Inside Linda Reynolds’ ‘unusual’ new claim against Brittany Higgins
The Liberal senator has filed a last-minute pleading, as Brittany Higgins’ lawyers back down from a challenge to prevent The Australian from accessing case files.
Linda Reynolds has filed an “unusual” last-minute pleading in her high-profile defamation case against Brittany Higgins, relating to an alleged conspiracy Ms Higgins plotted with the help of her now-husband David Sharaz, as a spokesperson for the former Liberal staffer says she has been “steadfast in her truth”.
This comes as Ms Higgins’s legal team backs down from a challenge to prevent The Australian from getting documents from the case, with solicitor Carmel Galati conceding all journalists should “have access to both sets of pleadings for the ultimate purpose of reporting the trial”.
Meanwhile, a former West Australian Supreme Court judge has poured water on the suggestion the Liberal senator could call Labor frontbenchers as witnesses to give evidence in the matter, saying “if I was acting for Linda Reynolds, Katy Gallagher would be the last person I’d call”.
The Australian on Tuesday revealed key claims underpinning Senator Reynolds’s action against Ms Higgins, in which she is suing her former employee over social media posts made after Ms Higgins accused Bruce Lehrmann of raping her in Parliament House.
In a statement of claim filed on June 4, Senator Reynolds says the Instagram, Twitter and Threads posts falsely alleged she had “harassed” Ms Higgins and mishandled her rape allegations by failing to provide her with support.
But The Australian understands in an amended statement of claim, filed on June 27, Senator Reynolds has added a pleading of “tortious conspiracy” that could go to a claim for aggravated damages against the former staffer.
To prove tortious conspiracy, Senator Reynolds’s legal team must show Ms Higgins conspired – through lawful means – with one or more people to injure her.
In the statement of claim, Senator Reynolds claims Anthony Albanese’s closest confidantes, Katy Gallagher and Penny Wong, were drip-fed false information by Ms Higgins and Mr Sharaz as part of a larger plan to destroy her career and the Morrison government. Part of that plan, Senator Reynolds alleges, included “aggressive questions” asked by Senator Gallagher and Senator Wong in question time in early 2021 that were centred on that false information.
She also claims Ms Higgins and Mr Sharaz circulated a dossier of information to journalists and politicians for background, which included information about her rape allegations and how Senator Reynolds handled them.
University of Sydney media law professor emeritus Barbara McDonald said she did not know of “any case in Australia” where tortious conspiracy to injure by lawful means had succeeded.
“It’s a very tricky thing because there’s a basic issue here,” she said. “Why should an agreement to cause loss by lawful means lead to a remedy, when just doing something lawfully wouldn’t, if you were a single person?”
She said “generally speaking, in these cases there is some self-interest which excuses why the person was doing the lawful act, even when it was going to harm someone else”.
“People do things all the time lawfully that harm other people,” she said. “You might set up a cafe and draw everything away from another person. Nobody can complain about that.”
Former WA Supreme Court judge Kenneth Martin said a tortious conspiracy claim was “unusual” and not something he had seen in his 14 years behind the bench. However, he said, Senator Reynolds and her team could use the five-hour recorded pre-interview for The Project to help bolster their claim.
“I would imagine, not having seen the pleading, that Reynolds would be looking at The Project meeting where they all say, look, ‘this is what we’re going to do, we’re going to do it in a parliamentary sitting week, we’re going to do it at this time when people are going to be under pressure’,” he said. “And then, from there, Higgins and Sharaz step by step execute a plan.” Mr Martin said it was highly unlikely Senator Reynolds would call senators Gallagher or Wong as witnesses in the matter as they could give adverse evidence against her.
“To call an uncooperative witness – somebody who I didn’t have a signed witness statement from – and put them in the witness box is quite dangerous,” he said.
“That’s because they can destroy you and you can’t cross-examine them. If I was acting for Linda Reynolds, Katy Gallagher would be the last person I’d call.”
Former prime minister Scott Morrison is expected to give evidence.
Federal Court judge Michael Lee found earlier this year, in a failed defamation action brought against Network Ten, that Mr Lehrmann, on the balance of probabilities, raped Ms Higgins. Justice Lee, however, rejected claims there was a political conspiracy to cover up the assault.
A spokesperson for Ms Higgins on Tuesday said she had been “steadfast in her truth about the aftermath of her rape in Parliament House”.
“She is being forced back into the courtroom for the third time to canvass these distressing events,” the spokesperson said.
Ms Higgins’s lawyers on Tuesday granted access for The Australian to receive documents relating to the defamation matter despite having attempted to block their release. After this masthead published excerpts from Senator Reynolds’s statement of claim on Tuesday, Ms Galati wrote to the court saying “for the ultimate purpose of reporting the trial” all journalists should be granted access to the documents.
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