REYNOLDS -v- HIGGINS [2025] WASC 345 (27 August 2025)

2.2.1 Counsel;

2.2.2 Two instructing solicitors;

2.2.3 A restricted practitioner; and

2.2.4 A paralegal.

1. The defendant pay two thirds of the plaintiff's costs of the action, to be assessed if not agreed. 2. The assessment of the plaintiff's costs is to be done on a party‑party basis capped by the Legal Profession (Supreme and District Courts) (Contentious Business) Determination 2022 (WA) and Legal Profession (Supreme and District Courts) (Contentious Business) Determination 2024 (WA) save for as follows in order 3. 3. Pursuant to s 141(3) of the Legal Profession Uniform Law Application Act 2022 (WA):

(a) without regard to the limits imposed in Table B of the Legal Profession (Supreme and District Courts) (Contentious Business) Determination 2024 (WA) with respect to trial preparation (items 19 and 22);
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> (b) on the basis of the maximum allowable hourly rate for Martin Lawrence Bennett be increased only to $781 per hour (inclusive of GST).

1. Under s 15 of the Civil Judgments Enforcement Act 2004 (WA), and until further order, orders 1 to 3 are suspended until the Federal Court proceedings WAD 121 of 2025 are concluded (meaning orders resolving the action have been issued following trial or settlement, and any appeal(s) have concluded or such time for any such appeal or application for special leave has passed). 2. The defendant has liberty to apply to vary these costs orders after the Federal Court proceedings WAD 121 of 2025 are concluded (meaning orders resolving the action have been issued following trial or settlement, and any appeal(s) have concluded or such time for any such appeal or application for special leave has passed).

1. The general principles governing the award of costs in litigation are well‑known and need not be recited. It suffices to say the usual order is that the unsuccessful party pay the successful party's costs to be assessed in accordance with the applicable costs determination. The court's discretion in relation to costs must be exercised judicially.
2. In defamation proceedings the usual basis on which costs are assessed is varied by s 40(2) of the Defamation Act 2005 (WA). This subsection 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.

1. 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.

1. By letter dated 29 July 2024 from her solicitors to the plaintiff's solicitors the defendant made an offer of settlement. The offer was expressed as follows:
   1. The proceedings be dismissed with no orders as to costs.
   2. A confidential payment made to your client in the sum of $200,000.00, comprising a material contribution to her legal costs. The fact of and sum would remain confidential unless there is a publication of incorrect details of the settlement, in which case my client has the right to make clear what the correct details are, of the fact and sum of the payment.
   3. Payment of the settlement sum would be made by my client's parents. The condition sought to be imposed by your client that payment will not be accepted from a third party is unreasonable. Our client's family are gravely concerned about their daughter's well-being for good reasons and your client should be sensitive to that issue too.
   4. A payment made by my client in the sum of $10,000.00 towards a women's charity/ refuge in Queensland or in Perth. My client will borrow this sum too.
   5. My client will agree to the release of a joint statement of mutual regret set out below.

. . .

Mutual Statement

Senator Reynolds and Ms Higgins both appreciate that the current legal proceedings between them have caused significant additional distress and hurt. They have reached a mutually agreed resolution that will end all their disputes on a strictly confidential basis. Ms Higgins has previously apologised to Senator Reynolds and Fiona Brown for their hurt and distress. Senator Reynolds recognises that the disputes have resulted in hurt and distress for Ms Higgins. They both agree to put these matters behind them and move on.

Senator Reynolds acknowledges that Ms Higgins genuinely believed that adequate support had not been provided to her by her employer following the events of 23 March 2019.

Ms Higgins acknowledges that Senator Reynolds was distressed by social media posts in relation to the matter and acknowledges that Senator Reynolds claims she genuinely believed she acted on advice available to her and that she, and her staff (including her Chief of Staff) had provided appropriate support to Ms Higgins.

1. There is no evidence of any other settlement offer made by the defendant.

1. The plaintiff contends the defendant unreasonably failed to make a settlement offer and thus the defendant should pay her costs on an indemnity basis. The plaintiff argues the offer made by the defendant on 29 July 2024 was not a reasonable offer because (i) it was made four days before the trial and was only open for acceptance for three days, (ii) the amount of $200,000 characterised as a contribution towards the plaintiff's costs was inadequate, (iii) no compensation was offered, (iv) the settlement sum was not offered to be paid by the defendant but by her parents and the defendant reserved the right to disclose the fact and sum of payment in the event incorrect details were published with the result, so the plaintiff contended, the defendant would be able to publicly state 'she did not pay a dollar to the plaintiff', (v) the 'mutual statement' proposed by the defendant contained no apology and 'amounted to nothing more than the parties agreeing to disagree', and (vi) the offer was made without admission of liability.
2. The plaintiff also contended the defendant conducted the proceedings unreasonably by maintaining her justification defence, by failing to give proper discovery, by applying unsuccessfully for an adjournment and by publishing the statements on social media that are referred to in the primary judgment in this action.
3. The defendant contends the 29 July 2024 offer was a settlement offer and was a reasonable offer at the time it was made because:

(a) Ms Higgins' offer was for payment of $200,000 and included a $10,000 donation to charity by way of goodwill to the plaintiff;

(b) it is wrong to say it contained no apology. It contained a proposed statement of mutual regret which acknowledged Ms Higgins' previous apology to Senator Reynolds and Fiona Brown, as well as the distress caused to Senator Reynolds by the social media posts. This statement was sincere and acknowledged and was directed to assuaging Senator Reynolds' (and Ms Brown's) hurt feelings;

(c) an important purpose of an apology is to undo the harm to reputation, but as the Court found, there was no evidence of, or an unlikelihood of, actual harm to reputation, which is relevant to assessing reasonableness;

(d) a trauma informed approach should be taken in assessing the content of the apology which Ms Higgins could reasonably be expected to have given. As the Court found, she struggled with the long-term physical and psychological trauma of being raped in the offices of Senator Reynolds in March 2019, and her physical and psychological trauma, and genuinely held beliefs in the aftermath of her rape;

(e) it followed the parties' attempt to resolve the matters at mediation which last concluded on 21 May 2024, and a reasonable period after briefing a Western Australian trial team;

(f) the amount offered, that the payment would be made by Ms Higgins' parents, and that the donation would be borrowed, were reasonable given when the offer was made, Ms Higgins was 29 years old, unemployed, and her Commonwealth payment was held in a protective trust. (footnotes omitted)

1. The defendant contends that even if she did not make an offer that complied with s 40(3) of the Defamation Act she did not unreasonably fail to do so. Further, the defendant contends an indemnity costs order is not in the interests of justice because the plaintiff lost on discrete and severable issues, namely, her claim based on the 20 July 2023 tweets and the conspiracy claim.
2. The defendant contends there was no other basis on which an indemnity costs order could be maintained.
3. Further, the defendant contends there are two significant discretionary matters the court should consider. The first of these is there should be a percentage adjustment in the costs awarded to the plaintiff to reflect the issues on which the plaintiff failed. The second matter is that the plaintiff has claimed the costs of these proceedings as damages in her proceedings in the Federal Court against the Commonwealth and HWL Ebsworth Lawyers and, if the plaintiff succeeds in that claim, she should not be doubly compensated by a costs order in these proceedings. The defendant contends the possibility of overlapping relief constitutes special circumstances under s 15 of the Civil Judgments Enforcement Act 2004 (WA) and a suspension of the costs orders is fair to allow the Federal Court proceedings to resolve and for the court to do what it can to serve the ultimate interests of justice by ensuring there is no overlapping relief.

1. The defendant's 29 July 2024 offer was not a reasonable offer at the time it was made and was thus not a settlement offer within the meaning of s 40(3) of the Defamation Act for the following reasons taken together. First, the offer did not provide the plaintiff with any vindication of her reputation. Second, the 'Mutual Statement' (the statement of mutual regret) fell short of an apology by a substantial margin. The plaintiff's characterisation of it as a statement to the effect the parties have agreed to disagree is accurate. As appears to have been the defendant's intention the mutual statement would have conveyed the defendant maintained the truth of the defamatory statements made by her. The reference to the previous apology accentuated the absence of an apology in the statement itself. Third, and related to the first two points, the reservation of the right to publish a correction in the event of a publication of incorrect details of the settlement would have enabled the defendant to say she had not paid any money to the plaintiff in settlement of the claim. Fourth, there was no offer of compensation. Fifth, the offer was made four days before the day on which the trial was to commence and after the plaintiff had incurred the costs of preparing for trial. As was recognised by the defendant, $200,000 could only have been a contribution to the plaintiff's costs.
2. I am satisfied the defendant's failure to make a settlement offer was unreasonable. It may have been difficult for the defendant to bring herself to consider making a settlement offer to the plaintiff but this does not mean it was not unreasonable for her to have failed to have done so. Although the defendant's 'trial team' were retained only shortly before the trial, the defendant was represented by experienced lawyers from the very first stages of the dispute.
3. That the plaintiff was not successful in all her claims is not a sufficient reason for concluding the interests of justice requires a costs order other than an indemnity costs order, that is an order the defendant pay the plaintiff's costs save to the extent to which the costs were unreasonably incurred or were of an unreasonable amount. In my judgment the interests of justice may be served by a percentage reduction in the plaintiff's costs to reflect that the plaintiff did not establish her claim in relation to the 20 July 2023 tweets and that she did not establish her conspiracy claim. Of these two claims, the costs generated by the conspiracy claim are more significant. I accept there was an overlap between the matters relied on by the plaintiff for her claim for aggravated damages and the conspiracy case.
4. A substantial amount of the evidence was directed to the conspiracy claim and in particular to the harm suffered by the plaintiff in 2021, that is, prior to the making of the defamatory publications. In addition to those parts of the plaintiff's and Mr Reid's evidence that were directed to the effect on the plaintiff of the events of February 2021, the evidence of Dr Di Dio, Senator Ruston, Senator Payne, and much of the evidence of Ms Wawn, Ms Schulze and Ms Patroni was directed to the effect on the plaintiff in 2021 of the events of February 2021, an issue only relevant to the conspiracy case.
5. A precise apportionment is not possible. In my judgment the interests of justice are served by reducing the costs to be awarded in the plaintiff's favour by 20 per cent.
6. The plaintiff's Federal Court proceedings against the Commonwealth and HWL Ebsworth Lawyers and her claim in respect of the costs of this action in those proceedings do not constitute special circumstances justifying a stay of any costs order in the plaintiff's favour nor does reserving the defendant's right to vary the costs orders depending on the outcome of those proceedings. To the extent to which there is any possibility of double recovery by the plaintiff of her costs of this action, that is a matter which can be addressed in the Federal Court.
7. I will make the following order: the defendant pay 80 per cent of the plaintiff's costs of the action save to the extent that the costs were unreasonably incurred or were of an unreasonable amount, such costs to be assessed.

I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia.

[1] Reynolds v Higgins [2025] WASC 345.