Hearing for 2000-page affidavit underway ahead of Bruce Lehrmann defamation trial judgement

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Thousands of pages of “deeply personal” exchanges between Brittany Higgins were leaked to the Spotlight program according to a bombshell affidavit outlined in the Federal Court.

Channel Ten’s barrister Matt Collins KC opened his submissions at 5pm by revealing the affidavit prepared by Taylor Auerbach includes more than 2,000 pages of private text messages between Ms Higgins and her former boyfriend Ben Dillaway.

“The application we agitate is unusual and exceptional,’’ Dr Collins KC said.

“These are deeply personal exchanges between Ms. Higgins and her former boyfriend that are not otherwise in the public domain and which are the subject of implied undertakings in our submission,’’ he said.

Mr Lehrmann’s legal team indicated they would oppose the application.

Channel Ten indicated the material was leaked contrary to an implied undertaking in the criminal trial that the matter could not be used for another purpose.

The judge in Bruce Lehrmann’s defamation trial had insisted on reading the explosive affidavit sworn by ex-Spotlight producer Auerbach before agreeing to hold an interlocutory hearing on whether to re-open the case.

Whatever Justice Michael Lee read in its 2000 pages – the document contains Auerbach’s account of Mr Lehrmann’s dealing with the Spotlight program – it was enough to cut short his Easter arrangements and return to Sydney.

But for Network Ten, which has launched the last-minute salvo, there were never any guarantees that Justice Lee will reopen the case or that the document will be published, as all other documents in the case have been, on the public file.

In less than 48 hours, he is due to hand down his judgement in the defamation trial, although that could change if he decides to reopen the trial.

Mr Lehrmann has, via his legal team, previously rejected the “outrageous” suggestion that he leaked to Spotlight.

The matter may be relevant to Ten’s legal team because it could go to credibility.

Any suggestion Mr Lehrmann was the source of the leaks could go to his credibility as a witness and may be relevant with regard to any damages.

Auerbach can offer no evidence of what occurred when Ms Higgins and Mr Lehrmann went back to Parliament House. At its highest the fresh evidence goes to his credibility as a witness.

Justice Lee’s urgent hearing on the contents was live streamed from 5pm on YouTube following an application from Ten to reopen the defamation trial based on “fresh evidence” from Auerbach.

Mr Lehrmann has already expressly denied leaking to the Spotlight program when he was questioned by high-profile barrister Sue Chrysanthou SC, representing Ten’s Lisa Wilkinson.

“Could you please turn to volume 11? That’s the agreement I was just asking you about?’’ Ms Chrysanthou asked last year.

“In addition to giving the interviews, you also agreed to give all information, documents, film, video, photographs, items and assistance?”

“Yes,’’ Mr Lehrmann replied.

“And did you do so?’’ she asked.

“No, I just gave an interview,’’ he replied.

But before he could continue, Justice Lee intervened, asking “sorry, why is this relevant?”

“We’ve got an objective theory of contract. We know what the contract says,’’ Justice Lee said.

Ms Chrysanthou was stopped in her tracks.

“Thank you, your Honour. Can I mark the contract for identification?”

Thai masseuse drama

It follows news.com.au revealing that Auerbach had spent thousands of dollars on a company credit card to book two Thai masseuses in the company of Mr Lehrmann and another man in multiple transactions of $1000.

The charges were made without the knowledge of consent of anyone at Seven and Auerbach later apologised and agreed to pay the money back personally.

Mr Lehrmann denies getting a massage.

But when he did so he accused “a disgruntled ex-Spotlight producer” of fuelling the story, prompting Auerbach to seek legal advice.

That legal advice appears to have involved providing information to his lawyers in the form of an affidavit that is now before the court.

Justice Lee must consider whether or not to publish the affidavit and whether or not to recall Mr Lehrmann to give evidence.

The judge may decide to disregard the affidavit and proceed straight to judgment, which is scheduled for 10.15am on Thursday.

A second option is that he could allow for Mr Lehrmann’s legal team to make written submissions on the affidavit.

The third option would be to put Auerbach in the witness box and even recall Mr Lehrmann to give evidence as well.

Lehrmann emerges on Easter Monday in sandals

Meanwhile, a smiling Mr Lehrmann surfaced in Sydney after dark on Easter Monday ahead of Ten’s sensational bid to reopen the trial.

After spending the day locked inside his Balgowlah home where he is living rent-free for a year under a deal with Seven, Mr Lehrmann surfaced on Monday evening to make the 20-minute drive to Paddington.

Mr Lehrmann was joined by two mates including sailor Rob Porter. He wore sandals and a polo shirt for the casual outing ahead of an impending legal showdown.

A form of ‘public violation’

In July 2023, Ms Higgins described the ongoing publication of her private text messages provided to various parties as part of legal processes, including police, prosecutors and Bruce Lehrmann’s defence team during the trial, as “a form of public violation”.

“You can continue to leak every text message, WhatsApp, and emails from my phone,’’ she said.

“Yes, it’s embarrassing. It is such an intimate (and ongoing) form of public violation + humiliation.

“However I refuse to be intimidated or retreat into myself. So, see you in the defamation trial come October.”

On another occasion, she also said on social media: “Stop publishing the private contents of my phone.

“I took a photo of an old page in my diary on the 7th of July 2021.

“It is now being referenced in an article in The Australian. This is the third time private images, texts and WhatsApps from my phone have been published by this particular news outlet.

“I voluntarily provided this material to the police to help them form the brief of evidence and none of it was tabled in court.

“Therefore, no journalist should have seen the photo of my diary.”

Ms Chrysanthou told the Federal Court in June last year that an “orchestrated campaign” appeared to be underway to influence defamation proceedings.

“The publicity of the last few days could only have been calculated to put pressure on witnesses not to co-operate,” Ms Chrysanthou said.

She suggested in court that Mr Lehrmann be asked if he was involved in leaking the text messages to the media.

“We’ve made inquiries of all other parties,” she said.

But Mr Lehrmann’s barrister, Matthew Richardson SC, said his client “absolutely denies” the suggestion he was involved in leaking evidence which he described as a “grave and serious allegation”.

Ghosts of affidavits past

Spotlight executive producer, Mark Llewellyn, made explosive and embarrassing allegations involving some of the Nine Network’s most senior figures himself 18 years ago in an infamous affidavit that claimed then CEO Eddie McGuire had discussed wanting to “bone” – which in his mind meant sack – Today host Jessica Rowe.

The legal bunfight emerged after a sensitive affidavit sworn by Mr Llewellyn was leaked to the media, and Nine failed to prevent publication of the affidavit in the NSW Supreme Court.

At the time, in 2006, he was trying to end his contract with Nine and defect to Channel 7.

Mr Llewellyn’s affidavit detailed conversations with new Nine boss Eddie McGuire and executive director Jeffrey Browne about when to “bone” Rowe.

“She’s a laughing stock and if we keep her on air we will be the laughing stock,” Mr Browne allegedly said.

In a meeting on May 31 the pair allegedly confronted Mr Llewellyn with the “s*** sandwich” of a $350,000 pay cut and demotion, Mr Browne putting the ultimatum: “There are three ways you can play this.

“You can tell us to f*** off, which is not a helpful answer, or you can say yes and be part of our team going forward.

“Or you can say you’ll think about it, which isn’t the greatest answer for us either.”

The network had obtained an injunction to try to keep it secret but ultimately failed to keep it under wraps.

Federal Court Justice Steven Rares formally discharged the application and the document was put on the public record.

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