Bruce Lehrmann is running out of courts after losing his defamation appeal

Bruce Lehrmann is running out of options, or more specifically, he is running out of courts.

Yesterday, the full bench of the Federal Court comprehensively rejected an appeal against his failed defamation case from last year.

In that case, Justice Michael Lee ruled on the balance of probabilities that Mr Lehrmann had raped Brittany Higgins at Parliament House in Canberra in 2019.

Mr Lehrmann continues to maintain his innocence and now there is only one option left for him to continue his legal battle — the High Court of Australia.

His lawyer, Zali Burrows, told the media outside the Sydney law courts yesterday that an application was already being discussed.

But what would it take to get there?

A special leave application for the court to consider hearing the case would have to be filed, which Mr Lehrmann could do himself.

If he is lucky, he may find another pro bono lawyer to help him with his case and not run up any more legal debts.

And they are substantial — including yesterday's ruling, which awarded costs against him and will be added to the $2 million he already owes Network 10.

Bankruptcy has already been discussed in court.

But Ms Burrows said Mr Lehrmann is hoping to find some benefactors.

And then there is the question of what he could argue.

No easy path to the High Court

Not surprisingly, the High Court has a high bar.

Many cases that it agrees to hear are based on differences between judges in lower courts, where a majority has ruled one way, but a minority judgment may contain the seeds of an issue the court thinks it should address.

In Mr Lehrmann's case, there is little to help, with a unanimous decision rejecting his four grounds of appeal, which included claims that he was not allowed procedural fairness.

Even where the three judges differed from Justice Lee's original defamation ruling, there is little comfort.

Justice Lee had found that in his pursuit of gratification, Mr Lehrmann had not cared one way or another whether Ms Higgins consented.

But the appeal court judges went further, respectfully disagreeing, saying Justice Lee should have found "actual knowledge on the part of Mr Lehrmann that Ms Higgins did not consent to sexual intercourse".

Although it is not unheard of for a case lost everywhere else to win in the High Court, if Mr Lehrmann is to secure a hearing, a great deal will need to be done to present a case the court will want to hear.

Mr Lehrmann's defamation case began when he lodged court action against Network 10 and journalist Lisa Wilkinson over an interview on The Project with Brittany Higgins almost five years ago.

He was not named in the interview, but he said he was clearly identified and therefore defamed.

Justice Lee found none of that mattered because Network 10 and Lisa Wilkinson proved that on the balance of probabilities the allegations were true, which is a defence against defamation.

Before any of the civil proceedings began, there was also a spectacular criminal trial in the ACT Supreme Court that ended with no result after a juror's misconduct.

'I can breathe again'

After yesterday's court ruling, Ms Higgins took to social media to issue a statement.

"While on the face of it this was a defamation case against a media outlet, in reality it was once again a rape trial.

"I cannot begin to tell you how re-traumatising it is to have your rapist weaponise the legal system against you for daring to speak out."

Ms Higgins said she still believed in the importance of talking about gendered violence.

"There is inherent value in showing the one in five Australians who have experienced sexual assault aren't just statistics. They are your friend, mother, daughter, sister and neighbour," she said.

"So, let's keep talking."