Lisa Wilkinson can dream happily about the likely outcome of her cross-claim against Network Ten, at least so far as the spoken evidence for a day and a half this week suggests, says legal columnist HUGH SELBY.

Michael Elliott’s cross-examination of Network Ten’s senior litigation counsel, Tasha Smithies, did not finish on Tuesday. This meant that she had to come back today for more.

It didn’t take long. As with Tuesday, it was devastatingly effective.

But the oddity was that it was not Mr Elliott but his Honour, Justice Michael Lee, who extracted the most damaging evidence. 

Let me explain.

Recall that Tuesday’s evidence disclosed that Network Ten had retained as counsel Dr Matthew Collins KC, despite his making critical comments about the Logies speech on the Sunrise TV program that were referable to Ms Wilkinson. Her objections to his retention were overruled. 

Today we learned that Network Ten sought advice, after the Logies speech, from a well-known law firm that, among its services, gives pre-publication advice to media about the risks of publishing this or that.

When this was said I found that I was scratching my head. Why were they not asked about the Logies speech before it was delivered? Perhaps the answer was in someone’s affidavit. Perhaps the question was un-askable. 

Following that speech Network Ten arranged for one partner, Marlia Saunders, to give advice to Ms Wilkinson. There were two or three chats, all prior to it being clear that there was a conflict of interest because Network Ten would not allow the release of the legal advice shared with Ms Wilkinson that the Logies speech was okay.

Ms Saunders was called by Network Ten today. She had filed a long affidavit. She was cross-examined by Mr Elliott who succeeded in eliciting that where she and Ms Wilkinson recalled matters differently, she could not deny Ms Wilkinson’s recollection in nearly every case. In other words, in terms of the spoken evidence, she did Ms Wilkinson no harm.

One of Ms Saunders’ partner colleagues in the same firm gave advice to Network Ten that Mr Elliott took up with telling effect when cross-examining Ms Smithies at the start of today’s hearing.

Apparently, after Ms Wilkinson found independent legal advice, said partner opined in writing that Network Ten could use the issue of their giving an indemnity to Ms Wilkinson as leverage over her. The same note also contained some inappropriate assumptions about Ms Wilkinson’s lawyers.

Some things are better left as unspoken, not recorded thoughts.

Little wonder though that Ms Wilkinson had concerns about the extent to which she was benefiting from joining with Network Ten’s approach to the fallout from that speech.

Mercifully, it was quick

Mr Elliott sat down, probably well pleased. It was now time for re-examination of Ms Smithies by Network Ten’s counsel.

Remember that they had overnight to plan how they could refloat their ship which seemed to sink on Tuesday. 

What’s more, given Justice Lee’s repeated efforts to be scrupulously fair, at the end of the cross-examination they could have asked him for a brief opportunity to confer with Ms Smithies before any re-examination.

The guide to re-examine is that the questions will explain problems that emerged during the cross-examination, either to resolve them or, at least, to mitigate damage. No re-examination means that neither repair nor mitigation is possible.

There was no re-examination.

That’s where it would have ended; however, his Honour chose to exercise his right to ask a few questions to clarify evidence given.

He took the witness to her firm claim yesterday that she was neither personally nor professionally embarrassed by the advice that she had given to Network Ten and Ms Wilkinson about the “to be delivered” Logies speech.

This answer was covered in my report of yesterday’s hearing.

Today the witness doubled down. She thought then and she still thinks that she gave good advice, that it was – as Justice Lee put it – “completely correct”.

And her rationale?

That Lisa Wilkinson could not be seen as wavering in her support for Ms Higgins. That Logies speech, with its approved content, had to be made.

“Gobsmacking” comes to mind, but submissions based on all the evidence (not just the spoken evidence discussed in this and Tuesday’s article) may be able to paint something quite different, or not. We must be patient.

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Lisa left the witness box with head held high

Former barrister Hugh Selby’s free podcasts on “Witness Essentials” and “Advocacy in court: preparation and performance” can be heard on the best known podcast sites.