“Thursday’s questioning of the ‘new’ witness, Taylor Auerbach served Channel Ten more than it served Bruce Lehrmann; however, this litigation is an adult version of Whack a Mole that can’t be turned off.” Legal columnist HUGH SELBY traverses another day in court of this bewildering defamation saga.

During the hearing of Bruce Lehrmann’s defamation action against Channel Ten and Lisa Wilkinson late last year, her barrister, Sue Chrysanthou SC, cross-examined Mr Lehrmann. 

The following exchange occurred on November 23:

Ms Chrysanthou: In addition to giving the interviews, you also agreed to give all information, documents, film, video, photographs, items and assistance [To Channel 7’s Spotlight program]?

Answer: Yes. 

Ms Chrysanthou: Reasonably requested by Seven in relation to the above?

Answer: Yes. 

Ms Chrysanthou: And did you do so?

Answer: No, I just gave an interview.

Those last few words will haunt Mr Lehrmann. Seemingly of little, if any consequence at the time, those six words may be his enduring scar.

Thursday’s questioning of the “new” witness, Taylor Auerbach served Channel Ten more than it served Mr Lehrmann; however, this litigation is an adult version of Whack a Mole that can’t be turned off. Turn away and another critter jumps out. What surprises will tomorrow bring?

Blemished fruit

In keeping with so much of what is a tawdry saga, devoid – apart from Fiona Brown – of instances of memorable uplifting conduct, the agent of Mr Lehrmann’s Easter and after predicament is not the perfect, justice-inspired “truth bearer” come to save the day.

Mr Auerbach, a former employee of Channel 7, and more recently a former employee of Sky News, has detailed his interactions with Mr Lehrmann in the lead up to Channel 7’s Spotlight program. 

Let us put to one side all the claimed and disputed freebies, though I am interested in what the ATO would have to say: Mr Lehrmann was not an employee so it’s not a Fringe Benefit Tax issue (though I guess it would be if any employee did benefit); however, can Channel 7 claim a tax deduction for “happy massage”, therapeutic golf, the supply of uplifting chemicals, and alluring accommodation rentals (if any of these were provided to Mr Lehrmann or any other prospective interviewee, with or without Channel 7 management approval)?

Within the context of the litigation, the issue is: “On one or more occasions did Mr Lehrmann improperly provide many pages of written material to Channel 7?”

These were events, allegedly in November/ December 2022 and again in March 2023, that is 8 to 12 months before Ms Chrysanthou’s cross-examination. 

Mr Auerbach then waited another three months after that cross-examination before “spilling the lot”. It’s hard to discern a single-minded commitment to serving the “public interest” in this delay.

But, never mind the delay, or the reasons for it, because Mr Auerbach lays it out with the when, the where, the who was there, and the how: the use of Seven’s photocopier to copy the ream of double-sided pages that Mr Lehrmann allegedly brought with him to their Martin Place office, how Mr Auerbach received other material by WhatsApp or Airdrop, again allegedly from Mr Lehrmann. 

That’s not all in this story of sharing the “dirt”. It is claimed that in December 2022 (so around the time it was clear that there would be no further criminal trial) Mr Lehrmann provided a trove of private text messages between Ms Higgins and her then boyfriend to Channel 7.

On Thursday morning I expected that one or more the persons named in Mr Auerbach’s affidavits might be subpoenaed to give evidence to corroborate his claims. There was no mention of such subpoenas.

However, if Mr Lehrmann is not called to refute what Mr Auerbach has claimed about the improper provision of materials by Mr Lehrmann then the position is that the content of Mr Auerbach’s message is not contested, no matter what assessment – good or bad – is made of his believability.

Justice Lee asked in the morning an interesting question about who, if any, among those working on the Channel 7 Spotlight programs about Mr Lehrmann was bound by the journalist’s code of ethics. We were told in the afternoon that the code was only applicable to members of the relevant media employees’ organisation. Apparently, none of the relevant Channel 7 staff were members.

Why the allegation of improper use of materials matters

The allegation against Mr Lehrmann is that the “handed over” material was obtained by Mr Lehrmann’s defence team for his 2022 criminal trial and so is covered by the Harman principle: unless and until the ACT courts gave permission this material could not be used for any other purpose. 

You might think that Mr Lehrmann, not being a lawyer, would not know of that principle. But, he did know it and he understood it. His solicitors stated and restated his knowledge of the principle, and compliance with it. Apparently, they went even further, telling the court in an early June 2023 “defamation trial preparation hearing” that Mr Lehrmann “absolutely denies breaching his obligations” and asserting that the accusation that he had breached the obligation “aggravated the damage” done to him.

If the current allegations are established (which is a question Justice Lee will determine after reading and hearing the evidence) then these questions arise:

1. How does that affect, if at all, the court’s determination as to whether Channel 10 and Ms Wilkinson have established their defences of truth or their entitlement to rely on qualified privilege; and,
2. If they fail on those two defences, then how – if at all – does a factual finding of deliberate breaching of the Harman undertaking, coupled with telling porkies, affect the amount of any monetary damages to be awarded to Mr Lehrmann?

Another issue is whether the ACT Supreme Court would wish to take any action if a breach of the Harman undertaking is established. 

The leading authority is a decision of the NSW Court of Appeal in Ainsworth v Hanrahan (1991). While the breach is at least a “technical contempt of court” any consequences are dependent upon an assessment of all the circumstances: is punishment appropriate?

In a well-constructed and short-spoken argument on Tuesday evening Mr Lehrmann’s barrister, Matthew Richardson SC, did not say to the court that his client stood by or did not stand by, both his previous answer to Ms Chyrsanthou and his earlier instructions to his lawyers that he had complied with the Harman obligations. 

There was no obligation on Mr Richardson to say anything, but given the earlier forceful claims of compliance, the silence filled the courtroom.

Mr Auerbach’s evidence in chief

Which brings us to Thursday afternoon’s proceedings. I watched the number of viewers on the YouTube channel steadily rise. I saw 7,500 waiting. That quickly jumped to 14,000, 16,000, 19,000, rising to some 27,000. They filled the Roman Colosseums two thousand years ago and nothing has changed (except the spelling to “coliseum”): misery, smut and the smell of impending doom guarantees a crowd.

First, we learned that Channel 7 has now checked its email and account systems. This led to the small number of documents it produced to the court on Thursday morning. It had not made inquiries to its employees – such as Mr Auerbach – as to their use of private phone and email for work purposes.

Second, Justice Lee had been busy reading since the morning break and he noticed that Mr Auerbach’s solicitor had once received instructions, several years ago, from Ms Higgins and her partner, Mr David Sharaz. 

This raised the possibility of a conflict of interest between their interests and those of Mr Auerbach. To resolve it there was another short break so that the solicitor could make inquiries. She then advised the court that she did not have a conflict.

Third, there was an “Agreed Facts” document handed up. We viewers don’t know its contents. Various documents were then tendered by Channel Ten without objection from any other party. Please note that what is in those documents might entail that the efficacy of the afternoon’s cross-examination (described below) was other than it seemed.

Turning to Mr Auerbach and his evidence. He has made four affidavits with annexures. These became evidence and then Mr Auerbach was called to the witness box. Channel Ten’s counsel Dr Matthew Collins QC asked him questions.

We learned that Mr Auerbach had received some of the materials via another Spotlight team member. 

In November 2022 he and a staff member met for dinner with Mr Lehrmann and an associate of Mr Lehrmann to discuss a possible Spotlight program. Thereafter, absent his fellow staffer, the remaining three went to Mr Auerbach’s apartment in Sydney’s eastern suburbs. That line of questioning was then stopped.

Then in January 2023 he and Mr Lehrmann dined and went to a Meriton complex in the CBD where Mr Lehrmann was staying. 

“I was his babysitter and minder… Mr Lehrmann had purchased cocaine and put it on a plate. Mr Lehrmann wanted to get prostitutes that night…. Mr Lehrmann would go on Spotlight but only if he wasn’t asked questions about the night at Parliament House… I told Mr Lehrmann that I didn’t have any money. He said that he would pay.”

“I texted my boss that I was scared, ‘this is fucked,”. Those text messages were then tendered.

At a later date Mr Lehrmann said he was out of money and asked to be paid. An invoice was issued to cover the expenses of that January 2023 night. Mr Auerbach says a colleague gave verbal approval for that invoice, that it was sent to a Channel 7 email address, and that Mr Lehrmann told him that he was paid. 

The cross-examination of Mr Auerbach

Mr Richardson then cross-examined. Let’s consider what such cross-examination might try to achieve:

1. Lack of believability of Mr Auerbach based upon a motive to damage Mr Lehrmann, and/or to damage his former employer Channel 7 or work colleagues. To be successful this would have to show that he “made it up”, exaggerated, or both, with respect to his allegations against Mr Lehrmann; and,
2. Lack of believability of Mr Auerbach based upon a loss of memory or other mental impairment. This path might be successful if Mr Auerbach was shown, for example, to have had or to now have such an alcohol problem that his memory was unreliable and given to confabulation and/or confusion.

The cross examination started with alleged misuse of employer credit cards. Mr Auerbach denied misconduct. No relevant damage.

The next topic was “revenge porn”. Mr Auerbach admitted that he sent photos of a woman with exposed breasts to various journalists this year. He did not have her consent. He denied knowing that to do so was a criminal offence. No relevant damage.

Then a short distraction taking up his 2024 employment with Sky. He was terminated when the issue of the November 2022 dinner and its aftermath (on which questions stopped) became public.

Taken back to November 2022 he agreed that he wrote a resignation letter to Channel 7 after putting expenses incurred in a drunken state on the Channel 7 card. His resignation was not accepted. He said that soon thereafter he was offered a promotion and a pay rise.

However, he agreed that he was progressively sidelined from involvement in the Spotlight program during 2023. That might have been pursued on “motive to hurt” but it wasn’t.

We were then shown a short video of Mr Auerbach destroying the golf clubs of a Spotlight colleague. Mr Richardson said it showed hatred of that colleague. Mr Auerbach agreed that he hated that colleague; however, he explained that the video was a parody of another colleague’s video. No relevant damage.

Mr Richardson seemed to be suggesting that Mr Auerbach’s recollection of events in late 2022 was adversely affected by Mr Auerbach’s alcohol problem. There was mention of 20 or 30 drinks a day, but that wasn’t connected – as it could have been – to exploring the effect of that drinking (apparently now under control) on the accuracy of his memory for events in late 2022 and early 2023.

Instead, Mr Auerbach was able to confidently reiterate that only Mr Lehrmann and, on one occasion, a work colleague gave him materials. He is clear in his mind about two occasions when he got materials from Mr Lehrmann.

The cross-examination will continue on Friday, allowing time for Mr Auerbach’s solicitor to ensure that Mr Richardson has been given all relevant documents.

Wait, there’s more

Before adjourning the court Justice Lee pointed out that there was new material in the Master Chronology (tendered by Channel Ten, but prepared by Mr Lehrmann’s lawyers for the 2022 criminal trial) that included representations that he had never heard about or seen before. In other words, more work for the judge as he must now consider that material for his determination of this case. 

You may have forgotten that he had planned to give his judgment this morning!