A top defamation barrister says she is "very concerned" the Department of Parliamentary Services claims not to have CCTV footage from the night Brittany Higgins was allegedly raped.
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But the department has hit back at Sue Chrysanthou SC, rejecting any suggestion it failed to comply with a subpoena by not producing the footage.
Ms Chrysanthou is representing Lisa Wilkinson in defamation proceedings brought against the television host and her employer, Network Ten, by former Liberal staffer Bruce Lehrmann.
Mr Lehrmann claims Ten and Ms Wilkinson defamed him in 2021, when they broadcast an interview in which Ms Higgins accused him of raping her at Parliament House during their time as colleagues.
The case is listed for trial in November, when the television station and its star journalist are set to defend Mr Lehrmann's lawsuit by arguing Ms Higgins was telling the truth.
At a case management hearing in the Federal Court on Friday, various parties produced material in answer to subpoenas.
When the Department of Parliamentary Services did not hand over CCTV footage from the time of the alleged rape, Ms Chrysanthou questioned why.
She pointed out that the footage had been broadcast on Network Seven as recently as a month ago, when that station aired Mr Lehrmann's first television interview.
"Given the relevance of the footage to the facts in issue between the parties, we think there should be some explanation as to why that material hasn't been produced," the silk said.
Ms Chrysanthou indicated the department would be making "an unusual application", but no further details of this were given in court.
The Department of Parliamentary Services later responded with an emailed statement.
"The subpoena in question sought production of a very limited set of material," the department told The Canberra Times.
"It is not correct to suggest that the department has withheld material or failed to comply with the subpoena because there is no material that exists in response to a category of the subpoena.
"The department fully complied with the subpoena and its obligations to the court and did produce material where it located material within the scope of that subpoena.
"Where there was no material responding to a category of the subpoena, the court and relevant parties were advised of this fact."
The court had earlier heard there were disputes about some subpoenas, including one issued to high-profile journalist Peter FitzSimons.
Mr FitzSimons, who is married to Ms Wilkinson, was involved in negotiations that secured Ms Higgins a $325,000 book deal in 2021.
Ms Chrysanthou questioned the relevance of documents about this issue.
She noted the alleged rape had occurred in March 2019 and that Ms Higgins had gone public with her claims in February 2021.
"The alleged book deal is after that: March [2021]," Ms Chrysanthou told the court, wondering how it could possibly be relevant to the credibility of Ms Higgins.
Justice Lee decided it was "sufficiently relevant" to the proceedings, and Mr FitzSimons' lawyer accordingly produced material on his behalf.
The judge ultimately listed another case management hearing to take place on July 17.
Mr Lehrmann, who has always denied raping Ms Higgins, faced a criminal trial in October 2022.
After juror misconduct forced a mistrial, prosecutors discontinued the rape charge levelled at him.
Mr Lehrmann is also suing the Australian Broadcasting Corporation for defamation in a separate case, which relates to its live coverage of Ms Higgins addressing the National Press Club in February 2022.
Justice Lee is yet to decide whether to hear that case, which the ABC is defending, at the same time he considers the lawsuit levelled at Network Ten and Ms Wilkinson. He has indicated he will likely do so.
