Going beyond the call of duty for the Obeids … Prominent barrister birched by the bar council over conduct during the Obeids’ action against ICAC … Lack of contrition … Tight lipped apology … Operation Jasper and coal exploration corruption
The NSW bar council found that Newlinds had engaged in unsatisfactory professional conduct in making unfounded allegations against former Justice David Ipp in the misfeasance case where Ipp was a defendant.
He was reprimanded and ordered to apologise to Ipp. Newlinds issued a starchy and minimalist grovel. Here it is:
Newlinds appeared for Obeid snr and the three stooges, Moses, Paul and Edward (jr) Obeid, in their ill-fated Supreme Court action against ICAC commissioner Ipp, counsel assisting ICAC Geoffrey Watson SC and two ICAC officials.
They wanted damages and orders that the ICAC’s adverse findings are a nullity. The fact that Eddie Obeid was suing for misfeasance in public office was an irony that escaped nobody.
The Obeids’ silk told the professional standards people that this was one of the most difficult cases in his 27 years as a barrister, particularly given a “lack of access to the full story”.
The case was tried by David Justice Hammerschlag, who in September 2016 dismissed the claims against the defendants, saying that the allegations against Ipp were “unsustainable and irresponsibly made”.
Essentially, the Obeids alleged that ICAC had stitched them up in Operation Jasper by fraudulent means.
The NSW anti-corruption commission found in 2013 that Ian Macdonald, the then Minister for Mineral Resources, under the influence of Eddie Obeid and his son Moses, had granted a coal exploration licence in the Bylong Valley.
Importantly, Macdonald had supplied confidential information to the Obeids about coal deposits in the area of the their Bylong Valley property, including two government maps.
ICAC found that each of Macdonald, Eddie Obeid and Moses Obeid had engaged in corrupt conduct.
Ipp, through his solicitor, Corrs partner James Whittaker, complained to the Legal Services Commissioner about Newlinds’ pleadings and statements he made in open court in the misfeasance case. The LSC referred the matter to the bar’s director of professional conduct. There were four complaints:
It was claimed that it was misleading for Geoffrey Watson to assert that the maps of the coal exploration area had been seized from the Obeids’ premises by ICAC and that Ipp knew this was false. Consequently, the commissioner denied procedural fairness to the Obeids, acted in excess of his powers and was actually biased or motivated by actual bias.
Newlinds made the assumption that Ipp had read all the evidence tendered relating to the maps and that as commissioner he was aware of problems with ICAC’s evidence and accordingly he was biased and acted in excess of his powers.
However, there was evidence before the Jasper inquiry that other witnesses had been shown the maps by the Obeids and that they had not challenged this evidence. Further, counsel for Paul Obeid made a submission that specifically agreed with Watson’s contention that the maps had been found at the Obeids’ office.
The bar council found that there was “no reasonable basis” for this allegation against Ipp.
It was alleged in the statement of claim in the misfeasance litigation that a key ICAC witness, Gardner Brook, had entered an arrangement with the commission which assisted it to manipulate a finding of corruption against the Obeids – and that Ipp was aware of this.
The Obeid’s contented that Brook was an unreliable witness of dubious reputation and that there was a difference in the tone and allegations put to Brook in ICAC’s private sessions compared to those in his public examination.
Newlinds withdrew this allegation and the bar council found that the facts did not justify the serious assertions that Ipp acted in excess of his powers, was actually biased and acted in bad faith.
Importantly, the Obeids did not have Brook recalled for cross-examination on any alleged secret deal with ICAC.
It was alleged in the statement of claim in the misfeasance case that a Mr Peter Tunks gave false evidence to the ICAC inquiry and Ipp knew it was false.
Newlinds later withdrew the claim and the bar council said that “none of the matters that Newlinds has identified in relation to the Tunks allegation justified the serious allegations made against Mr Ipp in the amended statement of claim”.
It was alleged that at Operation Jasper’s inquiry certain parts of a document relating to the Obeids’ company Australian Water Holdings was suppressed by Ipp and that he was “reckless” as to whether it would harm the Obeids.
However, it was found by both the bar council and Hammerschlag J at the trial there was no evidence which reasonably supported this allegations against Ipp.
Allegedly all of these things were done by Watson and Ipp deliberately to cause the Obeids “injury, repetitional and financial harm” – except there was no available evidence which reasonably supported the allegations.
By not having the grounds to make the serious allegations which are the subject of the complaint Newlinds ran foul of cl2(1), schedule 2 of the Legal Profession Uniform Law Application Act.
Then there are the bar rules, specifically rules 61, 64 and 65 and more generally rule 8.
The bar council said that Newlinds’ conduct fell short of the “standard of competence and diligence that a member of the public is entitled to expect of a reasonably competent lawyer”.
This amounted to unsatisfactory professional conduct on the part of the silk, that he should be reprimanded and ordered to apologise to David Ipp.
It can be anticipated that these findings will not sit comfortably with The Australian’s anti-ICAC campaign, conducted largely by Chris (The Tamil) Merritt, the paper’s legal affairs scribbler.
He was particularly entranced by the hijacked maps theory. At the time the bar council finalised its findings on Newlinds, The Tamil had cranked up a new campaign on behalf of Andrew Cornwell, a former Liberal MP found by the commission to have acted with “the intention of evading laws under the Election Funding, Expenditure and Disclosures Act 1981 relating to the disclosure of political donations and the ban on donations from property developers”.
ICAC suggested to the DPP that Cornwell should be prosecuted for perjury, a request the prosecutor has now rejected on the ground that there is insufficient evidence.
He even proselytised about this story on Alan Jones radio show, Jones being a peddler of all sorts of nostrums. There are reports here and here
See:
Bar Council’s reasons for decision