Suggested Procedural Difficulties
222 There is no unfairness in Mr Lehrmann making this aspect of his submissions as to credit. Regrettably, to explain why takes some time and requires close examination of the record.
223 The issue as to the Commonwealth Deed arose initially from an exchange on 5 December 2023, at the end of a lengthy period of Ms Higgins giving evidence. To provide context, by this stage, the cross-examination had been going on since 30 November 2023 (T706.16). I had taken frequent breaks when I considered it appropriate and had counselled Ms Higgins to request breaks if she thought she needed them to give a proper account of her evidence. Senior counsel for Network Ten, had also referred to his concerns as to the welfare of the witness and later made a submission about the cross-examination becoming "oppressive" (T899.14). In the end, without imposing time limits, I did ask senior counsel of Mr Lehrmann to attempt to conclude the cross-examination on 5 December 2023 (T906.39). This request was informed by my close observation of the witness and my assessment of the stress the length of the cross-examination was occasioning.
224 In any event, the issue of the Commonwealth Deed arose right at the end of the cross-examination after Ms Higgins had, shortly before, given evidence as to the Commonwealth coming to "an agreement that a failure of a duty of care was made, and they did pay me" and that she thought the settlement "was around [$]2.3[m]" (T1026.2). The relevant exchange was as follows (T1028–9):
MR WHYBROW: And as you sit there today, there has never been any finding as to whether or not your allegations are true or not?---The Commonwealth admitted that they breached their duty of care and that they didn't go through proper processes, so that's actually why they settled with me.
HIS HONOUR: Did the Commonwealth make an admission of liability, did they?---I believe so, but you might have to double-check with them.
MR WHYBROW: Was Mr Zwier your solicitor in relation to those proceedings or was he involved in them?---He was present, but it – it wasn't his. It was–I had Noor Blumer. Blumers were my lawyers for the – the civil case. For the civil – the potential civil case, and we also almost filed a civil case against Bruce, but they didn't want me to do a double action or something for some reason.
I call for production of the deed – was there a deed or was it just a settlement?---I – I – I don't know.
Okay?---I'm not sure.
I make that call.
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