Lawyer seeks Lehrmann's sworn statement on events

A lawyer defending lawsuits brought by Bruce Lehrmann against media who reported Brittany Higgins' claim she was raped by a co-worker at Parliament House wants him to give a sworn statement of what he says happened.

Mr Lehrmann maintained his right to silence as he faced a criminal trial in the ACT Supreme Court, which was derailed in October because of juror misconduct.

The prosecution dropped the charges, citing impacts a second trial would have on Ms Higgins' mental health, in December.

Mr Lehrmann then filed defamation action against Network Ten and News Life Media over a segment on The Project and an article on news.com.au published in February 2021, when Ms Higgins said she was raped inside the Parliament House office of then minister Linda Reynolds in March 2019.

Federal Court Justice Michael Lee granted an extension of time sought by the former Liberal staffer to bring the lawsuit outside the normal 12-month period on Friday.

He clarified the decision did not consider the substantive merits of allegations made in the cases.

Ten, News and journalists Lisa Wilkinson and Samantha Maiden attempted to shut down the cases by urging the court to reject the dual applications for an extension of time.

Justice Lee was not persuaded, granting the extension and setting down a November 20 date for a trial which could last up to four weeks.

High-profile defamation barrister Sue Chrysanthou SC, acting for Ms Wilkinson, has called for Mr Lehrmann to provide a sworn statement.

"We wish to have him on oath in a document in advance of the trial so we can cross examine him," she said, arguing for procedural fairness given sworn testimony from Ms Higgins about her claim.

Lawyers are conferring on whether a third lawsuit against the ABC for broadcasting a joint address by Ms Higgins and former Australian of the Year Grace Tame at the National Press Club in February 2022 will be heard at the same time.

No findings have been made against Mr Lehrmann, who denies the allegations.

Justice Lee was satisfied he was following legal advice and his chief focus was on defending a potential criminal case when he delayed starting defamation proceedings, despite his interest.

"The mere fact that he was interested is not really to the point. What is critical is that despite his interest, Mr Lehrmann chose, on advice, not to commence proceedings," he said.

Starting civil proceedings risked him being required to give evidence, as opposed to being entitled to silence as the accused in a criminal trial.

"This would have undermined Mr Lehrmann's defence strategy," Justice Lee said.

Submissions questioned the legal advice Mr Lehrmann claimed he received about delaying defamation proceedings, however they had an "air of unreality".

"The repeated reference to the status of defamation lawyers as though they are members of a cloistered guild endowed with some form of abstruse knowledge was overdone," the judge wrote. 

"It does not take a savant to ruminate upon whether taking non-fanciful risks, by starting collateral fights, might or might not be a good idea."

Media companies are seeking to mount a truth defence, requiring "fact finding of a particular character usually .... conducted by a jury," Justice Lee noted, expressing no preference on whether to direct a trial by jury while requesting written submissions on the topic.

The trial is likely to be judge-alone.

Mr Lehrmann's barrister Matthew Richardson SC noted juror misconduct derailed the criminal trial.

"People have extremely strong views on this," Mr Richardson said.

"It's the most publicised rape case in Australian history and the entire community is divided on it."