrmann’s rejection of the “walk away” offer within two hours of receiving it was “unreasonable”.

Counsel for Lisa Wilkinson, Sue Chrysanthou SC, also made submissions in respect to Wilkinson’s entitlement to costs. While Counsel for Network Ten and Wilkinson made submissions in relation to liability for legal costs, Justice Lee noted Wilkinson is “entitled to get a cheque, to put it bluntly, from Network Ten while she waits …”.

Despite lengthy submissions from both sides, his Honour found it necessary to examine the specifics of Wilkinson’s legal costs and referred the matter to a referee as “some of those amounts may be obvious … some likely to be contested.”

His Honour was critical of the conduct of Network Ten’s lawyers in the immediate aftermath of the judgment being handed down. His Honour noted the “discourtesy [in] making public comments about these things without taking the time to read the judgment.”

Counsel for Taylor Auerbach, Maggie Kearney, was granted leave to make submissions regarding costs. Justice Lee also referred the matter to the referee for determination but noted “the whole idea that someone can spend $17,500 [for compliance with a subpoena] … that is not on,” he said.

“People who [receive a] subpoena shouldn’t be entitled to assume that they are entitled to recover legal costs except in particular circumstances in relation to particular types of costs,” his Honour said.

Counsel for Bruce Lehrmann, David Helvadjian, successfully sought an extension of time to appeal as senior counsel has been briefed to “give advice on prospect [of appeal]”. Although this course of action was not opposed to by Network Ten, Justice Lee noted “I thought I made myself quite clear.”

Lehrmann has until 31 May 2024 to lodge an appeal.