Insights and lessons from the Reynolds v Higgins defamation trial

On Tuesday (9 September), Justice Tottle ordered Higgins to pay 80 per cent of Reynolds’ legal bill, in addition to $26,000 in interest. While the total amount was not disclosed, Reynolds’ lawyer, Martin Bennett, told media the total figure could exceed $1,000,000.

The rift between Reynolds and Higgins can be traced back to the latter’s media interviews about her being raped by Bruce Lehrmann in Parliament House in March 2019. Lehrmann has maintained his innocence and has never been found guilty by a criminal court.

In the first of the offending posts, published on Twitter (now X), a screenshot referred to Reynolds being a “passionate champion” of gender equality. It inferred she was a hypocrite because of her alleged pressure on Higgins not to pursue the rape complaint with police.

The second was an Instagram post that inferred Reynolds had continued to “harass” Higgins through the media and that she had needed to “publicly apologise for mishandling my rape allegations”.

One of the most important takeaways from this judgment is that defamation “is a very complex and very high-stakes area of law”, Dentons managing associate Sylvia Alcarraz told Lawyers Weekly. In Justice Tottle’s judgment, Alcarraz said there were 53 references to the word “context” and 129 references to “defamation”.

“Every defamation matter is so unique, and that is because of the facts of the case, the imputations that are said to arise, there’s also a question about jurisdiction and what jurisdiction you bring the claim in, so it’s really hard to predict or even generalise as to how a defamation claim may transpire because it all turns on context,” Alcarraz said.

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“I think the takeaway is it’s just a very complex area of law; it’s very difficult to predict and hard to generalise what may transpire because of context, credibility factors and general nuance.”

Higgins pleaded defences of justification, or truth, along with statutory qualified privilege, fair comment and honest opinion. On the former, Higgins was required to establish that the allegations against Reynolds were “true in substance and in fact”, but failed to do so.

Alcarraz said the truth defence was “very difficult to establish”, both as a question of substance and capacity. A defendant hoping to pursue this defence should have a good basis for the truth defence and the ability to fund and resource it during the proceedings.

“As we’ve seen in this matter, the truth defence was unsuccessful, but we have seen successful defences more recently in Lehrmann [and Network Ten] and Ben Roberts-Smith [and Fairfax]. For context, the Roberts-Smith matter was the second-longest defamation trial in history, being over 100 days, and Lehrmann ran for five weeks.

“The costs associated with each of those … for more than 99.9 per cent of individuals, that’s simply unaffordable. It’s not a question of whether you do have the defence available, but whether you have the capacity to then deploy it,” Alcarraz said.

Alcarraz added that while a defendant would not have to prove “each and every detail of the word was defamatory”, they would need to show the substantial truth, which involves a comprehensive investigation to gather admissible evidence and all of the underlying facts.

As for the statutory and common law defence of honest opinion, Alcarraz said the defendant would need to show the statement was one of opinion and not fact. While it may appear to be easier than truth, they must prove the opinion was “honestly held, in relation to a matter of public interest, and must be based on proper material”.

“It’s a little bit more nuanced,” Alcarraz added.

Following Justice Tottle’s judgment, some practitioners speculated that Reynolds’ win may have had something to do with the case being brought in Western Australia, where its defamation laws are vastly different from those across all other states and territories.

For instance, there is no need to establish serious harm as an element in West Australian cases, and no requirement for concerns notices being issued prior to the proceedings being commenced.

Alcarraz said it was unlikely Reynolds’ defamation win would have any bearing on whether Western Australia brings its defamation law in line with national practices, particularly because it is “quite widely recognised as being an easier jurisdiction for defamation claims”.

“In other jurisdictions, you’ve got this initial threshold of having to identify what harm was caused or is likely to be caused by the publication, and that requirement does not exist in WA.

“In the Reynolds case, I don’t think that would have made a difference. Even if it was brought in a different state, I don’t think that hurdle would have been difficult to overcome necessarily, had it been a requirement,” Alcarraz added of the jurisdictional difference.

Asked about the popularity of Western Australia’s defamation jurisdiction, Alcarraz said the lack of a serious harm threshold should see an influx of cases that “far exceed the number of cases brought across other states – specifically NSW, [which] is known as the defamation capital of the world”.

“The net effect of the reforms appears to be such that there is now an even number of cases filed across WA and NSW/VIC. The introduction of the serious harm threshold has seemingly had the desired effect of seeing a decline in the number of defamation matters commenced,” Alcarraz said.

Turning to the lessons that could be taken from Reynolds’ defamation proceedings, Alcarraz said all individuals are liable to be sued for defamation. In Higgins’ case particularly, the risk was increased due to her larger following and the public interest.

“In this Reynolds case, for example, it was the subject of this widespread media reporting, which the court found had the effect of republishing the story. So again, the publications and all the evidence is looked at within the context of the factual setting in which it arose,” she said.

The complexities in Lehrmann’s defamation appeal

While awaiting the Reynolds v Higgins judgment, the Federal Court heard Lehrmann’s appeal of his failed defamation action against Network Ten and journalist Lisa Wilkinson. Driven by his lawyer, Zali Burrows, Lehrmann’s case hinged on procedural fairness.

Alcarraz said it is a “really complex appeal” because everything that happened was behind closed doors, the original court made credibility findings, and the appeal bench does not have the benefit of seeing the witnesses give evidence for themselves. All of this has meant it would be a “difficult appeal for Lehrmann”.

“Probably one of the most reported quotes from Justice Michael Lee’s judgment is ‘having escaped the lion’s den, Mr Lehrmann made the mistake of going back for his hat’. Effectively, if he loses this appeal, it might be an example of him going back for his hat a second time,” she said.

However, even if Lehrmann loses his appeal, the road is “not over”.

In Lehrmann’s case, it is a question of whether he elects to take the matter up to the High Court for leave to appeal, “because if he doesn’t like the result, he will potentially have that avenue to pursue”. On the other hand, Alcarraz said the media may take that route.

Alcarraz added it was worth noting Channel Ten and Wilkinson have both raised contentions with the judgment.

For Ten, it argued the findings should have been that Lehrmann knew he did not have Higgins’ consent to have sex based on how intoxicated she was and the role he had in encouraging her to consume alcohol.

For Wilkinson, she has argued that her qualified privilege defence should be reversed and that she should be successful, “in that she acted reasonably in preparing for the program”.