Brittany Higgins has been ordered to pay the lion’s share of her former boss Linda Reynolds’s legal expenses in the blockbuster defamation trial that concluded last month.
Justice Paul Tottle ruled in August that Ms Higgins had defamed Ms Reynolds in a series of social media posts, and today ruled that she must pay 80 per cent of her former employer’s legal costs.
The exact amount was not disclosed, but is thought to be in the high hundreds of thousands of dollars.
Ms Reynolds, who has now retired from politics, successfully sued Ms Higgins over three social media posts 2022 and 2023, and was awarded $315,000 in damages plus $26,000 in interest.
The former senator argued the posts trashed her reputation and caused her immense distress, following a period of ill health.
Linda Reynolds engaged the services of high-profile Perth lawyer Martin Bennett. (ABC News: Cason Ho)
Ms Higgins had sought to have costs limited to two-thirds of Ms Reynolds’s expenses, and wanted her lawyer Martin Bennett’s fees capped at a maximum of $781 per hour.
Ms Reynolds had argued that Mr Bennett’s fees not be capped, and that the costs order include the expenses incurred by hiring a full legal team, including two instructing solicitors, another lawyer and a paralegal.
Attempted settlement on eve of trial
In the judgement released on Tuesday, it was revealed that in July last year, four days before the defamation trial opened, Ms Higgins offered to settle the entire matter with a $200,000 payment towards Ms Reynolds’s legal fees, to be paid by her parents.
The settlement, which was labelled “unreasonable” by Justice Tottle, was to have included a “statement of mutual regret” from both women and a payment of $10,000 to a Queensland women’s refuge.
The proposed statement would have included wording that stated “Senator Reynolds recognises that the disputes have resulted in hurt and distress for Ms Higgins” and “acknowledges that Ms Higgins genuinely believed that adequate support had not been provided by her employer following the events of 23 March 2019”.
It would also have included an acknowledgement by Ms Higgins “that Senator Reynolds was distressed by social media posts in relation to the matter and … that she and her staff had provided appropriate support to Ms Higgins”.
It stated that both women “agree to put these matter behind them and move on”.
But Justice Tottle said the “offer did not provide the plaintiff with any vindication of her reputation”.
He said the statement of mutual regret “fell short of an apology by a substantial margin” and “would have conveyed the defendant maintained the truth of the defamatory statements made by her.”
He said the offer did not therefore qualify as a reasonable settlement offer within the meaning of the Defamation Act.
Senator Linda Reynoldshad wanted her former staffer Brittany Higgins to pay all of her legal expenses. (ABC News: Cason Ho)
“I am satisfied the defendant’s failure to make a settlement offer was unreasonable,” he said.
As part of the defamation action, Ms Reynolds had accused Ms Higgins of conspiring to end her political career through an orchestrated campaign, but this was rejected by Justice Tottle.
Because of this, he discounted the amount of costs to be paid by Ms Higgins by 20 per cent.
Ms Reynolds has launched separate legal proceedings in the Federal Court against the Commonwealth over a $2.4 million compensation payment it made to Ms Higgins in 2022, claiming it breached its duty to act in her best interests while settling the payout.
Ms Higgins’s lawyers had tried to get today’s costs judgement delayed until the compensation payout case was resolved, arguing that Ms Reynolds was effectively double dipping by trying to get her defamation costs paid in both cases.
But Justice Tottle said that was no reason to delay his judgement on the defamation costs, and the claim of double dipping could be addressed by the Federal Court.
Contentious social media posts
Ms Higgins was a junior staffer working for Senator Reynolds in 2019 when she was raped in her Parliament House office by her then colleague Bruce Lehrmann.
The finding of rape was made last year “on the balance of probabilities” by Justice Michael Lee during a separate civil defamation action Mr Lehrmann had launched in the Federal Court.
The problematic social media posts in 2022 and 2023 that formed the basis of Ms Reynolds’s defamation action detailed Ms Higgins’s claims that her former boss had failed to support her in the aftermath of the rape and had tried to silence sexual assault victims.
But Ms Reynolds insisted she had supported Ms Higgins throughout her ordeal, including providing her with the opportunity to have employee counselling.
She also detailed extensively the toll Ms Higgins’s allegation that she was an unsupportive boss had taken on her health, her personal life and her political career.
In finding that the posts were defamatory, Justice Tottle said Ms Higgins’s “allegation of a cover-up had no foundation in fact and the allegation of inadequate support was based on an incomplete and misleading account of the facts”.
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