Lawrie v Lawler … Case that has riven the Top End legal community … Foreign judges brought in for appeal that basically clears the former president of the NT bar of misconduct findings … Commission of inquiry set up by political opponents of former minister … Full examination of the judgment from Hannah Ryan
THE Northern Territory Court of Appeal has overturned the Supreme Court’s findings of impropriety against prominent Darwin silk or former president of the NT bar, Alistair Wyvill, and solicitor Cathy Spurr, while largely rejecting arguments by Labor leader-cum-Independent MP Delia Lawrie.
The three overseas judges who determined the appeal were John Doyle and Kevin Duggan from South Australia and Eric Heehan from Western Australia.
The appearances were also a potpourri of interstate briefs. Peter Davis QC from Queensland and Ward Keller’s Greg Phelps appeared for Lawrie. David McLure SC and Greg O’Mahoney from New Chambers in Sydney appeared for Commissioner Lawler, and Walter Sofronoff QC and Darlene Skennar from Brisbane for Wyvill on the intervener application.
The appellant Ms Lawrie was once a minister in the Martin Labor Government. With an election looming in 2012, she proposed that cabinet offer a lease of the historical Stella Maris site in Darwin to Unions NT, without calling for expressions of interest.
The following year, the Country-Liberal Party government established an inquiry into the circumstances surrounding the lease, appointing former Australian Crime Commission CEO John Lawler as commissioner. Alistair Wyvill SC and Ms Spurr acted pro bono for Lawrie in the course of the Inquiry.
The report Lawler presented in May 2014 was not to Lawrie’s liking. Although Lawler thought Lawrie believed she was acting in the public interest, he criticised her conduct and found that she was biased towards Unions NT.
Lawrie sought judicial review in the NT Supreme Court, complaining that she had been denied procedural fairness because she hadn’t had any or adequate opportunity to respond to those criticisms before the report was published.
Justice Stephen Southwood dismissed her case, finding that she had enjoyed plenty of procedural fairness, and even if she hadn’t, that right had been waived by her conduct during the inquiry.
In the course of making the finding on waiver, the judge made serious adverse findings regarding the conduct of Lawrie, Wyvill and Spurr, including that they deliberately removed themselves from further participation in the inquiry to set-up a procedural fairness point, and misleading the inquiry in saying that Lawrie’s pro bono resources had been exhausted.
Joinder
Alistair Wyvill sought to be joined as a co-appellant to fight the criticisms of him. The Court of Appeal refused to indulge the application.
Wyvill could not be joined to the appeal simply to attack the reasons of the primary judge – he could only be joined for the purpose of challenging an order or judgment by which he was bound. It was not sufficient that the reasons for orders affected his interest in his reputation.
Additionally, Wyvill’s joinder was not necessary to allow the appeal to be properly argued.
Waiver
The appeal judges dished out a dressing-down of the first instance judge in relation to the “alternative defence” Lawler had raised at trial.
Southwood found that during the course of the inquiry Lawrie and her lawyers had set out to deceive Lawler, in order to preserve the ability to attack any adverse findings on the basis that Lawrie had not been accorded procedural fairness.
By disengaging from the inquiry, the reasoning went, Lawrie waived any right to procedural fairness.
The appeal judges found that by her conduct Lawrie did not waive any entitlement to procedural fairness, and accordingly overturned the trial judge’s finding on this point.
A letter sent by Lawrie’s lawyers to Lawler relied upon by the trial judge did not suggest that she relinquished any entitlement to procedural fairness, and indeed its terms suggested the opposite.
As went the defence of waiver, so went the trial judge’s strong criticisms of Lawrie, Wyvill and Spurr. According to Doyle and Duggan, because there was no basis for the finding of waiver, there was no reason to explore the motives and strategy that lay behind the conduct of Lawrie and her advisors.
Even if the trial judge’s assessment of her legal team’s strategy was accurate and even if they were disrespectful of Lawler’s inquiry, that did not by itself affect her entitlement to procedural fairness.
Heenan went a step further, explicitly declining to accept the trial judge’s findings as to the conduct of the lawyers and their motivation.
The submissions made to the primary judge that led to the findings of impropriety and dishonesty were the result of inferences drawn from circumstantial evidence.
Wyvill and Spurr were not given notice of the allegations, and they did not give evidence. As Heenan put it:
“it [was] unfortunate that these allegations were entertained having regard to the state of the pleadings and the absence of any notice to Mr Wyvill or Ms Spurr.”
There was no direct evidence upon which findings of impropriety could be made – and those findings should not have been made.
Heenan also picked up a point that Lawler pursued an active role of opposing the appellant’s application, whereas the traditional role for a commissioner in these circumstances is to be detached and neutral in the face of a judicial review.
Procedural fairness
Despite her success on the waiver point, Lawrie lost on the meat and potatoes of the appeal – the procedural fairness question.
Doyle and Duggan upheld the trial judge’s finding that Lawrie had not been denied procedural fairness. Lawrie had argued that she was denied procedural fairness by reason of Lawler’s failure to identify to her potential adverse findings, most importantly that she acted with bias in favour of Unions NT, so as to provide her with the opportunity to respond to them.
However, the court held that the disclosure of proposed findings isn’t a freestanding element of the obligation to accord procedural fairness.
Of course, sometimes that will be the only way to satisfy the obligation to give someone an opportunity to be heard – but not if the subject matter and issues of an inquiry are clear already. The content of the obligation will always depend on the relevant statute and the circumstances of the case.
Here, Lawrie was not left in the dark as to what was coming. The inquiry was clearly focused on her conduct in relation to the Stella Maris site, and her involvement in the process that led to the now-infamous cabinet decision.
The inquiry was obviously looking at whether her conduct was open to criticism, and the relevant issues and documentation were identified to her in a pre-hearing interview.
Heenan dissented on this point, finding that Lawrie was denied procedural fairness. Although she was abreast of the issues or “topics” raised by the inquiry, that did not amount to sufficient notice in these circumstances.
Lawrie was never informed of Lawler’s reasons for concluding that her actions were wrong or improper. The inquiry was conducted in a way that Lawrie’s fault, neglect or impropriety, underlying Lawler’s findings was not identified or put to her.
Recusal
On an application for costs following the substantive judgment at first instance, Lawrie and Wyvill submitted that the judge should recuse himself, as his wife’s employment in the Attorney General’s Department might give rise to an apprehension of bias. He refused.
Southwood’s wife worked in an administrative capacity in the Attorney General’s Department, and her role involved the administration of Lawler’s costs.
Doyle and Duggan (Heenan agreeing) made swift work of this point – any suggestion that the trial judge could reasonably be apprehended to be biased because of his wife’s employment was “completely unfounded”.
Costs
Southwood had ordered Lawrie to pay indemnity costs. As that order rested on his finding of waiver, the Court of Appeal set it aside.
Accordingly, Lawrie’s appeals on substance were refused but appeal on costs allowed.
The Court will reconsider the costs of the trial and other costs after receiving submissions.
Acting Justice Kevin Duggan is one of two retired judges appointed by PM Turnbull to be public interest advocated in cases involving warrants for agencies to access the metadata of journalists. The other public interest advocate is John Muir from Queensland.
Nearly 30 years ago, Eric Heenan advised Wyvill’s father, Lew Wyvill QC, when he was an Aboriginal Deaths in Custody Royal Commissioner, on a Western Australian challenge to the validity of the commission.
Mention was made of this by WA chief justice Wayne Martin at Heenan’s Supreme Court farewell ceremony in June last year.
See: Lawrie v Lawler NTCA