Survival of the fittest …Alistair Wyvill cleared … Eight year toxic Top End drama draws to a close … Disciplinary Tribunal squelches NT Supreme Court judge and Stella Maris commissioner … Pro Bono termination … Procedural unfairness … No finding of ulterior strategy … Buffalo Bruce reports
This could be the final shuddering chapter in the gruesome political-legal affair that started in 2012 when the then territory Labor government approved a lease to Unions NT over the heritage Stella Maris property in Darwin.
At the election that shortly followed Labor’s lease agreement, the CLP Giles government took office and, in keeping with other notorious Coalition attempts to dig the dirt on political opponents, instituted in December 2013 an inquiry into the granting of the lease.
Former senior AFP copper Peter Lawler was the commissioner and the focus of the inquiry was on two former Labor cabinet ministers – Delia Lawrie, the former deputy chief minister and later the leader of the opposition, and Gerald McCarthy the minister for lands and planning at the time.
Wyvill acted for them pro bono at the commission of inquiry, along with solicitor Cathy Spurr from Halfpennys Lawyers. From the outset the investigation had all the characteristics of a rackety affair – no legal funding, no transcript, no counsel assisting.
The retired copper, who was not a lawyer, did the questioning. Worse still, he was “a southerner”.
Commissioner Lawler reported on June 19, 2014 and made adverse findings against Delia Lawrie – that expressions of interest for the Stella Maris lease had not been called; there was bias in favour of Unions NT; it was unfair to grant the lease to the unions when other public interest groups may have been interested; that she should have excused herself from cabinet while the lease was discussed; and that the parliament should consider referring her to the privilege committee.
At the disciplinary tribunal hearing Sydney silks Arthur Moses and Jeremy Kirk acted for the NT Law Society and Alistair Wyvill respectively.
The tribunal comprised former Tasmanian Supreme Court judge Peter Evans, Queensland and NT family law practitioner Nardine Collier and Darwin lawyer Heather King. The hearing was conducted by Webex with connections in Sydney, Darwin, Hobart and Cairns.
This was one of the most important and high profile disciplinary hearings in Buffalo Bruce’s experience – largely because Wyvill had been a leading legal light and a president of the NT Bar Association.
The misconduct allegations, in short, were that:
In a 2016 appeal Wyvill was substantially cleared of the critical findings arising in the judicial review application – yet the Law Society was determined to press on with its disciplinary case.
The tribunal dismissed all the complains against Wyvill and in the process was critical of the conduct of Lawler and Southwood. The entire enterprise is a costly misadventure by the NT Law Society.
The LPDT said that Lawler did not do what he said he would do – namely provide Delia Lawrie with an opportunity to respond to adverse findings before the report was published (Ainsworth procedural fairness obligations.) Consequently, there had been procedural unfairness by the commissioner.
Indeed, it was found that in drafting a “dissenting report” there was a sufficient basis for Wyvill’s belief that the inquiry was conducted unfairly and that “this reflected the commissioner’s lack of the qualifications, experience or skills to run it”.
In relation to the advice for Spurr’s affidavit and statement of facts in the Supreme Court proceedings brought by Delia Lawrie it was found that Wyvill had provided further legal guidance despite the termination of the pro bono work – but there had been no retainer, he was not representing the client, and that it was in the nature of informal advice to Michael Gleeson, a friend, who was Lawrie’s chief of staff.
The tribunal said there there was no reason that Wyvill should doubt the commissioner’s undertaking about further submissions if there was to be an adverse findings and there was no reason to remind the commissioner of his undertaking. There was no evidence that the commissioner had forgotten his commitment.
The LPDT said it was not satisfied that Wyvill knew the affidavit to the court was untrue, false or misleading.
In relation to the email to the bar association critical of Southwood, Wyvill had just stepped down as president of the bar and had decided to defend himself against the judge’s attack.
Wyvill had not been a party to the Lawrie v Lawler litigation, was not a witness, and had no notice. It had been a confidential email to the bar council, yet somehow it had been forwarded to Lawler’s solicitor.
Justice Southwood made extremely damaging statements about Wyvill, that if correct would have warranted him being struck-off. The tribunal found that there was no reason for Southwood to make those allegations while considering whether Ms Lawrie had waived her entitlement to procedural fairness.
In fact, Lawrie had not waived her right because earlier Cathy Spurr had advised Lawler that her clients remained “vitally interested in the outcome of the enquiry”.
Southwood’s finding on waiver was “erroneous” and opened the way for him to make serious allegations against Wyvill.
The decision not to continue to act for Lawrie and McCarthy was not a device whereby a claim of procedural unfairness could later be claimed. Wyvill had a “sufficient basis for saying that the matters he detailed were in his view suggestive of malice and call into question his Honour’s fitness to be a judge”.
There had been evidence of Southwood bullying a young lawyer who appeared before the judge at his first trial, so there was a basis for calling into questions Southwood’s fitness to be a judge.
The LPDT concluded that it was fair enough that Wyvill would want to write in confidence to the bar council about the criticism directed towards him.
In mid-2016 foreign judges sitting as the NT appeal court overturned Southwood’s findings against Wyvill and Cathy Spurr, although most of the submissions by Delia Lawrie were rejected.
Southwood had earlier ordered that Wyvill be joined with Lawrie to recover indemnity costs for the judicial review of Commissioner Lawler’s findings.
The judge later refused to step aside from a challenge to the costs order after it was discovered his wife, working as a public servant in the Department of AG and Justice, was privy to details of the Lawler inquiry and arranged for the payment of Lawler’s lawyer on the public tab.
In a bold decision Southwood ruled that his wife’s activities in the department did not compromise his own role.
In December 2018, Justice Robert Bromwich in the Federal Court rejected Wyvill’s application to permanently stay the disciplinary proceedings saying that the scope and content of the complaints were adequately articulated.
See Justinian’s earlier reports:
NT bar president in botched legal strategy
The why’s and wherefores of the Wyvill case
In 2018 Giles became an After Dark presenter on Sky News – the totally unwatchable Adam Giles Show. That year there was a long and loud public outcry over his interview with Blair Cottrell who has been described in the media as a neo-nazi.
Sky News said the broadcast was an “error of judgment” but by November 2018 the hopeless and toothless Australian Communications and Media Authority said there had been no breach of the TV industry “code of conduct”.
Delia Lawrie, faced with significant legal costs, sold her home and was disendorsed by the Labor Party. At the time of the territory’s 2020 election Lawrie had joined with a bunch of disaffected and defenestrated politicians under the banner of the Territory Alliance Party, where she was senior advisor to former CLP leader Terry Mills.