Martin Bennett: Lawyer representing Linda Reynolds against Brittany Higgins fined for professional misconduct

The high-profile lawyer representing Senator Linda Reynolds in her defamation case against Brittany Higgins has been slapped with a hefty fine for professional misconduct after airing protected health information when attempting to have the attorney-general intervene in a legal matter before the court.

Martin Bennett was at the centre of a misconduct investigation launched by the Legal Services and Complaints Committee.

The WA State Administrative Tribunal found Mr Bennett had engaged in two counts of professional misconduct and one count of unsatisfactory professional misconduct.

In 2017, Mr Bennett brought a guardianship matter to the State Administrative Tribunal on behalf of his clients to appoint a guardian and administrator for the clients’ father.

At a Supreme Court hearing, Mr Bennett read out a client affidavit, which referred to protected mental health information from documents obtained by the firm.

The affidavit referred to the guardianship proceedings being brought on the basis that the clients’ father had an impaired cognitive condition and also included medical reports.

The State Administrative Tribunal found that Mr Bennett had considered genuinely, but incorrectly, that the affidavit was being used for a purpose permitted by the tribunal orders and before filing the affidavit he did not ensure this was permitted.

The tribunal found his conduct in permitting the affidavit to be filed in Supreme Court proceedings was “grossly careless”, and it had the potential to affect the tribunal’s consideration of the guardianship application.

This included “potentially causing the tribunal to erroneously conclude that any protected Information disclosed in the client affidavit had been known to the clients independently of the documents made available to the firm”.

In addition, Mr Bennett wrote to the WA Attorney General on his clients’ instruction, requesting the AG’s intervention in a charitable trust connected to the clients’ family.

The letter disclosed information concerning the mental health of the clients’ father.

Those documents were subject to the Harman Obligation — an implied understanding that documents obtained through the court will only be used for the purposes for which they were disclosed and will not be used for a collateral or ulterior purpose.

The committee found breaching this was “grossly careless in that the practitioner did not turn his mind to whether the AG letter contained information derived from documents the subject of the Harman Obligation”.

The SAT found Mr Bennett’s conduct “fell substantially short of the standard of competence and diligence that a member of the public is entitled to expect of a reasonably competent Australian legal practitioner approved by members of the legal profession of good repute and competence”.

Mr Bennett was fined $23,000 and ordered to pay a further $12,500 for the applicant’s costs.