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A Supreme Court judge has urged Brittany Higgins’ partner David Sharaz and Liberal Senator Linda Reynolds to settle their bitter legal stoush face-to-face and behind closed doors amid fears the defamation action could cost millions.
Justice Marcus Solomon held off on granting the cash lump sum Sharaz’s lawyer Jason MacLaurin sought from Reynolds as security if the case failed during a two-hour hearing in the WA Supreme Court on Thursday.
MacLaurin had raised concerns about the multiple lawsuits he said would inevitably incur a hefty legal bill and “end in tears”, referencing action Reynolds has commenced against her former staffer, Higgins, and the concerns notice she issued to Environment Minister Tanya Plibersek in June.
Liberal senator Linda Reynolds (centre) has taken both Brittany Higgins and her partner, David Sharaz, to court.Credit: Nine
But Solomon voiced his desire for Reynolds and Sharaz to meet and for the matter to go to mediation, highlighting that the cost to the parties, including in the separate defamation action with Higgins, was not merely financial, but also human.
“It’s not just about the financial cost, I’m very mindful of the human cost to everybody of this litigation,” Solomon told the court.
“I will ensure the court makes resources available to facilitate settlement of this matter and if it assists, if there is anything the court can do to facilitate a settlement of the other proceedings, I will ensure the court does whatever it can to settle that.”
Reynolds is demanding the former press gallery journalist pay damages, as well as aggravated damages, over five social media posts, and has requested an injunction preventing the material from surfacing in future.
MacLaurin spent most of Thursday rubbishing what he said was a “weak” defamation case levelled by Reynolds, branding the comments it hinged on “a drop in the ocean” in a sea of negative publicity.
He also questioned the prospect of Reynolds making out her allegation of “serious harm” to her reputation and said the damages sought were disproportionate, given the degree to which he claimed it was already “impugned”.
“[We’re] seeking security for costs because this is a person who we do not, at the moment, wish to suggest is in a difficult [financial] position, but is embarking upon defamation proceedings which are notoriously expensive, and one might say quite often end in tears,” MacLaurin said.
“The plaintiff is saying let’s incur all these legal fees for something that could fail miserably … it could be dead on arrival at the other end of a three-week trial.
“And I don’t mean to suggest that our points about it being a weak case or its merits are confined to the notion of proportionality.”
Reynolds’ lawyer Martin Bennett said it was vindication and the restoration of reputation, not “making a fortune”, that was at the heart of Reynolds’ claim.
Bennett undermined the submission that Sharaz’s comments did not meet the necessary threshold, telling the court his close proximate relationship to Higgins meant his online posts may be regarded as carrying more weight.
MacLaurin also asked to reserve the right to have the matter heard in the Australian Capital Territory, insisting Reynolds was suing a private citizen with no connection to WA.
Bennett emphatically opposed that move.
“The facts plainly show that Reynolds’ reputation in Western Australia is vital to her, she’s always lived here, her family and friends are here, and she’s dependent on her party selecting her in a winnable seat on the Senate ticket – the greatest harm to her would occur in WA,” Bennett said.
“Her reputation may have shot to prominence because of the circumstances of the [alleged] incident involving Ms Higgins, but that doesn’t define her reputation or dismiss her ability to repair it here.”
Solomon is expected to hand down his judgment on the security of costs order on Friday.
The court has foreshadowed the possibility of a three-week trial beginning in May 2024, but MacLaurin is expected to bring an application attempting to strike out the claim before that gets underway.
In 2021, Higgins alleged she was raped in Reynolds’ parliamentary office by her colleague Bruce Lehrmann.
A criminal trial against Lehrmann, who has maintained his innocence throughout, was aborted last year due to juror misconduct. The charge was dropped, and a retrial was abandoned over fears for Higgins’ mental health.
Earlier this month, Reynolds made good on her threat to sue Higgins for damages over two social media posts in which she accused Reynolds of using the press to harass her.
The former defence minister also said the posts were a breach of a deed of settlement and release the pair signed in March 2021, which contained a non-disparagement clause.
She has asked for two injunctions preventing Higgins from publishing defamatory material about her and preventing her from further breaches of the deed.
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