Why Justice Lee had to let Ten reopen its defamation defence case

It's not just because of valid legal reasons argued in an urgent interlocutory application late Tuesday afternoon.

"This is clearly fresh evidence," Justice Lee said about the upcoming testimony of former Spotlight producer Taylor Auerbach which will delay the judge's long-awaited Federal Court decision.

But also it's because refusing the new evidence, even at the eleventh hour, would have been entirely out of character for the judicial officer overseeing the defamation proceedings.

"I thought I had finished my work involving this matter during Lent, which I thought was appropriate," the judge said through grinning teeth.

Instead of Justice Lee delivering his hours-long judgment on Thursday morning, the court will hear more trial evidence. Much of it aimed at discrediting the man who claims being defamed.

Network Ten and journalist Lisa Wilkinson are defending themselves against the defamation suit brought forward by Mr Lehrmann, in large part, on a substantial truth defence.

That means one key question Justice Lee must answer is, on the balance of probabilities, whether Brittany Higgins' allegation aired on The Project in 2021 is substantially true.

Put crudely, is it more likely than not Mr Lehrmann raped Ms Higgins on Senator Linda Reynold's ministerial office couch in the early hours of March 23, 2019.

He has always denied doing so and no findings have been made against him.

But with starkly conflicting evidence from the only two people in that office, lawyers routinely and ruthlessly aimed to discredit Mr Lehrmann and Ms Higgins throughout last year's month-long civil trial.

Barristers pounced on half-truths, faded memories, flat-out lies and inconsistent accounts told over the past five years.

No stone was left unturned and no accusation of self-interested deceit was left unthrown.

The lawyers posited: if the witnesses lied here, there and then, how can we rely on any of their evidence?

So, if Mr Lehrmann had told another lie and potentially breached court rules by sharing sensitive legal material, Ten's barrister argued, that would be highly relevant to his credit.

And do those lies, if accepted, raise abuse of process question when the court decides whether to award Mr Lehrmann any damages?

The fresh allegation from Mr Auerbach is that Mr Lehrmann leaked sensitive material from his ACT criminal trial, including Ms Higgins' private text messages and a recorded pre-interview with Ms Wilkinson.

"[Mr Lehrmann] committed an egregious contempt of court by providing materials to the Seven Network that were subject to an implied (or Harman) undertaking that they were not to be used for any purpose other than the criminal proceedings," Matthew Collins KC, representing Ten, said in his application.

Mr Lehrmann is accused of handing over the material ahead of his exclusive Spotlight interviews in 2023. He has denied this claim and Seven has refused to reveal the source of the leak.

His barrister, Matthew Richardson SC, described the allegation, even if proven, as trivial.

"Obviously, a lie under oath is an exceptionally serious matter," Mr Richardson said.

"It's just that in this case, both the principal witnesses are alleged by both sides to have told dozens of lies under oath. That is an inescapable fact and one which your honour has remarked upon."

Much of the evidence given by Ms Higgins and Mr Lehrmann "simply can't be accepted", Justice Lee previously remarked.

In another credit attack, Ten will also allege Mr Lehrmann lied when he gave evidence Seven had only paid for a year's worth of his accommodation while courting him to do the interviews in question.

Mr Auerbach claims the television network actually forked out tens of thousands of dollars for illicit drugs, sex workers, dinners, a golf game, and more accommodation.

Mr Lehrmann previously told the court Seven only compensated him for his tell-all interviews with a year's worth of rent, revealed last year to amount to over $100,000.

The judge ultimately ruled in Ten's favour and allowed the network to reopen its case, agreeing the evidence could go to credit and the question of abuse of process.

Justice Lee is perhaps the lone figure from the highly scrutinised proceedings who remains unscathed from severe criticism. Internet trolls and defiant YouTubers aside.

At the civil trial's beginning, The Sydney Morning Herald's Harriet Alexander aptly described the judge as running his courtroom "in the manner of a genial teacher".

"He flashes his teeth to smile, but only allows counsel so much hope," Ms Alexander wrote in November last year.

The judge has repeatedly proven himself to be decisive, stern and fair while juggling endless mud-slinging, combative witnesses, and the tens of thousands of people watching on an open live stream.

But most of all, Justice Lee has made every effort to dispel the appearance of unfairness or bias from the bench, and instill public confidence in his eventual judgment.

He has fought hard for transparency and afforded parties every chance to say everything and anything on behalf of their clients.

That's why the trial pushed frighteningly close to Christmas and why since, lawyers have submitted hundreds of pages worth of written submissions. Then came the replies to the replies to the replies.

DEFAMATION TRIAL COVERAGE:

But as the defamation proceedings appeared to be nearing their end (ignoring a very likely appeal of some kind), it was too good to be true.

In a sensational turn of events, Ten asked to reopen its case. It will now do so, in part, because this trial has operated under such an intense microscope.

Justice Lee has conducted the trial on the basis no viewer could rationally say anything was taking place behind closed doors.

"The one thing I've tried to do from the start of this case is, I thought the administration of justice is best served, and public confidence in the administration of justice, by a trial conducted in public," he said on Tuesday.

"So there can be no suggestion there is any evidence floating around which might be material to the determination of the issues in this case which are somehow being suppressed."

After all, justice must not just be done. It must be seen to be done.

As the emergency application was heard, it slowly dawned on Justice Lee his impending judgment would be delayed.

He revealed not having taken any days off working, bar one or two to attend a cricket Test, since he reserved his decision days before Christmas. A holiday will have to wait a little longer.

Now, he indicated that decision would come next week at the earliest, following Mr Auerbach's cross-examination and whatever else may come from it.

But make assumptions about a judgment-day timeline at your own peril.