Linda Reynolds defends calling Brittany Higgins a 'lying cow' as senator's lawyer accuses former political staffer of peddling 'exaggerated fiction'
Lawyers representing Liberal senator Linda Reynolds have told a court it was unfortunate she called former staffer Brittany Higgins a 'lying cow', but say it was defensible as she had a 'right of reply' when being defamed.
A blockbuster defamation trial between Senator Reynolds and her former staffer has kicked off in Perth, with the senator making a last minute request to amend her claim to include WhatsApp messages sent by Ms Higgins.
After multiple failed mediation hearings, the pair will ask the Supreme Court of WA to decide whether a series of social media posts shared by Ms Higgins and her husband, David Sharaz, were defamatory of the West Australian senator.
The couple shared posts in 2022 and 2023 which were critical of Senator Reynolds' handling of Ms Higgins' allegation she was raped in Parliament House in 2019 by her then-colleague Bruce Lehrmann, and of the Senator's public reponse to Ms Higgins' Commonwealth compensation payment.
Mr Lehrmann was charged and faced trial in 2022, but the trial was aborted over juror misconduct and the charge was dropped shortly after.
Mr Lehrmann had pleaded not guilty and has maintained his innocence.
The five-week blockbuster trial will be heard before Justice Paul Tottle.
Linda Reynolds told reporters outside court that she was 'confident' about the case
'Lying cow'
Representing Senator Reynolds, Martin Bennett likened Ms Higgins' The Project interview to a charade, telling the court it was aired to 500,000 viewers and was 'tearful'.
He claimed Ms Higgins told Lisa Wilkinson that she had revealed the alleged rape in the first meeting with Senator Reynold's chief of staff, Fiona Brown.
But Mr Bennett told the court this couldn't be true as it conflicted with information that was reported in a story on news.com.au.
'It is just nonsense, you add two and two and get ten,' Mr Bennett said.
'Nonsense, an exaggerated fiction.'
He told the court it was nonsense that Ms Higgins said the senator avoided her while they were in Perth.
Ms Higgins had been invited to Senator Reynolds' home and to other events, Mr Bennett told the court.
'When Senator Reynolds watched The Project she was horrified for her and Ms Brown,' Mr Bennett said.
Senator Reynolds called Ms Higgins a 'lying cow' in front of staff in her office after Ms Higgins went public with the rape allegation, but the senator quickly retracted the comment and apologised.
Mr Bennett told the court while it wasn't an appropriate response, Ms Reynolds was angry about being accused of something so contrary to her value systems.
'When you are attacked publicly and defamed you have a right of reply,' he told the court.
WA Liberal senator Linda Reynolds is suing Brittany Higgins for defamation. She arrived at court flanked by husband Robert Reid (left), lawyer Martin Bennett (red tie) and entourage
In addition to apologising to Ms Higgins, the senator also paid $10,000 to a rape crisis centre.
'She did that because people might have thought she downplayed the veracity of her rape allegation,' Mr Bennett said.
After the senator apologised, she also entered into an agreement with a non-disclosure clause, which Mr Bennet said Ms Higgins forgot about.
'She stood back to allow the criminal prosecution to proceed,' Mr Bennett said.
'Social media as press releases'
Mr Bennett ended his closing address by saying he believes Ms Higgins' defence lawyers will say Senator Reynolds' reputation was already damaged and her tweets 'didn't have much of an effect'.
'They will trivialise that they were harmless posts and up for less than 24 hours,' Mr Bennett said.
'Higgins and Sharaz used their social media tweets as press releases. The media that erupted meant that everyone of their carefully curated press releases were widely picked up by mainstream media.
'Mishandling is a weasel term, I could mishandle a cup and break it, how is mishandling a matter that imputes damage to Senator Reynolds' character, so people think less of her.
'The debate is between the imputation, between the truth, not her truth.'
He said it was 'quite significant' Mr Sharaz is not giving evidence in the proceedings.
Conspiracy and a cover-up
Representing Senator Reynolds, Martin Bennett told the court there was a degree of 'sophistication and planning' by Ms Higgins to damage his client's reputation.
The court heard Justice Lee had made public a five-hour interview between Ms Higgins, Mr Sharaz, The Project's Lisa Wilkinson and a producer of the show.
The interview showed that a detailed plan had been made, Mr Bennett claimed.
'Is this Linda's time? Please let it be Linda's time,' one message between the group read.
Mr Bennett said Ms Higgins and Mr Sharaz also prepared a 'dossier' which was sent to politicians and told the court they sent messages to Labor senators to ask his client during Question Time.
He claims Ms Higgins had researched scandals in politics needed to find someone to be the villain.
'That person was Linda Reynolds, and the behaviour was the coverup,' Mr Bennett said.
Drafts from a book Ms Higgins was writing told how she had 'war gamed' a meeting with the Prime Minister.
'Here I am in the mud, throwing mud in the news cycle, I am fighting for control of the daily news cycle,' Mr Bennett quoted from the book.
He said Ms Higgins showed a 'degree in sophistication and planning' before defaming his client.
The former defence minister is suing Ms Higgins over a series of social media posts she says damaged her reputation
Linda Reynolds' blistering message on arrival
Ms Reynolds arrived at the WA Supreme Court just before 10am on Friday. She was surrounded by her legal team, with husband Robert Reid holding her hand.
She did not stop to talk to reporters outside the court, but briefly answered questions as she walked, saying she was feeling 'confident the truth was about to be told - it's well and truly time for the truth.'
Brittany Higgins' defence team arrived at court shortly afterwards.
Her lawyer Rachel Young did not respond to questions, and did not confirm if Ms Higgins would be in attendance.
The former Liberal staffer is reported to be returning to Australia from France at some point to give evidence.
Senator Reynold's claim
Ms Reynolds has alleged in her statement of claim that Ms Higgins and Mr Sharaz's posts suggested the senator had engaged in a 'campaign' of harassing Ms Higgins and failed to support Ms Higgins after her rape allegation.
The document claimed that they asserted that Ms Reynolds wants to 'silence victims of sexual assault' and engaged in questionable conduct during Mr Lehrmann's trial.
Ms Reynolds further alleges the 'intense questioning' she faced in the Senate in the wake of Ms Higgins' rape allegation being aired on The Project exacerbated a previously undiagnosed cardiac condition.
The senator said she was hospitalised in March 2021 as a result of 'the stress caused by the Project broadcast and the aggressive questioning of her in the Senate which was a direct consequence of the conduct of the defendant'.
Court told of 'poolside' Higgins
To squash claims made by Ms Higgins that she felt alone and isolated while working for the senator in Western Australia, Mr Bennett provided photographs, text messages and social media posts to the court arguing they proved otherwise.
Ms Higgins could be seen in photos campaigning with fellow Liberal staffers and socialising with colleagues while she was working for the senator in Perth.
Several text messages made by Ms Higgins were also provided to the court, which Mr Bennett said indicated Ms Higgins had enjoyed her time in Perth.
'My day has been awesome, mostly spent poolside,' one message read.
He also showed Ms Higgins at Liberal Party events with former Prime Minister Scott Morrison.
She could also be seen in photos at a birthday dinner for Senator Reynolds at the Pan Pacific Hotel the night before the election.
'We had a solid chat,' Ms Higgins said in a text message, referring to a conversation she had with her boss.
'She even shouted everyone dinner, this is awesome.'
The next day, Ms Higgins can be seen in photographs handing out election material at polling stations.
'There she is two people away from the senator smiling and clapping,' Mr Bennett said showing a photograph after the election results were called.
'Event, after event, after event, all of which could have been provided to the Commonwealth, Mr Bennett said.
'This is not a woman in a hotel room seven days a week ostracised, this is a young woman going out and enjoying it.'
Brittany Higgins was caught on CCTV after she passed through security on the way to senator Reynolds' office with Bruce Lehrmann
The security breach
The senator's legal team have told the court that when Ms Higgins was called into Senator Reynolds' office for a meeting after the alleged rape, the senator had no idea the incident had allegedly occurred in her office.
Mr Bennett said the only information the senator had at the time was that Ms Higgins had told chief-of-staff Fiona Brown 'he (Mr Lehrmann) was on top of me.'
Mr Bennett told the court the senator also knew facts that were given to her in a report about a security breach, after Mr Lehrmann and Ms Higgins' entered the ministerial office on the night of the alleged rape.
The report stated her staff members had accessed a secured area without authorisation, were inebriated and Ms Higgins was found naked.
Mr Bennett told the court an alleged sexual assault became apparent days later when Ms Higgins spoke to police.
'That is significant,' Mr Bennett said.
'What the senator is not told is that it occurred on the couch.'
Mr Bennett said it was not fair to allege the senator made Ms Higgins attend a meeting where the alleged rape took place because Senator Reynolds did not know the location of the incident at the time.
He told the court Ms Higgins' perception of how real it might be is not basis for facts.
'The sexual assault had never been disclosed before, she knew it happened in her suite of offices, but not in her office,' he argued.
WhatsApp request
Senator Reynolds made a last minute request to amend her claim to include WhatsApp messages sent by Brittany Higgins to a journalist and to her husband.
Ms Reynolds' legal team, led by Martin Bennett, said they had an application to amend the statement of claim relating to two recent publications from Ms Higgins.
The senator's legal team wants to see messages Ms Higgins sent to her husband David Sharaz and to a journalist at news.com.au, but they have been deleted from Ms Higgins' electronic devices.
Ms Higgins has claimed that her WhatsApp messages are automatically deleted once they are sent and she is unable to provide the publications in question.
Ms Reynolds' legal team wants Mr Sharaz to provide the messages, but he refuses to hand them over, the court heard.
Mr Bennett said they had received an unsworn affidavit from Ms Higgins' defence lawyer Carmel Galati, that was the subject of the application.
'While Ms Higgins is enjoying life in France, she doesn't have time to swear an affidavit,' Mr Bennett said.
Ms Higgins was awarded $2.4m for her personal injury claim, relating to her rape allegation against Bruce L:ehrmann (pictured) and the alleged handling of it by the government
The compensation payment
Mr Bennett argued that any person who read an article published on news.com.au on the day Ms Higgins signed a compensation deal with Commonwealth would automatically have thought the allegations made by Ms Higgins were true.
He told the court the article referred to a confidential mediation session that was held with the Commonwealth, in which Ms Higgins was awarded $2.4m in response to her personal injury claim, related to her rape allegation and the alleged handling of it by the government.
Within the claim were allegations about her treatment while she had been working for Ms Reynolds.
Mr Bennett said allegations made against the Senator were damning, but Ms Reynolds was never given the opportunity to defend herself or her staff.
'The Commonwealth denied (Ms Reynolds) mediation,' Mr Bennett said.
'That is why this is so important, because the claims made by Brittany Higgins were false.'
Villain in the story
Every fairytale needs a villain, and that's how Senator Reynolds had been cast by Brittany Higgins and her husband David Sharaz, Mr Bennett told the court in his opening statement.
'Their fictional story involved allegations of cruel treatment, ostracization, bullying, harassment and threatening conduct, he said.
'She was cast in this critical light and none of it was true.'
Reynolds 'protective' of Higgins
When Senator Reynolds found out Mr Lehrmann and Ms Higgins had accessed her ministerial suite she was angry with Mr Lehrmann.
The court heard Mr Lehrmann had only worked for the senator for a short time after he had transferred from Senator Bridget McKenzie's office
Mr Bennett told the court Senator Reynolds had thought Mr Lehrmann was 'shifty'.
When she knew more about what happened on the night of the alleged rape, Mr Bennett said Senator Reynolds had been 'protective' of Ms Higgins.
He said the senator was protecting Ms Higgins when she told Ms Brown to contact the Australian Federal Police.
'Ms Higgins couldn't remember, she was obviously upset about something and there was likely to be something of a sexual nature that had occurred,' he said.
'She was furious at Lehrmann to take advantage of an intoxicated young staffer.
'She told Ms Brown to go to the AFP, and Ms Brown to her credit said 'it's Brittany's choice, her agency'.'
Higgins' defence
In documents released by the Supreme Court, Ms Higgins revealed she will argue the social media posts were substantially true, and that she was sharing her opinion on 'a matter of public interest'.
Ms Higgins (pictured with husband David Sharaz) is expected to return from France during the trial to give evidence
Ms Higgins claims in the documents that Ms Reynolds had shared 'confidential correspondence' with media which included an internal government departmental email marked 'sensitive: personal' relating to the multi million-dollar payout Ms Higgins received in compensation following the alleged rape.
Ms Higgins further claims the senator engaged in a 'campaign of harassment' against her by providing the 'confidential information to the media' regarding mediation and complaints to the Commonwealth, as well as 'directly or indirectly' questioning her personal injury claim against the Commonwealth.
The trial is set down for five weeks.
Ms Higgins is expected to return to Australia from France to give evidence, and other high profile witnesses, including former Prime Minister Scott Morrison, are also expected to appear.
