Reynolds v Sharaz - [2023] WASC 327

JURISDICTION     :   SUPREME COURT OF WESTERN AUSTRALIA
CITATION:   REYNOLDS -v- SHARAZ [2023] WASC 327
CORAM:   SOLOMON J
HEARD:   24 AUGUST 2023
DELIVERED          :   25 AUGUST 2023
PUBLISHED           :   25 AUGUST 2023
FILE NO/S:   CIV 1051 of 2023
BETWEEN:   LINDA KAREN REYNOLDS
Plaintiff
AND
DAVID SHARAZ
Defendant

Catchwords:

Practice and procedure - Security for costs - Where plaintiff is a natural person - Defamation - Where plaintiff is not impecunious - Whether law of Western Australia is likely to apply - Whether the plaintiff's claim is prima facie weak or disproportionate

Legislation:

Australian Constitution, s 44
Defamation Act 2005 (WA), s 11
Rules of the Supreme Court 1971 (WA), O 25

Result:

Application dismissed

Category: B

Representation:

Counsel:

Plaintiff	:	ML Bennett & CPK Russell
Defendant	:	J Maclaurin SC & Mr J O'Hara

Solicitors:

Plaintiff	:	Bennett
Defendant	:	McNally & Co

Cases referred to in decision:

Bhatia v Gill [2022] WASC 341
Engel Pty ltd (In Liq) v Leeds; Ailakis v Olivero [2013] WASCA 91
Idoport Pty Ltd v National Australia Bank Ltd [2001] NSWSC 744
Mabrouk Minerals Pty ltd v Mabrouk Holdings Ltd [2008] WASC 132
Moran v Schwartz Publishing Pty Ltd [No 2] [2015] WASC 35

SOLOMON J:

These reasons relate to the defendant's application for security for costs.
It is convenient first to provide an overview of the proceeding.
The plaintiff, Senator Reynolds, is a member of the Liberal Party and has been a senator for Western Australia in the Federal Parliament since 2014. Senator Reynolds was a minister in the Coalition Government from 2019 until the federal election in May 2022. Senator Reynolds' claim is reflected in her amended statement of claim filed on 17 August 2023.
Senator Reynolds' claim arises out of circumstances surrounding the alleged rape of a former Parliament House political staffer, Ms Brittany Higgins. The subsequent handling of Ms Higgins' complaint, the aborted trial of the alleged perpetrator, Mr Bruce Lehrmann, and the associated investigations, reports and settlements arising out of that trial have attracted significant media attention. In the most neutral terms, the journey of Ms Higgins' complaint through this nation's various political, legal and social institutions has sustained the public interest for a variety of reasons and for some length of time.
Senator Reynolds has had some involvement in that journey. In her amended statement of claim, Senator Reynolds pleads that the alleged rape took place at Parliament House in Senator Reynolds' ministerial office. The amended statement of claim pleads that Mr Sharaz is, and was at all material times, the de facto partner of Ms Higgins.
Senator Reynolds brings this action against Mr Sharaz alleging defamation in respect of four social media publications (the Publications). The Publications and defamatory imputations said to arise from each publication may be summarised as follows.
First, the statement of claim refers to a tweet authored and posted by Mr Sharaz on 27 January 2022, (27 January tweet) in which Mr Sharaz shared a webpage published by Senator Reynolds entitled 'Empowering…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Reynolds v Sharaz

Details

AGLC: Reynolds v Sharaz [2023] WASC 327
Case: [2023] WASC 327
Decision Date

CaseChat Overview and Summary

In Reynolds v Sharaz, the plaintiff, Senator Linda Karen Reynolds, brought a defamation action against the defendant, David Sharaz, arising from comments he made on social media. The defendant applied for security for costs, arguing that the plaintiff was not impecunious but the litigation's full cost would likely exceed her capacity to pay. The defendant also contended that the applicable law might not be Western Australian law but rather the law of the Australian Capital Territory or another Eastern States jurisdiction, which would impose additional barriers to the prosecution of a defamation claim. The court found that the plaintiff was not impecunious, and her inability to pay the costs which may be awarded against her was not of itself sufficient to warrant an order for the provision of security. The court also noted that the Constitution provided a strong disincentive to Senator Reynolds to avoid the consequences of any failure to pay costs that she may be ordered to pay to Mr Sharaz. The court was not persuaded that the circumstances of this matter warranted departure from the usual course so as to require the provision of security from a plaintiff who is a natural person and far from impecunious. The defendant's application was dismissed. The court urged the parties to explore means of resolving the dispute without the necessity of a trial, acknowledging that the human cost of litigation can be crippling, sometimes insurmountable.

Orders