“We all make mistakes; however, reputable newspapers employ a range of people to check that errors are minimised – or they used to.” Legal columnist HUGH SELBY takes The Australian to task for an “error ridden” article.

Which label/s best fits: “beat up”? “cover up”, “stitch up”, or “stuff up”?

Late on Thursday the national broadsheet “The Australian” ran an article headed, “Senator drops subpoena on ALP law firm”.

The article sets out how Senator Reynolds’ lawyers have subpoenaed HWL Ebsworth, a national prestige law firm, to deliver to the WA Supreme Court, “correspondence with Ms Higgins’s (sic) lawyers while settling the legal dispute in December 2022.”

The article alleges that there is an issue as to whether the law firm properly fulfilled its “duty” when acting for the senator, after the lawyers failed to advise her of new claims that Ms Higgins made against her, and neither spoke to the senator during mediation nor showed her a copy of the deed of settlement.

The article also asserts that although the senator had appointed her own lawyers, Clayton Utz, to help defend Ms Higgins’ claims, when the Commonwealth took over the claim on behalf of Senator Reynolds, their solicitors, HWL Ebsworth, were appointed to her.

You can read the article here. I invite you to do so because then you too can sniff the innuendo. My take on that innuendo is that the law firm was:

1. aligned in some manner with the ALP;
2. had some lawyer client obligation/s to the senator;
3. wilfully failed to fulfil those obligations; and,
4. such failure supports an allegation that the law firm behaved in this wholly unacceptable manner because it was an “ALP law firm”.

We all make mistakes; however, reputable newspapers employ a range of people to check that errors are minimised – or, they used to.

There are “ALP law firms”, in the sense that there are some famous legal firms that have long specialised in acting for workers, be that, for example, by way of work accident, unfair dismissal, or working to secure better pay and conditions in awards. Some of those firms are now the leaders in class-action cases.

HWL Ebsworth is not, and never has been, one of those firms. From its current website here is a glimpse of its sense of being: “the only fully integrated commercial law firm with offices in every State and Territory across Australia” and, “a firm offering exceptional quality legal advice to its commercial and government clients”.

Once upon a generation or so ago Ebsworth (before the mergers that created the present firm) was a well-known, mid-sized, respected commercial law firm in Sydney with a proven expertise in maritime and commercial dealings law.

It was at the other end of town to the labour firms and those perspectives have not changed.

The article heading in “The Australian” is wrong and dangerously so. When the head of the fish is rotten are we not warned to be careful about the body and the tail?

Did HWL Ebsworth have any duty to the senator? Was the firm acting for the senator; that is, was she their client?

It has been persistently claimed that Attorney-General Mark Dreyfus excluded Senator Reynolds and her Liberal colleagues from participating in the settlement negotiations.

If she was so excluded then on what basis can it be claimed that she was a client of HWL Ebsworth? Their client was the Commonwealth. The senator was a potential witness, no more no less. She would become an actual witness if and only if the matter did not settle and went to a hearing.

A further hint about the mischievous nature of Thursday’s article is that the request for documents does not include any request for: a letter of engagement between the Senator and the law firm; any tax invoices sent to her, or the Commonwealth that list legal services provided for her benefit; or, any correspondence between her and the law firm seeking or providing information.

None of which is to criticise the senator’s present Perth law firm for wanting to have a close look at what HWL Ebsworth and Higgins’ lawyers were writing to each other in the lead up to the settlement. There may, possibly, be remarks that the senator’s lawyers will gleefully use to great effect when they cross-examine Ms Higgins as they seek to destroy her defence of “truth”.

But that’s in the future. Our present is that an article, purporting to be factual, published by a national publisher, is error ridden. Why is that so?

Let me add that there is another glaring error. If it were the case that HWL Ebsworth was acting for both the Commonwealth and the senator then there was a conflict of interest at least as egregious as the former NSW premier seeking to satisfy her obligations to independent, objective funding of projects, while also seeking to satisfy her partner by funding projects in his electorate.

Apparently, the former premier was unable to see this conflict. She’s not alone in that incapacity. That said, the lawyers at HWL Ebsworth, unlike certain now notorious accountants, would have smelt it a mile away.

Please decide which one or more are apt : “beat up”, “cover up”, “stitch up” or “stuff up”?

Former barrister Hugh Selby is the CityNews legal columnist. His free podcasts on “Witness Essentials” and “Advocacy in court: preparation and performance” can be heard on the best known podcast sites.