Reynolds v Sharaz [No 2]
[2025] WASC 388
•18 SEPTEMBER 2025
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CHAMBERS
CITATION: REYNOLDS -v- SHARAZ [No 2] [2025] WASC 388
CORAM: TOTTLE J
HEARD: ON THE PAPERS
DELIVERED : 18 SEPTEMBER 2025
FILE NO/S: CIV 1051 of 2023
BETWEEN: LINDA KAREN REYNOLDS
Plaintiff
AND
DAVID SHARAZ
Defendant
Catchwords:
Defamation - Assessment of damages following judgment on liability entered by consent - Turns on own facts
Defamation - Costs - Defamation Act 2005 (WA) s 40 - Application for indemnity costs - No settlement offer - Whether defendant's failure to make a settlement offer was unreasonable - Turns on own facts
Legislation:
Defamation Act 2005 (WA)
Result:
Judgment for the plaintiff
Defendant to pay the plaintiff's costs on an indemnity basis
Category: B
Representation:
Counsel:
| Plaintiff | : | No appearance |
| Defendant | : | No appearance |
Solicitors:
| Plaintiff | : | Bennett |
| Defendant | : | In person |
Cases referred to in decision:
Associated Newspapers v Dingle [1964] AC 371
Carson v John Fairfax and Sons Ltd (1993) 178 CLR 44
Reynolds v Higgins [2025] WASC 345
TOTTLE J:
Introduction
In this defamation action judgment in favour of the plaintiff was entered by consent on 24 May 2024. An injunction was granted restraining the defendant from publishing the same or similar words as those contained in five social media publications described in more detail later. An order was made that damages would be assessed in conjunction with or after the trial of the plaintiff's claims against Ms Brittany Higgins in the proceedings in this court numbered CIV 1840 of 2023. The defendant was ordered to pay interest on any damages at the rate of 3% per annum from the date on which damage was incurred until judgment or payment. The defendant was ordered to pay the plaintiff's costs of the action and the plaintiff was granted liberty to make an application for a special costs order by 4 June 2024. An application for a special costs order was made on 4 June 2024. On 2 September 2024 I made an order that the evidence in CIV 1840 of 2023 stand as evidence in this action.
The facts and principles relating to the assessment of damages are set out in detail in the judgment in the plaintiff's action against Ms Higgins and are taken to be incorporated in this judgment.[1] I will adopt the definitions used in that judgment.
[1] Reynolds v Higgins [2025] WASC 345.
On 9 September 2025 the defendant filed and served submissions in relation to the assessment of damages and costs.
27 January 2022 tweet
The 27 January 2022 tweet was as follows:
As I found in the judgment in the plaintiff's action against Ms Higgins, Ms Higgins and the defendant were joint tortfeasors in respect of the 27 January 2022 tweet. The defendant accepts that he and Ms Higgins are jointly and severally liable for the damages assessed in CIV 1840 of 2023, that is for the sum of $135,000. The practical consequence of joint and several liability is the plaintiff can recover the whole amount from either the defendant or from Ms Higgins but she cannot recover more than $135,000 in total.
1 April 2022 tweet and 1 April 2022 Instagram story
The 1 April 2022 tweet was as follows:
When the action against the defendant was commenced the 1 April 2022 tweet could be viewed on his twitter account. The engagement with the tweet consisted of 64 re-tweets, 565 likes, three quotes and eight comments. The defendant's twitter account had approximately 16,700 followers.
The 1 April 2022 Instagram story was as follows:
There was no evidence of the engagement with the 1 April 2022 Instagram story beyond the fact the defendant's Instagram account was followed by 730 other accounts.
The imputation conveyed by the 1 April 2022 tweet and the 1 April 2022 Instagram story was that by reason of her treatment of Ms Higgins the plaintiff was not a fit and proper person to hold a position of Government Minister.[2]
[2] Statement of Claim [20].
In support of a claim for aggravated damages the plaintiff relied on the same matters as she relied on in respect of the 27 January 2022 tweet.
There is no evidence the 1 April 2022 tweet or the 1 April 2022 Instagram story caused actual damage to the plaintiff's reputation. The harm caused by these publications lay in the distress caused to the plaintiff not only by the publications themselves but by the ongoing nature of the attacks on her made by the defendant and Ms Higgins about the events of March and April 2019. The comment 'I'm aghast that despite everything you put a staffer through you're still a minister' was entirely gratuitous in the sense that it did not relate to the subject matter of the plaintiff's tweet. That the plaintiff was 'a bit creeped out' by the 'Linda, I see you' statement in the Instagram story was entirely understandable. It was a statement calculated to create a sense of unease and anxiety on the part of the plaintiff. It is a statement with intimidatory overtones. It was a sentiment repeated with a slight variation in a social media post published by the defendant on 3 December 2022. It is a seriously aggravating feature of the Instagram story.
The defendant contended that there was a substantial overlap between the imputation conveyed by the 1 April 2022 tweet and the 1 April 2022 Instagram story and the imputations conveyed by the 4 July 2023 Instagram story sued on by the plaintiff in CIV 1840 of 2023. He contended the plaintiff had already been compensated for 'her feelings hurt' by the imputations conveyed by the 4 July 2023 story and that was a factor relevant to the assessment of the damages to which the plaintiff was entitled in respect of the publications made by him. The contention has no merit. The 1 April 2022 tweet and 1 April 2022 Instagram story were published some 15 months before the 4 July 2023 Instagram story. The injury for which the plaintiff is entitled to compensation from the defendant was suffered by her on the publication of the defamatory statements made by him in April 2022. That the plaintiff suffered a later injury for which she was awarded damages is not relevant to the assessment of the damage suffered by her because of the defendant's earlier publication. A publisher must answer for the effect of their own publication without reference to the damage done by others.[3] In Carson v John Fairfax and Sons Ltd, McHugh J observed:[4]
The common law is clear, rightly or wrongly, [a] defendant cannot mitigate damages by tendering evidence of other defamatory publications concerning the plaintiff. A fortiori, at common law evidence is not admissible that the plaintiff has recovered damages in respect of other defamatory publications. A defendant must answer for the effect of its own circulation without regard to what others have published. (citations omitted and italics supplied)
[3] Associated Newspapers v Dingle [1964] AC 371, 411; Carson v John Fairfax and Sons Ltd (1993) 178 CLR 44, 99.
[4] Carson v John Fairfax and Sons Ltd (99).
Given the 1 April 2022 tweet and the 1 April 2022 Instagram story were published on the same day and conveyed the same meaning it is appropriate to assess damages in a single sum. I consider an award of damages including aggravated damages of $30,000 is appropriate.
3 December 2022 Facebook comment
For ease of reference the 3 December 2022 Facebook comment is reproduced below:
The imputations conveyed by the 3 December 2022 Facebook comment were:[5]
(a)by reason of her treatment of Ms Higgins, the plaintiff was not a fit and proper person to hold a position of Government Minister;
(b)the plaintiff's conduct in dealing with Ms Higgins was morally reprehensible;
(c)the plaintiff's treatment of Ms Higgins was criminal.
[5] Statement of Claim [21].
Engagement with the 3 December 2022 Facebook comment (which was posted on the plaintiff's Facebook page) was limited to one 'like' though the plaintiff's Facebook account had 19,000 followers. I infer the comment was read by members of the public who followed the plaintiff's Facebook account.
The defendant advanced the same 'overlap' contention in relation to the 3 December 2022 Facebook comment as he had advanced in relation to the 1 April 2022 tweet and 1 April 2022 Instagram story. I reject the contention for the reasons already given.
The defendant also contended that the imputation that the plaintiff's conduct in dealing with Ms Higgins was morally reprehensible was the same as the imputation the plaintiff was callously insensitive in her handling of Ms Higgins' rape allegation which was one of the imputations on which the plaintiff relied in her action against Harper Collins and Mr Aaron Patrick and compensation received by the plaintiff from Harper Collins should be taken into account in mitigation. I do not accept the imputations bear the same meaning or effect. Further, the 3 December 2022 Facebook comment and Mr Patrick's book were published to different audiences, at different times and in different contexts. In my view the settlement with Harper Collins carries no mitigatory weight in relation to the 3 December 2022 publication.
There is no evidence of actual damage to the plaintiff's reputation being caused by the 3 December 2022 Facebook comment. As with the other publications the harm caused by the comment lay in the distress it caused to the plaintiff. The plaintiff's evidence was that the comment made her feel sick again and she referred to its 'stalky nature'. This combined with the abusive and vindictive nature of the post aggravate the circumstance of publication. The plaintiff is entitled to an award of damages including aggravated damages of $20,000 in respect of the 3 December 2022 Facebook comment.
4 December 2022 tweet
For ease of reference, the 4 December 2022 tweet is reproduced below:
The imputations conveyed by the tweet were:[6]
(a)the plaintiff bullied and continues to bully Ms Higgins;
(b)the plaintiff interfered with the trial of criminal proceedings against Mr Bruce Lehrmann.
[6] Statement of Claim [19].
The 4 December 2022 tweet received 5,117 'likes', 342 comments and 1,226 re‑tweets. It was republished in the mainstream media and generated articles in news.com.au, The Daily Mail (two articles) and crikey.com.au.
The 4 December 2022 tweet tagged the plaintiff's twitter account. This was a means by which the defendant could ensure the tweet was seen by the plaintiff.
Once again, the harm caused by the tweet lay not in any actual damage to the plaintiff's reputation but in its distressing effect on the plaintiff. The plaintiff did not give evidence that addressed the 4 December 2022 tweet specifically. On the basis of her evidence about the effect of the social media publications of both the defendant and Ms Higgins generally, I infer the plaintiff would have seen the 4 December 2022 tweet as a continuation of a campaign against her and that it caused her distress and anxiety. The plaintiff's reasonable perception or feeling that the 4 December 2022 tweet was part of a continuing campaign against her is a factor that aggravated the hurt caused by the publication.
In his submissions the defendant invoked the rule against double compensation as it applies to the liability of several concurrent tortfeasors for the same harm and drew attention again to what he contended was the overlap between the imputations conveyed by the 4 December 2022 tweet and the 4 July 2023 Instagram story. The rule against double compensation has no application. The defendant and Ms Higgins were not concurrent tortfeasors liable in respect of the same harm. And, in relation to the overlap contention the reasoning for rejecting the contention in relation to the 1 April 2022 tweet and 1 April 2022 Instagram story is repeated.
The defendant also contended the imputation conveyed by the 4 December 2022 tweet that the plaintiff interfered with the criminal trial of Mr Lehrmann was the same as one of the four imputations conveyed by the story published by Independent Australia on 18 May 2023 for which the plaintiff received compensation of $20,000. Relevantly, the plaintiff alleged the story published by Independent Australia conveyed the imputation that the plaintiff interfered with the trial of the criminal proceedings against Mr Lehrmann by providing 'key information' to Mr Lehrmann's lawyers. Without diminishing the seriousness of the interference with the criminal trial imputation my assessment is the other three imputations were more serious.
The imputation conveyed by the 4 December 2022 tweet that the plaintiff interfered with the criminal trial had the same meaning or effect as the imputation that the plaintiff interfered with the criminal trial conveyed by the Independent Australia publication. The mitigation this affords the defendant is limited however because the Independent Australia publication conveyed three other more serious imputations and there was nearly six months between the publications.
Given the significant level of engagement with the 4 December 2022 tweet and the republications that it generated I would assess the plaintiff's entitlement to damages, including aggravated damages, in the sum of $40,000. I would reduce this sum by $5,000 in recognition of the mitigation afforded by the recovery of compensation from Independent Australia. Thus, the plaintiff is entitled to an award of damages, including aggravated damages, of $35,000.
Costs
By the application filed on 4 June 2024 the plaintiff sought the following orders in the alternative to each other (i) an order requiring the defendant to pay her costs on an indemnity basis; (ii) a special costs order removing the applicable scale limits up to the date of the defendant's consent to judgment; (iii) lump sum costs order in the amount of $490,000.
In support of her application for indemnity costs the plaintiff relied on s 40(2) of the Defamation Act which provides:
(2)Without limiting subsection (1), a court must (unless the interests of justice require otherwise) —
(a)if defamation proceedings are successfully brought by a plaintiff and costs in the proceedings are to be awarded to the plaintiff — order costs of and incidental to the proceedings to be assessed on an indemnity basis if the court is satisfied that the defendant unreasonably failed to make a settlement offer or agree to a settlement offer proposed by the plaintiff; or
(b)if defamation proceedings are unsuccessfully brought by a plaintiff and costs in the proceedings are to be awarded to the defendant — order costs of and incidental to the proceedings to be assessed on an indemnity basis if the court is satisfied that the plaintiff unreasonably failed to accept a settlement offer made by the defendant.
Section 40(3) provides that the term 'settlement offer' in s 40 means any offer to settle the proceedings made before the proceedings are determined and includes an offer to make amends (whether made before or after the proceedings are commenced) that was a reasonable offer at the time it was made.
No offer of settlement was made by the defendant. Therefore, the question raised by s 40(2)(a) is whether I am satisfied the defendant 'unreasonably failed to make a settlement offer'.
I am satisfied the defendant's failure to make a settlement offer was unreasonable. Each of the defamatory publications made by him involved a variation on the theme that the plaintiff pressured or bullied (or in the case of the 3 December 2022 Facebook post 'destroyed') Ms Higgins as part of the cover up alleged by Ms Higgins. The cover up allegation had no basis in fact. The defamatory publications were indefensible. A settlement offer should have been made. At the very least an offer to make an apology should have been made. There was nothing about the defendant's conduct of the proceedings which would otherwise make it unjust to make an indemnity costs order against him.
The defendant contended there should be a proportionate reduction in the costs payable because, in effect, the plaintiff failed to establish the existence of 'the Plan' as pleaded by her. The contention does not reflect the findings made in the judgment in CIV 1840 of 2023 which were to the effect the Plan was established. In CIV 1840 of 2023 the plaintiff's conspiracy case failed because the plaintiff was unable to establish that the sole or predominant motive of the defendant and Ms Higgins was to harm the plaintiff. There are no grounds for a making a proportionate reduction in the costs which the plaintiff is entitled to recover.
The defendant must pay the plaintiff's costs on an indemnity basis.
I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia.
MH
Associate to the Honourable Justice Tottle
18 SEPTEMBER 2025
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