Brittany Higgins v Linda Reynolds: Defamation trial in WA’s Supreme Court to leave one with ‘nuclear outcome’

The legal action aimed at rehabilitating the reputation of WA Senator Linda Reynolds — which could simultaneously wreck the finances of Brittany Higgins — will begin in a Perth courtroom on Friday.

And a former WA Supreme Court judge has said Ms Higgins’ form of defence, which will in part attack Ms Reynolds’ “harassment” of her over years, is high risk — with a loss akin to a legal “Hiroshima”.

Openings from both sides will take up the first day of the defamation trial in WA’s Supreme Court, before Ms Reynolds’ scheduled week-long stint in the witness box starts on Monday.

In there, she will quantify, and be quizzed on, her claim that three social media posts by Ms Higgins and her now husband David Sharaz left her reputation in ruins, and her health in jeopardy.

Ms Reynolds says those posts on Instagram and X inferred a series of the most serious allegations.

• That she failed to support Ms Higgins after she made her bombshell allegation in 2019 that she had been raped in Parliament House by her office colleague Bruce Lehrmann.
• That during the subsequent criminal trial of Mr Lehrmann on the allegation of rape, she engaged in questionable conduct.
• That with her actions in Parliament the Senator “wants to silence victims of sexual assault”.
• And that with other actions — in Canberra, in Perth and online — she had “engaged in a campaign of harassment” against her former junior media advisor.

To defend that claim, Ms Higgins’ legal team have set out what that campaign allegedly consisted of – and therefore the truth of the social media post.

According to former WA Supreme Court judge Kenneth Martin SC, that defence is a “big risk”.

“Ms Higgins is saying look … if I defamed you with that statement, it’s true. So you did harass me and you continue to harass me,” Mr Martin said.

“The problem with that, and the big risk for her is, that when you run a defence of truth to a defamatory imputation you have the capacity to aggravate the damages if you lose.

“So you’ve really put more chips on the roulette table in terms of the ultimate outcome.

“You’ve actually upped the ante by trying to prove truth.”

Ms Reynolds’ lawyers have framed her claim as the posts bringing “public hatred, scandal, odium and contempt” on the Senator, leaving her “greatly injured … lowered in the estimation of right-thinking members of the community.”

And they have also put her heart health, and alleged damage done by virtue of Ms Higgins’ revelations on The Project in 2021, into the legal arena.

She we will also allege that the posts were not only defamatory, but were part of a deliberate conspiracy by the pair to harm her and the government she worked within.

Probably one of these two is going to lose — and lose badly.

“What this says is two or more people got together to implement a plan with a view to predominantly intending to inflict harm on me or others,” Mr Martin said

“So it’s all in the intent and it’s all in the execution of the plan predominantly to hurt and injure.

“You can get aggravated damages for that … if you prove it, and as you can in defamation. But you can also get exemplary damages. Which are punishment damages.”

The trial is scheduled to run for five weeks. Witnesses to possibly be called include former Prime Minister Scott Morrison, and current deputy opposition leader in the Senate Michaelia Cash.

And of course Ms Higgins, who will fly in from France to give evidence in person and will be seen publicly in Australia for the first time since the announcement that she is pregnant.

A previous time for her in Perth, during her time working for Ms Reynolds during the 2019 Federal election campaign, will be one of the topics she be closely quizzed on.

She claims that time was one of misery, coming shortly after the alleged rape and in the context of an offer made to her by her bosses that she couldn’t refuse — work in WA or don’t work for us again.

Ms Reynolds’ barrister Martin Bennett has already signalled his intention to call other staff from that time to counter Ms Higgins’ claims.

And that will be just part of what is set to be another week in another witness stand for Ms Higgins’ who has already given evidence in the criminal trial of Mr Lehrmann and his defamation claim against the Ten Network, which he lost.

Mr Martin said the while the reputational stakes in the trial are high, the financial implications are even higher.

“The advice that I was given as a very young lawyer by a very good silk who’d done a lot of cases was never lose. There’s nothing worse than losing,” he said.

“In every case that goes to trial, there’s usually a winner and a loser. So probably one of these two is going to lose — and lose badly.

“And not only do you lose, you’ve got to pay all your own costs and they will be very significant. But worse than that, if you lose, the general rule is that you’ve got to pay the other side’s cost as well.

“It’s absolute disaster. It’s the nuclear outcome. It’s Hiroshima.”

Another lawyer with knowledge of the case had another prediction for the hearing.

“It’s going to be a sh*tshow,” they said.