Reynolds v Higgins
[2025] WASC 345
•27 AUGUST 2025
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CIVIL
CITATION: REYNOLDS -v- HIGGINS [2025] WASC 345
CORAM: TOTTLE J
HEARD: 2 AUGUST - 4 SEPTEMBER 2024 (FINAL SUBMISSIONS 14 JULY 2025)
DELIVERED : 27 AUGUST 2025
FILE NO/S: CIV 1840 of 2023
BETWEEN: LINDA KAREN REYNOLDS
Plaintiff
AND
BRITTANY MAE HIGGINS
Defendant
Catchwords:
Defamation - Meaning - Publication of social media posts - Whether meanings conveyed by natural and ordinary meaning of words of publications - Whether meanings conveyed by way of true innuendo - Whether meanings defamatory
Defamation - Publication - Whether defendant participated in publication of tweet - Whether defendant a publisher of tweet for the purposes of the law of defamation
Defamation - Defences - Justification - Pleading by defendant of alternative meaning - Observations on the limits of Polly Peck defence - Where justification defences not established
Defamation - Defences - Statutory qualified privilege - Lange qualified privilege - Malice - Whether publications actuated by improper motive or purpose - Whether privileged occasions exceeded
Defamation - Defences - Honest Opinion - Fair Comment - Whether statements opinion or comment
Defamation - Defences - Limitation - Where action commenced after expiry of limitation period - Whether limitation period should be extended - Limitation Act 2005 (WA) - Limitation period extended
Defamation - Damages - Causation - Mitigation - Whether damage to reputation sustained before publication of defamatory statements - Plaintiff a political figure - Whether damage mitigated by damages recovered in respect of other publications
Defamation - Damages - Aggravated damages - Consideration of the concept of the circumstances of publication - Whether plaintiff's harm aggravated by knowledge that defendant had formulated strategy that involved causing plaintiff damage
Conspiracy - Lawful means conspiracy - Existence of an understanding between conspirators - Whether sole or predominant purpose of conspirators was to injure the plaintiff - Sole or predominant purpose not established
Contract - Term obliging parties not to make adverse critical or disparaging statements - Whether statement published in breach of term - Breach established - Declaratory relief ordered - Injunctive relief refused
Legislation:
Defamation Act 2005 (WA)
Evidence Act 1906 (WA)
Limitation Act 2005 (WA)
Members of Parliament (Staff) Act 1984 (Cth)
Parliamentary Privileges Act 1987 (Cth)
Result:
Judgment for the plaintiff
Category: B
Representation:
Counsel:
| Plaintiff | : | Mr M L Bennett |
| Defendant | : | Ms R Young SC & Ms K Pedersen |
Solicitors:
| Plaintiff | : | Bennett |
| Defendant | : | Ms Carmel Galati |
Cases referred to in decision:
AC v The Queen [2014] VSCA 71
Aktas v Westpac Banking Corporation Ltd [2009] NSWCA 9
Associated Newspapers Ltd v Dingle [1964] AC 371
Ballard v Multiplex [2012] NSWSC 426
Barbaro v Amalgamated Television Services Pty Ltd (1985) 1 NSWLR 30
Bauer Media Pty Ltd v Wilson (No 2) [2018] VSCA 154; (2018) 56 VR 674
Brett May v TCN Channel Nine Pty Ltd [2007] NSWSC 760
Carolan v Fairfax Media Publications Pty Ltd (No 6) [2016] NSWSC 1091
Carson v John Fairfax & Sons Ltd [1993] HCA 31; (1993) 178 CLR 44
Cassell & Co Ltd v Broome [1972] UKHL 3; [1972] AC 1027
CC Containers & Ors v Lee & Ors [2011] VSC 537
Cerutti v Crestside Pty Ltd [2014] QCA 33; [2016] 1 Qd R 89
Chakravarti v Advertiser Newspapers Ltd [1998] HCA 37; (1998) 193 CLR 519
Channel Seven Adelaide Pty Ltd v Manock [2007] HCA 60; (2007) 232 CLR 245
Cheng & Anor v Tse Wai Chun [2000] 3 HKLRD 418
Chong v CC Containers Pty Ltd [2015] VSCA 137, (2015) 49 VR 402
Costello & Abbott v Random House Australia Pty Ltd [1999] ACTSC 13; (1999) 137 ACTR 1
Crampton v Nugawela (1996) 41 NSWLR 176
Cripps v Vakras [2014] VSC 279
David Syme & Co Ltd v Hore-Lacey [2000] VSCA 24; (2000) 1 VR 667
Drumgold v Board of Inquiry (No 3) [2024] ACTSC 58; (2024) 385 FLR 255
Dutton v Bazzi [2021] FCA 1474
Fairfax Media Publications Pty Ltd v Voller [2021] HCA 27; (2021) 273 CLR 346
Favell v Queensland Newspapers Pty Ltd [2005] HCA 52; (2005) 221 ALR 186
Feldman v Polaris Media Pty Ltd as trustee of The Polaris Media Trust trading as The Australian Jewish News (No 2) [2018] NSWSC 1035; (2018) Aust Torts Reports 82‑395
French v Triple M Melbourne Pty Ltd [2008] VSC 553
Google LLC v Defteros [2022] HCA 27; (2022) 277 CLR 358
Habib v Nationwide News Pty Ltd (2010) 76 NSWLR 299
Hanson-Young v Leyonhjelm (No 4) [2019] FCA 1981
Herald & Weekly Times Ltd v McGregor [1928] HCA 36; (1928) 41 CLR 254
Hermanus v The Queen [2015] VSCA 304
Hockey v Fairfax Media Publications Pty Limited [2015] FCA 652; (2015) 237 FCR 33
Hockey v Fairfax Media Publications Pty Ltd (2015) 237 FCR 33
Horrocks v Lowe [1975] AC 135
Jensen v Nationwide News Pty Ltd [No 13] [2019] WASC 451
John Fairfax Publications Pty Ltd v O'Shane (No 2) [2005] NSWCA 291
John Fairfax Publications Pty Ltd v O'Shane [2005] NSWCA 164
John Fairfax Publications Pty Ltd v Rivkin [2003] HCA 50 [25]; (2003) 77 ALJR 1657
JSC BTA Bank v Khrapunov [2018] UKSC 19
Kumova v Davison (No 2) [2023] FCA 1
Lange v Australian Broadcasting Corporation [1997] HCA 25; (1997) 189 CLR 520
Lehrmann v Network Ten Pty Limited [2024] FCA 369
Lewis v Daily Telegraph Ltd [1964] AC 234
March v E & MH Stramare Pty Ltd [1991] HCA 12; (1991) 171 CLR 506
McKernan v Fraser [1931] HCA 54; (1931) 46 CLR 343
Meyer v Solomon [2021] WASCA 168; (2021) 58 WAR 464
Monis v R [2013] HCA 4; (2013) 249 CLR 92
Nassif v Seven Network (Operations) Pty Ltd [2021] FCA 1286
O'Brien v Australian Broadcasting Corporation [2017] NSWCA 338; (2017) 97 NSWLR 1
Osborne v Landpower Developments Pty Ltd [2003] WASCA 117
Palmer v McGowan (No 5) [2022] FCA 893
Peros v Nationwide News Pty Ltd (No 3) [2024] QSC 192
Perre v Apand Pty Ltd [1999] HCA 36; (1999) 198 CLR 180
Polly Peck (Holdings) Plc v Trelford [1986] QB 1000
Price v MGM Ltd [2018] EWHC 3014 (QB); [2018] 4 WLR 150
Radio 2UE Sydney Pty Ltd v Chesterton [2009] HCA 16; (2009) 238 CLR 460
Rann v Olsen [2000] SASC 83; (2000) 76 SASR 450
Rayney v The State of Western Australia [No 9] [2017] WASC 367
Reader's Digest Services Pty Ltd v Lamb (1982) 150 CLR 500 at page 507
Roberts v Bass [2002] HCA 57; (2002) 212 CLR 1
Rofe v Smith's Newspapers Ltd (1924) 25 SR (NSW) 4
Selecta Homes & Building Co Pty Ltd v Advertiser-News Weekend Publishing Co Pty Ltd [2001] SASC 140; (2001) 79 SASR 451
Selkirk v Wyatt [2024] FCAFC 48
Spiller v Joseph [2010] UKSC 53
Stead v Fairfax Media Publications Pty Ltd [2021] FCA 15
Stocker v Stocker [2020] AC 593
Suttcliffe v Pressdram Ltd [1991] 1 QB 153
Templeton v Jones [1984] 1 NZLR 448
The Herald & Weekly Times Pty Ltd v Buckley [2009] VSCA 75; (2009) 21 VR 661
Thunder Studios Inc (California) v Kazal (No 12) [2022] FCA 110
Triggell v Pheeney [1951] HCA 23; (1951) 82 CLR 497
Uber Australia Pty Ltd v Andrianakis [2020] VSCA 186; (2020) 61 VR 580
Uren v John Fairfax & Sons Pty Ltd [1966] HCA 40; (1966) 117 CLR 118
Webb v Bloch [1928] HCA 50; (1928) 41 CLR 331
West Australian Newspapers Ltd v Elliott [2008] WASCA 172; (2008) 37 WAR 387
Williams v Hursey [1959] HCA 51; (1959) 103 CLR 30
Williams v Katis [2014] VSC 405
Wilson v Bauer Media Pty Ltd [2017] VSC 521
WR Productions Australia Pty Ltd v Duncan-Watt (No 2) [2020] FCA 236; (2020) 377 ALR 467
Wright v de Kauwe [No 2] [2024] WASCA 51
Table of Contents
Part A - Overview
Part B - Credit and Reliability Findings
The plaintiff
Ms Fiona Brown
The defendant
Other witnesses
Part C - Factual Findings
The plaintiff's personal and professional background
Employment of Parliamentary staff generally
Mr Lehrmann's employment status
Defendant's employment status
March 2019
Mr Lehrmann mishandles classified document
The circumstances of the rape
Ms Brown meets Mr Lehrmann to discuss working arrangements
Ms Barons informs Ms Brown of security incident
Ms Brown meets Mr Lehrmann to discuss the incident
Ms Brown meets the defendant to discuss the incident
The defendant's messages with Mr Dillaway
Telephone conversations and text messages between Ms Brown and the defendant
Findings as to conversations between Ms Brown and defendant
Conversations between Ms Brown and Major Payne
Ms Brown reports to the plaintiff
Ms Brown informs the Prime Minister's office of the incident
The DPS report
Ms Brown meets the defendant on 27 March 2019
Defendant's assurances to Mr Dillaway
Defendant's disclosure to work colleague
Findings as to plaintiff's knowledge on 27 March 2019
Ms Brown's further communications with Ms Barons
Ms Brown meets defendant on 28 March 2019
Ms Brown's text message exchange on 28 March 2019
Ms Brown updates the plaintiff
Ms Brown's conversation with Ms Hamer
Disclosure to Major Payne
Discussions between Ms Brown, the plaintiff, the Special Minister of State and his chief of staff on Friday 29 March 2019
Ms Brown's conversations with defendant on 29 March 2019
Ms Barons' email advice on 29 March 2019
Ms Brown messages defendant regarding meeting with plaintiff
April 2019
The state of the plaintiff's knowledge on Monday 1 April 2019
The location of the 1 April 2019 meeting
The discussion at the 1 April 2019 meeting
The defendant's message to Mr Dillaway after 1 April 2019 meeting
Ms Brown arranges for defendant to meet AFP
Defendant's first meeting with AFP on 1 April 2019
Ms Barons' further advice on 1 April 2019
Ms Brown's conversation with the defendant following first meeting with the police
The plaintiff's knowledge of the defendant's meeting with the AFP
Government Staff Committee meeting regarding Mr Lehrmann - 1 April 2019
Defendant offered support on Tuesday 2 April 2019
Mr Dillaway contacts Prime Minister's Office on Wednesday 3 April 2019
Defendant does not attend counselling appointment
AFP contact the plaintiff on 3 April 2019
Plaintiff meets Deputy Commissioner Close on Thursday 4 April 2019
Ms Brown checks on the defendant on 4 April 2019
Discussions between Ms Brown and the defendant about work options during election campaign
Ms Brown seeks approval of non-standard home base work option for defendant on 4 April 2019
Plaintiff's show cause letter to Mr Lehrmann on 4 April 2019
Mr Lehrmann's employment terminated on Friday 5 April 2019
Ms Brown is advised the defendant had made allegation of sexual assault against Mr Lehrmann on 5 April 2019
AFP contacts Ms Brown on 5 April 2019
Ms Brown further communications with the defendant on Sunday 7 April 2019
Non-standard home base approved on Monday 8 April 2019
Defendant meets with SACAT
Defendant exchanges messages with Mr Dillaway on Tuesday 9 April 2019
Defendant exchanges messages with Ms Brown on Wednesday 10 April 2019
Election called on Thursday 11 April 2019
EAP provider messages defendant
Defendant on sick leave
Defendant messages Mr Dillaway and expresses distress
EAP offer appointment with psychologist on Friday 12 April 2019
Defendant informs SACAT of decision not to proceed with complaint on Saturday 13 April 2019
Defendant informs counsellor of decision not to proceed with complaint
No pressure to go to Western Australia
AFP obtain Parliament House CCTV footage
The election campaign
Defendant's employment decisions post-election
Ms Brown and the defendant exchange messages on 7 June 2019
Counsellor reaches out to the defendant on 4 June 2019
Defendant's employment with Senator Cash in June 2019
Defendant contacts counsellor on 3 August 2019
Media inquiry in October 2019
Defendant contacts counsellor in October 2019
Defendant engages with counsellor between January and May 2020
Defendant's note for thesis on 23 May 2020
Defendant's relationship with Mr Sharaz
Defendant disclosed rape to friends in August 2020
Canberra Bubble story in November 2020
Defendant and Mr Sharaz plan the disclosure of defendant's experience in January 2021
The timeline document
Mr Sharaz discloses defendant's story to Ms Maiden on Monday 11 January 2021
Mr Sharaz discloses defendant's story to Ms Wilkinson on Monday 18 January 2021
Defendant provides timeline to Ms Maiden on Tuesday 19 January 2021
Mr Sharaz arranges meeting with The Project team on Wednesday 20 January 2021
Defendant interviewed by Ms Maiden on Thursday 21 January 2021
Text messages regarding Ms Christie Pearson
Defendant's first interview with Ms Wilkinson and Mr Llewellyn on Wednesday 27 January 2021
Defendant records conversation with Mr Try on Thursday 28 January 2021
Mr Sharaz provides materials for The Project
Defendant gives notice of resignation from Senator Cash's office on Friday 29 January 2021
Mr Sharaz and defendant contact Canberra Rape Crisis Centre counsellor
Mr Sharaz and Ms Maiden express concerns about the defendant's welfare
Defendant discusses timing with Ms Maiden
Defendant interviewed on camera by Ms Wilkinson on Tuesday 2 February 2021
Wednesday 3 February 2021
Defendant contacts SACAT on Thursday 4 February 2021
Defendant's final conversation with Senator Cash and Mr Try on Friday 5 February 2021
Defendant and Mr Sharaz attend the Belconnen Police Station
Mr Sharaz learns of plaintiff's National Press Club speech on Monday 8 February 2021
Defendant's statutory declaration for The Project on Wednesday 10 February 2021
Mr Sharaz provides timeline to Senator Katy Gallagher on Thursday 11 February 2021
The Project's questions to the plaintiff on Friday 12 February 2021
Mr Sharaz briefs journalists on Sunday 14 February 2021
Plaintiff discloses impending release of story to friends
The false or misleading aspects of statements made by the defendant in the media interviews
The understanding between the defendant and Mr Sharaz
The implementation of the strategy and its immediate consequences
Monday 15 February 2021
Tuesday 16 February 2021
Wednesday 17 February 2021
Thursday 18 February 2021
Friday 19 February 2021
Saturday 20 February 2021
Sunday 21 February 2021
Monday 22 February 2021
Tuesday 23 February 2021
Wednesday 24 February 2021
Saturday 27 February 2021
Tuesday 2 March 2021
Wednesday 3 March 2021
Thursday 4 March 2021
Friday 5 March 2021
Monday 8 March 2021
Friday 12 March 2021
Monday 15 March 2021
Tuesday 16 March 2021
Thursday 18 March 2021
Wednesday 24 March 2021
Thursday 25 March 2021
Friday 26 March 2021
Sunday 28 March 2021
Monday 29 March 2021
The plaintiff's condition in March 2021
Defendant lobbies politicians
Defendant provides phone to the police
Plaintiff faces further questioning in the Senate in June 2021
Defendant and Ms Maiden discuss events in July 2021
Mr Lehrmann charged
Jenkins report published in November 2021
Defendant's solicitors give notice of civil claim
27 January 2022 tweet
Prime Minister's speech in February 2022
The defendant and Ms Grace Tame address National Press Club
The defendant's civil claim and Commonwealth assistance to the plaintiff in March 2022
Mr Sharaz's reply to plaintiff's tweet regarding Home Care 1 April 2022
Change of government in May 2022
Mediation of civil claim postponed
Plaintiff alerted to potential defamation by Mr Aaron Patrick
Plaintiff's distress and discussions about her future in politics in July 2022
Lead up to the criminal trial
October 2022
The criminal trial
The plaintiff's communications with Mr Whybrow
The plaintiff's communications with Mr Reid
Mr Sharaz and the defendant's social media activity
Civil claim proceeds to mediation
Plaintiff discloses correspondence to Ms Janet Albrechtsen
Sofronoff Inquiry established
Plaintiff considering her future in politics
Plaintiff commences proceedings against Mr Sharaz
Plaintiff's proceedings against Harper Collins and Mr Aaron Patrick
Plaintiff's disclosures to and interview with Ms Albrechtsen
The plaintiff's engagement with the Sofronoff Inquiry
Plaintiff's defamation proceedings against Independent Australia
Further communications between plaintiff and Ms Albrechtsen
Plaintiff's engagement with National Anti-Corruption Commission
Cover up allegation repeated in mass media
Plaintiff refers settlement to NACC
4 July 2023 Instagram story
Plaintiff's submission to the Sofronoff Inquiry
20 July 2023 tweets and Instagram story
Sofronoff Report published
Plaintiff appears on Spotlight programme
Defendant's further social media posts and media statements
Plaintiff announces intention not to recontest 2025 election
Plaintiff's defamation claim against the Australian Capital Territory
Plaintiff's proceedings against the Commonwealth and HWL Ebsworth Lawyers
Part D - 4 July 2023 Instagram Story
Defamatory meanings - applicable legal principles
The extrinsic facts
Meanings conveyed by 4 July 2023 Instagram story
Campaign of harassing imputation
Mishandled the defendant's rape allegation by failing to provide her with any support imputation
Questionable conduct during the criminal trial imputation
4 July 2023 Instagram Story - Defences
Justification
The common law and statutory defences - general principles
Campaign of harassing imputation
Mishandled the defendant's rape allegation by failing to provide any support imputation and the alternative mishandled the defendant's rape allegation imputation
Pleaded allegations of justification
Questionable conduct
Qualified privilege
Statutory qualified privilege
Lange qualified privilege
Qualified privilege pleading
Qualified privilege - consideration
Malice - general principles
Malice - the plaintiff's pleading
Malice - consideration
Fair comment - general principles
Honest opinion - the statutory provision and general principles
Fair comment and honest opinion - consideration
Part E - 20 July 2023 Tweets
Meanings conveyed by 20 July 2023 tweets
Defences
Justification
Honest opinion and fair comment
Qualified privilege - common law Lange qualified privilege
Part F - 27 January 2022 Tweet
The defendant was a publisher
Extrinsic facts
Meanings conveyed by 27 January 2022 tweet
Defences
Limitation defence
Qualified privilege defences
Honest opinion and fair comment
Part G - Causation and assessment of damages
Causation
Assessment of damages
Statutory provisions and principles
Statutory provisions
Common law principles
Pleadings
The defendant's application to reopen
Outline of parties' principal contentions on damages
27 January 2022 tweet
4 July 2023 Instagram story
Part H - Conspiracy Claim
The pleaded case and the defence
Relevant legal principles
Disposition
Part I - Breach of Contract Claim
The pleaded case and the defence
Disposition
Interest, costs and orders
TOTTLE J:
Part A - Overview
In this action the plaintiff, who is a former member of the Australian Senate and a former cabinet minister, sues the defendant for damages for defamation and conspiracy and seeks declaratory and injunctive relief in respect of a breach of contract.
The defendant was employed as an assistant media adviser to the plaintiff for approximately 12 weeks in 2019. In the early hours of Saturday 23 March 2019 she was raped by a colleague in the plaintiff's ministerial office.
The rape and the events following it have been the subject of a criminal trial in the Supreme Court of the Australian Capital Territory,[1] a civil claim by the defendant against the Commonwealth, the plaintiff and Senator Michaelia Cash,[2] and a defamation judgment delivered by Lee J in the Federal Court of Australia.[3] The conduct of the prosecution was examined by a statutory board of inquiry established in the Australian Capital Territory.[4] The findings of the board of inquiry were the subject of an application for judicial review.[5] More recently, in April 2025 the plaintiff commenced proceedings in the Federal Court of Australia against the Commonwealth and the law firm HWL Ebsworth Lawyers who, on instructions from the Commonwealth, represented the plaintiff at the mediation of the defendant's civil claim. The criminal trial and the disputation that has followed it has been the subject of extensive reporting and commentary in the media. Against that background a brief exposition of the facts is all that is required.
[1] R v Lehrmann, a trial before McCallum CJ and a jury in the Supreme Court of the Australian Capital Territory which commenced on 4 October 2022 and ended when the jury was discharged following juror misconduct on 27 October 2022.
[2] Exhibit 551.
[3] Lehrmann v Network Ten Pty Limited [2024] FCA 369.
[4] Board of Inquiry into the Criminal Justice System in the Australian Capital Territory (Sofronoff Inquiry).
[5] Drumgold v Board of Inquiry (No 3) [2024] ACTSC 58; (2024) 385 FLR 255.
In media interviews with Ms Samantha Maiden of news.com.au and Ms Lisa Wilkinson of Network Ten conducted in early 2021, the defendant criticised the plaintiff alleging she and her then chief of staff, Ms Fiona Brown, were complicit in covering up the rape and provided her with inadequate support. As I will explain, whatever the defendant may have felt in 2021 about the way she was treated by the plaintiff and Ms Brown in 2019, the 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.
This action is not in respect of the statements made by the defendant to the media in 2021. Rather the catalyst for this action was social media publications about the plaintiff posted by the defendant in July 2023. The publications comprised a story published on Instagram on 4 July 2023 (4 July 2023 Instagram story) and two tweets published on 20 July 2023 republished on the same day as an Instagram story and later republished on the defendant's Threads account (unless it is necessary to distinguish between the 20 July 2023 publications I will refer to them as the 20 July 2023 tweets). In broad terms the publications responded to the position taken by the plaintiff on various issues following the defendant's 2021 criticisms of her. The plaintiff alleged the publications were defamatory of her and the publication of the 4 July Instagram story breached a term of a settlement agreement made in March 2021.
The claims made in this action were expanded to include a claim the defendant had collaborated with Mr David Sharaz (her then partner and now husband) in the publication of a defamatory tweet, posted by Mr Sharaz on 27 January 2022. The plaintiff contended the defendant's collaboration in the publication of this tweet made her a publisher of it for defamation law purposes.
Shortly before trial the conspiracy claim was added. The plaintiff alleged the defendant and Mr Sharaz agreed on a plan the sole or predominant purpose of which was to injure her. Again, in broad terms, the alleged plan involved the widespread publication of the allegation the plaintiff was involved in a cover up of the rape and the orchestration, by the defendant and Mr Sharaz, of an attack on the plaintiff by her political opponents. The facts on which the plaintiff's conspiracy claim was based also formed a major part of the basis of her claim for aggravated damages for defamation.
The issues raised by the parties have required a detailed examination of events that took place over six years with a view to ascertaining not only what occurred but also the state of mind of the key participants at critical dates: what they knew, what they should have known, what they felt, their purpose for acting as they did and their psychological state. Even though many issues were determined in the earlier proceedings it has been necessary to consider the evidence adduced in this action and reach conclusions independently of the earlier determinations.
In a separate action (CIV 1051 of 2023) the plaintiff sued Mr Sharaz for damages for defamatory statements made in: the tweet on 27 January 2022, a tweet published on 1 April 2022 (also published on Instagram), a comment posted on the plaintiff's Facebook page on 3 December 2022 and a further tweet published on 4 December 2022. Mr Sharaz consented to judgment on 24 May 2024.
The prosecution of Mr Bruce Lehrmann for the offence of raping the defendant was discontinued. In Mr Lehrmann's defamation action Lee J made a finding on the balance of probabilities that Mr Lehrmann raped the defendant.[6] In this action that finding was accepted and consistently with that approach, other than where I have referenced statements in the pleadings and submissions, I have referred to what occurred as 'the rape' rather than the 'rape allegation'.
[6] Lehrmann v Network Ten Pty Limited [2024] FCA 369.
In summary the conclusions I have reached are as follows.
(a)The 4 July 2023 Instagram story conveyed three defamatory imputations: the plaintiff was engaged in a campaign of harassing the defendant, the plaintiff had mishandled the allegation of rape made by the defendant and the plaintiff had engaged in questionable conduct in the course of the criminal trial. None of the defences raised by the defendant were established and the plaintiff is entitled to an award of damages including aggravated damages of $180,000 in respect of this publication.
(b)The 20 July 2023 tweets conveyed the defamatory imputation the plaintiff wanted to silence the victims of sexual assault. The defendant has established the defences of honest opinion, fair comment and the Lange qualified privilege. The defence of justification was not established. The plaintiff has failed to establish her claim in respect of this publication.
(c)The defendant participated in the publication of the 27 January 2022 tweet in such a way as to make her a publisher of the tweet for the purposes of the law of defamation. The 27 January 2022 tweet conveyed the imputations the plaintiff pressured the defendant not to proceed with a genuine complaint of sexual assault to police and she is a hypocrite in her advocacy for gender equality and female empowerment. The limitation period should be extended to permit the action to be brought. None of the other defences raised by the defendant were established and the plaintiff is entitled to an award of damages including aggravated damages, of $135,000.
(d)The plaintiff's breach of contract claim is established and the plaintiff is entitled to a declaration the defendant breached the clause of the deed of settlement restricting the making of adverse, critical or disparaging comments by either party about the dispute the subject of the deed of settlement. I am not satisfied the plaintiff has made out a claim for injunctive relief.
(e)The plaintiff's claim for damages for conspiracy is not established. The plaintiff failed to establish the sole or dominant purpose of the understanding reached by the defendant and Mr Sharaz in January 2021 was to injure the plaintiff.
The structure of the balance of these reasons is as follows:
(a)Part B comprises my observations on the credit and reliability of the evidence of the plaintiff, Ms Brown and the defendant.
(b)Part C contains my factual findings.
(c)Part D contains my findings on the meanings conveyed by the 4 July 2023 Instagram story and my conclusions on the defences to that publication.
(d)Part E contains my findings on the meanings conveyed by the 20 July 2023 tweets and my conclusions on the defences to that publication.
(e)Part F contains my reasons for concluding the defendant was a publisher of the 27 January 2022 tweet and my findings on the meanings conveyed by the tweet and my conclusions on the defences to that publication.
(f)Part G contains my reasoning on causation and the award of damages against the defendant.
(g)Part H contains my reasons for concluding the plaintiff has not established her conspiracy claim.
(h)Part I contains my reasons for concluding the plaintiff has established her breach of contract claim.
Part B - Credit and Reliability Findings
The principal participants in the events examined in this judgment were the plaintiff, Ms Brown and the defendant. The plaintiff was the only one of the three who attended the trial and gave oral evidence. Relying on s 79C(1) and (2)(b) of the Evidence Act 1906 (WA) an application was made by the plaintiff for the admission into evidence of statements made by Ms Brown, principally her evidence in the Lehrmann defamation proceedings. This was followed by an application made by the defendant to adduce into evidence statements made by her, being passages from her police interview and some of her evidence in the criminal proceedings and in the Lehrmann defamation proceedings. I allowed the applications and refer to them in more detail later.
The plaintiff
The plaintiff gave evidence over five days. Her evidence was tested by a detailed and probing cross‑examination. My assessment of the plaintiff's credit and the reliability of her evidence involved a synthesis of many matters, the most significant of which were the following.
First, much of the plaintiff's evidence was directed to events that occurred over five years before the trial, that is in March to May 2019, a period in which she had become a cabinet minister for the first time, assumed a challenging ministerial portfolio and fought an election campaign. In this period, she was required to work under considerable pressure and to direct her attention to many different matters.
Second, the plaintiff did not have any reason to turn her mind back to the events of March to May 2019 until nearly two years later in February 2021. In the intervening period she continued to perform demanding ministerial duties as the Minister of Defence.
Third, the plaintiff did not make any contemporaneous notes of the events about which she gave evidence. This is not a criticism because there was no expectation she should have done so. Her recollection was heavily dependent on notes made by Ms Brown,[7] and the contents of what was referred to at trial as the DPS report.[8]
[7] Exhibit 28.
[8] Exhibit 25.
I interpolate that taken together, the first three matters meant the plaintiff had a limited recollection of the events in the 12 weeks between March and May 2019 with which much of this judgment is concerned. In support of the defendant's submission the plaintiff's evidence about the matters she knew by 1 April 2019 was 'problematic, unreliable and self-serving', the defendant pointed to evidence given by the plaintiff in the criminal trial which the plaintiff admitted was wrong.[9] I refer to this aspect of the plaintiff's evidence when dealing with the events of 1 April 2019 later in this judgment.
[9] Defendant's closing submissions [188].
Fourth, as described later in these reasons, in February 2021 and in the months thereafter, the plaintiff was the subject of sustained public criticism. Quite understandably this engendered a strong desire on the plaintiff's part to defend her conduct and her reputation.
Fifth, in part because of the criticisms of her and, in part I suspect because she had spent much of her working life in the political arena where the imperative to get one's message across appears to trump answering the question, both in evidence‑in‑chief and in cross‑examination, the plaintiff often responded to questions with long answers in which she focussed on the point she wished to put across rather than answering the question, either directly or in some instances at all.[10] This approach was frustrating because it necessitated the same question being asked several times. It was also counterproductive so far as the plaintiff was concerned because it created the impression she was being unnecessarily defensive and, at times, evasive.
[10] Examples of lengthy answers in evidence-in-chief: see ts 215 - 216, 219.3, 244.2, 251 ‑ 252, 256; in cross‑examination: see ts 344.1, 350 and following, 382, 383, 402 - 404, 422 ‑ 423, 433.8, 459, 518, 521, 562, 573.
Sixth, the plaintiff suffers from a heart condition exacerbated by stress. In February 2021 she suffered from an acute episode of that condition which was accompanied by psychological distress brought on by stress. The plaintiff was hospitalised. In my observations about the defendant's evidence, I have commented on the potential for trauma to affect memory. There can be no doubt the plaintiff found the events that followed the public disclosure of the defendant's story traumatic. The psychological distress experienced by the plaintiff had the capacity to affect her memory. Quite separately, the process of giving evidence and being cross-examined was a stressful and tiring experience and that is a matter I have borne in mind in assessing the plaintiff's evidence.
Seventh, the plaintiff has had a distinguished career involving public service in the military and in politics which required her to demonstrate she was trustworthy and dependable. That is a matter which speaks to her credit in a general sense.
In the light of the observations made in the preceding paragraphs my assessment is the plaintiff had an independent recollection of the general sequence of critical events but her independent recollection of the details is impressionistic. In particular, her evidence about the details of what occurred between March and May 2019 reflected a combination of a recollection of the events revived or refreshed by reading Ms Brown's notes and the DPS report, and a reconstruction. As to her account of events from May 2019 onwards, my impression is much of the plaintiff's evidence reflected a combination of a recollection of particular episodes or events and, while she can recall some of the detail, she reconstructed other details. Inevitably the line between recollection and reconstruction was blurred. It was also apparent that the plaintiff's evidence was influenced, even if only subconsciously, by a desire to defend her conduct. These matters highlighted the need for a careful evaluation of the plaintiff's evidence by reference to those facts established by other evidence and the inherent probabilities.
As I have said, at times the plaintiff's discursive approach to addressing questions was frustrating and, while there were aspects of her evidence that I have not accepted, my overall assessment is she was an honest witness though one determined to ensure her account of events was heard.
I have examined each issue involving a consideration of the plaintiff's credit and the reliability of her evidence in the context of the factual setting in which it arose.
Ms Fiona Brown
Ms Brown gave evidence in the criminal trial and in the Lehrmann defamation proceedings. At trial senior and junior counsel were given leave to appear for Ms Brown and confidential medical reports about her condition were tendered.[11] The medical evidence satisfied me Ms Brown was unfit by reason of a mental condition to attend or give evidence.[12] I excused Ms Brown's attendance (she had been subpoenaed) and made an order that the statements made by Ms Brown recorded in the affidavit sworn by her in the Lehrmann defamation proceedings,[13] the transcript of her cross‑examination and re‑examination in those proceedings[14] and her evidence in the criminal trial be received into evidence.[15]
[11] Exhibits A and B.(within plaintiff's section 79C application made on 19 August 2024).
[12] ts 997; 20 August 2025 Orders.
[13] Exhibit 1560.
[14] Exhibits 2181 - 2182.
[15] Exhibit 2073; Orders made 20 August 2024.
The defendant accepted Ms Brown was unfit to give evidence and did not oppose the admission into evidence of the statements made by Ms Brown in the affidavit and transcripts from the earlier proceedings. The defendant contended, however, that Ms Brown's evidence, untested by cross‑examination, should carry less weight (the contention reflecting the provisions of s 79D of the Evidence Act). The defendant also contended that to ameliorate the prejudice suffered by being deprived of the opportunity to cross‑examine Ms Brown she should be given leave to call Ms Leanne Close (formerly Deputy Commissioner of Operations with the Australian Federal Police), who had not been scheduled to give evidence on the defendant's behalf, and to put into evidence the transcript of a portion of the evidence of Major Chris Payne given in the Lehrmann defamation proceedings.[16] The defendant was granted leave to call Ms Close. Some of the statements made by Major Payne in the Lehrmann defamation proceedings the defendant sought to adduce were admitted into evidence.[17]
[16] ts 985 ‑ 989, 1063, 1066.
[17] Exhibit 2075; Orders 28 August 2024.
Turning now to the assessment of Ms Brown's credit and the reliability of her evidence. Assessing credit and reliability without the benefit of observing a witness give evidence and seeing the evidence being tested by cross‑examination is problematic. In this case the problem was partially ameliorated by the inclusion of the transcript of the cross‑examination of Ms Brown in the Lehrmann defamation proceedings (she was cross‑examined for nearly five hours by senior counsel). It appears from the transcript that Ms Brown gave her evidence carefully and frankly. Though generally firm in her recollection of what had occurred she conceded her recollection may have been inaccurate on some points.[18] Nothing arises from the cross‑examination or Ms Brown's evidence generally that creates a doubt about her credit. Although made one step removed, my assessment is she was an honest witness giving evidence to the best of her recollection in difficult circumstances about events that had occurred over three years earlier.
[18] Exhibit 2181 page 163.
Ms Brown's evidence was principally concerned with conversations and other communications she had with various people in the period between 26 March and 11 April 2019. Her affidavit evidence in the Lehrmann defamation proceedings drew heavily on notes she had made in that period. Ms Brown explained it was her general practice during a meeting to take notes and jot down in a notebook key points and quotes from the meeting. She did not type up all her notes but did so when the notes related to human resource issues.[19] The notes took the form of a Microsoft word document updated by Ms Brown either after a conversation took place or at the end of each day.[20] In cross‑examination it was suggested to Ms Brown that she created or at least amended and revised her notes on 5 April 2019.[21] She denied that was the case and I accept her denial and accept her evidence about the preparation of her notes.
[19] Exhibit 1560 [12]; exhibit 2181.
[20] Exhibit 28.
[21] Exhibit 2182 page 49.
Ms Brown did not make a note of all her conversations. She did not make notes of all her conversations with Ms Lauren Barons of the Department of Parliamentary Services who was advising her, nor did she make a note of all her conversations with the plaintiff. Her evidence included evidence of a question she said she had asked the defendant several times ('Did anything happen that you didn't want to happen?') but which was not recorded in her notes.[22] In cross‑examination in the Lehrmann defamation proceedings Ms Brown said her notes were not 'verbatim',[23] and she did 'her professional best [in] a fast‑paced environment'.[24] She emphasised that when she met with Mr Lehrmann and the defendant she met them for the purposes of 'a staff discussion' and she was not acting as an investigator.[25]
[22] Exhibit 2182 pages 7 - 9.
[23] Exhibit 2182 page 12.
[24] Exhibit 2182 page 15.
[25] Exhibit 2181 page 158.
I find those parts of Ms Brown's evidence that were derived from her notes to be reliable evidence. I make that finding with some confidence. Indeed, I find Ms Brown's notes to be the most reliable evidence of what was said in the conversations to which they relate. My reasons are as follows. First, she was a senior and experienced administrator. Before taking up her role as the plaintiff's chief of staff, she was the Director of Operations in the Prime Minister's Office. Her professional background points to her being a person capable of taking accurate notes about matters that were self‑evidently serious. Second, the notes were made contemporaneously with the events they record and were based on jottings and notes made while the conversations took place. Third, the notes were made before the events became the subject of the controversy that developed in early 2021. Fourth, Ms Brown's text messages to the defendant and the defendant's contemporaneous assessment of Ms Brown reveal her to have been empathetic and caring. Not only was there no reason for Ms Brown not to have accurately recorded her conversations with the defendant but not to have done so would have been inconsistent with the otherwise supportive approach she adopted towards the defendant. Fifth, that there was no reason to doubt Ms Brown's credit and that she was an honest witness engenders confidence in the accuracy of her notes.
The frailties of human memory and the risk that the retrieval of memories of events may be influenced by intervening circumstances means that I have less confidence in accepting those parts of Ms Brown's evidence that are not derived from her notes. Each piece of such evidence must be evaluated carefully within the context of the events to which it relates.
The defendant
The defendant tendered confidential medical reports in support of her application under s 79C(1) and 2(b).[26] I found the defendant was unfit by reason of a mental condition to attend or give evidence.[27] In response to the defendant's application, I admitted into evidence (i) statements recorded in an extract of the transcript of an 'evidence‑in‑chief' interview conducted with police officers on 24 February 2021;[28] (ii) statements made by her recorded in extracts of the transcript of the criminal trial;[29] and (iii) statements made by her recorded in extracts of the transcript of the Lehrmann defamation proceedings.[30]
[26] Exhibits D1 and D2 (within defendant's s79C application); ts 1278.
[27] ts 1278.
[28] Exhibit 348.
[29] Exhibit 2073.
[30] Exhibit 2075.
The plaintiff was given leave to identify statements of the defendant upon which she wished to rely. The identification task was not concluded before the end of the trial. Counsel were to confer with the expectation an agreed list of further statements would be provided.[31] Unfortunately, agreement eluded the parties and on 18 December 2024 an 'amended minute of the parties' proposed extracts of the evidence of Ms Brown and the defendant was provided (though the position in relation to Ms Brown's evidence was settled by the orders made during the trial). The minute set out the respective positions of the parties with a request the court determine the matter on the papers. It is unnecessary to recite the detail of the parties' respective positions. In broad summary: the defendant contended only the statements expressly referred to in the parties' written closing submissions should be considered by the court and the significantly more numerous references which the plaintiff wished the court to consider were irrelevant. For her part, the plaintiff contended the entirety of the defendant's evidence in the criminal trial and the Lehrmann defamation proceedings, save for her evidence about the rape itself, should be considered. The plaintiff contended the defendant's more limited approach did not permit a proper understanding of her attack on the defendant's credit and the reliability of her evidence.
[31] ts 1278.
I considered the approach to this evidentiary controversy should be guided by a concern to ameliorate the prejudice suffered by the plaintiff by being deprived of the opportunity to cross‑examine the defendant. Thus, a generous approach to the admission of earlier statements made by the defendant should be adopted. For that reason, I admitted and considered those statements referred to in the 'plaintiff's alternate position' together with the defendant's additional references referred to in the amended minute. It would be unduly burdensome to reproduce the detailed references and they are taken as incorporated in this judgment by reference.
My earlier observation about the problematic nature of an assessment of a witness's credit and the reliability of their evidence without seeing them give evidence and without cross‑examination applied equally to the defendant.
Two further closely related preliminary observations may be made about the defendant's evidence. First, the defendant was the victim of one of the most serious crimes known to the law. It may be readily understood how the burden of the trauma inflicted by the crime itself was increased by the surrounding circumstances (in particular, the location and the state in which the defendant was left after the rape) and how that trauma was perpetuated by, among other matters, the ongoing internal tension the defendant appears to have suffered in wanting justice and her fear that the price of obtaining justice would be the loss of her 'dream job'.[32]
[32] Exhibit 650A page 21.
The effect of trauma on the encoding, retention and retrieval functions of memory was examined in 'Toward a Trauma-Informed Approach to Evidence Law: Witness Credibility and Reliability'.[33] The authors argue two of the matters frequently relied on by fact finders in assessing credit and reliability, the existence of a witness's prior statements which are inconsistent with their evidence in court, and demeanour, are unreliable indicia of veracity and reliability in a trauma affected witness. The authors observed:[34]
[33] Paulson et al, 'Toward a Trauma-Informed Approach to Evidence Law: Witness Credibility and Reliability' (2023) 101(3) Canadian Bar Review, 496.
[34] Paulson et al, 'Toward a Trauma-Informed Approach to Evidence Law: Witness Credibility and Reliability' (2023) 101(3) Canadian Bar Review, 496, 516.
As a result of the many disruptions trauma causes to the encoding, storage, consolidation, and retrieval of memory, traumatic memories possess a number of predictable, scientifically proven qualities that set them apart from regular memory:
•Traumatic memories are 'are fragmentary, disordered, disjointed, and often contain details that do not derive from experience.'
•The memories of individuals who suffer trauma will often have 'gaps,' and the memories that do form will focus on 'several key "hotspot" moments which will often be recalled out of sequence, and often only as part of an ongoing and unfolding dialogue or engagement.' These moments are typically hotspots because of their idiosyncratic relevance to the person, not because they are, by some objective measure, the most salient.
•Traumatic memories tend to be 'highly repetitive […], mainly consisting of sensory experiences of short duration [relating to the] moments signalling that the traumatic event was about to happen or that the meaning of the event had become more threatening.'
•Contrary to the normal process of memory retrieval, traumatic memories may be experienced as intrusive 'flashbacks' that are 'triggered involuntarily by specific reminders that relate in some way to the circumstances of the trauma' and experienced as if happening in the present. Despite their subjective intensity, flashbacks do not have greater reliability or immutability over time than regular memories.
•While 'all memories can change with repeated retelling,' this phenomenon is heightened for those who have experienced trauma.
•Trauma can affect both the memory of the traumatic event itself and autobiographical memory generally.
•People who have experienced trauma may exhibit some or all of these memory issues, even absent a clinical diagnosis for PTSD or similar.
Unfortunately, these fragmented, non-linear, sparse traumatic memories stand 'in direct opposition to common notions of what constitutes a "good" victim account.' They also dramatically increase the chance that a traumatized witness will have made previous inconsistent statements, as trauma increases the chance that memories will 'alter on retelling, with some details being lost as memory fades over time whilst repeated recall can bring novel details to mind.' Numerous studies have shown that traumatic memories are less likely to be believed due to the positive correlation between richness of detail and perceptions of credibility and reliability. With respect to victim-witnesses, Martin A. Conway describes this state of affairs as a 'tragic irony' that adversely affects both the decision to bring charges and the evidence adduced at trial:
[T]he erroneous beliefs about human memory that permeate our legal agencies lead to prosecution on the basis of fluent, highly detailed narratives of events that took place in childhood (for which there usually is no other evidence), but a fragmentary, jumbled account, with gaps, of an assault that took place on the weekend is not accepted because it is viewed as too easy to discredit in court. The point is that the very features of reports that make them more likely to be accurate are taken by courts as evidence of unreliability, whereas features of reports that make them more likely to be filled with errors are taken as evidence that they are accurate. (citations omitted)
In the criminal jurisdiction the potential effect of trauma on a complainant's memory in sexual offence cases, including the possibility that trauma may explain a delay in making a complaint and may provide context in which to assess the evidence about a complainant's demeanour and behaviour during the period of delay, has been recognised.[35]
[35] AC v The Queen [2014] VSCA 71 [70] ‑ [78]; Hermanus v The Queen [2015] VSCA 304; Evidence Act 1906 (WA) s 36BD; Crimes Act 1958 (Vic) s 61(1)(b)(i).
In assessing the defendant's evidence, I have considered the effects trauma can have on memory. I accept the disruptive effect of trauma may have contributed to the inconsistencies between the defendant's account of events and my findings as to what occurred. I would also make the more general observation that it is likely the defendant projected an impression of confidence and resilience in 2019 and 2020 which masked the emotional and psychological distress she was suffering.
The second preliminary observation is that while the defendant's evidence must be evaluated in the context of the trauma she has suffered, her evidence must be evaluated entirely dispassionately. Feelings of sympathy for the victim of a very serious crime must be set aside.
I have assessed the defendant's evidence in the context of the whole body of evidence adduced at trial including the evidence received pursuant to her s 79C application, the statements made by the defendant in the criminal trial, in the Lehrmann defamation proceedings, in her media interviews and to other witnesses. These inter‑related observations may be made.
First, entirely understandably given the trauma she suffered, the defendant had a poor recollection of the events in the immediate aftermath of the rape. The defendant said to the police officers when interviewed on 24 February 2021, 'honestly, the first week after the assault, it's kind of like I get confused about what day was what and what day certain things happened'.[36] In late 2020 and early 2021 the defendant attempted to reconstruct those events in accordance with the perception of them she had then formed. She prepared a document that included a 'timeline' (the timeline document).[37] The defendant's attempted reconstruction was inaccurate in important material respects which I have identified when setting out the facts. The understandable tendency to reconstruct is exemplified by the defendant's evidence about what she said to Ms Brown when they first discussed what had occurred on 23 March 2019. The effect of the defendant's evidence was that on 26 March 2019 she gave Ms Brown a full account of what had happened though she did not use the word 'rape'. In the Lehrmann defamation proceedings her evidence about whether she used the word 'assaulted' was initially equivocal, 'I said that I was assaulted … Or maybe I didn't use "assaulted".'[38] When pressed by the judge to give her best evidence, the defendant said, 'And I think I said the word "assault" because otherwise contextually, it doesn't make sense. But I remember saying words to that effect'.[39] The defendant's reference to context is telling though the unspecified context may simply have been a reference to her earlier accounts of what she said she had disclosed to Ms Brown.
[36] Exhibit 348, Q375, page 43.
[37] Exhibit 306.
[38] Exhibit 2075 page 71.
[39] Exhibit 2075 page 71.
Second, the defendant was prone to expand her recollection and reconstruction by speculating both as to events and the motives of others and present the resulting mix as fact. In cross‑examination in the Lehrmann defamation proceedings, the defendant accepted she had speculated 'to an extent', had 'got things wrong' and 'was wrong about some significant matters'.[40] For present purposes three examples will suffice. First, the defendant maintained the AFP unit based in Parliament House had been informed of a potential sexual assault in the Parliament House by 27 March 2019. In the timeline document the defendant stated this was the date on which she was first interviewed by the police though she subsequently accepted she was wrong about the date.[41] There is no evidence any sexual assault had been reported to the AFP's Parliament House unit by 27 March 2019. The report was first made on 1 April 2019, but the defendant extrapolated from her view that a report had been made to the AFP on 27 March 2019 that it was a 'broadly well‑established fact' she had been sexually assaulted.[42] Second, when recounting events in 2021 the defendant asserted the police had encountered difficulties in obtaining CCTV footage from Parliament House. The defendant used this to support the cover up allegation and told Ms Wilkinson, 'the police were already starting to get blockades in terms of being able to retrieve evidence'.[43] There was no basis for this serious assertion. It was entirely speculative but it created the impression of a cover up. Third, the defendant attributed a reduction in the salary she was initially offered in June 2019 as a member of Senator Cash's staff to an intervention by Ms Brown,[44] whom she wrongly and without any foundation asserted was a member of the Government Staff Committee, a committee with oversight on such matters as terms and conditions of employment. Ms Brown was not and had never been a member of the Government Staff Committee and there was no evidence she had anything to do with the settling of the terms and conditions of the defendant's employment with Senator Cash. Once again, and as will be seen, the defendant's speculation contributed to the impression the defendant wished to convey that the Liberal Party wanted to get rid of her.
[40] Exhibit 2075 pages 137 - 138.
[41] Exhibit 2075 page 258.
[42] Exhibit 650A page 14.
[43] Exhibit 195 page 72.
[44] Exhibit 650A pages 28 ‑ 29.
In 2021 when the defendant recounted the actions of her former colleagues towards her and ascribed motives to them, she did so in a manner that conformed to the view she had formed in hindsight, that she was regarded as a problem and had been silenced, rather than in a manner that conformed with the facts. I will give two examples. The first and perhaps the most striking was the defendant's characterisation of the way in which the plaintiff behaved towards her during the 2019 election campaign. The defendant maintained the plaintiff thought she was toxic, hated her and did not want to continue to employ her.[45] Not only was this account not supported by the objective facts but it was wholly inconsistent with them, including the fact the plaintiff offered the defendant a position as a member of her staff following the election. The second example was the defendant's readiness to conclude and thereafter assert that she had been lied to by members of the plaintiff's staff on the question of whether a Ms Christie Pearson was employed in the plaintiff's office in January 2021 (the relevance of this will become apparent). She thought she had been 'stonewalled' and the stonewalling reflected a hostile attitude on the part of the Liberal Party towards her. The reality is that the defendant's conclusion she had been lied to was based entirely on her mistaken recollection of the name of the person who had spoken to her about a media inquiry in October 2019.[46]
[45] Exhibit 650A page 25; exhibit 551 page 21 [4.1].
[46] Exhibit 197.
Third, the disparity between the account given by the defendant in her media interviews of her working conditions and the way she was treated during the 2019 election campaign and the actuality was so dramatic as to cast doubt on the reliability of her evidence generally. I accept during this period the defendant experienced episodes of psychological distress which may have subsequently coloured her memory of events but, as I will explain, I do not consider this can adequately account for the disparity between the defendant's version of events and the objective facts.
Fourth, the defendant was prone to exaggerate or embellish aspects of her account of events in a manner that was consistent with the themes she developed in her media interviews. For example, a matter that featured prominently in her media interviews was the defendant's account of her repeated requests to view the Parliament House CCTV footage. I have found she made no such requests but that is not the point of this example. The defendant said to Ms Wilkinson, 'I asked at least half a dozen times to see that CCTV and [Ms Brown] always said no'.[47] But in the Lehrmann defamation proceedings her evidence was to the effect that she most likely asked Ms Brown about the CCTV footage at a meeting on 28 March 2019,[48] and when Ms Brown 'rebuffed' her request, she was not 'in a position of power to keep pushing it', and she was not sure whether she had any other conversations with Ms Brown about the CCTV footage.[49] Another example of the same tendency is the defendant's characterisation of Mr Lehrmann as a 'favourite' of the plaintiff and her 'right‑hand man'.[50] Not only did the asserted characterisation have no foundation in fact but the defendant told Mr Ben Dillaway (a close friend) in a text message that Mr Lehrmann was leaving the plaintiff's team after the budget 'for a department job apparently'.[51]
[47] Exhibit 1485 page 40.
[48] Exhibit 2075 page 97.
[49] Exhibit 2075 page 97.
[50] Exhibit 1485 pages 3 ‑ 4, 28.
[51] Exhibit 19 page 42.
Fifth, on two occasions in the weeks following the rape the defendant said she had been to see a doctor. Each statement was untrue. Later in October 2019 the defendant said she was going to obtain counselling under the EAP scheme and that was untrue. In the context of this action, the statements in and of themselves have no great evidentiary significance. They do, however, give rise to a degree of unease about the reliability of the defendant's evidence and her credit generally though I do not think too much can be made of them. Rather than indicating a propensity for lying, I think they evidence a desire on the defendant's part to provide reassurance about her wellbeing to those around her.
Sixth, one may accept perspectives change with time, reflection and experience but the defendant's description of how she was treated by Ms Brown in 2019 as recorded in her contemporaneous communications and the description she gave in her 2021 media interviews are the proverbial 'chalk and cheese'. Of itself, this does not mean the description given in 2021 was inaccurate but neither does it mean the 2019 description was inaccurate. As I explain later, I have found the defendant's 2019 assessment more accurately reflected Ms Brown's conduct towards her than her 2021 assessment. In general, such a marked change in perspective complicates the fact‑finding process. More specifically, unless corroborated, I am not prepared to accept the defendant's retrospective accounts given at various times between 2021 and 2023 about how she felt or perceived events in 2019.
Seventh, as is inevitable the defendant's recollection has been influenced by her experiences and her changing perspectives and attitudes.[52] I have referred already to the potential effect of the trauma. It appears the defendant initially tried to deal with the trauma by compartmentalising it. In her first interview with police she said, 'I put what happened away so it wouldn't be a narrative to my life story, I'm quite good at doing this'.[53] My impression is the defendant thought she would be able to manage the psychological effects of what happened and would be able to 'power through'.[54] This provides an explanation for why the defendant did not take up counselling in 2019 either with the Canberra Rape Crisis Centre (beyond one counselling session) or with a psychologist under the EAP scheme (an appointment for counselling was arranged under the EAP). In early 2021 when the defendant reflected on what had happened to her, my impression is she elided the decisions she made in 2019 in the exercise of her personal autonomy and focussed on her perception of the attitude and conduct of others towards her without reflecting on the persona she presented to them, the attitudes she then held and the decisions she made.
[52] Exemplified by comments made in counselling sessions in early 2020.
[53] Exhibit 49 page 5.
[54] Exhibit 206; exhibit 2073 page 152.
In 2020 there were developments in the world of Liberal Party politics which gave the defendant a new perspective on her experience. These developments concerned the treatment of female staffers by senior male Liberal Party politicians following the breakdown of intimate relationships. These issues were the subject of a story broadcast on the ABC's Four Corners programme entitled, 'The Canberra Bubble'. The defendant's evidence was to the effect the disclosures made in the programme had a profound effect on her. In her evidence in the Lehrmann defamation proceedings, she said she, 'kind of finally got a grasp on my workplace where I wasn't so scared anymore'.[55] The defendant described these developments as a 'retraumatising event' and she 'couldn't be silent about it anymore … It made me feel sick just knowing that I was complicit in their - in their coverups and their silence because I hadn't called it out'.[56]
[55] Exhibit 2075 page 115.
[56] Exhibit 2075 page 115.
It is clear from what the defendant said to the media in 2021 that she identified very strongly with the women in the Four Corners story. This led to the defendant drawing parallels between her experience and how these other women described how they had been treated by the Liberal Party. There is no doubt the defendant suffered injury and experienced trauma but her concern to draw parallels with the treatment the other women said they had received from the Liberal Party led her to colour her account of how she had been treated. Specifically, she emphasised the allegation she was silenced as part of a cover up for the good of the Liberal Party. In truth, there was no such cover up.
Taking the observations made in the preceding paragraphs into account, my assessment of the defendant's evidence is as follows. I accept the defendant had episodes of profound psychological distress arising from the rape and its aftermath. Not only is this to be expected but the defendant's descriptions of her emotional and psychological state were broadly supported by the notes made by the Canberra Rape Crisis Centre counsellor.[57]
[57] Exhibit 551 pages 51 - 61.
In relation to other matters, however, that is, the way events unfolded, the way others behaved towards her and the way she felt towards others, I have been unable to rely on the defendant's evidence in any respect unless it was corroborated by other reliable evidence or was consistent with facts established by independent evidence. That the defendant's evidence of the immediate aftermath of the rape was unreliable was entirely understandable. It is more difficult, however, to explain other aspects of the 2021 account given by the defendant, which were objectively untrue and misleading, as being attributable to the effects of trauma.
The task of assessing the defendant's credit is complicated by the fact she did not give evidence and was not cross‑examined. In those circumstances I have been concerned not to be unfair to the defendant but because aspects of the plaintiff's case rests upon the proposition that when recounting events in her media interviews in 2021 the defendant was dishonest, an assessment of the defendant's credit must be made.
My impression is that by 2021 the defendant had persuaded herself she had been the victim of a cover up and inextricably bound up with the notion of a cover up, and a necessary element of it, was the notion she had been treated poorly by the plaintiff and Ms Brown. In critical respects the defendant's view of what had occurred did not accord with the reality of what occurred as established both by contemporaneous communications and reliable evidence. In my judgment, the defendant's account of events was distorted by her need for events to conform to her view about how she was treated by the Liberal Party and, specifically how she was treated by the plaintiff and Ms Brown. This was reflected in the aspects of the events she emphasised, aspects she omitted to mention and by statements she made that had no foundation in fact. The existence of a cover up was a vital part of the defendant's story. I have concluded the defendant was dishonest in aspects of the account given by her of the alleged cover up. I explain my reasons for reaching this conclusion later in this judgment.
Other witnesses
There were 26 witnesses in total. Where necessary I have commented on the evidence of witnesses in the context of the issues to which their evidence related but it is unnecessary to make general credit and reliability observations about the other witnesses. Where I have referred to a witness's evidence, unless otherwise stated, I have accepted the evidence was given honestly and it was generally reliable.
Part C - Factual Findings
The plaintiff's personal and professional background
The plaintiff was born in May 1965. She was brought up in suburban Perth where she completed her primary and secondary education. The plaintiff's parents are alive as are her two brothers. The plaintiff has a close relationship with her immediate and extended family. She lives in Perth with her partner Mr Robert Reid.
The plaintiff's career has been divided between service in the Australian Army and engagement in the world of politics through her involvement in the state and federal Liberal Parties. In outline her professional background is as follows.
The plaintiff's association with the army began in 1984 when she enrolled as an officer cadet in the Army Reserves. Concurrently with her military interests, between 1987 and 1994 she was an active member of the Young Liberals. Later, she became a member of the West Australian Liberal Party and served in over 50 office bearing positions. These included serving for six years in the State Council and four years as vice‑president of the Pearce Division of the Liberal Party.
Between 1990 and 1994 the plaintiff worked for federal politicians as an electorate officer, and subsequently as a shadow ministerial adviser. In 1994 she graduated from Curtin University with a Bachelor of Commerce (Commercial Law and Industrial Advocacy) degree.
In 1996 the plaintiff became the National Training Co‑ordinator and executive assistant to the Deputy Director of the Liberal Party. Between 1996 and 1998 she served as the Senior Government Training Manager and Senior Campaign Officer for the Government Members' Secretariat based in Parliament House in Canberra.
In 1999 the plaintiff accepted a full-time position in the Army in training command at the Army Staff College. She obtained qualifications in training development: a Diploma in Training Development in 1999, a Graduate Certificate in Training Development in 2000, and a Certificate IV in Assessment and Workplace Training from Southern Cross University in 2000.[58] By 2000 the plaintiff had been promoted to the rank of Major.
[58] Exhibit 1302.
In 2001 the plaintiff returned to politics and took a position as the chief of staff to Senator Chris Ellison who had recently been appointed as Minister for Justice and Customs. In her evidence‑in‑chief the plaintiff described her experience as Senator Ellison's chief of staff in some detail. For present purposes, it is sufficient to say she obtained experience in the management of difficult issues of national importance. This included travelling to Bali as part of the federal government's team that responded to the Bali Bombings in October 2002. The plaintiff held the position as chief of staff to Senator Ellison until 2003.
In 2003 the plaintiff obtained a Graduate Diploma in Defence Management from the University of Canberra.
In 2004 and 2005 the plaintiff returned to the Army and accepted part time employment at the Australian Army headquarters in Canberra. During this period she also worked part time in private enterprise.
In 2006 the plaintiff returned to politics as the Deputy Federal Director of the Liberal Party. After the federal election in 2007 she returned to the Army and became a director of the Army Strategic Reform Program.
In 2011 the plaintiff undertook the Centre for Defence and Strategic Studies course, which followed her promotion to the rank of Colonel. The course prepares officers at the rank of Colonel for promotion to the rank of Brigadier. She was the first reserve officer to undertake the course and she obtained a Graduate Certificate in Strategic Studies from the Australian Defence College. That year, the plaintiff was awarded the Conspicuous Service Cross in recognition of her outstanding devotion to duty in her role as the director of the Army Strategic Reform Program.
In 2012 the plaintiff was promoted to the position of Army Adjutant General and Director General of Compliance and Assurance at Army Headquarters. She was promoted to the rank of Brigadier. In her evidence‑in‑chief the plaintiff explained how in that role she became actively involved in bringing about gender diversity in the Army.
In 2013 the plaintiff decided to return to politics and sought pre‑selection as a senator for Western Australia on the Liberal Party ticket. She was first elected as a senator in 2014.[59] She was re‑elected in the 2016 and 2019 federal elections.
[59] ts 180.
Following her election in 2014 the plaintiff was active in the promotion of gender equality within the Federal Liberal Party. In 2015 she became a member of the Women's Working Group of the Liberal Party's Federal Executive. In that role she was an author of part of a report referred to as the Craddock Report and I infer one of the aims of the report was to address gender inequality within the Federal Liberal Party. In her evidence the plaintiff described herself as the 'chief gender stirrer' within the Liberal Party.[60]
[60] ts 180.
The plaintiff has been a member of numerous Senate committees and, when in government, was the chair of various committees.
In August 2018 the plaintiff was appointed Assistant Minister for Home Affairs. Her ministerial responsibilities extended to Emergency Management and Customs.
On 1 March 2019 the then Prime Minister, the Honourable Scott Morrison, told the plaintiff he would like to appoint her as the Minister for Defence Industry, replacing the then existing Minister, the Honourable Steven Ciobo, who was retiring from Parliament at the next election (an announcement of the date of the election was imminent).[61] The plaintiff was sworn in as the Minister for Defence Industry on 2 March 2019 and became a member of the Federal Cabinet. When the Prime Minister announced the appointment of the plaintiff as the Minister for Defence Industry, he also announced that if the then current government was re‑elected the plaintiff would be appointed as the Defence Minister.[62]
[61] ts 182.
[62] ts 182.
While giving evidence of her personal and professional background the plaintiff touched on experiences in her personal life that involved her assisting victims of sexual assault. She explained she had supported two women close to her who had been the victims of rape. She added she had other friends who had been the subject of predatory behaviour and stalking and some of that conduct had taken place in Parliament House.
When she was required to be in Canberra the plaintiff shared a house with Senator Jane Hume and Senator Anne Ruston.
Employment of Parliamentary staff generally
The employment of staff who work for members of the Commonwealth Parliament and ministers in the Commonwealth government is governed by the Members of Parliament (Staff) Act 1984 (Cth) (the MOPS Act).
Relevantly, under the MOPS Act, as it was in force in March 2019, a minister could employ staff on behalf of the Commonwealth in accordance with arrangements approved by the Prime Minister. The employment of a minister's staff was terminated automatically upon a minister ceasing to hold office though the termination did not come into effect until the expiry of a 'deferral period' during which the staff member could complete outstanding work, take leave or seek employment with another minister. It was also open to a minister to terminate a staff member's employment by giving written notice of termination.
The Ministerial and Parliamentary Services division of the Department of Finance and Administration administered the employment framework of ministerial and parliamentary staff and provided human resources and support services including advice on general employment matters and work health and safety. The Government Staff Committee acted as a central co‑ordinator of the number, classifications, salaries, recruitment and appointment of ministerial staff. The Government Staff Committee is administered within the Prime Minister's Office.[63]
[63] Exhibit 1560 [5].
Ministerial and Parliamentary Services also provided a counselling service, the Employee Assistance Program (the EAP). This was an independent counselling service provided by an external service provider (Assure) with a network of associated registered psychologists and social workers across the country.
In 2012 the Department of Finance and Administration (Ministerial and Parliamentary Services) introduced a workplace bullying and harassment (including sexual harassment) policy. The policy was updated in June 2018. The policy set out an 'issues resolution procedure' for dealing with complaints whether made formally, informally or even anonymously though anonymous complaints were discouraged because of the limitations anonymity imposed on the ability to take action. A full copy of the policy was not in evidence but from the synopsis of it that was provided it appears the 'issues resolution procedure' was complaints driven.[64]
[64] Exhibit 2072 page 294.
Upon Mr Ciobo ceasing to hold office as the Minister for Defence Industry and upon the plaintiff ceasing to hold office as the Assistant Minister for Home Affairs, the automatic termination provisions of the MOPS Act meant the employment of the staff in their respective offices came to an end.
When the plaintiff was sworn in as Minister for Defence Industry on 2 March 2019 Ms Brown was working in the Prime Minister's Office. Ms Brown was known to the plaintiff and she agreed to become the plaintiff's chief of staff. Ms Brown's appointment did not take effect formally until 13 March 2019.
Ms Brown's priority was to establish the plaintiff's office. This included recruiting staff. In her evidence the plaintiff explained in some detail the process and the difficulties inherent in establishing a ministerial office. She explained:[65]
it's quite an intense time because you've got two different teams who have come together and trying to work out who wants to stay, who wants to go, what jobs are there available and who has got the right qualifications for those jobs.
[65] ts 185.
The plaintiff moved into the ministerial suite in Parliament House formerly occupied by Mr Ciobo and with Ms Brown's assistance recruited staff.
Mr Lehrmann's employment status
Mr Lehrmann, who was a member of the plaintiff's staff when she was the Assistant Minister for Home Affairs, informed Ms Brown he did not intend to seek another ministerial staff position and was thus working out his deferral period.[66] The defendant alleged Mr Lehrmann was the second most senior member of staff in the plaintiff's office.[67] I do not accept this was so. Ms Brown's evidence, which I accept, was to the effect that Mr Lehrmann was classified as an 'Adviser' and there were two other members of staff who were classified as 'Senior Advisers'.[68]
Defendant's employment status
[66] Exhibit 58; exhibit 1560 [19].
[67] Defence page 15H [4]; Reply [8.2].
[68] Exhibit 1560 [17].
The defendant had been a member of Mr Ciobo's staff and had worked in Parliament House for about six months. She was employed as a secretary and administrative assistant on the lowest pay scale. The defendant told Ms Brown she had been doing some additional duties in Mr Ciobo's office relating to media research under the supervision of Mr Dillaway, who was not only the defendant's close friend but also a senior media adviser, and she said she was keen to continue doing that in the plaintiff's office. The plaintiff agreed that the defendant be employed as a member of her staff. Her employment classification was upgraded and her salary increased by about 20 per cent. Parenthetically, although the plaintiff referred to herself as the defendant's employer,[69] she was not. The defendant's employer was the Commonwealth. The plaintiff's description of herself as the defendant's employer reflected the fact the plaintiff had a discretion as to the selection of staff who worked in her office. In that sense the appointment of the defendant was 'a personal appointment'.
[69] For example, see ts 537.
The Prime Minister's approval of the appointment of the plaintiff's staff was given by a letter dated 13 March 2019 to the plaintiff from the Prime Minister's chief of staff, Dr John Kunkel.[70]
[70] Exhibit 463.
In addition to ministerial staff, two defence liaison officers worked in the plaintiff's ministerial office. One of those officers was Major Payne.
March 2019
Mr Lehrmann mishandles classified document
On Tuesday 19 March 2019 Mr Lehrmann left a 'top secret‑codeword classified document' uncovered and unattended on a desk in the plaintiff's ministerial suite. The presence of the document was drawn to the attention of Defence Liaison Officer Major Payne, who secured it and prepared a security incident report on 20 March 2019.[71] The document concerned a different government agency and, as the plaintiff put it, the document had 'no business being in [Mr Lehrmann's] possession and certainly had no business being in my office'.[72]
[71] Exhibit 23.
[72] ts 189.
The plaintiff and Ms Brown agreed to report the security incident and refer Mr Lehrmann to the security vetting agency so the agency could do a review of his security clearance.[73] The plaintiff and Ms Brown resolved that Mr Lehrmann's employment should be terminated.[74]
The circumstances of the rape
[73] ts 189 - 190.
[74] ts 196.
On the evening of Friday 22 March 2019 Mr Lehrmann and the defendant were out drinking with colleagues. At approximately 1.50 am on Saturday morning Mr Lehrmann and the defendant arrived at Parliament House and were permitted to enter the plaintiff's ministerial suite. CCTV recorded their interaction with security officers at the security check point through which they entered the ministerial wing of Parliament House. The Parliamentary Security Service (a division of the Department of Parliamentary Services) prepared an account of their observations. This took the form of a Department of Parliamentary Services report dated 27 March 2019 (the DPS report). I have reproduced the report in full when setting out what occurred on 27 March 2019, being the date on which it was provided to the plaintiff and Ms Brown. As recorded in my introduction, while together in the plaintiff's office, Mr Lehrmann raped the defendant.
Ms Brown meets Mr Lehrmann to discuss working arrangements
At about 11.00 am on Tuesday 26 March 2019, Ms Brown met with Mr Lehrmann to discuss his working arrangements. Mr Lehrmann told Ms Brown in effect he had completed all his outstanding work and Ms Brown informed him she and the plaintiff were agreeable to him not coming into the office but he should remain available in accordance with the guidelines that applied to those who were working out their deferral period. Mr Lehrmann agreed though said he would like to come in to see the plaintiff the following day. Ms Brown suggested Mr Lehrmann make an appointment for the following week because the next day was a busy one for the plaintiff.[75]
Ms Barons informs Ms Brown of security incident
[75] Exhibit 1560 [32] ‑ [35]; exhibit 28.
At about 11.30 am, after she had met with Mr Lehrmann, Ms Brown received a telephone call from Ms Lauren Barons, the Assistant Secretary, Advice and Support Branch of Ministerial and Parliamentary Services. Ms Brown's note of that conversation was as follows:[76]
At approx. 11.45am I received a call from Lauren Barons who told me she had something sensitive to raise. Lauren told me that 2 staffers had entered through a security checkpoint during the early hours of Saturday morning intoxicated, she told me their names were Bruce Lehrmann and Brittany Higgins. Lauren said Bruce left the office about 230am, a security guard went to check the office some time later to ensure it was secured and found Brittany naked and passed out. She was offered an ambulance and medical assistance which she declined. She said Brittany left the building at approx. 10am on Saturday. Lauren took me though the protocols and procedures which I needed to follow and advised that DPS were preparing a report.
Lauren advised that this was a [work health and safety], duty of care, office was inappropriately accessed and to give each of them the option to explain what happened; breach of ministerial staff code of conduct and would have to be referred to PMO because of that; offer [Employee Assistance Program]; put the facts, give time to respond, offer to work from home. The point of difference for Bruce was, he wasn't renewing his contract and I had already spoken to him about not coming into the office from tomorrow unless asked.
[76] Exhibit 28. (No spelling or typographical corrections have been made to the documents reproduced in this judgment)
27 January 2022 tweet
[973] Defendant's submissions 2 July 2025 [11] - [15].
[974] Defendant's closing submissions [506] - [554].
[975] Defendant's closing submissions [555] - [587].
[976] Defendant's submissions 2 July 2025 [18] - [19].
[977] Defendant's closing submissions [588] - [617].
[978] Defendant's closing submissions [620] - [627].
[979] Defendant's closing submissions [628] - [629].
[980] Defendant's closing submissions [630] - [633].
The following observations guide my assessment of damages in respect of the 27 January 2022 tweet.
First, the hurt and distress suffered by the plaintiff in 2021 flowing from the defendant 'weaponising her story' were not caused by the publication of the 27 January 2022 tweet. The plaintiff cannot be compensated for that hurt and distress by damages awarded for the 27 January 2022 tweet.
Second, the issue of whether damage to the plaintiff's reputation was 'baked in' by 27 January 2022 and, if so, to what extent, is complex. The defendant's contention that the plaintiff's reputation had been damaged in 2021 to such an extent that any entitlement to damages for the defamatory publications was minimal overstated the position. As noted earlier, the defendant framed her contention that the damage to the plaintiff's reputation was 'baked in' as a causation issue. Given the abstract nature of 'reputation', in defamation the line between causation and mitigation of damage may sometimes be difficult to draw. In my view, and in the context of the facts of this case, the issue raised by the defendant is more properly analysed as one of mitigation. In this respect the following observations may be made. First, and as a qualification for the three observations that follow, it is axiomatic that the assessment process involves an evaluation that is necessarily imprecise and based on impression. Second, while the defendant did not call witnesses to speak to the plaintiff's reputation for the purpose of establishing the contention she had a 'baked in' bad reputation, it would be unrealistic to proceed on the basis that the plaintiff's reputation was left undamaged by the combination of: the opprobrium generated by Ms Maiden's article, The Project interview and the criticism in Parliament and the public arena; the lying cow remark; Mr Morrison's reprimand of the plaintiff for the lying cow remark; the settlement of the defendant's defamation claim over the lying cow remark; and the loss of the defence ministry portfolio. Third, not only would it be unrealistic to ignore the effect of those matters on the plaintiff's reputation but the statutory imperative of ensuring that there is an appropriate and rational relationship between the harm sustained by the plaintiff and the amount of damages awarded requires them to be taken into account. Fourth, my impression is those matters combined to damage the plaintiff's reputation to an extent which went beyond 'a cloud of suspicion' but not to the point where it could be said the plaintiff had a settled bad reputation as a political figure (this being the relevant sector of the plaintiff's life). It must be remembered the plaintiff continued to enjoy Mr Morrison's confidence and that she served as a cabinet minister until May 2022. In the absence of direct evidence of damage to the plaintiff's reputation before the defamatory publications it would also be wrong to proceed on the basis that there was a universal and accepted view the plaintiff had a settled bad reputation. Those who supported the defendant are likely to have held one (negative) view and those who supported the plaintiff are likely to have held another (more positive) view.
Third, my intuitive view is that the tweet is unlikely to have had any effect on the way in which a reader of it would have regarded the plaintiff. Echoing the comments made above, for those who admired and supported the defendant it may well have confirmed or entrenched negative views of the plaintiff. For existing supporters of the plaintiff, it is unlikely to have had any effect on their views of her. Those readers who fell within neither of these camps would have read the tweet with indifference. There was no evidence the 27 January 2022 tweet caused any actual damage to the plaintiff's reputation.
Fourth, by January 2022 the plaintiff was aware the defendant and Mr Sharaz were, as she put it in her evidence, 'watching her' and, as she perceived it took advantage of 'a gratuitous opportunity to keep spreading and saying things … which were not true … It was reminding people of what Brittany had said'. Two things may be said. First, the plaintiff's analysis was correct. The defendant and Mr Sharaz were obviously monitoring the plaintiff's website and, in that sense, they were 'watching' her. The defendant and Mr Sharaz took advantage of the plaintiff's 'Empowering women' story to discredit her in a manner that was quite gratuitous. In effect, the publication of the tweet was actuated by malice. Second, the purpose of the tweet was to remind people of the defendant's untrue allegation the plaintiff had pressured the defendant not to proceed with a complaint to the police. I accept features of the tweet and the circumstances in which it was made aggravated the feelings of anger, depression and frustration described by the plaintiff in her evidence.
Fifth, the plaintiff knew the defendant had weaponised her story and a vital part of the story was the false allegation the plaintiff had covered up the rape allegation. The tweet perpetuated the allegation of a cover up and signalled to the plaintiff the defendant's continued intention to attack her. This was a significant aggravation of the hurt and distress felt by the plaintiff.
Sixth, and related to the fourth observation, the harm caused to the plaintiff by the tweet lay in the plaintiff's sense of frustration, anger and helplessness in the face of a continuation of the attacks on her made by the defendant. It is likely the reaction the tweet provoked in the plaintiff contributed to, and exacerbated, her mental health difficulties. I am not satisfied the evidence can sustain a finding the plaintiff's heart condition was exacerbated by the tweet.
Seventh, the defendant was the complainant in a forthcoming rape trial. It was not possible for the plaintiff to respond publicly to the allegations made in the tweet because to do so would have involved the plaintiff impugning the defendant's credibility in the public arena. In the circumstances in which she found herself in January 2022 the plaintiff's position as a political figure was of no assistance in addressing the defendant's allegations.
Eighth, of the two imputations conveyed by the tweet, the imputation the plaintiff pressured the defendant not to pursue a complaint to the police was the most serious. The plaintiff was a Cabinet minister and a Senator. The plaintiff's success in these roles depended on her demonstrating honesty, integrity and judgment. The imputation that the plaintiff pressured an alleged rape victim not to pursue a complaint to the police was a direct attack on her integrity and judgment and cast a shadow over her honesty. That is a matter which emphasises that the damages awarded must be such as to signal to the public the vindication of the plaintiff's reputation. The imputation of hypocrisy was defamatory but in the context of the rough and tumble of political life it was of a much lower order of seriousness.
Ninth, engagement with the tweet was relatively modest (175 re‑tweets, 621 likes and 68 comments with the defendant's reply receiving 890 likes, 43 replies and 88 retweets) and the tweet was deleted. Neither the tweet nor the defendant's reply formed part of a mainstream media story.
Tenth, the defendant's social media posts published after the commencement of proceedings were calculated to discredit the plaintiff. In particular, the sentence in the French Resistance Instagram Story, 'You don't scare me anymore and I won't be bullied' and the caption in the Mediation Instagram story, 'I won't stay silent so you can stay comfortable', were variations on the theme that the plaintiff pressured the defendant into not pursuing the police complaint. They perpetuated the imputation conveyed by the 27 January 2022 tweet. By making these social media posts the defendant was deliberately rubbing salt into the wound created by the tweet.
Eleventh, the defendant and Mr Sharaz are joint tortfeasors in respect of the publication of the 27 January 2022 tweet. There is no basis in principle for reducing the amount awarded against the defendant on the basis that Mr Sharaz is also liable for the same amount.
Synthesising the observations made in the preceding paragraphs in my judgment, in respect of the 27 January 2022 tweet the plaintiff is entitled to an award of damages, including aggravated damages, in an amount of $135,000.
4 July 2023 Instagram story
The following observations, several of which adopt or reflect the observations made in respect of the 27 January 2022 tweet, guide my assessment of damages in respect of the 4 July 2023 Instagram story.
First, the hurt and distress suffered by the plaintiff in 2021 flowing from the defendant 'weaponising her story' were not caused by the publication of the 4 July 2023 Instagram story and the plaintiff cannot be compensated for that hurt and distress by damages awarded for the 4 July 2023 Instagram story.
Second, the issue of whether the plaintiff's reputation had been damaged by 4 July 2023 by other matters and, if so, to what extent, raised similar issues to those raised by the defendant in respect of the 27 January 2022 tweet but the factual background had changed. As recounted by the plaintiff to Ms Jones on 7 October 2022 she had suffered the embarrassment of being excluded from photographs at a charity event because of her involvement 'in the case'. The criminal trial had taken place. The plaintiff had been the subject of hostile cross‑examination by Mr Drumgold. The criticisms of her conduct advanced in cross‑examination had been reported widely in the mainstream media. The defendant's civil claim had been settled, and the fact of the settlement and the amount of the settlement were likely to be viewed as validating the allegations made by the defendant about the plaintiff and Ms Brown. On the other hand, the plaintiff had taken steps to defend her conduct and her reputation in the public arena. She had disclosed materials to Ms Albrechtsen that resulted in the articles in The Australian in December 2022 and she had participated in an interview with Ms Albrechtsen in February 2023 which had resulted in further articles in The Australian. These articles were more favourable to the plaintiff than much of the earlier media coverage. The plaintiff had given evidence to the Sofronoff Inquiry. She had expressed her view that the settlement between the Commonwealth and the defendant should be referred to the National Anti‑Corruption Commission and made that referral herself. There was no evidence of the effect of these matters on the plaintiff's reputation and it is very difficult to make an assessment that is any more precise than a broad impression. Parenthetically, although ultimately I attach little significance to it, the plaintiff's pleading in her Federal Court proceedings implicitly recognised the defendant's settlement with the Commonwealth damaged her reputation.
My impression is that the hostile cross‑examination at the criminal trial combined with the way in which the settlement between the Commonwealth and the defendant is likely to have been viewed as validating the defendant's allegations, damaged the plaintiff's reputation. The damage caused by the cross‑examination and the settlement is likely to have been partially mitigated by The Australian articles and interview. I do not accept, however, that the damage to the plaintiff's reputation had been 'baked in' to the extent to which any damages awarded in her favour should be minimal.
Third, and largely for the same reasons I considered it unlikely the 27 January 2022 tweet caused any actual damage to the plaintiff's reputation, I think it unlikely the 4 July 2023 Instagram story caused any actual damage to the plaintiff's reputation. Once again, there was no evidence the 4 July 2023 Instagram story caused any actual damage to the plaintiff's reputation.
Fourth, as with the 27 January 2022 tweet, the real harm to the plaintiff caused by the 4 July 2023 Instagram story lay in the feelings of despair and personal distress it caused and in the exacerbation of the plaintiff's anxiety. The metaphor of the fairground punching clown being constantly knocked down and having to get up to be knocked down again was a powerful expression of the distress suffered by the plaintiff and her sense of helplessness.
Fifth, and related to the fourth observation, the 4 July 2023 Instagram story signalled to the plaintiff that the defendant harboured a continuing intention to attack the plaintiff and to attempt to discredit her. It is implicit in the plaintiff's description of being constantly knocked down by the defendant's attacks that she viewed the 4 July 2023 Instagram story as an extension of the defendant 'weaponising' her story and that she despaired because she could see no end to it.
Sixth, the imputations conveyed by the 4 July 2023 Instagram story were serious and directly attacked the plaintiff's honesty, integrity and judgment. The campaign of harassment and questionable conduct imputations were more serious than the alternative imputation of mishandling the rape allegation, though that involved a serious slur on the plaintiff's judgment.
Seventh, there was a very high level of engagement with the 4 July 2023 Instagram story and, as the defendant knew it would be, it was widely republished in the mainstream media. Having regard to the extent of the publication and republication, the 4 July 2023 Instagram story had the effect of a mass media publication.
Eighth, the combination of (i) the posting of the story to the defendant's Advocacy reel so it was available for so long as the defendant wanted it to be available (ii) the publications of the 12 September and 6 October 2023 Instagram stories, the French Resistance Instagram story, the Mediation Instagram story, the 9 and 22 July 2024 statements and the How Many More Women Instagram story and (iii) the failure to apologise amounted to a continued assertion of the truth of the imputations. Both individually and collectively they are matters that rubbed salt into the plaintiff's wounds.
Ninth, I accept that as a political figure the plaintiff was in a position to defend herself publicly and, to a degree, did so in the Spotlight interview.
Tenth, I do not accept that the settlements achieved by the plaintiff in respect of Mr Patrick's book, the Australian Capital Territory and Independent Australia afford the defendant any mitigation. Before turning to the settlements themselves a preliminary observation must be made. The effect of s 38(1)(c) of the Defamation Act is that it is a gateway to the admission of evidence that a plaintiff has recovered damages for defamation in relation to any other publication having the same meaning and effect as the defamatory matter. The extent to which the recovery of damages for the earlier publication is mitigatory is a matter for evaluation by the trial judge.[981] Where the same meaning is conveyed by different publications made at or about the same time to the same or similar audiences, recovery of damages in respect of one publication is a more powerful mitigatory factor than the recovery of damages in respect of a publication made to a different audience, in a different context, at a different time. The comparative reach of the publications, including by republication, will also be relevant to the evaluation as will the existence or absence of defamatory imputations in addition to the imputation which is common to the publication the subject of the action and the earlier publications.
[981] Carson v John Fairfax & Sons Ltd (100).
I do not accept the imputation that the plaintiff was callously insensitive, which is the imputation the plaintiff maintained was conveyed by the passage in Mr Patrick's book concerning the 1 April 2019 meeting, is an imputation to the same meaning or effect as the imputation the plaintiff mishandled the defendant's rape allegation. The imputation of callous insensitivity conveys a specific and distinct sting not conveyed by the mishandled the rape allegation imputation.
I do not accept the imputation that the plaintiff had dishonestly sought information about evidence led at trial in order to commit perjury, which the plaintiff maintained was conveyed in Mr Drumgold's letter of 1 November 2022 to the AFP, was an imputation to the same meaning and effect as the imputation that the plaintiff had engaged in questionable conduct during the criminal trial of Mr Lehrmann. The imputation the plaintiff had dishonestly sought information about evidence led at trial in order to commit perjury was not an imputation to the same meaning and effect as the imputation that the plaintiff had engaged in questionable conduct during the criminal trial of Mr Lehrmann. An imputation that the plaintiff had sought information in order to commit a criminal offence is significantly more serious than an imputation of questionable conduct. The two imputations cannot be equated.
Similarly, I do not accept the imputation conveyed by the Independent Australia article that the plaintiff interfered with the trial of criminal proceedings against Mr Lehrmann by providing 'key information' to Mr Lehrmann's lawyers had the same meaning and effect as the imputation the plaintiff engaged in questionable conduct during the criminal trial. The imputation conveyed by the Independent Australia article asserted a specific and distinct sting whereas the imputation of questionable conduct was an imputation of a more general nature.
Had I held that Mr Patrick's publication conveyed the same meaning as was conveyed by the 4 July 2023 Instagram story the fact the publications were to different audiences in different contexts and were separated by a significant elapse of time would have led me to conclude that the recovery of damages from Mr Patrick was of no mitigatory significance. In the case of Mr Drumgold's letter to the AFP republished in The Guardian, the elapse of time between the two publications would have led me to the same conclusion. The elapse of time between the Independent Australia article and the 4 July 2023 Instagram story and the fact the Independent Australia article conveyed four imputations, only one of which could arguably have the same meaning as the questionable conduct imputation would lead me also to conclude that its mitigatory significance was minimal.
Synthesising the observations made in the preceding paragraphs, in my judgment in respect of the 4 July 2023 Instagram story the plaintiff is entitled to an award of damages, including aggravated damages, in an amount of $180,000.
Part H - Conspiracy Claim
The pleaded case and the defence
The plaintiff pleaded it is to be inferred from the conduct particularised by her at length that the defendant and Mr Sharaz agreed on a common design for the sole or dominant purpose of causing injury to the plaintiff.[982] There is a substantial overlap between the conduct relied on by the plaintiff as giving rise to an inference there was an agreement or common design between the defendant and Mr Sharaz and the conduct undertaken in the execution of the agreement or design. The conduct was primarily constituted by the steps taken by the defendant and Mr Sharaz in January and early February 2021: the disclosure of the defendant's story to the media, the briefing of politicians and the renewal of her police complaint.
[982] Statement of Claim [22A] - [22F].
The plaintiff pleaded she has suffered loss and damage by reason of the conspiracy. All the losses claimed by the plaintiff were medical expenses incurred between 2 March 2021 and 16 June 2024. The total claimed was $4,304 though the plaintiff also advanced claims for aggravated and exemplary damages.
The defendant denied the existence of an agreement or common design and denied the existence of an intention to injure the plaintiff. In further answer to the plaintiff's claim the defendant contended the loss claimed by the plaintiff was not loss of the kind required for the tort of conspiracy and that, in essence, the plaintiff's claim was a claim for damages for personal injury which was statute‑barred by the operation of s 14(1) of the Limitation Act 2005 (WA).[983]
Relevant legal principles
[983] Defence [22A] - [22G].
The elements of lawful means conspiracy are:[984]
(a)a combination, understanding or agreement between two or more individuals;
(b)where the defendants' sole or predominant intention is to injure the plaintiff;
(c)pursuant to which combination or agreement and with that intention certain acts were carried out;
(d)resulting in loss and damage to the plaintiff.
[984] McKernan v Fraser [1931] HCA 54; (1931) 46 CLR 343, 362 (Dixon J), 380 (Evatt J); Williams v Hursey [1959] HCA 51; (1959) 103 CLR 30, 108 (Taylor J), 121 ‑ 123 (Menzies J) ; Uber Australia Pty Ltd v Andrianakis [2020] VSCA 186; (2020) 61 VR 580 [31]; CC Containers & Ors v Lee & Ors [2011] VSC 537 [12]; Ballard v Multiplex [2012] NSWSC 426 [65] - [66].
Conspiracy has been described as one of the economic torts.[985] It protects the economic or commercial interests of plaintiffs.[986]
Disposition
[985] JSC BTA Bank v Khrapunov [2018] UKSC 19 [6].
[986] Perre v Apand Pty Ltd [1999] HCA 36; (1999) 198 CLR 180 [178] (Gummow J).
For the reasons given earlier I have found the defendant and Mr Sharaz were parties to an understanding as to how the defendant's story would be disclosed publicly and that they acted in accordance with that understanding. But as I have also found causing injury to the plaintiff was not the sole or predominant intention of the defendant and thus was not capable of amounting to the sole or predominant intention common to the defendant and Mr Sharaz. In the light of these factual findings the plaintiff's conspiracy claim must fail.
The quantum of the plaintiff's pecuniary loss was at best $4,304.[987] This is an amount within the Minor Case Claim jurisdiction of the Magistrates Court. The conclusion that the conspiracy claim was added for forensic reasons rather than for any realistic prospect of delivering meaningful compensation to the plaintiff is irresistible. Against that background I will not extend this lengthy judgment any further by addressing the defendant's contentions that the loss claimed by the plaintiff is not recoverable as damages for the tort of conspiracy (though I think there is considerable force in that argument) or the defendant's limitation defence.
[987] There is no evidence supporting some of the expenses claimed by the plaintiff, specifically, there is no evidence explaining the nature of the treatment provided by Dr Akram, Dr Grew, Dr Nagappan, Dr Pahtsivanidis and Dr Civil. The expenses claimed in respect of these practitioners amounted to $566 thus reducing the claim to $3,738.41.
Part I - Breach of Contract Claim
The pleaded case and the defence
The pleaded case is very straightforward. The plaintiff pleaded cl 10 of the deed of settlement of 12 March 2021, and alleged the publication of the 4 July 2023 Instagram story constituted a breach of that provision.[988] The plaintiff pleaded she had a reasonable apprehension that the defendant would breach the provision again in the future.[989] She pleaded the apprehension was based on the fact the defendant had published further disparaging posts about the plaintiff being the 20 July 2023 tweets, the 20 July 2023 Instagram story, the 20 July 2023 Threads posts, the 12 September 2023 Instagram story, the 6 October 2023 Instagram story, the French Resistance Instagram story, and the Mediation Instagram story.
[988] Statement of Claim [19] - [20].
[989] Statement of Claim [21].
The plaintiff sought a declaration that the publication of the 4 July 2023 Instagram story constituted a breach of the deed of settlement and an injunction restraining further breaches.[990]
[990] Statement of Claim [24].
The defendant did not put in issue the construction of cl 10 of the deed of settlement. She did not admit the alleged breach and denied the plaintiff had a reasonable apprehension that she would breach cl 10 of the deed in the future.[991]
Disposition
[991] Defence [20] and [21].
For ease of reference the text of cl 10 is set out below:
Other than to comply with any applicable law, or any requirement of a regulatory body or relevant authority, the Parties agree not to make any adverse, critical or disparaging statements, allegations or comments (whether expressly or by inference) with respect to the conduct of any other Party in any professional or personal capacity, in any way related to the Dispute, the Matter Complained Of or any of the facts and circumstances outlined in the Recitals.
The clause is somewhat tautologous as the 'Dispute' is defined as the dispute 'relating to, or arising out of, the "Matter Complained Of" and any facts and circumstances outlined in the Recitals'. The 'Matter Complained Of' is the making of the lying cow statement and the facts and circumstances outlined in the Recitals are the making of the lying cow statement, the service of a concerns notice and the agreement to resolve the Dispute 'without admissions'.
Statements caught by the operation of cl 10 are not restricted to disparaging statements. The clause extends to any adverse or critical statements on the subject matter identified by the clause, that is, any statement 'in any way related to the Dispute'. The clause does not incorporate an exclusion for adverse or critical statements that may be true. The clause was clearly intended to prevent the parties from making any statements that revisited the controversy resolved by the deed of settlement.
The only comment within the 4 July 2023 Instagram story that is in any way related to the Dispute is the comment 'my former boss … who has had to publicly apologise after defaming me in the workplace'. The defendant contended the statement summarised the circumstances surrounding the making of the apology. She contended it was a factual statement and that a statement of the truth is not disparaging.[992]
[992] Defendant's closing submissions [685].
I do not accept the defendant's contention for two reasons. First, the operation of cl 10 is not limited to disparaging statements. As I have noted, it extends to any adverse or critical statements. Self‑evidently, the statement about the apology and its circumstances is both adverse to the plaintiff and critical of her. It was clearly intended to be so. Second, the dictionary definitions of 'disparage' are 'to bring reproach or discredit upon, lower the estimation of' and 'to speak of or treat slightly; depreciate; belittle'.[993] The tenor of the defendant's statement was one of a reproach directed to the plaintiff. The reproach reflected that saying a person has defamed another generally amounts to a criticism of the defamer. The defendant did not merely say the plaintiff defamed her but referred to the aggravating factors that the plaintiff was 'my former boss' and the defamation took place 'in the workplace'.
[993] Macquarie Dictionary (online at 24 August 2025).
In my judgment the comment was plainly disparaging. It is precisely the kind of comment that cl 10 was intended to prevent. I do not accept the comment is a statement of the truth. While it is true the plaintiff apologised publicly to the defendant, neither in the apology nor in the deed of settlement did the plaintiff admit defaming the defendant. Rather the settlement was made on a 'no admissions' basis and the apology made pursuant to the terms of the deed (and the earlier apology of 5 March 2021) were consistent with the plaintiff's 'no admissions' position. The plaintiff did not in fact apologise for defaming the defendant.
None of the defendant's social media posts relied on by the plaintiff to establish a reasonable apprehension that the defendant will breach cl 10 of the settlement deed in the future in any way related to the Dispute, the Matter Complained Of or any of the facts and circumstances outlined in the Recitals. The subsequent social media posts are not a sufficient foundation for a reasonable apprehension the defendant will breach cl 10 in the future.
The plaintiff is entitled to a declaration that the statement 'my former boss … who has had to publicly apologise after defaming me in the workplace' published in the 4 July 2023 Instagram story was a breach by the defendant of cl 10 of the deed entered into by the plaintiff and the defendant on 12 March 2021.
I am not satisfied of the existence of a sufficient risk of a further breach of cl 10 of the deed as would justify the grant of injunctive relief.
Interest, costs and orders
I will hear from the parties as to interest, costs and the terms of the final orders.
I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia.
CD
Associate to the Honourable Justice Tottle
27 AUGUST 2025
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