By: Georgie Austin, Zoe Burchill and Anthea Dres

At a glance

• On 22 October 2024, Justice Abraham granted Bruce Lehrmann the authority to appeal his defamation case against Network Ten and Lisa Wilkinson. The respondents had sought security in the amount of $200,000 for their costs of the appeal proceeding and this application was subsequently dismissed by the Federal Court.
• Costs payable by Bruce Lehrmann in favour of Network Ten in the initial defamation case were quantified in the amount of $2 million. Lehrmann succeeded in obtaining a stay on the enforcement of the $2 million costs order, as Justice Abraham ruled that ‘Mr Lehrmann would likely be declared bankrupt,’ which would affect his prosecution of any appeal.

On 24 October 2024, we published a brief article which discussed Justice Abraham’s decision to allow Bruce Lehrmann to appeal the outcome of his failed defamation action against Network Ten (Ten) and Lisa Wilkinson. Below, we provide an analysis of Justice Abraham’s written reasons for the decision and the submissions presented by both parties.

Security of Costs

Ten sought orders that Lehrmann pay security in the amount of $200,000, submitting that:

• any costs order would not be satisfied;
• they were not responsible for Mr Lehrmann’s impecuniosity; and
• there was no compelling public interest in the appeal proceedings that weighed against the making of an order of security.

Lehrmann submitted that Ten is a powerful media company and $200,000 in security for costs was, subjectively, not a significant sum for Ten to lose, considering it is likely to earn far more in advertising revenue from coverage of the appeal proceedings. Lehrmann also submitted that Ten’s subsequent publications after the initial ruling impacted his impecuniosity by branding him as a rapist and accusing him of deceiving the court. He argued that there existed a genuine public interest that the appeal proceed, and that it would be rendered nugatory if security were to be ordered. Lehrmann emphasised what he believed to be a power imbalance between himself and Ten, contending that the application for security of costs was a ‘bullying hard-hitting tactic’ and ‘a procedural play to smack down this appeal’.¹

Justice Abraham determined that Ten and Wilkinson will incur costs should the appeal proceed, which will likely be unrecoverable if any costs orders are to be made in their favour. Her Honour observed that there was no dispute that Lehrmann is impecunious and, given his impecuniosity, an order for security would likely stultify the appeal. Justice Abraham noted that it was unnecessary to determine whether Ten and Wilkinson contributed to that impecuniosity.

Moreover, her Honour did not accept Ten’s submission that there is no public interest in the appeal proceedings and approached the consideration of the application on the basis that there are arguable grounds of appeal.

Given the above considerations relevant to the facts and circumstances of the case, an order for security of costs was not granted.

Stay of Costs Order

In making his application for a stay against enforcement of the costs order of $2 million from his failed defamation case, Lehrmann submitted that Ten and Wilkinson filed notices of contention that supported his view that the primary judgment was flawed. Lehrmann also noted that he could not afford to pay the $2 million costs order as he was a recipient of Centrelink income since early 2022, and that Ten’s initiation of an enforcement proceeding with a bankruptcy notice against him was intended to hinder his ability to appeal.

Ten challenged each of Lehrmann’s submissions and contended they were entitled to bring enforcement proceedings. Ten argued that it could not be suggested that it cannot repay any amounts paid by Lehrmann in satisfaction of the costs order if the appeal was successful, and that in any event, the point is academic in circumstances where Lehrmann is impecunious and has not paid a cent towards the amount of the costs order. Ten submitted that Lehrmann was seeking to make Ten incur the further costs of an appeal, with little to no likelihood that those costs would be recoverable if the appeal failed. Wilkinson supported Ten’s submissions on the stay application.

Justice Abraham determined that Ten had accepted the proposition that there is no basis for thinking it will retrieve the amount owed by Lehrmann, and therefore it is unclear what the prejudice to Ten and Wilkinson is said to be if the costs order was stayed pending the appeal. She noted that no prejudice was articulated by Ten, except that of delay in resolution of the issue. On the other hand, Lehrmann may be declared bankrupt, with all that that entails.

The Federal Court was satisfied that the balance of convenience favoured the granting of a stay of the costs order.

Lehrmann’s grounds of appeal

As set out in Justice Abraham’s written reasons, Lehrmann’s grounds of appeal are as follows:

1. The primary Judge erred in upholding the defence of justification because the justification case found had not been pleaded, was different to the justification case which had been pleaded, had not been the subject of submissions, had not been argued by Ten and Wilkinson and had not been put to the relevant witnesses contrary to the principles of procedural fairness and natural justice.

2. The primary Judge erred in determining the meanings conveyed to an ordinary reasonable person by the publication complained of.

3. The primary Judge erred in determining that Ten and Wilkinson had established the defence of justification.

4. The primary Judge erred in determining that the Lehrmann (if he had succeeded in his case) was entitled to a mere $20,000.00 in damages.

On 6 November 2024, Justice Abraham set down Lehrmann’s appeal for 19 to 22 August 2025.

^[1] Lehrmann v Network Ten Pty Limited [2024] FCA 1226, [38].