00:00:12:22 - 00:00:21:15 Speaker 2 Hi. Welcome to Up the Creek, where we look at how institutions and individuals found themselves up the proverbial and are set to their efforts to reach common waters. 00:00:21:18 - 00:00:22:20 Speaker 3 I'm Mark Forbes. 00:00:22:20 - 00:00:31:14 Speaker 2 And I'm Ben Haslem. As journos, we prompted resignations and caused royal commissions. As consultants, we protect reputations when crisis comes. 00:00:31:16 - 00:00:41:13 Speaker 3 And today we turn our reputation eye towards a courts where a defamation action ran. An infamous alleged rape at Parliament House five years ago continued to transfix the nation. 00:00:41:18 - 00:00:52:21 Speaker 2 The evidence inflicted significant damage to the reputations of all involved and cast a harsh light on media practices. It goes to show that defamation often leaves the person doing the suing looking far worse. 00:00:52:23 - 00:01:17:14 Speaker 3 And the trainwreck that was Bruce Lemon's defamation case for channel seven and ten at loggerheads amidst tales of seven paying for cocaine prostitutes, $360 sites for the controversial staffer who was accused of raping Brittany Higgins in Parliament House back in 2019. Now she went public with the allegations in 2021. In a dramatic interview with Lisa Wilkinson on Channel ten, the project. 00:01:17:14 - 00:01:48:17 Speaker 3 And now, finally, we have a verdict from federal court Justice Michael Lee, who described the case as an ominous shambles. and after the court, like, say, cut out, he's, he's summarize verdict. Jesus. I'd hate to read the whole 324 pages. keep nearly 50,000 people on tenterhooks on the live stream for more than one half hours before he reached his conclusion, when he eventually dismissed the women's action and found that, on the balance of probabilities. 00:01:48:19 - 00:01:51:11 Speaker 3 Lemon right. Tegan's the surprise to you, Ben. 00:01:51:12 - 00:02:10:12 Speaker 2 Well, based on the evidence of Lemon's behavior while the Seven Network was trying to land him for an interview, on the spotlight program and more on that later. Mark, I wasn't surprised. But then I'm a man ask many women, and they are both delighted and relieved because a woman's word was believed over man's in what was effectively a rape trial. 00:02:10:14 - 00:02:12:03 Speaker 2 I think that's a hugely important decision. 00:02:12:04 - 00:02:37:20 Speaker 3 Yeah, important to note that justice Lee did raise some doubts about Brittany Higgins reliability as well. But when it came down to those core matters in question, he strongly backed her, version of events and totally eviscerated lemon called him a cad and a liar. and, said it was more likely than not. We're talking about balance of probabilities here. 00:02:37:20 - 00:02:57:00 Speaker 3 Obviously, given this is a civil case, more likely than not, after a long night of drinking and bringing this Higgins back to a secluded place, Parliament House, he was. Lemon was hell bent on having sex with a woman he was finding attractive and who had made sure was seriously needed it. 00:02:57:06 - 00:03:12:06 Speaker 2 Even the victims, channel ten and Lisa Wilkinson, did not escape unharmed, with suggestions. Their central claim that there was a political cover up of the incident was not substantiated, and channel seven spotlight program had all its dirty laundry well and truly aired in gobsmacking detail. 00:03:12:08 - 00:03:35:01 Speaker 3 But before we dissect those details and the reputational consequences, let's recap. Okay, Bruce Lemon, he was a staffer in the office of the then defense minister, Linda Reynolds. He was charged but never convicted of raping a junior colleague, Brittany Higgins, in her Parliament House office in the early hours of March 23rd, 2019, following that infamous boozy night out. 00:03:35:01 - 00:04:03:22 Speaker 2 And these claims set off a political firestorm in the MeToo era. But Luhrmanns criminal trial was aborted due to a jury bringing outside material on sexual assaults into the jury room. Then the Act director of Public Prosecutions dropped all charges, citing Miss Higgins poor mental health. Now. Lumen then launched defamation actions against media outlets, claiming they defamed him, even though their reports on the alleged assault did not name him, and at the time, police had not identified him as a suspect in the case. 00:04:03:24 - 00:04:12:13 Speaker 2 Now, Luhrmann settled with the ABC and news.com.au. The TV network channel ten decided to contest the matter in the Federal Court in Sydney. 00:04:12:15 - 00:04:40:03 Speaker 3 Now I think Luhrmann was expecting another another Pi Day. He day. I think I picked up Hope for you for 400 grand so far. but he and everyone else a couple of weeks ago were expecting Justice Ley's judgment when suddenly ten made this urgent application to introduce fresh evidence from a former channel seven producer, Tyler Albert, who ten claim would prove Luhrmann was in contempt of court in his criminal trial and had lied. 00:04:40:03 - 00:04:54:20 Speaker 3 Basically, epic was a producer on seven spotlight program and was tasked with babysitting looming, in his words, as I tried to line up the exclusive interview with the former staffer following the dropping of the criminal charges. 00:04:54:22 - 00:05:18:19 Speaker 2 Yeah, I think somebody described him as the world's most expensive babysitter. And you realize that as we go on in this podcast, why now? Justice Lee agreed to hear fresh evidence from Albert, who spent two days in court outlining the efforts he went to secure the interview. And while, according to Albert, the seven strenuously denies this, seven cover the cost of two Thomases ordered by Lehrmann at a cost of more than $10,000. 00:05:18:21 - 00:05:21:20 Speaker 2 Other costs, allegedly covered by $7. 00:05:21:21 - 00:05:23:11 Speaker 3 Expensive these days may. 00:05:23:13 - 00:05:42:10 Speaker 2 Hold. Nine other costs allegedly covered by seven included Bruce's $361 Tomahawk beef steak weighing 1.9kg, a round of golf in Tasmania worth $401. At least that's kind of healthy. Sex workers ordered to a Sydney hotel, a separate trip to a Sydney brothel and for a bag of cocaine. 00:05:42:12 - 00:05:57:01 Speaker 3 Well, I think there were more than one bags of cocaine involved, but no one in this case seems to be lacking an appetite or an ego. I mean, lemon labeled ABC's allegations the untrue and bizarre story from a disgruntled Ex Network seven producer. 00:05:57:02 - 00:06:15:14 Speaker 2 And aside from the impact these allegations may have had on Lemon's case, remember it was he who was doing the suing. A big takeaway for me was the effect that it will have on the media's already, shall we say, less than stellar standing in the public side. Now, Michael, you and I, we're former journalists. And obviously we'd argue that members of the Fourth Estate get a pretty unfair rap. 00:06:15:16 - 00:06:36:13 Speaker 2 Even those who work for nine newspapers. But checkbook journalism has occurred in Australia for probably about half a century. Back to the, I think, probably the Willis. She dies in the 70s. People caught up in controversy or tragedy have been paid, sometimes large sums by some media outlets tell this story exclusively to one television station, magazine or newspaper, or a combination of all three. 00:06:36:15 - 00:06:51:24 Speaker 2 The ABC, however, does not pay for stories. Even the journalists union condones it in point seven of its code of ethics. It says, quote, do your utmost to ensure disclosure of any direct or indirect payment made for interviews, pictures, information or stories, unquote. 00:06:52:05 - 00:07:21:08 Speaker 3 Well, maybe that was put in there to appease your old colleagues at news. Might end in the commercial TV hacks, but most places I worked, including the age paying for stories, was strictly forbidden. You want wanted people. You want people to talk to you for the right reasons, not because they're after money. I'm curious. In the lumen case, Orbach said lumen had been approached by media from every direction, including nine, and he said that some print journo presumably threatened nine said to learn. 00:07:21:08 - 00:07:29:23 Speaker 3 And I know you kind of get big money at the end of a trial. I can't offer you money, but I can offer you integrity. Well, that offer seems to have got short shrift. 00:07:30:00 - 00:07:40:08 Speaker 2 I wonder who that reporter was who promised a form of journalistic alchemy turning lead into gold. Integrity. It's like the old joke ethics. Isn't that a county east of London? 00:07:40:08 - 00:08:00:09 Speaker 3 Yeah, it's a different world. Commercial TV. I did, I did a, ill fated year at, to die tonight some time back. And, it reminded me of that, Hunter Thompson phrase regarding commercial television. He said it was a shallow, plastic lined money pit along which pimps and whores run free, and good men die like dogs. 00:08:00:14 - 00:08:02:12 Speaker 2 Oh, how we miss him. 00:08:02:14 - 00:08:08:18 Speaker 3 We did throw a little bit of money round, but nothing like the sort of money that was being thrown at woman. 00:08:08:18 - 00:08:39:24 Speaker 2 But the lengths seven allegedly went to. And remember, they deny this has the least created a perception. And that's not even some of the truth in the public saw that some journalists will behave well outside public norms to secure. Yeah, I love this line from nine newspapers. Jacqueline Maley quote not since Oscar Wilde or latterly Ben Roberts-Smith, have we seen a defamation trial brought by a person with such catastrophic, unintended consequences for that person, and merely out of the defamation action has been a masterclass in poor life choices and down the journalistic profession. 00:08:39:24 - 00:08:43:00 Speaker 2 Few favors, unquote. And I couldn't agree more. 00:08:43:02 - 00:09:00:03 Speaker 3 Well, justice Lee exhibited a similar talent for the turn of a phrase when he spoke of, Luhrmann's claims of damage to his reputation caused by the projects story. Justice stated that having escaped from the lion's den, Mr. Luhrmann made the mistake of going back for his hat. 00:09:00:09 - 00:09:04:07 Speaker 2 Yeah, I think that turn of phrase is going to be used a lot now by a lot of people. It's brilliant. 00:09:04:09 - 00:09:30:21 Speaker 3 So, he he did, remind us all how he had personally painstakingly trawled through hours of CCTV footage of the particular night in question, which ran through a couple of different camera bars. And he made his own conclusions about what, occurred that night and determined that Lemmon had lied about a litany of matters. While Higgins responses, by and large at the time were truthful. 00:09:30:23 - 00:09:55:22 Speaker 3 Lee, that did say about Higgins that when she did come public later on, she concocted and manipulated evasions, as events to to suit a narrative that was more positive towards her. But she still has ultimately had the core allegations vindicated, which Luhrmann's reputation is totally trashed. And in into Miley's right that journalism is also the loser. 00:09:55:22 - 00:10:04:20 Speaker 3 And there's some serious questions. the moral and professional stands at seven spotlight. I mean, this was a significant story, one that seven entered into the Walkley Awards. 00:10:05:01 - 00:10:09:18 Speaker 2 Yeah, it was actually a finalist. until been disqualified when the allegations about payment to women emerged. 00:10:09:19 - 00:10:31:20 Speaker 3 Yeah. Okay. So potentially a good story. in an important one. I mean, these allegations over the right fueled into this massive social movement that at the time of May to raise major questions about Prime Minister Morrison's response, who had to be reminded by his wife, Jenny, that maybe he should think about how he would feel if he was his daughter. 00:10:31:22 - 00:10:37:10 Speaker 3 and some believe it was actually one of those factors in his government, subsequent defeat at the polls. 00:10:37:10 - 00:10:40:24 Speaker 2 Yeah. Look, there was definitely a massive drop in female support. 00:10:41:01 - 00:11:06:16 Speaker 3 So there's a lot in play and there's a big responsibility on seven here. the story was always going to have social and political significance. And it's part of the negotiations with Liam. And they agreed not to question him on what actually happened at Parliament House that night. and surely to air a story like this, you have to do have to have a degree of trust in what someone is telling you as being true, in a degree of trust in the Catholic character. 00:11:06:16 - 00:11:30:09 Speaker 3 And we now know that, object knew that that woman was involved in alleged out of control binges involving alcohol, drugs and time that police there was also another accusation of rape in Queensland at the Di basically broadcast his story with that revealing those fact. I think there's some serious questions for for the spotlights producer there. 00:11:30:11 - 00:11:39:02 Speaker 2 Will spotlight executive producer Michael Whelan claims he was unaware. No dying to arrange the payments for what he called, quote, illegal or unsavory activities, unquote. 00:11:39:06 - 00:11:58:05 Speaker 3 Well, whatever happened, it cost Llewellyn his job. At around the time that justice was he was actually delivering his his judgment. Severn released a statement saying Mark Llewellyn no longer works for the network. Whelan released his own statement, saying he'd resigned and was proud of spotlighting the team who made it. 00:11:58:07 - 00:12:29:08 Speaker 2 And is further proof that crises beget crises. Severn was also in the media spotlight last week when allegations surfaced that in October 2022, the broadcaster's commercial director, the legendary Bruce McWilliam, sent an email to a female Sydney Morning Herald newspaper reporter accusing her of driving Seven's star executive producer Michael Pell, to self-harm. The catalyst for the sunrise EPA's alleged action was the reporter asking questions about a secret fraud investigation involving the sunrise program. 00:12:29:10 - 00:12:55:11 Speaker 2 Attached to the email was a photograph of, according to the Sydney Morning Herald, a bloodied and bandaged Pell in a hospital gown with a large gash on his forehead. Mcwilliam's email said why don't you keep it up so he kills himself? You are a complete disgrace. The broadcasting veteran also claimed no such fraud investigation existed. He went on if you publish untrue allegations and he tops himself, it's on you, wrote the former lawyer to Kerry Packer, Rupert Murdoch. 00:12:55:11 - 00:12:57:00 Speaker 2 And Kerry Stokes. 00:12:57:02 - 00:13:08:22 Speaker 3 Says something about the no holds barred tactics of avid TV execs and TV PR, which often bears a very scant resemblance to the truth. 00:13:08:22 - 00:13:30:09 Speaker 2 That's right. And the only problem talking about the truth we now know, was that the injury in the photo wasn't self-inflicted by Pell, but rather a weeks old image of an injury sustained when the executive producer blacked out on a Los Angeles street. Powell later expressed horror and surprise, quote unquote, that the photo was sent to the reporter and the suggestion she had pushed him to self-harm. 00:13:30:11 - 00:13:56:07 Speaker 2 And there was an investigation to the misuse of a Sunrise Contra deal with Qantas. And I call hotels, including allegedly by Powell, who has since left the network. The investigation, however, was unable to make a conclusive finding, and sources close to Pell say he believed any questionable use of company resources was unintentional. Whether any of this support will affect Seven's ratings, I'm not so sure it all titillated the media class, but do you reckon that titillated the punters, Mark? 00:13:56:09 - 00:14:29:17 Speaker 3 Well, I don't think anyone's going to be surprised that TV stars and producers put their hands out for freebies. Doesn't mean they should do it, especially if there's conflicts of interest. Implying this so often are. But I mean, I wrote channel ten, the Victory party there would have been dampened by some of the criticisms from Justice Slater, who said the award winning project story fell short of standards of reasonableness, had an unreliable main witness, was vague and shifting in its details, and significantly, actually quite significantly, they didn't even bother to attempt to contact lumen for a response. 00:14:29:19 - 00:14:33:08 Speaker 2 That's really one of the basics of journalism. Fair play, isn't it? A writer of plot? 00:14:33:10 - 00:15:07:17 Speaker 3 You'd think so. It went further, though. He said that the main angle of a project story wasn't the right publication, but the allegation of a serious political cover up afterwards. interestingly, probably the one witness who who got, unrequited prizes. Oh, from, from Justice Slay was, was Minister Reynolds former chief of staff, who he said, unlike, Higgins had tried to portray and subsequently had done everything he could she could to care for her and say that action was, action was taken. 00:15:07:19 - 00:15:41:11 Speaker 2 And that's great news for her, because if you read her back story, she has gone through hell and high water because of the allegations, will rise about her at the time, so I'm sure she'll be very pleased with that. That finding Lisa Wilkinson was all smiles when she left the Federal Court in Sydney following Justice Lee's judgment. She said I feel glad for the women of Australia today, while ignoring questions about whether she stood by her infamous Logies speech where, while accepting a Logie for the interview, gave a speech broadcast live across Australia a few days before Lim's criminal trial, praising Brittany Higgins courage and bravery, forcing the trial to be delayed by three months. 00:15:41:11 - 00:15:47:12 Speaker 3 You'd have to think that any working DNA would have at least a passing knowledge of contempt laws, wouldn't you? 00:15:47:14 - 00:16:18:18 Speaker 2 Well, Justice Leigh would agree with you, Mark. He didn't hold back in criticizing Wilkinson and the advice he received from Tan's lawyer, Tasha Smithies, who okay, the leggy speech on Wilkinson. The judge described her as a fourth a state eminence, Greece, with 40 years experience. He said had Wilkinson thought matters through as an experienced journalist and less as a champion for Mr. Higgins, she ought to have known the speech was fraught with danger and recognized that loading the complainant on the eve of a rape trial would likely undermine the administration of justice. 00:16:18:20 - 00:16:34:18 Speaker 2 His honor also criticized Wilkinson's lack of candor in the witness box by refusing initially to admit the logos speech, conveyed the representation that Miss Higgins rape allegations was credible and to be believed. This is the kind of stuff we learned when we were, well, Corby kids, not even cadets. 00:16:34:20 - 00:16:51:09 Speaker 3 But if it was, he was critical of, of Lisa Wilson's injustice. He was was absolutely scathing towards ten solicitor. I regret Smithies I think was it ten year me these. Yeah. From me but he said. 00:16:51:09 - 00:16:53:24 Speaker 2 No. Tasha. Sorry. Correction. 00:16:54:01 - 00:17:11:14 Speaker 3 I regret to say that the continuing lack of insight by Ms.. Smithies as to the approach inappropriate says her conduct related to the speech reflects, in my view, a lack of proper appreciation of her professional obligations as solicitor and that paramount duties of a court and the administration of justice. Duncan love the pomposity of judges. 00:17:11:19 - 00:17:31:22 Speaker 2 Ouch. I mean, if that wasn't bad enough, he mispronounced the name Mark the poor woman. Nevertheless, and I have no law degree, I agree to attend solicitor just and Quill, who outside the court following the judgment, argued that, quote, we need to have more confidence in our juries and thinking that our juries would be so influenced by the implication from a low speech just doesn't pass muster for me. 00:17:31:22 - 00:17:49:06 Speaker 2 I look, I I'm sorry, I tend to agree. I think we in this country treat jurors as not being the sharpest tools in the shed. And, you know, I'm not saying we should go all the way to the American style where they can do whatever they want. But I think, you know, I think there is some, some point in just in quills argument. 00:17:49:07 - 00:18:02:01 Speaker 3 Well, I think if you're, if you're going to define Wilkinson duties on team demand content, you might as well find the lodges guilty of contempt for awarding the Storya gong on the eve of the trial. But Lisa intense legal team should have known better. 00:18:02:02 - 00:18:06:22 Speaker 2 Yep, I agree. So what are the broader reputational lessons from this saga, Mark? 00:18:06:24 - 00:18:26:12 Speaker 3 Well, it's just a reminder of why we're constantly advising clients against suing for defamation. When people say a negative story, often the first thing they say is we want to sue, but so often they just don't have a case. I mean, it might be true, but also it's often about the companies in a corporation can't sue for defamation. 00:18:26:12 - 00:18:29:20 Speaker 3 A company doesn't have a reputation to protect according to the law. 00:18:29:22 - 00:18:43:04 Speaker 2 And often they're upset because the story is right. They just didn't want people to know about it. A case of it might make you feel better, but just think about the long term consequences. And corporations can sue under the Trade Practices Act, by the way. But it's a pretty difficult route from my understanding. 00:18:43:06 - 00:18:55:10 Speaker 3 In courts, as Bruce Lemon would attest, are unpredictable in defamation actions. Which are about your reputation. Or am I certain to invite attacks on your reputation. 00:18:55:14 - 00:19:03:05 Speaker 2 And further down the track, all the nasty allegations against you will be outlined in detail with the media. Frater paid all of them under the protection of court privilege. 00:19:03:08 - 00:19:28:21 Speaker 3 And when do you remind clients that if they say every document, every email, every text message vaguely and unthinkingly connected to this issue could be presented to the court? Well, their insane enthusiasm for action usually wins. In the final straw is the realization that the very issue that they most want to disappear will get a whole new round of publicity is the court process takes place. 00:19:29:01 - 00:19:40:08 Speaker 2 Never start a court case unless you're confident of victory and have no secrets to hide. None of them must be regretting the decision to fight this in court, rather than just taking the money from News Limited and ABC's settlements and running. 00:19:40:12 - 00:20:05:19 Speaker 3 And now there will never be an application for competition, which will, you would think, empty its bank accounts and interestingly to lose now some suggestions around the traps of tens making a third party application for a third party unnamed to cover Luhrmann's cost. Now, there's no suggestion to this point as who that might be, but I would observe from another case involving us, certainly size. 00:20:05:19 - 00:20:11:21 Speaker 3 So I'll do the bit to Kevin's I seven zone A Kerry Stokes is it got a bit of form in funding legal actions. 00:20:11:21 - 00:20:16:05 Speaker 2 So what you're saying there is that they're going to try and get those costs paid by that third party funder. 00:20:16:10 - 00:20:29:23 Speaker 3 That has been suggested. That's the rumor. I'm hearing. But listen, I have no idea who that who that funder is. But it's interesting to say, well, but what what networks, what networks, but little. 00:20:30:00 - 00:20:51:09 Speaker 2 I think we've already covered that look. And finally, adding insult to injury, Paul Bruce was last week evicted from his Sydney apartment after neighbors complained about late night karaoke sessions. Look, the bloke is a rolled gold crate on the balance of probabilities, but his taste in music. I Will Always Love You by Whitney Horses by Daryl Braithwaite and Dirty Dancing. 00:20:51:09 - 00:20:53:12 Speaker 2 Storm of my life. That's criminal. 00:20:53:18 - 00:21:13:22 Speaker 3 Let's throw away the Kraken. But that's it for this episode. And so we'll see you next time. Up the creek.