Blockbuster defamation feud between Brittany Higgins, senator Linda Reynolds draws to close in WA Supreme Court
Senator Linda Reynolds has given “problematic, unreliable, self-serving” evidence in her case against Brittany Higgins, a court has been told.
WA News
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Senator Linda Reynolds has given at times “demonstrably wrong” evidence to the WA Supreme Court in her defamation fight against Brittany Higgins, a lawyer for the former staffer has said.
Senator Reynolds is suing Ms Higgins and her husband David Sharaz over a number of social media posts the pair made in 2022 and 2023, which were critical of her handling of Ms Higgins’ allegation she was raped in Parliament House in 2019 by her then-colleague Bruce Lehrmann.
Rachel Young SC, acting for Ms Higgins, told the court on Monday Senator Reynolds should be found to be an unreliable witness unless the information she gave had been corroborated by other witnesses.
Ms Young said the senator gave answers throughout her evidence about the conduct of other people, particularly Ms Higgins and the Attorney General, when they were not called for.
She said the senator even told the court that these events had led to Senator’s Kitching’s untimely death.
Ms Young told the court the senator’s evidence was “problematic, unreliable and self-serving” and at times were “demonstrably wrong.”
Mr Lehrmann was charged with rape and faced trial in 2022, but the trial was aborted due to juror misconduct.
The charge was dropped and Mr Lehrmann continues to maintain his innocence.
Mr Lehrmann lost a subsequent civil defamation case in April this year when the Federal Court determined, on the balance of probabilities, that Mr Lehrmann had raped Ms Higgins at Parliament House. He is appealing that decision.
SENATOR’S EVIDENCE ‘PROBLEMATIC’: DEFENCE
Ms Young argued Senator Reynolds’ evidence was problematic because she knew or suspected a sexual assault had taken place.
During her evidence, Senator Reynolds denied knowing there could have been a sexual assault in her office, and had not wanted to jump to conclusions.
Ms Young said the answer was “problematic.”
She said the senator told the court she was “gobsmacked” and “angry” because she had never heard of staffers entering Parliament House after hours while drunk.
Ms Young said there was evidence that the most probable inference the senator knew or suspected that Ms Higgins had been sexually assaulted.
Some of the evidence included the DPS Report, which the senator said she had carefully read, which documented that Ms Higgins was clearly affected by alcohol and was found undressed in the senator’s office.
Ms Young told the court the senator had thought counselling should be offered to Ms Higgins, despite her not mentioning anything about a sexual assault.
She said the senator had invited Ms Higgins’ father to a meeting, and it would not make sense to invite him if that meeting had just been about the security breach.
The lawyer also argued the senator’s meeting with Australian Federal Police deputy commissioner Leanne Close revealed she had prior knowledge which was corroborated by what the senator said to the AFP officer.
“We say you should accept the evidence of deputy commissioner close over the senator’s evidence which can’t be believed,” she said.
“Close had a particular memory of this meeting, contrary to the plaintiff’s submission.”
Ms Young argued the senator told Ms Close during their meeting that they became aware of the incident on Tuesday, that it happened on Saturday on my couch.
“The deputy commissioner’s records state the senator pointed to the couch and says we found out through a DPS report,” she said.
“What is important about that comment… is that Deputy Commissioner Close explained that she had not thought it occurred in the senator’s office,” she said.
“She was quite surprised because she did not realise they were talking about a sexual assault in her office and they were sitting in a crime scene.
“This evidence is entirely believable from an officer with 33 year’s experience.
“A highly experience police officer with that kind of memory peg that we were sitting in a crime scene is entirely believable.”
AGGRAVATED DAMAGES CLAIM
Ms Young said the evidence in the proceedings found the senator’s hurt and distress, and loss of reputation occurred two years before Ms Higgins’ publications.
She said the senator was not entitled to be compensated for publications Ms Higgins is not responsible for.
She said the fallout of calling Ms Higgins a lying cow, loss of the defence portfolio and not being picked for a shadow ministry, and hard questioning in the senate were all matters that caused the senator hurt or reputational damage, which Ms Higgins could not be found liable.
Ms Young said the judge in the case involving Clive Palmer and former Premier Mark McGowan said, “For a politician to complain about the press, was like a ship’s captain complaining about the sea.”
She argued people held a fixed view about politicians rightly or wrongly, and that because
defamation was to vindicate a person’s reputation, a person’s view of a politician was unlikely to change in a defamation case.
She said any damaged awarded to the senator if Ms Higgins’ lost should be minimal and that the senator’s reputation was already “baked in” by 2023.
“Her hurt and distress was caused by events and publications in 2021,” Ms Young said.
“The senator’s own evidence that damage to her reputation and injury occurred in 2021.”
Ms Young told the court that this evidence was corroborated by the senator’s partner, her closest friends and brother.
She said the evidence about the impact of events in 2021 on the senator identified her hurt and distress, not Ms Higgins’ publications in 2023.
She said the evidence identified other events that could not make Ms Higgins’ as the cause including the lying cow comment and the loss of the defence portfolio.
SENATOR’S ACTIONS QUESTIONABLE, DEFENCE SAYS
Ms Young said the court should find Ms Higgins’ justifications were made out through evidence that the senator harassed her client.
She said the senator had leaked confidential material to the media and carried out questionable conduct during the criminal trial by interacting with the lawyer representing Mr Lehrmann.
She said the senator’s submission in the Sofronoff inquiry demonstrated she wanted to make it a criminal offence for complainants to speak out to the media or parliament.
“The senator wished to silence sexual assault victims,” she said.
Ms Young told the court Ms Higgins’ posts were protected by qualified privilege, and defences of fair comment and honest opinion.
MALICE AGAINST HIGGINS
Ms Young argued the court should not find there was any malice or suggestion that her client’s state of mind was to act with an improper motive.
She told the court Ms Higgins’ posts about allegations the senator mishandled her allegations or she felt harassed were substantially true and passed as her opinion.
Ms Young argued they did not suggest her client was recklessly indifferent.
“We say that to a reasonable reader these were options based on objectionable facts,” she said.
“The words harass and mishandling was opinion, It was not said as fact.”
Ms Young argued that the posts in question were Ms Higgins’ opinion and were made in relation to proper material.
She said one of the posts was in response to the senator’s own suggestion of a proposed amendment to legislation that would make it criminal to discuss sexual assault allegations with the media or in parliament.
“She was clearly commenting on a proposed amendment of legislation, it was clearly someone’s opinion,” she said.
“We say it fairly reflected the proper reading of the senator’s submission made to The Enquirer.”
EVIDENCE “NOT TO CREDIT”, COURT TOLD
Ms Young said the senator engaged in questionable conduct during the criminal trial and evidence given by her and her partner Robert Reid was not to their credit.
She said the evidence they gave was designed to minimise their interest in the criminal trial.
Ms Young said there was evidence to show the pair had communicated about the trial prior to the senator giving evidence.
She said Mr Reid told the court he did not communicate with the senator about the trial until they discussed the logistics about her giving evidence earlier than anticipated.
She said that was contradicted by evidence from the senator’s psychologist who had notes from a session that was held with the senator during the trial.
The note mentioned the criminal trial, which said Mr Reid was in Canberra keeping an eye on the trial and she was very concerned about the case.
Ms Young said the note suggested the senator told Ms Jones she was feeling teary and vulnerable.
Ms Young said Mr Reid had denied that accusation multiple times throughout the trial and that his evidence should be rejected by the court.
“In his evidence he said he attended almost every day expect when the senator gave evidence,” she said.
“He said he wasn’t someone with an interest, he was there throughout a whole criminal trial, he was obviously interested.”
SENATOR’S CONDUCT DURING CRIMINAL TRIAL
Ms Young said the senator’s request for transcripts from Mr Lehrmann’s lawyer during the criminal trial was also questionable.
The court was told during the trial that the senator sent Mr Whybrow a message asking if the daily transcripts could be provided to her lawyer.
Ms Young said the senator also communicated with Mr Whybrow about witnesses and had commented on Ms Higgins’ appearance and the way she dressed.
Ms young said the senator’s texts to Whybrow were questionable and were to assist the accused’s counsel.
“We say that conduct was questionable,” she said.
‘MISHANDLING’ ALLEGATIONS
Ms Young told the court the senator mishandled Ms Higgins’ allegations by being aware of the alleged incident in her office, but still chose to have the meeting there.
She said the meeting with Ms Higgins and chief of staff Fiona Brown took place just metres from the couch.
Ms Young argued it was clear from the DPS report that Ms Higgins was found undressed on the couch in the senator’s office.
She said it was also clear in Ms Close’s evidence that the senator knew it happened on the couch in her office.
“If there was any suspicion that the activity occurred in her private office, the fact the senator chose her office for the meeting was problematic,” she said.
“The office was an inappropriate place for a private meeting.”
SENATOR LEAKED ‘CONFIDENTIAL’ COMMUNICATIONS
Ms Young said an interview Senator Reynolds gave on spotlight also formed part of the harassment justification.
She said the senator gave her view point on Ms Higgins’ allegations against her, but it went much further when she talked about the veracity of Ms Higgins’ rape allegation.
She said during the TV interview, the senator responded “yes” to a question that asked her about the multimillion-dollar Commonwealth settlement being paid on “the basis of crime that may not have been committed”.
Ms Young said the senator’s statement had undermined Ms Higgins’ claim and the settlement she received.
Ms Young argued there was nothing wrong with putting an alternative viewpoint to the media, but it crossed the line and became harassment when the comments undermined Ms Higgins rape allegation.
She said the senator could have said she thought she had done everything to support her former employee or had tried to give her agency and left it at that.
“That view would have been accepted as a defensible comment,” she said.
“The line is crossed when the senator’s position is to deploy communications that are confidential to defend her position.
“These were very particular things the senator disseminated.”
Ms Young said the communciations that were leaked by the senator were confidential and privileged.
“When the line is crossed when she has obtained this communication as her former employer, then they are disseminated,” she said.
SENATOR DISTRESSED BEFORE POSTS
Ms Young told the court Senator Reynolds had felt distressed and upset about allegations she mishandled Ms Higgins rape prior to the social media posts in question.
She said the senator had blamed her former employee for her political demise.
Ms Young said evidence provided by 25 witnesses that were called during the trial did not provide much material about the impact the social media posts had on the senator.
Ms Young said the actual issue that needed to be resolved was the impact of the scrutiny which was most acute in 2021.
She argued those factors were born from questioning in the senate and her own conduct when she called Ms Higgins a “lying cow”.
Ms Young said it was also significant that the senator had pre-existing mental and health issues, and could not continue in her defence portfolio.
Ms Young said during the trial the court was told how the senator had improved in 2022 and 2023.
“By the time we get to the publication of Ms Higgins’ posts which she is being sued upon the position is vastly different for the senator,” she said.
“PLAN” NOT PROVEN
Ms Young told the court allegations by the senator about a “plan” contrived by Ms Higgins her husband to destroy the senator and bring down the Morrison Government was not proved.
She said publicity about the allegations is what should have been expected on the grounds of accountability.
Ms Young said the senator was fixated on the politicisation of this matter, which she consistently brought up during her evidence by attacking the Attorney-General, Labor senators and the Commonwealth settlement in respect to the alleged rape.
Ms Young said that focus did not assist the court to deal with matters in the defamation proceedings.
HIGGINS’ HEAVY BURDEN
Ms Higgins defence lawyer Rachael Young began her closing remarks saying that the rape of her client in 2019 has caused and continues to cause her much suffering.
Ms Young told the court when her client spoke out it brought attention to gendered violence and safety issues and how they are handled in Australian workplaces that led to reforms.
She argued the scrutiny senator Reynolds’ faced in the aftermath about her conduct should have been expected as the employer of the accused and victim.
“Without question the heaviest burden will continue to be faced by Ms Higgins, throughout her life and on her mental health,” said.
Hundreds of documents were tendered to the WA Supreme Court last week which saw lawyers argue over last minute evidence before they deliver their closing statements over three days from Monday.
Text messages and correspondence between various players were submitted to the court as lawyers set out to prove their case.
The week had been set aside to hear evidence from Ms Higgins, but her lawyers told the court she would not longer be called to the witness stand and provided medical reports to excuse her from giving oral evidence.
Instead, Justice Paul Tottle agreed to accept portions of evidence from Ms Higgins that had been provided to other courts during the criminal trial and Mr Lehrmann’s defamation case against Network 10.
HIGH PROFILE WITNESSES
Over the course of the trial, high profile witnesses gave evidence including former prime minister Scott Morrison, former senator Marise Payne and award-winning news.com.au political editor Samantha Maiden who broke the story after she interviewed Ms Higgins about her allegations in 2021.
From Monday to Wednesday this week, the court will hear from lawyers representing the senator and Ms Higgins as they deliver their closing statements in the high-stakes case.
Both parties risk losing their homes, with Senator Reynolds revealing she had to mortgage her home to cover legal fees for the trial which could run to more than $1m.
Ms Higgins revealed she would be forced to sell her $700,000 house in France in order to defend the case brought by Senator Reynolds.
The pair purchased the five-bedroom chateau in Lunas after moving overseas last year for a “fresh start”.
The trial continues.
Originally published as Blockbuster defamation feud between Brittany Higgins, senator Linda Reynolds draws to close in WA Supreme Court
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