Its latest crack at controlling the media arrived via email on Tuesday afternoon, when an associate to the registrar of the Supreme Court of Western Australian informed me that my application to access court pleadings in the defamation case brought by Linda Reynolds against Brittany Higgins was opposed. Opposed by lawyers for Higgins.
The Higgins camp is trying to stop me accessing Reynolds’s statement of claim, amended statements of claim and defence documents filed by Higgins in response.
Now for the nutty part: having granted access to other journalists, the Higgins camp is specifically opposing me from seeing the documents.
Clearly, issues of privacy or confidentiality don’t concern the Higgins camp. It is happy for other journalists to see the material and publish stories based on it. Just not The Australian.
Seriously? Are they children? Are they vindictive? Or deluded control freaks? You be the judge.
I asked for access to all documents from all parties. I want to read, analyse and write about the whole shebang. The Australian understands that in May Higgins’s Melbourne lawyer, Leon Zwier, told the court he was keen for the media to have access to the entire set of claims from both parties. Reynolds’s lawyers have no objection to any media getting the documents.
Enter Higgins’s new Perth-based solicitor, Carmel Galati. Her name is on emails that make it clear the Higgins camp is now opposing me getting these documents.
Higgins’s representatives have until 5pm Friday to send me their reasons. After that, the court says I may make further submissions and the court will decide in late July. What a drawn-out, time-consuming farce. Many may ask: Doesn’t this make a mockery of open justice?
In anticipation of Friday’s legal gibberish, let me ask: What on Earth is the Higgins camp afraid of? Perhaps it wants only Higgins-friendly journalists to tell you what’s in those documents. Last week the judge accepted a new pleading from Reynolds’s lawyers of tortious conspiracy against Higgins and David Sharaz. No one has reported it. I am curious to understand all the pleadings, along with the alleged facts underlying the pleadings, and the various defences put by Higgins.
For a very long time, the Higgins version of events was just about all we knew.
Those captured by the excitement of the #MeToo movement lapped up the former Liberal staffer’s every word. They fell for the curated pitch by Higgins and her then boyfriend, now husband, Sharaz, which included handy timeline documents, connections to the Labor Party’s Katy Gallagher and photos of questionable authenticity featuring a bruised leg.
Higgins boasted in her draft book outline: “We had become quite a twosome when it came to game planning. My experience as a media adviser, David’s experience as a producer; together we understood how the gallery media sphere operated.”
With enough media supporters, Higgins and Sharaz appear to have assumed they could control their preferred narrative. Did they seriously think their experience with Lisa Wilkinson on The Project was the standard going forward?
Even that plan of relying on “friendlies”, as Sharaz described them, in politics and the media was doomed to end badly – and not just for Higgins. Those “friendlies” in the media and politics have lost credibility. The scalp count is not finished yet. More objective onlookers understood that Higgins and Sharaz made a rookie’s error when they used journalists and politicians, instead of the criminal justice system, to press their claims.
Had Higgins gone to police first, and had Bruce Lehrmann been charged, The Project and the broader ensuing circus from a supine media would have been curtailed by contempt laws and due process, not to mention the presumption of innocence.
When serious allegations are made, getting to the truth becomes serious business. It was never credible for the Higgins camp to complain that this newspaper asked uncomfortable questions and exposed new information in the godawful saga. It was tribal delusion for the Higgins camp to imagine that if you were not on its side, you must be on siding with Lehrmann, or Reynolds, or any other person who disputed Higgins’s version of events. Justice Michael Lee’s judgment earlier this year in the defamation action brought by Lehrmann was devastating for both Lehrmann and Higgins. The judge found that on the balance of probabilities, Lehrmann raped Higgins. Lehrmann is appealing Lee’s judgment.
Lee also found no evidence to support Higgins’s claims of a political cover-up. As Lee observed wryly: “It is the only alleged cover-up of which I am aware where those said to be responsible for the covering up (Reynolds and Fiona Brown) were almost insisting the complainant go to the police.”
Unlike other media outlets, we reported Reynolds’s version long before Lee’s defamation judgment. We reported Brown’s version of events that also were at odds with Higgins’s claims long before Lee made his finding that he “unhesitatingly prefer(s) the evidence of Ms Brown”.
We reported the devastating impact on Reynolds and Brown from the saga instigated by Higgins’s unfounded claims against them. We reported that both women advised Higgins to go to police long before Lee found that Brown’s experience “to be vilified as an unfeeling apparatchik … must be worse than galling”.
Like the famous Dickens fictional legal shambles of Jarndyce v Jarndyce in Bleak House, it’s easy to forget how we got here, how elements of this saga are still chugging through our courts. To understand why another expensive and time-consuming defamation action is due to start in August in the Western Australian Supreme Court, one needs to travel back to mid-2022.
Federal Attorney-General Mark Dreyfus effectively refused to allow Reynolds to put her version of events before the Albanese government shelled out $2.4m to Higgins. His department instructed Reynolds not to attend the mediation in return for her legal fees being paid by the commonwealth.
Lee offered a stinging, albeit implied, criticism of Dreyfus and his department when he found Higgins made untrue statements in her claim against the commonwealth and that there was no evidence of a political cover-up.
Higgins didn’t accept all of Lee’s findings. She didn’t apologise to Reynolds or Brown for making false claims about them. She said her perceptions and feelings are “different from theirs”. Lee was not interested in feelings, he sought facts. But Lee’s comments about these matters were not central to the case he was deciding so they are not legally binding on Higgins.
After failed mediations with Higgins over the past few months, and after being thwarted by the Albanese government in efforts to put her side of the story, Reynolds is heading to court to establish what she says is the truth about her conduct, and to ensure Higgins won’t repeat the alleged defamation.
The Higgins camp appears not to understand that we live in a free society where the responsible press is free, in fact obliged, to go beyond the curating efforts of would-be media spinners.
The Higgins team is wasting time, money and public resources of the Supreme Court in the apparent deluded belief it can control the media. The next question is whether the court will entertain such fantasy.
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The Higgins camp can’t help itself. Its latest attempt to control the media narrative is doomed to fail as spectacularly as its first attempt back in 2021 on The Project. The media is unruly: it won’t be told what to think, say or write.