War veteran Ben Roberts-Smithagreed last year to orders requiring him to pay almost $1 million in security to cover the legal costs of Nine newspapers in the event he loses his appeal against his own defamation defeat. The Full Court of the Federal Court will deliver its judgment in that case at a later date.

Ten urges tougher findings

In a separate document filed in court in response to Lehrmann’s appeal,Ten says the decision to dismiss Lehrmann’s lawsuit should be affirmed,but it urges the appeal court to go further than Lee and find Lehrmann knew Higgins did not consent to sex.

Lee found Lehrmann was “so intent upon gratification to be indifferent to Ms Higgins’ consent”,rather than finding he had “actual cognitive awareness that Ms Higgins did not consent”.

Ten also says Lee ought to have found that Lehrmann was entitled “no or nominal damages” if he had won the case. This would become relevant if Lehrmann’s appeal was successful.

Lee found Lehrmann would have been entitled to just $20,000 had he won the case. The maximum that could have been awarded is $459,000,unless aggravated damages were also awarded.

Wilkinson had separate legal representation at the trial,which led to a court skirmish about the extent to which Ten was liable to cover her legal bills.

Both Ten and Wilkinson had sought to rely on a fallback defence of qualified privilege during the trial,but it was rejected by Lee.

In a separate response to Lehrmann’s notice of appeal,Wilkinson has urged the appeal court to find that she had established the defence.

Qualified privilege is a defence protecting some publications of public interest where a media outlet and its journalists can show they acted reasonably. Lee found Ten and Wilkinson had not acted reasonably in airing the sexual assault allegation.

Lee said that “[The Project’s producer] Mr[Angus] Llewellyn,like Ms Wilkinson,started from the premise that what Ms Higgins said about her allegations was true.

“They resolved from the start to publish the exclusive story and were content to do the minimum required to reduce unacceptable litigation risk.”

Like Ten,Wilkinson has also urged the appeal court to affirm Lee’s decision to dismiss the defamation suit but to go further and find Lehrmann knew Higgins did not consent to sex.

Lehrmann’s appeal

Lehrmann is seeking to rely on four grounds of appeal. He alleges Higgins had “significant credibility problems” and the court should not have been satisfied on the balance of probabilities that he raped her.

Lehrmann also says Lee’s assessment that he would only have been entitled to $20,000 if he had won the defamation case was “wholly inadequate”.

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