Lawyers appointed for Linda Reynolds as part of Labor’s multimillion-dollar settlement with Brittany Higgins will be called into the West Australian Supreme Court in a move that raises questions over the law firm’s role in the payout.
The Liberal senator, who this week said she was gagged by Attorney-General Mark Dreyfus while the government settled the claim, has subpoenaed HWL Ebsworth to produce correspondence with Ms Higgins’s lawyers while settling the legal dispute in December 2022.
It comes as Senator Reynolds’s lawyer, Martin Bennett, queried whether the law firm properly fulfilled its “duty” when acting for his client, after lawyers failed to advise her of new claims that Ms Higgins made against Senator Reynolds and neither spoke to Senator Reynolds during mediation nor showed her a copy of the deed of settlement.
The matters have arisen amid Senator Reynolds’s defamation case against Ms Higgins.
The Australian has obtained the subpoena, which requires HWL Ebsworth to produce “all communications between HWL Ebsworth, including any of its employees or staff in their capacity as solicitors with conduct of Senator Linda Reynold’s (sic) defence of the proposed claim brought against Senator Reynolds by Ms Brittany Higgins, and Blumers Personal Injury Lawyers, sent or received in the period 6 December 2022 to 14 December 2022 inclusive”.
The firm must hand up the correspondence by August 21.
Senator Reynolds is suing her former staff member over a series of social media posts that she says portrayed her as having harassed Ms Higgins and mishandled her rape allegation. Ms Higgins is defending the claims.
The Australian at the end of 2022 revealed the Albanese government gagged Senator Reynolds in her defence against Ms Higgins’ $2.4m dollar lawsuit, threatening to tear up an agreement to pay her legal fees and any costs awarded unless she agreed not to attend a mediation.
This was despite Senator Reynolds’s determination to defend herself against Ms Higgins’s allegations that neither she nor Liberal Party frontbencher Michaelia Cash supported her after the alleged sexual assault by Bruce Lehrmann in Parliament House.
While she had appointed her own lawyers, Clayton Utz, to help defend Ms Higgins’s claims, when the commonwealth took over the claim on behalf of Senator Reynolds, their solicitors, HWL Ebsworth, were appointed to her.
When applying for the subpoena last week, Mr Bennett told the court his client “wasn’t even aware, when she was represented by Ebsworth, of what they were defending”.
Judge Paul Tottle interjected. “Let me make sure I understand the logic of the steps in your argument,” he said.
“The senator held and holds genuine concerns about the process by which the settlement between the commonwealth and Ms Higgins was concluded.”
Mr Bennett agreed, adding that “having then taken over the conduct of the proceedings at the direction of the commonwealth, representing the plaintiff, they owed the plaintiff a duty.”
Mr Bennett also raised questions over Ms Higgins being permitted to extend her claim beyond the one-year limitation period, which was due to expire on December 6, 2022.
He told the court the day after the limitation period expired, a new claim was added, and said it was necessary for the court to examine HWL Ebsworth’s correspondence to understand why.
“After Ebsworth commenced to act for her (Senator Reynolds), the witness was concerned about the limitation period expiring on the 6th and saying there was no present claim,” he said. “We know that … something occurred the next day, and a claim was added … The witness didn’t know anything about it. And yet she was being represented by solicitors. So we want the communications those solicitors had with Ms (Noor) Blumer (Ms Higgins’s lawyer) of/or relating to the senator’s defence of the claim from the 6th.”
Having already agreed to an extension until December 6, Clayton Utz lawyers, when acting for Senator Reynolds, had indicated their client was unwilling to see the limitation period extended into 2023 and would rather see the matter proceed to court.
Senator Reynolds last week, while in the witness box, said she “wasn’t even aware” of what claims went to mediation with the commonwealth.
She also said she believed Mr Dreyfus, Finance Minister Katy Gallagher and Anthony Albanese were all “hopelessly conflicted” on the Higgins matter and should have had nothing to do with her compensation claim, which was first raised in December 2021 and for which she was ultimately awarded $2.445m in compensation after a day of mediation.
Under cross-examination from Ms Higgins’s lawyer Rachael Young SC, Senator Reynolds said Senator Gallagher in particular had been part of an effort to portray her as having engaged in a cover-up of the alleged rape.