Bruce Lehrmann’s lawyer, Mark O’Brien, is on a losing streak

“Everyone in the future who is seriously considering suing for defamation should be thinking very seriously. You can’t anticipate what evidence is going to come out in court.”

As Sydney’s most-prominent defamation lawyer, O’Brien personally helped create a claimant-friendly culture in Sydney, say other lawyers. He also became known, and resented, for ridiculing journalists’ questions and sending hostile letters to other lawyers, they say.

O’Brien argues the recent cases are unrepresentative of his success. Many of his clients received payouts without having to go to court, he said in an email on Tuesday, including businessman Andrew Forrest and ABC chairman Kim Williams.

“A small number of losses in the context of the substantial number of our successful court wins and settlements conclusively contradicts your assertion that my cases ‘mostly fail’,” he said in the email. The emails to other solicitors are “rightly assertive” in response to “aggressive” messages he gets, he said.

Asking questions

O’Brien’s basic strategy appears to be escalation. After Seven’s Spotlight show broadcast confidential information in 2023 that appeared to come from Lehrmann, lawyers for the Ten Network, which Lehrmann was suing, complained to O’Brien’s firm, Mark O’Brien Legal.

One of O’Brien’s lawyers said merely asking the question could win Lehrmann a larger payout. “In the circumstances, we place you on notice that our client will rely upon your making of the allegation in support of his claim for aggravated damages in the proceedings as against your client,” he replied.

On Monday, Justice Michael Lee ruled Lehrmann did provide confidential information to Seven, breaching a requirement that documents obtained through a court case, unless they become evidence, can’t be used for another purpose.

In 2018, an investigative journalist at The Age, Michael Bachelard, was given over 100 pages of legal bills racked up in a case about coverage of a religious group called the Exclusive Brethren by a process server acting for O’Brien. At the time, a negotiated settlement was possible. Bachelard was legally indemnified by Nine, but he said on Tuesday that he still found the experience “unusual and confronting”.

Tough, skilled

To clients, O’Brien is one of the few lawyers tough and skilled enough to protect them from the most powerful media organisations in the country, including Nine, News Corp and the ABC.

His last major court win was in 2020, when a Papua New Guinean politician received $730,000 for articles in The Australian Financial Review that implied he was corrupt. In 2019, he successfully represented Chau Chak Wing, a Chinese-Australian businessman over articles in The Age and The Daily Telegraph that implied he paid a bribe. Wing received about $300,000 from the two papers.

It is unclear if O’Brien’s firm will be paid for representing Lehrmann. Other lawyers involved have speculated, given Lehrmann’s apparent lack of wealth, that Mark O’Brien Legal agreed to work on a no-win, no-fee basis. O’Brien didn’t respond when asked about this.

Lehrmann’s legal costs have been estimated by defamation lawyers not involved in the case at $2 million to $3 million, and Ten’s at $8 million, if the network pays for Lisa Wilkinson’s lawyers. The loser normally covers the winner’s costs, although Lee hasn’t ruled on the matter yet.

“It’s a warning,” Ten’s lawyer, Justin Quill, said on Monday, “to all other potential applicants or plaintiffs who might want to try to recreate history or make a quick buck.”

Unlike firms representing media companies, which can rely on repeat business, O’Brien has to continually find new clients. (He works for the Daily Mail, too.)

His latest is the elderly conservative broadcaster Alan Jones, who was accused by The Sydney Morning Herald of indecent assault. Jones has strongly denied the assertion.

On December 7, Mark O’Brien Legal said it had begun the process of suing the paper. Four months later, no lawsuit has arrived.