In defending herself against defamation proceedings heard in a jurisdiction that relied on “old law” – and armed with a complex and problematic defence – Brittany Higgins went up against way more than just her former boss and senator Linda Reynolds.
Justice Paul Tottle of the Western Australian Supreme Court ordered former staffer Brittany Higgins to pay Linda Reynolds $315,000 in damages, including aggravated damages, for two defamatory social media posts made in January 2022 and July 2023.
Higgins is also on the hook for interest in the sum of $26,109.25.
The defamation action arose out of a public dispute between Higgins and Reynolds after the former approached media about her rape by colleague Bruce Lehrmann in March 2019. Lehrmann has not been found guilty by a criminal court and maintains his innocence.
The first post, made on Twitter (now X), included a screenshot of a webpage which referred to Reynolds being a “passionate champion” of gender equality. While the post was made by Higgins’ partner David Sharaz, Justice Tottle said Higgins “encouraged” him.
The post carried the defamatory imputations that Reynolds had pressured Higgins to not pursue a genuine complaint of sexual assault with police, and that Reynolds had been a hypocrite for endorsing gender equality and female empowerment.
The second, an Instagram post, claimed Reynolds continued to “harass” Higgins through the media and in Parliament, and Reynolds had needed to “public apologise for mishandling my rape allegations”.
Justice Tottle found the post conveyed the defamatory imputations that Reynolds had engaged in a campaign of harassment, had mishandled the rape allegations, and had engaged in questionable conduct during Lehrmann’s abandoned criminal rape trial.
A third publication, made up of a series of posts on Twitter, was also found to be defamatory but Higgins successfully established the defences of honest opinion, fair comment, and qualified privilege.
Justice Tottle was satisfied one of Higgins’ posts breached a term of a 2021 settlement that restrained both parties from making “adverse, critical or disparaging” comments about the dispute. However, Reynolds’ claim of a conspiracy against her had failed.
Associate Professor Jason Bosland, defamation and communications law expert at Melbourne Law School, told Lawyers Weekly he was not surprised by Justice Tottle’s decision, primarily because “it’s very easy to defame and establish the cause of action in defamation”.
This is particularly the case in Western Australia, where defamation law is not aligned with the rest of the country. Elsewhere, reforms were made and enacted in two parts: the first in July 2021, and the second in 2024 following a period of extensive consultations.
“In other jurisdictions, there is a more burdensome requirement in terms of the cause of action, so you need to demonstrate serious harm, and that can be difficult when it comes to social media posts because what you need is direct evidence that there has been harm to your reputation, whereas in WA – where the old law applies – there is no need to establish harm as an element,” Bosland explained.
Then there is the truth defence, which is “quite difficult” to establish, particularly in Western Australia where the law has not been updated.
Bosland said he did not expect Higgins to be able to establish the truth of the imputations in that context.
“It’s ordinarily quite a burdensome defence and it usually won’t succeed when it comes to social media posts, just due to the brevity of posts and the quite burdensome requirements to include the underlying facts in the publications itself,” he added.
While it is not yet clear whether this recent decision may prompt Western Australia to catch up with the rest of the country, Bosland said it would “certainly be desirable that we have a uniform law”.
“That was the intent behind the reforms – it was really driven by a need for harmonisation, and we don’t have that,” Bosland said.
Naomi Neilson is a senior journalist with a focus on court reporting for Lawyers Weekly.
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