230 Later that day, I interrupted a witness to accommodate senior counsel for Ms Higgins appearing (T1248) and determined a confidentiality application, which was only pressed in limited respects, and then delivered ex tempore reasons: Lehrmann v Network Ten Pty Limited (Confidentiality) (No 2) [2023] FCA 1561. Immediately after the delivery of reasons on Ms Higgins' application, the following then took place (T1252–3):
HIS HONOUR: And is there agreement between the parties that they say that they won't take the point about procedural fairness? Are you not putting the prior inconsistent statements to the–to Ms Higgins, that is, concerning a true amount payable pursuant to the deed and the fact that, contrary to the evidence given to me, there was no admission of liability ---
MR WHYBROW: As I understand it, it's ---
HIS HONOUR: --- and other matters?
MR WHYBROW: Yes, it's accepting those. There are some matters where they are strictly completely new. I have spoken to Ms Chrysanthou on those. I haven't had a chance to speak to Dr Collins, but - - HIS HONOUR: All right.
MR WHYBROW: --- in the circumstances where, effectively, the gist of all of those matters were put - - HIS HONOUR: Yes.
MR WHYBROW: --- to Ms Higgins, we don't ---
HIS HONOUR: Well, I must say my preliminary view was that it wouldn't have been appropriate to have Ms Higgins recalled if there was some sort of sensible resolution.
MR WHYBROW: Yes.
HIS HONOUR: So I congratulate the parties on sensible approach to that because I did wish to spare her the necessity to come back.
MR WHYBROW: Yes. Indeed.
HIS HONOUR: But it doesn't inhibit you in making whatever submissions you wish to make between the inconsistencies about what's contained in the deed and the evidence given by Ms Higgins.
MR WHYBROW: Yes, your Honour.
HIS HONOUR: All right. Thank you.
231 Following review of the evidence and the receipt of submissions, it became evident to me the possible importance of the representations made in the Commonwealth Deed by Ms Higgins, and Annexure E details the steps I have taken to guard against any residual issue as to procedural fairness including, in the circumstances set out above, allowing for Ms Higgins to make any submission she wished to make about the submissions advanced by Mr Lehrmann.
