The former federal political staffer is appealing his loss to Network Ten and journalist Lisa Wilkinson, whom he sued over an interview they conducted with his former colleague Brittany Higgins on The Project in 2021.
In his ruling on the defamation case in April 2024, Federal Court Justice Michael Lee found Ms Higgins' claims she had been raped by Lehrmann in parliament house in 2019 were proven on the balance of probabilities.
In his headline-grabbing decision, the judge quipped: "Having escaped the lions' den, Mr Lehrmann made the mistake of going back for his hat" in reference to his doomed defamation bid.
Lehrmann's lawyer Zali Burrows told the appeal court on Wednesday Justice Lee's ruling, on the heels of an abandoned criminal trial, meant Lehrmann has become probably "the most damaged man in Australia".
Media attention, aggravated by commentary from Channel Ten and Wilkinson, led to a flood of hateful social media comments aimed at Lehrmann, she said.
"He's pretty much become a national joke," Ms Burrows told the court.
She argued Lehrmann, 30, was denied procedural fairness because the facts found by Justice Lee were "starkly different" from the case run by Ten.
The ex-Liberal staffer had been "taken by surprise" the judge had adopted a "softer" sequence of events that had not been put to Lehrmann in cross-examination, Ms Burrows said.
She claimed Lehrmann had been accused of committing a violent rape but Justice Lee had found it was a "non-violent rape", prompting Justice Craig Colvin to say he wasn't sure he understood that concept.
Ten's barrister Matt Collins KC contended the judge had found Ms Higgins' rape was violent, and indeed: "All rape is violent".
Lehrmann argued the judge was not satisfied about a number of the violent elements argued by Ten, including he had held open Ms Higgins' legs.
"The sting of the (defamatory) imputation resides in the act of intercourse without consent, not in any detail of it," Dr Collins said.
He rejected Lehrmann's suggestions he should be awarded damages of more than $20,000 if successful on appeal.
Lehrmann raped Ms Higgins when he knew she was seriously intoxicated, continued raping her when she became aware, and left her in a state of undress, Dr Collins said.
"That is not a man with any reputation in respect of sexual morality that would warrant compensation," he said.
He took issue with Justice Lee's finding Lehrmann had been reckless as to whether Ms Higgins was consenting and urged the appeal court to instead find he knew she did not consent.
Ms Wilkinson's lawyer agreed Lehrmann's "level of indifference" could not be inadvertent and instead amounted to a definition of "intentional rape" as understood by an ordinary person.
"A young man who knows that a woman is very drunk knows that she cannot consent," Sue Chrysanthou SC said.
"This is not a legal question, this is a question that is considered on the standards of the community."
Lehrmann not only knew Ms Higgins was very intoxicated but encouraged her to drink, she said.
Both lawyers argued Lehrmann had been confronted with the main facts of the case as found by Justice Lee: that sex took place, Ms Higgins did not consent and Lehrmann had been reckless as to her consent.
Lehrmann maintains he did not sexually assault Ms Higgins and a 2022 criminal case against him was abandoned without any findings against him.
Earlier in the day, Ms Burrows apologised Lehrmann was not represented by a silk, telling the panel of judges he "really wanted" Guy Reynolds SC but "couldn't afford" to engage him.
The defamation case and related appeal are among a host of court actions spawned by Ms Higgins' allegation of sexual assault.
The Western Australian Supreme Court will next Wednesday rule on former Liberal senator Linda Reynolds' high-profile defamation case against Ms Higgins, her former employee.
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