The Stella Maris fallout continues … NT Supremo says there’s no apprehended bias in his hearing a costs case where his wife has been privy to details of the defendant’s evidence and strategy … Judge insists his wife is detached … Lay observer would not think a married couple would talk about matters in dereliction of their obligations
IT’S a rare sight to see a judge rigorously defending his wife, and himself, in proceedings seeking his disqualification from hearing a costs application.
We have to go to Darwin for such an unusual judicial event, and Justice Stephen Southwood’s decision refusing to step aside from a case concerning costs arising from an unsuccessful application for judicial review of the findings of the Lawler report into Darwin’s Stella Maris affair.
The upshot was that Southwood, in a vehement judgment, found his wife’s role as a public servant in the Department of AG and Justice, where she was privy to details about a challenge to the findings of a commission of inquiry into the activities of the former government, did not compromise his own role in the case.
We can drown in too many background details here, but briefly it goes like this. The incoming NT Country Liberal government created a commission of inquiry into the former Labor government’s arrangement with the union movement to lease on favourable terms the historic Stella Maris property in Darwin.
The lease from the government, which was never taken up by Unions NT, was arranged by the outgoing government’s deputy chief minister, Delia Lawrie.
A former federal policeman and Australian Crime Commissioner John Lawler did the inquiry for the CLP government and found that Lawrie had directed her office to brief Unions NT in relation to the proposed lease, in preference to other community groups; that she acted with bias; and hid the union’s proposal from her department.
Lawler recommended that the Legislative Assembly consider whether Lawrie had breached the members’ code of conduct.
The government had succeeded with its mission and as a result of the findings Lawrie resigned as leader of the opposition.
She then challenged Lawler’s findings in the NT Supreme Court, saying there had been a lack of procedural fairness because she had not been given an opportunity to be further heard before the commissioner made his findings.
Southwood, dismissed her application, finding that Lawrie and her barrister Alistair Wyvill SC had created a strategy to undermine the inquiry and had thereby waived her right to procedural fairness.
In any event, he added, the commissioner had not denied Lawrie procedural fairness.
Wyvill was not a party to the judicial review proceedings, was not a witness and did not represent Lawrie before the court.
Nonetheless, without having the opportunity to make submissions, the judge made damaging findings against Wyvill, including:
As a result Wyvill stepped aside as president of the NT bar.
The NT government had indemnified Lawler, but Wyvill has now been joined with Lawrie to recover Commissioner Lawler’s costs of the judicial review proceedings before Southwood.
After the discovery of the role played in the litigation by the judge’s wife, Mrs Denise Southwood, there was an application from Lawrie and Wyvill for the judge to remove himself from the costs application on the ground of apprehended bias.
Mrs Southwood is the assistant manager of a unit in the AG’s department called Legal Services Coordination, which plays a role in the administration of the territory’s outsourced legal services.
The defence of Lawrie’s judicial review proceedings against Commissioner Lawler was outsourced to solicitor Paul Maher, who briefed former NT Supremo Michael Maurice and, specifically for the task of cross-examining Wyvill, David McLure from the Sydney bar n’ grill.
There are a couple of emails that are important to the apprehended bias application.
On August 5, 2014 Mrs Southwood sent the following email to Paul Maher:
Further to my phone call of today, I attach the request we received from the Department of the Chief Minister to engage you to act on behalf of Commissioner Lawler in this matter.
As advised on the phone we have not received the Originating Motion and Summons filed by Halfpennys but I will contact Cathy Spurr to let her know that you will accept service on behalf of Commissioner Lawler.
Once you have received the documents and have had the opportunity to consider the matter, it would be appreciated if you could provide me with an estimate of your fees.
Please note your invoice should be sent to the Legal Services Coordination Unit via email (legalservices.sfnt@nt.gov.au) but addressed to the Department of the Chief Minister as follows:
If you have any queries in regards to this engagement, please do not hesitate to contact me on […]”
Justice Southwood said this email “mirrors the directions” his wife was given by Craig Smyth, the department’s acting director of litigation, whose job it is to recommend the outsourcing of legal services to private practitioners.
However, Tony Young, for Lawrie, submitted that this email showed that Commissioner Lawler was not liable for Maher’s costs and disbursements and that the NT government will not be able to recover the money from Lawrie and Wyvill that had been paid to defend the commissioner in court.
He contended that Maher and counsel were retained upon the terms that they should look only to the Department of the Chief Minister, and not Lawler, for payment of their costs.
Further, it could mean that Justice Southwood would not want to make a decision that would potentially embarrass his wife because her email may reflect a failure on her part to take adequate steps to protect the interests of the NT government.
Southwood J smartly dismissed this argument, saying it “cannot be sustained. It is almost wholly based on conjecture and bare assertion”.
The lay observer, he said, would know that his wife’s role is administrative and she did not engage the lawyers for Lawler. He added:
“Mrs Southwood’s employment will not be affected by a finding, if one is ultimately made by the court, that the email she sent to Mr Maher means the Northern Territory government cannot recover the legal costs it has paid on behalf of Mr Lawler from Ms Lawrie.”
The judge said that his wife does not have the concern in the litigation that Mr Young contends and nor would an informed lay observer think so.
He said there is no logical connection between his wife’s email to Mr Maher dated August 5, 2014 and the feared deviation from the course of him deciding the costs case on its merits.
“A fundamental premise in Mr Young’s argument has not, even remotely, been established.”
Then there was an email of January 15, 2015, which on its face presents more significant difficulties.
It was from Maher to Mrs Terri Hart, the executive director of the office of the deputy chief executive officer of the Department of Chief Minister and later forwarded by Maher to Mrs Southwood. It dealt with costs and the defendant’s evidence and strategy:
Justice Southwood found that this email provided no basis for a finding of apprehended bias.
“Mr Maher’s email to Mrs Southwood was not sent to her to advise her about any legal issues in the proceeding or the approach being adopted by Mr Lawler’s lawyers. Nor was it sent to her to advise her about the prospects of Mr Lawler’s success.”
While it can be argued that was not the purpose of the email, nonetheless the effect was to inform the judge’s wife about the latest twists and turns in the defence case and its strategy.
Nonetheless, the judge said his wife was just a functionary in the department and made no real decisions about the conduct of the litigation and was not, as Young contended, “in the defendant’s camp”.
He added that the plaintiff would have known before the trial that the defendant’s strategy was to attack her credibility along with that of Wyvill and solicitor Cathy Spurr.
He found that there was no connection between Mrs Southwood receiving confidential information and his deviating from the course of deciding the costs application on its merits.
“The court does not attribute to the lay observer a suspicion that a married couple might also talk about particular matters that would be a gross dereliction of their respective obligations”.
The judge defended his wife’s role saying Sofronoff’s submission ignored “the context in which Mrs Southward received Mr Maher’s email to Mrs Hart”.
It’s not everyday we find a judge so ardently protesting that even though his wife is receiving details of the conduct of a case yet to be heard by him, her job is not what everyone thinks it is and consequently he should not step aside.
Only in Darwin.