Page:Lehrmann v Network Ten Pty Limited (Trial Judgment).pdf/206

 and I think it just. .. Yeah, it just ...

Ms Maiden:

So watching the programme was a trigger for you to start thinking about it all again.

Ms Higgins:

Yeah …

758 As I have noted, obviously enough, both before, but especially after the 2020 Four Corners programme, Ms Higgins changing her mind and wanting to pursue her complaint would have been damaging politically to the Liberal Party, and various members of the Government would have very much wished Ms Higgins did not change tack.

759 Against this background, it appears a further telephone call was made by Mr Finkelstein to Ms Higgins on the day the 2020 Four Corners programme was broadcast, which was important in Ms Wilkinson's thinking (as we will see). The evidence is insufficient to form a view as to whether this call was to ascertain whether Ms Higgins' allegation was about to go public, or to ascertain whether another allegation was likely to be made in the future. Again, the evidence is far from pellucid, and it suffices to describe this communication as similar to the earlier contact referred to in the evidence of Mr O'Connor I have already discussed.

JFACTUAL FINDINGS OF RELEVANCE TO THE SECTION 30 DEFENCE

J.1Introduction

760 It is important to recognise that this part of my reasons has, as its point of departure, the notion that the respondents cannot prove that Mr Lehrmann raped Ms Higgins and, consequently, the substantial truth defence is not made out.

761 Even if this was the case, the respondents say they have a defence. As I will explain in Section K, at the time of publication of the Project programme, s 30 of the Defamation Act provided a defence for the publication of defamatory matter if, among other things, the respondents prove their conduct in publishing the matter was "reasonable in the circumstances" (s 30(1)(c)). The first step in considering this defence is working out "the circumstances", that is, what happened as to the publication.

762 Before turning to the finding of facts, it is necessary to make a preliminary point. The submissions of the respondents are replete with reference to representations made in affidavits or in oral evidence being "unchallenged". This is understandable on one level because, as a general proposition, unchallenged evidence which is not inherently incredible, Lehrmann v Network Ten Pty Limited (Trial Judgment) [2024] FCA 369