A court has found Brittany Higgins defamed Linda Reynolds. Here’s why
- Written by Rick Sarre, Emeritus Professor in Law and Criminal Justice, University of South Australia
Six years on from the Parliament House sexual assault allegations that spurred a public reckoning, the legal fallout continues. This time, a court has found former Western Australian Liberal Senator Linda Reynolds was defamed on social media by former staffer Brittany Higgins.
Pending any appeal, the judgement of Justice Paul Tottle in the WA Supreme Court puts an end to a bitter and lengthy saga of accusations and counter accusations between the two women.
Higgins has been ordered to pay a total of $315,000 in damages, plus interest, to Reynolds. As legal costs have not yet been awarded, this is the tip of the financial iceberg.
So what was up for debate in this latest chapter? Here’s how the case played out.
What was the case about?
After so many years of litigation, you’d be forgiven for forgetting how we got here. Let’s recap.
In 2023, Reynolds sued Higgins’ then-boyfriend (now husband) David Sharaz, and then later Higgins herself, over a series of social media posts the pair made in 2022 and 2023.
Sharaz did not contest the claims made against him, saying he couldn’t afford the legal fees.
Reynolds launched her legal action before the verdict was delivered in the separate case of Bruce Lehrmann suing Network 10 for defamation. In that case, Justice Michael Lee found Lehrmann was not defamed, although Lehrmann is appealing that finding.
The Reynolds versus Higgins case was heard over five weeks in August and September last year.
Much of the testimony came from Reynolds herself, who told the court the posts had damaged her reputation, led to her suffering ongoing health issues, and stymied her career.
What laws were at play?
Defamation laws in WA differ from most across the country.
In 2005, the state adopted the national approach at the time, but has since chosen not to adopt significant changes made by most other states in 2021.
These reforms included what’s called the “serious harm threshold”, which requires plaintiffs to prove their reputation was significantly damaged by the alleged defamatory statements.
By not adopting this change, WA maintains a lower bar for defamation claims. However, the 2021 changes also widened the possible defences, making it difficult to assess whether the former senator was in a better position to succeed under WA law.
What did the judge find?
The judge was required to rule on Reynolds’ four claims in defamation, one claim of conspiracy and one claim of breach of contract.
On the strength of the evidence before the court in this case, it was satisfied some social media posts were defamatory.
Justice Tottle said in his judgement that Higgins was “prone to […] speculating both on events and motives of others and presenting the resulting mix as fact”.
He also found she was prone to “exaggerate or embellish aspects of her account of events in a manner that was consistent with the themes she developed in her media interviews”.
Reynolds claimed a fourth social media post – a tweet from Higgins in July 2022 – was also defamatory.
The judge found that although Higgins’ statement in this fourth post was indeed defamatory, she was able to satisfy the defence of honestly held opinion, fair comment and qualified privilege.
So, in summary, all four claims were found to be defamatory, but one was legally defensible.
Justice Tottle thereafter dismissed the claim that Higgins, in concert with Sharaz, had engaged in a conspiracy designed to injure Reynolds.
But he declared that Higgins, in the 2023 Instagram post, had breached a contractual duty arising out of a deed of settlement between the two that she was not to make any adverse comments about the parties involved.
Justice Tottle ordered Higgins to pay damages of $135,000 to Reynolds for the tweets, plus $180,000 for the Instagram post, for a total of $315,000. There is a further order for the payment of $26,109 in interest to date.
The issue of costs, which are likely to be substantial, will be decided by the judge next month.
Places for fair hearings
This case is the latest in a series of defamation cases that have involved politicians in recent years, either as the plaintiff, the defendant or both.
Most recently, a Victorian judge found then Liberal leader John Pesutto defamed MP Moira Deeming.
Before that, in New South Wales, MP Alex Greenwich won his defamation claim against Mark Latham.
Read more: With more lawsuits potentially looming, should politicians be allowed to sue for defamation?
And in 2021, the trial judge ruled in favour of Greens Senator Sarah Hanson-Young in her case against fellow senator David Leyonhjelm.
So while many observers may shake their heads at the millions of dollars spent in legal fees by the key players in this particular saga, we can be grateful we have legal institutions (for those who can afford the exercise) available to hear the claims of plaintiffs and decide on matters accordingly, free from political and personal bias.
Authors: Rick Sarre, Emeritus Professor in Law and Criminal Justice, University of South Australia
