Psychiatrist’s ‘vastly different reports’ on Brittany Higgins
Linda Reynolds's lawyer wants the psychiatrist who assessed her former staffer, who received a $2.4m commonwealth payout, to give evidence in the senator’s defamation case.
A psychiatrist prepared “vastly” different reports about the impact of the government’s handling of Brittany Higgins’s rape claim just months before she secured a $2.445m commonwealth payout linked to that handling, a court has heard.
Lawyers for senator Linda Reynolds, who is suing Ms Higgins for defamation in the West Australian Supreme Court, are seeking to have the conflicting reports passed to the National Anti-Corruption Commission.
Lawyer Martin Bennett confirmed that the first of the two reports attributed the entirety of Ms Higgins’s psychiatric harm to her alleged 2019 rape by co-worker Bruce Lehrmann inside Senator Reynolds’s Parliament House office. A second report by the same psychiatrist – bearing the same date as the earlier report but given to Ms Higgins’s lawyers some 10 days later – attributed 60 per cent of that harm to the rape and 40 per cent to the handling of the rape complaint by Senator Reynolds and the parliament.
Ms Higgins’s settlement claim, agreed after a single day of mediation in December 2022, related only to the handling of her rape allegation.
In a dramatic day in court, which included the revelation that Senator Reynolds had launched another court action against Ms Higgins over the trust fund the former staffer had established to administer that commonwealth settlement, the court was told psychiatrist Julio Clavijo had prepared two expert reports on Ms Higgins in early 2022.
The first of those reports, Mr Bennett said, “would disclose no cause of action against Senator Reynolds” over her handling of Ms Higgins’s rape claim.
Mr Bennett said the first of the reports had been handed over to Ms Higgins’s lawyers on January 31, 2022; the second was given to them on February 9. Both reports were marked with the same date of January 5, 2022.
He said questions needed to be answered as to why the psychiatric reports existed in such “significantly and materially different terms”. and applied to have Dr Clavijo give evidence next week.
“The purpose of asking Dr Clavijo to come is to simply ask him to explain why there are two reports signed by him in his capacity as an expert witness, acknowledging the code of conduct for expert witnesses, both dated the same day … It’s just hard to find a sensible explanation,” he said.
Judge Paul Tottle knocked back Mr Bennett’s application, saying he was “very comfortably satisfied” he would not be assisted in resolving the defamation action by exploring what had occurred between Dr Clavijo and Ms Higgins’s lawyers in 2022.
That prompted Mr Bennett to make an application on Senator Reynolds’s behalf seeking leave for the psychiatrist’s documents to be handed over to NACC.
Justice Tottle will consider that application next week.
Ms Higgins’s lawyer, Rachael Young SC, told the court the differences in the documents were irrelevant to the defamation action before Justice Tottle.
She said while the earlier of the two expert reports gave “complete attribution to a particular event” when assessing the cause of Ms Higgins’s psychiatric stress, the differences between the two reports were “immaterial” to the defamation action.
“Even if complete attribution was given to that particular event rather than the commonwealth’s handling of Ms Higgins’s complaint, she said, the commonwealth would still be “vicariously liable” for the sexual harassment of Ms Higgins by her co-worker Mr Lehrmann.
She said the matter was irrelevant to the defamation action, noting that Senator Reynolds could not use documents she has just learned of to justify what Ms Higgins says was the senator’s harassment of her in late 2022.
“The plaintiff cannot call in aid documents produced yesterday, to contend that those documents now establish that the plaintiff was entitled to question the circumstances of Ms Higgins’s personal injury claim against the commonwealth when the conduct the plaintiff is answering here is her conduct in leaking confidential communications to a journalist back in December 2022,” Ms Young said.
“From a temporal perspective, this is entirely irrelevant.”
She also said Senator Reynolds could have subpoenaed Dr Clavijo much earlier, rather than just after what was supposed to be the final witness had given evidence in the defamation case.
Details about the psychiatric report came as it was revealed that Senator Reynolds had started a separate legal action targeting the trust Ms Higgins established to administer the commonwealth payout.
In a writ, she alleged Ms Higgins transferred the trustee role to a company – Power Blazers Pty Ltd – co-owned by Ms Higgins and her father in an attempt to defeat or delay potential creditors.
The claim seeks an order voiding the transfer of the settlement funds into Ms Higgins’s trust and a return of the trust monies back to Ms Higgins personally.
That would potentially put the funds within reach of creditors, including Senator Reynolds.
She is suing Ms Higgins and her husband, David Sharaz, over social media posts she says implied she had mishandled Ms Higgins’s 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.
Mr Lehrmann denies the allegations and is appealing against the decision.
The commonwealth payment has been a bone of contention for Senator Reynolds, who says she was frozen out of the process.
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