Application for Justice Southwood to recuse himself from costs application against former NT bar president Alistair Wyvill … Judge made adverse findings about Wyvill’s conduct at commission of inquiry … Judge’s wife involved in arranging legal representation and funds for lawyers to represent the inquiry commissioner … Stella Maris conflicts … Buffalo Bruce reports 

DOES it pose any sort of problem if the wife of a judge, who sat on a dispute over the findings of a government commission of inquiry, is the person who also writes the cheques for the commissioner’s lawyers? 

Well, it doesn’t seem to be regarded as a problem in the Northern Territory. Only poncy, appearance conscious southerners think it’s an issue. 

Anyway, it’s to get an airing this morning (Friday, June 5) in the NT Supremes, where lawyers for former NT bar president Alistair Wyvill are seeking orders that Justice Stephen Southward disqualify himself from hearing a costs application against Wyvill, on the grounds of actual or apprehended bias. 

As Justinian has reported, Southwood gave judgment in April in the case brought by the then leader of the NT Opposition, Delia Lawrie against findings made by Commissioner John Lawler into what is known as the Stella Maris affair. 

As deputy chief minister in the outgoing Labor government Laurie arranged for a lease of the historic Stella Maris site in Darwin to Unions NT. 

As it happened the unions did not take up the lease of this crown land, but the incoming Country Liberal government smelled an opportunity and created a Brandis-style commission of inquiry, hoping that it would be able to make politically ruinous findings against Lawrie – which is exactly what happened. 

Lawrie was represented pro bono at the Lawler inquiry by Alistair Wyvill. 

John Lawyer, who is a former Australian Crime Commissioner and deputy head of the AFP, reported 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. 

She challenged Lawler’s findings in the Supreme Court, saying there was a lack of procedural fairness because she had not been given an opportunity to be further heard before the commissioner made his findings.

Justice Southward, dismissed her application, finding that Lawrie and Wyvill 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 made submissions, the judge made damaging findings against Wyvill, including: 

As a result Wyvill stepped aside as president of the NT bar and Lawrie is no longer leader of the opposition. 

Wyvill has now been joined with Lawrie to pay the commissioner’s costs of the proceedings before Southwood, even though the NT government has indemnified Lawler. 

Lawrie’s costs at the inquiry and that of fellow minister Gerry McCarthy were not paid by the government. 

This morning former Queensland solicitor general Walter Sofronoff will appear in Darwin for Wyvill and ask Southward to step aside from the costs hearing and any further involvement in the Lawrie v Lawler case. 

It has emerged in correspondence that the judge’s wife, who is a manager at the Department of Attorney General and Justice, was involved in negotiating the engagement of local lawyer Paul Maher to act for Lawler in the judicial review case. 

Mrs Southwood’s section of the department was also responsible for paying Maher’s fees, which total $185,199.23 including GST. 

Wyvill’s lawyers say this connection is sufficient basis for Southwood to step down from further involvement in the costs application. It is also contended that it is a ground on which to appeal his findings. 

Further, after judgment was delivered, Southwood’s associate wrote to Wyvill, saying: 

“Following upon his Honour’s decision in Lawrie v Lawler, his Honour has determined that your conduct during the Stella Maris Inquiry and your representation of Ms Lawrie, including whether you may have sworn a false affidavit, should be referred to the Law Society for investigation. 

The Law Society will also be asked to consider whether there are any matters which should be referred to the Director of Public Prosecutions. His Honour has asked me to inquire into whether you would like an opportunity to be heard before the matter is referred to the Law Society. Please advise me accordingly. 

His Honour also asks that, by return email, you provide an undertaking to the Court to maintain your complete records, including computer records, relating to the Inquiry and your representation of Ms Lawrie.” 

This too is a basis for grounding an application that the judge should not hear the costs application against Wyvill. 

Wyvill has sworn a lengthy affidavit rebutting Southwood’s principal findings against him. 

This morning’s application will be followed in the afternoon by a ceremony in Darwin to honour John Toohey’s contribution to the law and to the territory.