Wyvill gets a breather from NT appeal court … Grant Samuel rejigs Slater & Gordon … Barrister suggests that if his client had more money someone else would have been briefed … Bluto Watch 

DARWIN silk Alistair Wyvill must feel comforted by Thursday’s (June 2) findings by the NT Court of Appeal, with three foreign judges in the saddle – Doyle and Duggan from Adelaide and Heenan from Perth.  

The proceedings arose from findings of an inquiry conducted by former Australian Crime Commissioner and deputy head of the AFP, John Lawler. 

He found that an ALP government minister in the NT, Delia Lawrie, had improperly engineered the transfer of an historic property in Darwin to Unions NT on a 10-year lease for no rent, on the day before the caretaker period commenced prior to the August 2012 Territory election. 

During the Lawler inquiry Wyvill had acted pro bono for Lawrie. 

By now Lawrie was leader of the opposition in the NT “parliament” and sought judicial review of the findings on the ground that Lawler had not afforded her procedural fairness. 

Justice Stephen Southwood made some alarming findings in his judgment, namely that Laurie had not been denied procedural fairness and if she had she had waived her right to it because of a legal strategy devised by Wyvill and her legal term. 

This involved “ignoring, disengaging or discrediting” the commission of inquiry by abandoning further participation and claiming that Laurie had exhausted Wyvill and solicitor Cathy Spurr’s pro bono legal services. 

This was regarded as a “political response” to the inquiry that had been foisted on the then Labor leader by the less than edifying Giles government. 

Southwood said Wyvill had counselled Laurie in making false statements and that her pro bono legal services had not been exhausted. 

It all ended in tears. Laurie was kicked out of the Labor Party and Wyvill resigned as president of the NT bar. 

Now Doyle, Duggan and Heenan have found that Lawrie was not denied procedural fairness by Lawler but, importantly, she had not waived it, as Southwood found and therefore there was no necessity to have said all those beastly things about the lawyers.  

“As to the letter of 15 April 2014, sent by Ms Spurr to Mr Lawler, we respectfully differ from Southwood J. We find nothing on the face of the letter to suggest that Ms Lawrie was relinquishing any unfulfilled entitlement to procedural fairness. If anything, the statement in the letter that ‘our clients remain vitally interested in the outcome’ suggests the contrary … 

The effect of the letter does not turn on the motive or strategy that the judge explored, and did not call for close scrutiny of the motives and strategy that lay behind the letter … 

We consider, with respect, that Southwood J erred in this respect. He should not have upheld the alternative defence of waiver. There was no reason to explore the motives and strategy that lay behind the conduct of Ms Lawrie and her advisers.” 

The matter now rests with the NT Law n’ Order Society. 

• NT bar president in botched legal strategy 
• Lawrie, Lawrie Halleluja 
• Trouble at the Top End
• Southwood Ho  

Corporate advisory outfit Grant Samuel has completed its review of Slater & Gordon’s money problems and come up with proposed restructuring that will allow the banks to carry the firm’s debt over quite some years. 

Apparently, the banks are onboard in the hope that the firm can “trade out” of its problems. 

ASIC v Cassimatis is before Justice James Edelman in the Federal Court in Brisbane. 

It’s a civil penalties case against Emmanuel and Julie Cassimatis, who were the executive directors of the now bust Storm Financial Ltd.  

ASIC says Storm’s financial advice to clients was negligent and in breach of duties to exercise reasonable care and skill and they want the Cassimatises off the directors jam roll with no access to financial services licenses. 

Peter Franco QC from the Brisneyland bar n’ grill is appearing for Emmanuel and on May 31 he submitted than an amendment to a pleading sought by ASIC should not be allowed, because previous conduct of the case by ASIC has cost his client money. 

In support of that, Franco said that if Emmanuel had more money it is likely that Shane Doyle QC would have been briefed instead of himself. Here it is:  

“And the team as it is now – your Honour may have had a Mr Doyle rather than a Mr Franco addressing you if my client’s funding situation had been different …” 

Edelman wasn’t swayed by the power of that proposition and has allowed ASIC to amend its pleadings. The regulator proposes to call witnesses from Monday (June 6).  

Former Chief Justice of the Banana-Benders Supremes, Timbo Carmody, continues to draw gasps of amazement from a spellbound audience. 

Two recent performances have come in light. 

Sitting in the Queensland Civil and Administrative Tribunal in Dr Alroe v Medical Board of Australia Justice Carmody ordered the board to register the applicant as a specialist GP, without conditions, and then promptly ordered costs to be paid by the board to the doctor.  

This came as a shock because normally each party in QCAT cases bears their own costs. The tribunal has the power to order costs against a party only in special circumstances, which did not apply here.  

In the Alroe case Bluto simply said: 

“As the applicant has been fully successful in his application, the respondent must pay the applicant’s costs of and incidental to the proceedings.” 

The Medical Board appealed, without any objection from Dr Alroe. The Court of Appeal heard it on May 4 and delivered judgment moments later. It was a stuff-up by Bluto:  

“The failure to give the board an opportunity to be heard before making an order for costs against it constituted a denial of natural justice …  

Proceeding to decide the question of costs without hearing the parties was an error of law. Applying the wrong test in the exercise of the discretion to award costs was an error of law.  The appeal has succeeded on a question of law.” 

Here, the costs for each side will now have to be picked-up by the taxpayer under the Appeal Costs Fund Act.  

May 4 might have been called Bluto Day because the Court of Appeal also delivered judgment in Falzon v State of Queensland, a case where Timbo as CJ was the “learned primary judge”.  

In this instance he messed-up the amount of money payable by a couple of drug traffickers under the Criminal Proceeds Confiscation Act. 

He assessed the criminal proceeds at $28 million, so $14 million against each trafficker. Gotterson JA, with the support of McMurdo P and Morrison JA, found that $14 million was the correct figure, so only $7 million each. 

Oops.