Watch live: Ten questions whether Lehrmann leaked 2300 pages of Higgins texts

Auerbach was part of a team working to woo Lehrmann into striking an exclusive interview deal with the broadcaster in late 2022. Those efforts proved persuasive.

Under the deal inked in April 2023, Lehrmann agreed to an exclusive interview with Seven, aired in two parts to date in June and August last year, as well as to provide exclusive access to “all information, documents, film, video, photographs, items and assistance reasonably requested by Seven” relevant to the interview.

Asked in court last year whether he gave Seven “information, documents, film, video, photographs, items and assistance”, Lehrmann said: “No, I just gave an interview.”

Higgins’ text messages

Ten is hoping Auerbach can shed light on whether Lehrmann was responsible for leaking highly confidential information to Seven to use in its interviews with Lehrmann.

That material included Higgins’ text messages which had been handed over to the Australian Federal Police under a search warrant as it investigated her claim she was sexually assaulted by Lehrmann in Parliament House.

Collins told the court on Tuesday that there was a question about whether Lehrmann gave Seven 2321 pages of text messages between Higgins and her former boyfriend Ben Dillaway.

He said that “these are deeply personal exchanges between Ms Higgins and her former boyfriend that are not otherwise in the public domain”.

In an interview with The Project aired on February 15, 2021, Higgins accused an unnamed colleague of raping her in March 2019 in the office of the then-defence industry minister, Linda Reynolds, for whom they both worked as advisers.

Lehrmann is suing Ten and high-profile presenter Lisa Wilkinson, a former co-host of The Project, claiming the Higgins interview defamed him by suggesting he was guilty of raping Higgins.

He has always maintained his innocence.

Ten and Wilkinson’s chief defence in the case is truth, meaning they are seeking to prove to the civil standard – on the balance of probabilities, meaning it is more likely than not – that he raped Higgins. This is lower than the criminal standard of beyond reasonable doubt.

Lehrmann’s ACT Supreme Court criminal trial for sexual assault was aborted in 2022 owing to juror misconduct and a second trial did not proceed owing to concerns about Higgins’ mental health.

Collins told the court on Tuesday that only some of the material contained in a Federal Police e-brief, provided to Lehrmann in his capacity as the accused in the criminal trial, was confidential and subject to an implied undertaking that it would not be used for a collateral purpose unrelated to that trial.

Attack on Lehrmann’s credibility

Auerbach’s evidence appears relevant to whether Lehrmann was a credible witness. However, it sheds no light directly on the sexual assault allegation.

If Ten can argue the evidence given by Auerbach casts doubt on a denial by Lehrmann that he was the source of the material, it would form the basis of an attack on Lehrmann’s credibility. It would sit within Ten’s broader argument that Lehrmann’s evidence in the defamation case should not be accepted.

However, there is no guarantee the judge will agree to hear the evidence on the eve of his judgment. Lee may form the view that casting doubt on the veracity of Lehrmann’s evidence in a peripheral way does not assist him to determine the issues at the heart of the case.

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He has already indicated that it appears parts of the evidence of Lehrmann and Higgins “simply can’t be accepted”, meaning it is possible that adverse comments will be made about the credibility of both of them in his final judgment.

The masseuse claim

Auerbach first emerged as a bit player in the legal saga after news.com.au’s Samantha Maiden reported last month that “two Thai masseuses were booked, one for Mr Lehrmann and another for a Seven employee” in the early hours of Saturday, November 26, 2022.

Auerbach, widely reported to be the Seven employee who booked those services, threatened to sue Lehrmann for defamation after the former federal Liberal staffer responded to Maiden’s report with a statement describing the allegation as “an untrue and bizarre story from a disgruntled ex-Network Seven producer”.

Auerbach sent a concerns notice – the first step in initiating defamation proceedings – to Lehrmann on Wednesday. A concerns notice allows a party accused of making a defamatory comment to take remedial action before proceedings are filed.

Auerbach’s solicitor, Rebekah Giles, said in the concerns notice that Lehrmann’s press statement conveyed the defamatory meaning that “Taylor Auerbach lied to the press about Bruce Lehrmann being bought a massage by a Seven Network employee”.

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