Linda Reynolds vs Brittany Higgins day two: Lawyers lash Linda Reynolds for ‘re-traumatising’ Higgins

The legal team for Brittany Higgins has lashed Senator Linda Reynolds for her defamation claim, saying the young staffer’s rape allegation was never a “fairytale” — and labelling it as such was “misplaced, harassing and re-traumatising”.

All day last Friday in WA’s Supreme Court, lawyers for Ms Reynolds laid out their case for defamation against her former junior staffer, based on three social media posts from 2022 and 2023.

In that opening, barrister Martin Bennett said that “every fairytale needs a villain” — saying that the claims by Ms Higgins following her allegation of rape of a political cover-up were false and malicious.

Within moments of beginning her reply, Ms Higgins’ barrister Rachael Young SC lambasted that claim, saying Ms Reynolds was attempting to lay the entire blame for her loss of reputation “at the feet of one of her most junior staffers”.

“(They) began his opening by asking, why are we here? The answer to that is simple,” Ms Young said.

“The plaintiff, a senator and a former Commonwealth Minister seeks to restore her reputation by laying the blame for the loss of that reputation, at the feet of one of her most junior staffers for three social media posts in 2023.

“One of her most junior staffers who had been raped in the senator’s office in 2019 by another employee of the senator.

“One of her most junior staffers, who was only 24 years old.

“Miss Higgins’ truth — her truth — as to the rape is uncontested by the Senator.

“Both parties accept it is the truth, and in that context, the matter is not and has never been a fairytale.

“For the Senator through her oral and written opening to suggest it may be so is misplaced, harassing and re-traumatising.”

Ms Young also said the legal action sought to “trivialise the very real concerns that Ms Higgins and others who bravely spoke” out.

“It seeks to trivialise the reasons why Ms Higgins spoke out in 2021.”

In continuing her opening, Ms Young then began detailing Ms Higgins’ defences to the two main posts complained about — which include an imputation that the Senator “mishandled” her rape complaint.

And she told the court that on the “mountain of information”, Ms Reynolds should have strongly suspected her staff member had been sexually assaulted when she met with her on April 1 — in the same office the rape was said to have occurred.

“It is not credible or believable that by April 1, 2019 — when the senator sat down to discuss the events with Ms Higgins — that she had no inkling of a sexual assault,” Ms Young said.

“Senator Reynolds proposes to tell Your Honour that … because Ms Higgins did not use the R word — rape — (she) did not know of the non-consensual nature of that activity.

“We will say that on the evidence that will not pass muster.”

She said the fact the Senator was “dedicated” to the AFP being told about the incident, even without Ms Higgins’ agreement — showed she must have suspected criminality.

Ms Young said Ms Higgins had every right to speak to the media about her experience.

“Whether or not you agree with how Ms Higgins chose to exercise her agency, and how she found her voice is beside the point,” Ms Young said.

“It’s her voice, her agency. It’s her trauma. It’s her choice as to how she heals.”

Reynolds ‘leaked confidential information’

She then contrasted that with Ms Reynolds’ engagement with the media, which the defence says included leaking confidential material to certain journalists.

“We say that Senator Reynolds conducted herself with the media by disseminating materials which she knew and which objectively were confidential, and obtained as a product of her position as a Commonwealth officer and were not to be disclosed to the media,” Ms Young said.

“And we say she did so at the expense of Ms Higgins.”

She then went on to reply to Ms Reynolds’ claim of “The Plan” – a conspiracy between Ms Higgins and her now husband David Sharaz to damage her and the government through The Project interview and beyond.

“It’s a bold allegation. It’s an allegation of two young adults in their 20s, in effect planning to bring down the Liberal government,” Ms Young said.

“Ms Higgins a person who was a Liberal Party through and through … wanting to bring down the Morrison government, with whom she was clearly politically aligned, and had travelled interstate to campaign for.

“Had voted for and had worked for ... a person who had described Mr Morrison’s winning in 2019 as an ‘absolute elation’.”

‘Lying cow’

Going to their defence of an imputation of harassment, Ms Young pointed to Ms Reynolds’ infamous ‘Lying Cow’ statement made while she watched Ms Higgins’ Project interview.

“We say that’s not just name-calling. That’s harassment,” Ms Young said.

“At that time, the veracity or otherwise of Ms Higgins’ rape allegation was the subject of fierce public debate.

“That disgraceful slur by the senator was damaging in that ... a rape complainant’s former boss, a Commonwealth minister, a leading woman in the Liberal Party… had just accused then 24-year-old rape complainant … of being a lying cow.

“The senator tries to make a silk purse out of a sow’s ear by saying she apologised for the slur immediately.

“Factually that’s just not right. It was not immediate.

“And the senator (later) said the settlement on the ‘Lying Cow’ statement was done to simply make it go away. That is not consistent with someone immediately apologising.”

Moving to their justification defence, Ms Young detailed why Ms Higgins was within her rights to claim online that the Senator was trying to “silence victims”.

She pointed to Senator Reynolds’ submission to the Board of Inquiry into the rape trial of Mr Lehrmann, which opined that “individuals should be deterred from using the media and or parliamentary … to advance their own interests in relation to an alleged criminal offense”.

Ms Reynolds said there was no such provision in the ACT, and perhaps there should be.

“The senator was in effect that an offense should be created, which would prevent complainants giving their version of events in the way they wish to do so,” Ms Young said.

“It would shut off an avenue, a significant avenue, for a complainant to exercise their agency to exercise their voice as to how they would communicate about the alleged offense.

“If the laws actually did that, then we say that must have the effect of silencing sexual assault victims from talking about their experience.”

In concluding, Ms Young said Ms Reynolds’ allegation of a conspiracy between Ms Higgins and Mr Sharaz wouldn’t be proved.

She said there would be evidence showing Ms Reynolds’ physical and mental issues claimed as being caused by Ms Higgins were there already by 2023 — and by 2024, her claim for damages was way out of time.

And quoting the judgment in the defamation case of Clive Palmer vs Mark McGowan, she said any damages that might flow from the posts — damage which would have to be proven to have been caused by the 2022 and 2023 posts — would be minimal.

“The plaintiff is a Commonwealth senator and was a minister at the time. As Justice Lee said … robust criticism is and should be part and parcel of the job,” Ms Young said.

“Your Honour cannot ignore the reality that Senator Reynolds’ reputation was already baked in at the time of the publications.

“It’s not worth the candle of a five-week defamation trial.”

Reynolds takes swipe at A-G

On her way into court on Monday, Senator Reynolds took an out-of-court swipe at federal Attorney-General Mark Dreyfus as she arrived for the first day of her evidence.

Ms Reynolds’ case against Ms Higgins, centring around three social media posts from 2022 and 2023, began on Friday — with extensive focus on the compensation payout Ms Higgins’ received following a complaint to the government about her rape allegation.

That rape by Bruce Lehrmann is claimed to have occurred in 2019. Ms Higgins went public with that allegation in 2021. And in December 2022 she agreed to a $2.4 package with the Labour government — which Ms Reynolds and her legal team claim occurred after just one day of mediation.

That payout was signed off by Mr Dreyfus.

And it was various claims made by Ms Higgins to secure that payout that lawyers for Ms Reynolds focused on during their evidence on Friday.

On Monday, as she entered court, Ms Reynolds said she was “very much looking forward to finally after three-and-a-half years having the opportunity to tell the truth”.

She also cryptically said that she was “glad” the attorney general “did not have reach” into the WA Supreme Court, where the five-week trial is taking place.

Truth defence

Ms Higgins is using the defence of truth to fight Senator Reynolds’ defamation claim. And it was formally revealed on Monday that she will be the only witness called in that case, while Ms Reynolds will be relying on more than 20 — including former PM Scott Morrison next week.

Senator Reynolds’ lawyer, Martin Bennett, robustly defended his client’s actions following Ms Higgins’ alleged rape by then-colleague Bruce Lehrmann at Parliament House in 2019 on the first day of the trial on Friday.

He said accusations of ill-treatment, ostracism, bullying, harassment and threatening conduct by the senator were a fiction concocted by Ms Higgins and her now husband David Sharaz.

“Every fairy tale needs a villain” and Ms Higgins and Mr Sharaz “cast Senator Reynolds in that role for their fictional story of political cover-up of the rape,” he told the Western Australian Supreme Court during his opening.

“She was cast in … critical light and none of it was true.”

He noted Senator Reynolds had never disputed Ms Higgins’ rape allegation and pointed to Ms Higgins’ personal injury claim, over alleged mishandling of the incident, which the Commonwealth settled for $2.4 million in late 2022.

“The claims made by Ms Higgins were false and Senator Reynolds was denied the appropriate venue, the appropriate time, the appropriate funding by the Commonwealth to defend the actions of herself and her staff,” he said.

Ms Higgins and Mr Sharaz created a detailed plan in 2020 and 2021, which she recorded on her phone as “the cult of politics, the media lens of a political sex scandal, anatomy of a political sex scandal”, Mr Bennett said.

“The fact she had been raped was traumatic and terrible but it needed something more to attract ... media interest ... so she made it a political sex scandal,” he said.

The couple courted journalists Lisa Wilkinson on Network Ten’s The Project and Samantha Maiden from News Corp amid a “sophisticated” campaign to inflict maximum damage on Senator Reynolds, Mr Bennett said.

Former defence minister Marise Payne, and WA Liberal Senator Michaelia Cash are also expected to appear.

Senator Reynolds is scheduled to take the witness stand on Monday after Ms Higgins’ lawyer completes her submissions.

Ms Higgins is expected to give evidence in the last week of August.

Bruce Lehrmann has always denied sexually assaulting Ms Higgins. His criminal trial was aborted because of juror misconduct and Ms Higgins’ mental health was cited as the reason for no retrial.

In a separate defamation case a judge in 2024 found Mr Lehrmann did rape Ms Higgins but there was little evidence of a cover-up.

With AAP