Former Liberal senator Linda Reynolds has been awarded $315,000 plus interest in her defamation claim against Brittany Higgins after the WA Supreme Court found Higgins defamed her in a series of social media posts.
Background
Higgins worked as a media adviser for Reynolds in 2019. In March 2019, Higgins alleged she was raped by a colleague in Reynolds’s ministerial office. The events following this allegation led to a criminal trial, a civil claim by Higgins against the Commonwealth, and a separate defamation case brought by Bruce Lehrmann.
In early 2021, Higgins gave media interviews where she accused Reynolds and her then chief of staff, Fiona Brown, of being complicit in a cover-up of the rape and providing her with inadequate support. The court found that these allegations were based on an “incomplete and misleading account of the facts” and that the “allegation of a cover up had no foundation in fact”.
Claims
The case was not about the 2021 media interviews but was triggered by social media posts Higgins made in July 2023. Specifically, the claims were:
→ Defamation: Reynolds claimed that an Instagram story published on July 4, 2023, and two tweets on July 20, 2023, were defamatory.
→ Conspiracy: Reynolds alleged that Higgins and her partner, David Sharaz, had a “plan the sole or predominant purpose of which was to injure her”.
→ Breach of Contract: Reynolds also sought declaratory and injunctive relief for a breach of a settlement agreement from March 2021.
The court noted that the issues in the case required a detailed examination of events over six years to determine what occurred and the state of mind of the key participants. The final orders and the decisions on interest and costs were yet to be determined at the time of the judgment.
MEANING OF DEFAMATORY
A plaintiff is said to have been defamed if a publication causes the reasonable person to think less of them: Reader’s Digest Services Pty Ltd v Lamb [1982] HCA 4.
In Random House Australia Pty Ltd v Abbott [1999] FCA 1538, Beaumont J stated:
“The test for what may be defamatory at common law is well established. A publication, without justification or lawful excuse, exposing a person to hatred, contempt or ridicule, calculated to injure that person’s reputation, is a libel. But this is not to be taken as an exhaustive statement. A person may be defamed by an imputation of a disability in the performance of the functions of his or her office, although the imputation does not expose him or her to hatred, contempt or ridicule. A false statement about a person to his or her discredit is defamatory. Thus to attribute to a person a want of capacity as the holder of an office will be defamatory. The mere imputation of a lack of ability to discharge the duties of that office is sufficient. It is not necessary that there should be an imputation of immoral or disgraceful conduct (per Brennan J in John Fairfax v Punch [1980] FCA 100; (1980) 31 ALR 624 at 632 – 633 citing Lord Herschell in Alexander v Jenkins [1892] 1 QB 797 at 800). Thus, the substantive legal issue here may be expressed as whether the material complained of was defamatory of the plaintiffs in that it was to his or her “discredit … [tended] to lower him [or her] in the estimation of others … to expose him [or her] to hatred, contempt or ridicule, or to injure his [or her] reputation in his [or her] trade or profession” (see Chakravarti v Advertiser Newspapers (1998) 193 CLR 519 per Gaudron and Gummow JJ at 545 quoting Gatley on Libel and Slander, 8th ed. (1981), par 31)”
To be defamatory, the matter must injure the plaintiff’s reputation by lowering them in the estimation of others, exposing them to hatred, contempt or ridicule or causing them to be shunned or avoided.
Defamatory meaning can arise from the natural and ordinary meaning or true innuendo of the matter. True innuendo refers to matter which is defamatory as a result of an audience’s knowledge of certain extrinsic facts.
Section 10A of the Defamation Act 2005 provides that:
“10A Serious harm element of cause of action for defamation
(1) It is an element (the “serious harm element” ) of a cause of action for defamation that the publication of defamatory matter about a person has caused, or is likely to cause, serious harm to the reputation of the person.(3) The judicial officer (and not the jury) in defamation proceedings is to determine whether the serious harm element is established.
(4) Without limiting subsection (3) , the judicial officer may (whether on the application of a party or on the judicial officer’s own motion)—
(a) determine whether the serious harm element is established at any time before the trial for the proceedings commences or during the trial; and
(b) make any orders the judicial officer considers appropriate concerning the determination of the issue (including dismissing the proceedings if satisfied the element is not established).
(5) If a party applies for the serious harm element to be determined before the trial for the proceedings commences, the judicial officer is to determine the issue as soon as practicable before the trial commences unless satisfied that there are special circumstances justifying the postponement of the determination to a later stage of the proceedings (including during the trial).
QUALIFIED PRIVILEGE
Section 30 of the Defamation Act 2005 provides that:
“30 Defence of qualified privilege for provision of certain information
(1) There is a defence of qualified privilege for the publication of defamatory matter to a person (the “recipient”) if the defendant proves that:
(a) the recipient has an interest or apparent interest in having information on some subject, and
(b) the matter is published to the recipient in the course of giving to the recipient information on that subject, and
(c) the conduct of the defendant in publishing that matter is reasonable in the circumstances.
(2) For the purposes of subsection (1), a recipient has an apparent interest in having information on some subject if, and only if, at the time of the publication in question, the defendant believes on reasonable grounds that the recipient has that interest.
(3) In determining for the purposes of subsection (1) whether the conduct of the defendant in publishing matter about a person is reasonable in the circumstances, a court may take into account:
(a) the extent to which the matter published is of public interest, and
(b) the extent to which the matter published relates to the performance of the public functions or activities of the person, and
(c) the seriousness of any defamatory imputation carried by the matter published, and
(d) the extent to which the matter published distinguishes between suspicions, allegations and proven facts, and(e) whether it was in the public interest in the circumstances for the matter published to be published expeditiously, and
(f) the nature of the business environment in which the defendant operates, and
(g) the sources of the information in the matter published and the integrity of those sources, and
(h) whether the matter published contained the substance of the person’s side of the story and, if not, whether a reasonable attempt was made by the defendant to obtain and publish a response from the person, and
(i) any other steps taken to verify the information in the matter published, and
(j) any other circumstances that the court considers relevant.
(4) For the avoidance of doubt, a defence of qualified privilege under subsection (1) is defeated if the plaintiff proves that the publication of the defamatory matter was actuated by malice.”
HONEST OPINION
Section 31(1)-(3) of the Defamation Act 2005 provides that it is a defence to the publication of defamatory matter if the defendant proves that:
(a) the matter was an expression of opinion of the defendant, an employee or agent of the defendant or another person rather than a statement of fact, and
(b) the opinion related to a matter of public interest, and
(c) the opinion is based on proper material.
Section 31(4) of the Defamation Act 2005 says that a defence under this section is only defeated if the opinion was not honestly held by the defendant at the time the defamatory matter was published, or if the defendant did not believe the opinion was honestly held by the person who expressed it.
Section 31(5) of the Defamation Act 2005 says that “proper material” means material that:
(a) is substantially true, or
(b) was published on an occasion of absolute or qualified privilege (whether under this Act or at general law), or
(c) was published on an occasion that attracted the protection of a defence under this section or section 28 or 29.
In addition, Section 31(5) of the Defamation Act 2005 provides that “An opinion does not cease to be based on proper material only because some of the material on which it is based is not proper material if the opinion might reasonably be based on such of the material as is proper material”.
Justice Tottle in his judgment made a number of factual findings.
Defamation
January 2022 Tweet: Reynolds argued that Higgins collaborated with David Sharaz to publish a defamatory tweet on January 27, 2022. The court inferred that Higgins encouraged and assisted Sharaz with the tweet. The court also found that the tweet’s defenses, including “honest opinion,” were not established because the opinion was not based on material that was substantially true.
July 2023 Posts: The court found that the July 4 Instagram story conveyed defamatory imputations, including that Reynolds had “mishandled” the rape allegation and engaged in a “campaign of harassing” Higgins. The court found that the “campaign of harassing” imputation was the central theme of the story. However, it was not reasonable for Higgins to have published the posts.
Conspiracy
The court found that while Higgins and Sharaz had a strategy to publicly disclose the story, it was not done with the sole or predominant purpose of causing injury to Reynolds.
The court acknowledged that Higgins’s motives were complex, and she was a rape victim struggling with trauma. The court did not find that the conspiracy claim was established.
Breach of Contract
The court found that Higgins’s statement in the July 4, 2023, Instagram story, which said her “former boss … had to publicly apologise after defaming me in the workplace,” breached a term of the settlement deed between them from March 2021.
Damages
The court awarded Reynolds $180,000 in damages, including aggravated damages, in relation to the July 4, 2023, Instagram story. The court also found that the January 27, 2022, tweet was unlikely to have had a significant effect on a reader’s opinion of Reynolds, and there was no evidence that it caused her any actual reputational damage. The court noted that damages for the tweet would have been minimal.
The court found that Reynolds’s claim for conspiracy damages, which were related to medical expenses, was not of the kind required for the tort of conspiracy.
The court did not grant injunctive relief against Higgins, as it was not satisfied there was a sufficient risk of her breaching the settlement deed in the future.
This result is not a great surprise. In the related defamation case brought by Bruce Lehrmann, Justice Michael Lee opined that both Bruce Lehrmann and Brittany Higgins had “real credit issues” and that “various parts of each witness’ evidence simply can’t be accepted”. Lee J found that Higgin’s claim of a coverup by Reynolds and Brown was without foundation, which was largely the reason why the qualified privilege defence advanced by the defendants Network 10 and Lisa Wilkinson failed in that case.
Because of the false allegations of a cover-up, what should have been a straightforward criminal justice matter relating to an alleged rape instead became a political sword wielded by opponents of the then federal government with devastating effect. Linda Reynolds was made out to be a callous person who sought to coverup a rape that occurred in her office and who wanted to silence the victims of sexual assault. It spelt the end of her political career and contributed to the then federal government losing the following election. This judgment finally brings some accountability for the falsehoods perpetuated by Higgins and Sharaz against Reynolds and other members of the Liberal Party.
The issue of costs will be determined at a later date. Higgins and Sharaz are facing the real prospect of an indemnity costs order against them that will dwarf the award of damages.
Author adminPosted on Categories Defamation