Stella Maris … The Northern Territory Judicial Commission slowly swings into action … Supreme Court judge to be investigated for “malice” … Allegations of bullying and delayed judgments … Mentors and councillors ahoy … Creating an investigation unlikely to deliver a scalp … Buffalo Bruce reports 

The Northern Territory Judicial Commission has taken the unusual step of referring a complaint about a Supreme Court judge to an investigation panel. 

A series of complaints about Justice Stephen Southwood were made to the commission by Darwin silk Alistair Wyvill. That was in November 2021.

Twenty-one months later the commission advised Wyvill in August 2023 that an aspect of his complaint arising from the Stella Maris case will go to a special panel to test the claim that Justice Southwood’s reasons in Lawrie v Lawler were actuated by malice.

Other complaints about Southwood’s delays and judicial bullying are to be referred to Chief Justice Michael Grant for “mentoring and counselling”. 

Delia Lawrie had been the leader of the Labor Party in the NT and was involved in the grant of a lease of the historic Stella Maris property to Unions NT. 

A Labor government assisting the union movement – whoever could have believed it.

Seeking to damage his political opponent the incoming conservative CLP government of Adam Giles created a political inquiry into the lease agreement and appointed former federal policeman John Lawler to do the job. 

It was a strange arrangement – Lawler not being a lawyer heard the matter without a counsel assisting, but with some assistance from the government’s lawyer, the then solicitor general Michael Grant. 

At the inquiry Alistair Wyvill and solicitor Kathy Spurr acted pro bono for Lawrie. Commissioner Lawler came to the alarming conclusion that Lawrie and the former Labor government were biased in favour of the unions and that other expressions of interest in the lease had been rejected.

The report was published without prior notice to Lawrie of potentially adverse findings.  

She brought proceedings for denial of procedural fairness, but Justice Southwood rejected that and went further in concluding Wyvill and Spurr had devised a strategy to “disengage or discredit” Lawler’s inquiry by claiming their pro bono services had been exhausted, and as a result had waived Lawrie’s right to natural justice. 

Wyvill and Spurr were not parties to the proceedings and were not called as witnesses. 

It also emerged in correspondence that Justice Southwood’s wife, who was a manager in the Department of Attorney General and Justice, was negotiating the engagement of a lawyer to act for John Lawler in the judicial review case. 

Southwood’s conspiracy and waiver argument was comprehensively overturned on appeal by an out-of-town appeal bench. 

Disciplinary proceedings against Wyvill also ended in costly despair for the local Law Society – again with a foreign judge presiding. 

Wyvill alleged that Southwood’s conduct in respect of Lawrie v Lawler was a result of, or indicative of, malice towards Delia Lawrie and her lawyers. Wyvill also relied on a number of other occasions which he said suggested that Southwood had a propensity to act maliciously towards parties or their lawyers.

The Judicial Commission advised Wyvill: 

“Following consideration of this aspect of the complaint, the commission has formed the view that there are some matters that could form part of an analysis which may be capable of supporting an inference of malice on the part of the judicial officer. 

“Accordingly, the commission has resolved that this aspect of the complaint warrants the establishment of an investigation panel.” 

While stressing that it was not itself making a finding that the judge had shown malice it is, nonetheless, “satisfied that the preliminary test set out in section 50 for referral to an investigation panel has been met.” 

Section 50 says: 

“The Judicial Commission must establish an investigation panel under section 21 to examine and investigate a complaint if satisfied on reasonable grounds that the complaint is sufficiently serious that, if substantiated, it could justify the removal from office or termination of appointment of the judicial officer or ordinary member.” 

Other aspects of Wyvill’s complaints were rejected by the Judicial Commission – namely that Southwood abused his office in Lawrie v Lawler to advantage the CLP in the hope he would be appointed chief justice. 

In relation to allegations of bullying Southwood “acknowledged that there are examples of intemperate and discourteous remarks, which displayed less patience than is desirable”. 

Since the conduct was found to be “below the standard expected of a judicial officer”, the particulars have been substantiated and sent to the chief justice with a recommendation that it be referred to a retired judge from elsewhere. 

“The commission can advise that the judicial officer has already engaged a retired judicial officer to provide mentoring and counselling in this area.” 

Another ground related to the judge’s failure to follow legal precedent giving rise to errors of law. Also, it was claimed that the judge had used a racial slur. 

Errors of law are properly the subject of appeals and the judge denied the use of a racial slur – so that went nowhere.

However, Southwood’s delays in the delivery of decisions – ranging between six months and five years – were “unacceptable”, and again was deemed a matter for mentoring and counselling. He put this down to being busy as chairman of the Parole Board

There was a later complaint, in September 2023, about the judge’s capacity to perform his duties after he suffered a stroke. 

This was dismissed, with the commission saying: 

“… Neither the absence of the judicial officer on personal leave nor the decision to complete his involvement in a matter heard prior to taking leave, with or without notifying the parties to the proceeding, demonstrates he cannot discharge his duties or otherwise impugned his conduct.” 

Justice Southwood is still not sitting in court. 

Wyvill contends that the investigation panel is unlikely to get far. His allegation of a political motive behind Southwood’s judgment in Lawrie v Lawler was rejected without any proper explanation. 

The panel would be in the impossible position of having to decide the question of malice without being able to consider the reason for it. 

Correspondence involving Michael Grant, who at the time was the NT’s solicitor general, Southwood, and lawyers for Lawler are alleged to give weight to Wyvill’s contention about malice and what appears to be a shared political motive. 

It is not clear whether those communications will form part of the panel’s inquiry. 

Wyvill says he is concerned that “the panel as contemplated by the commission has the appearance of being set up to fail”.