Brittany Higgins won’t give evidence in Linda Reynolds’ defamation trial

Brittany Higgins has pulled out of giving evidence in the defamation action brought against her by ­Linda Reynolds in a bombshell that could bring an early end to the proceedings.

Brittany Higgins and Linda Reynolds.

Brittany Higgins has pulled out of giving evidence in the defamation action brought against her by ­Liberal senator Linda Reynolds in a bombshell that could bring an early end to the proceedings.

Ms Higgins’ barrister, Rachael Young SC, made the surprise announcement in the WA Supreme Court on Monday afternoon, indicating Ms Higgins was suffering from poor health.

Ms Young said she does not believe she needs to call Ms Higgins to mount a winning defence.

“We don’t think we need to call Ms Higgins to satisfy Your Honour to be successful in these proceedings,” Ms Young said.

The former Liberal staffer had been scheduled to spend a week in the witness box from August 26, and was due to fly to Perth from her home in France.

Ms Young submitted three medical reports containing details of the conditions that she argued backed up why Ms Higgins would no longer give testimony.

The exact medical reasons for the withdrawal were not specified in open court, and Ms Young applied for an order to protect the details of the reports from being published.

Ms Higgins is pregnant, and has battled issues with her physical and mental health since she went public with her allegation in 2021 that she was raped inside Senator Reynolds’ parliamentary office.

She was hospitalised in Perth earlier this year amid a mediation session aimed at resolving the defamation matter.

Senator Reynolds’ defamation matter is now due to conclude much earlier than expected, and could be finished by the beginning of next week.

Senator Reynolds’ lawyer, Martin Bennett, told reporters outside court on Monday afternoon he would be closely examining Ms Higgins’ medical reports.

He referenced a speech Ms Higgins gave on the steps of the ACT Supreme Court after former ACT chief prosecutor Shane Drumgold chose not to re-try Bruce Lehrmann in the wake of his aborted rape trial.

Linda Reynolds’ lawyer Martin Bennett. Picture: NewsWire / Sharon Smith

“Ms Higgins came out immediately and said she could face a civil trial,” Mr Bennett said. “She gave evidence before Justice Lee for five days. I need to go and look at this.”

Mr Bennett said Senator Reynolds simply “wants the truth established/adjudicated by a judge”.

“She can’t raise it under parliamentary privilege in parliament, because there’s no way in which you can test what she says against what Ms Higgins says,” he said.

“She was denied the opportunity in the civil (compensation) claim to test what Ms Higgins claims was her treatment. This was to be it. Her word against Higgins’. Now Higgins isn’t coming.”

Mr Bennett told reporters Ms Higgins and her husband, David Sharaz, were still in France. They were last pictured earlier this month in Paris signing affidavits at the Australian embassy.

Ms Higgins’ decision not to give evidence in her defence follows the decision earlier this year by Mr Sharaz not to contest the defamation action brought against him by Senator Reynolds.

It means neither Ms Higgins nor Mr Sharaz will testify on the claims made against them by Senator Reynolds.

Mr Bennett said Senator Reynolds would be “unhappy” not to have her evidence directly tested against Ms Higgins’ evidence.

“I’m sure what Senator Reynolds will be unhappy about is the contest now will not be her word against Ms Higgins,” he said. “It’ll be always the question of whether Ms Higgins says, ‘if I was well enough, I could have come and ­answered these allegations’.”

Brittany Higgins’ lawyers Rachael Young and Kate Pedersen at the WA Supreme Court. Picture: NewsWire / Sharon Smith

Retired WA Supreme Court judge Kenneth Martin told The Australian there was “no chance” Mr Bennett could compel Ms Higgins to take the stand.

But Mr Martin said Mr Bennett could make a Jones v Dunkel submission in his closing arguments, whereby Senator Reynolds’ legal team could argue Ms Higgins was in a position to give evidence and did not have a “reasonable excuse” not to. Therefore, Senator Reynolds’ evidence should be preferred.

“There will no doubt be big arguments about that,” he said.

While not commenting on the merits of the case, Mr Martin suggested Ms Young could be mounting a “small-target” defence, considering Ms Higgins “doesn’t have a great track record of performance” in the witness box.

“By not engaging effectively other than by documents and by uncontroversial witnesses or any witnesses at all you deny the opposition the ability to cross-examine them and make their case better,” he said.

Senator Reynolds is suing Ms Higgins and Mr Sharaz over social media posts the senator says implied she had mishandled Ms Higgins’ rape allegation and had harassed her former staffer.

Federal Court judge Michael Lee found in April that, on the balance of probabilities, Mr Lehrmann had raped Ms Higgins inside Senator Reynolds’ ministerial office. Mr Lehrmann has always denied the allegations and is appealing the decision.