Senior NT lawyers seek disqualification of judge for apprehended bias … Costs case flowing from judicial review of politically charged findings by commission of inquiry … Email reveals that judge’s wife was privy to strategy and opinions of one side in challenge to commissioner’s findings, which were heard and determined by her husband
DARWIN does things its own way. Take the application for Justice Stephen Southwood to disqualify himself from hearing a costs stoush over the politically contentious dispute between the former Labor leader of the NT opposition, Delia Lawrie, and John Lawler, who ran a commission of inquiry that pinged her over a proposed land lease to the territory’s union movement.
There has been an attempt to join former NT bar president Alistair Wyvill and solicitor Cathy Spurr in an application by commissioner Lawler to pay his costs of an unsuccessful action by Lawrie to challenge his findings on the basis that there was a lack of procedural fairness.
Wyvill has sought the disqualification of Southwood on grounds of apprehended bias because his wife, Denise Southward, who is a senior official at the NT Department of AG and Justice, was privy to the strategy being run by Lawler in the case before her husband.
Last week there had been an arrangement that the judge would hear the parties concerning what directions ought to be made concerning Lawler’s application for costs against Lawrie, Wyvill and Spurr.
The commissioner’s solicitor, Paul Maher, wrote to the parties suggesting that the directions be in aid of progressing the case against Lawrie and Spurr (by exchange of submissions and a hearing date being set) but that the application against Wyvill be put off to a date to be fixed.
This could have been done by phone conference having regard to the presence in Sydney of Lawler’s barrister, in Adelaide of Spurr’s barrister Dick (Don’t Call Me Whittington”) Whitington and in Brisbane of Wyvill’s barrister, Walter Sofronoff and his solicitor.
Justice Southwood had other plans. He informed the parties that he could now allocate from 9am to 2pm on Friday (June 5) to hear the matter. He required the attendance of counsel who obediently flew in the night before.
A short time after nine o’clock Southwood appeared to tell the parties that he was presiding in an ongoing criminal trial, that trial would resume at 9.30 and he could therefore not hear the parties in Lawler’s case until 12.30, but would have to adjourn no later than 1.30 because he was to preside at a ceremony honouring the late Justice John Toohey at 2pm.
He could resume hearing this matter at 3.30 and could then continue on Saturday (June 6). Nobody took up the offer of a Saturday hearing, however, by then, Lawler’s lawyers had changed tack and decided that it was worthwhile proceeding that day with the respondents’ application that Southwood should disqualify himself on the ground of apprehended bias. On that basis the court adjourned at 9.30 until 12.30.
Nine lawyers obediently kicked their heels in local places of hospitality for three hours until the appointed time when Tony Young, for Lawrie, kicked-off.
On the previous day, Lawler’s solicitors had served affidavits one of which contained a startling piece of new information.
It was an email from Lawler’s solicitor, Paul Maher, to the territory government which he had copied to Mrs Denise Southwood, shortly before the trial of the procedural fairness case.
The email was sent by way of support for an application for further funds for the commissioner’s lawyers.
It is established law that when a commissioner of inquiry is sued in court to challenge the content of a report, the commissioner does not defend the matter.
To do so would be to pick a fight with a person to whom the commissioner owed a duty to be impartial. Becoming an adversary of in court is irreconcilable with impartiality. That is why the principle was established.
Instead of fighting, a commissioner in these circumstances would normally inform the court that he or she will abide by the result whatever it might be, being disinterested in a correct legal outcome.
The person who defends the report is the government that commissioned the inquiry, through the office of the attorney general.
Not so in Darwin, where Lawler went after Lawrie and Wyvill with a vengeance, accusing them of dishonesty.
One consequence of the unusual approach to this case is that solicitor Paul Maher was engaged by the government. Lawler, of course, could rightly claim to be indemnified by the government in fighting off this challenge and the way this was done was by the government, through the office of the chief executive, itself retaining Maher to act in the matter.
Maher sent his retainer agreement to the territory, gave his estimate of fees, and duly applied to the territory to increase his funding.
The person to whom he related these applications was the wife of the judge.
It is true that, on the evidence referred to in court, she was not the decision maker concerning whom to retain. But, she was a person with whom Maher dealt directly concerning his retainer and to such an extent that he confided to her the opinion of Lawyer’s original brief, former NT Supremo Michael Maurice QC, about prospects of their case – Lawler would lose.
There was also information concerning testing of some of the facts and getting information as a result of which Maurice QC formed a fresh opinion that Lawler would win.
However, there was a problem, said Maher, in the email. The matter would have to be adjourned because Maurice QC had known Alistair Wyvill for a long time and could not, in conscience, cross-examine him.
Not a problem. At a directions hearing, according to the email, Justice Southwood suggested to Lawler’s side that they retain another barrister whose task it would be to cross-examine Wyvill.
The email records that Lawler’s lawyers were taken aback by this unexpected episode of judicial activism. But, they went ahead and retained David McLure from Sydney who, there is no doubt, delivered the goods.
So, a short time before the trial, the wife of the judge who will hear the matter was involved, as part of her work, in facilitating the retainer of the lawyers of one side, arranging for contracts of retainer to be scrutinised for acceptance, arranging for service of the writ to be accepted and, crucially, became a confidant of one side concerning the tactics, the strategy and the hopes of one party to the case.
The judge at first was having none of it. When all of this was explained to him by Tony Young, for Lawrie, Southwood J kept asking, “But where’s the hook? Where’s the hook?”
Maybe, he was asking why does any of that matter? Some might think that if he couldn’t see why it mattered it was pointless arguing further. You can see it or you can’t see it.
Sofronoff, for Wyvill, put it to him this way – that having been party to facilitating the legal defence of one side of the case, and having become the repository of the deepest confidences of one side of the litigation by being given the email, she then went home. To her husband. The judge who would hear the matter.
Some think the problem became obvious at an earlier point – when objection was taken by one barrister to a paragraph of an affidavit in which Mrs Southwood’s supervisor explained that if the paperwork concerning Maher’s retainer did not accord with the view of the case put by Lawler’s legal team, to the effect that Maher had been retained by Lawler, not by the territory, then that was not Mrs Southwood’s fault.
The judge considered this objection judicially. He upheld it. The sentence was excised.
It seemed to occur to nobody that it was a unique thing to see a judge, being urged to disqualify himself on account of his wife’s involvement in the case, ruling upon evidence affecting his wife’s role while, all the time, being vocally assertive about his lack of awareness of any problem.
Indeed, Justice Southwood’s wife’s involvement predated the trial he heard and, to some educated observers, he should never have heard the case, let alone this costs argument.
Spurr and Wyvill can’t appeal the judge’s findings. They were not parties to the case and not witnesses.
Wyvill had no business attending the trial and had no reason to know what was being said about him there. The findings were made by Southwood without Wyvill or Spurr being able to offer their explanations.
If Delia Lawrie belatedly appeals, on the grounds, that the judge should not have heard the case and because his findings were wrong, Spurr and Wyvill could seek leave to be heard by the appeal court to clear their names. If she does not appeal, Spurr and Wyvill can do nothing.
If the judge does not disqualify himself on the ground of his wife’s involvement, Spurr and Wyvill have another ground of disqualification, namely that the judge cannot order them to pay costs unless Lawler proves against them as parties to the application the wrongdoing he proved so easily in their absence.
A judgment is expected on Monday, June 22. No doubt the case requires the deepest and most earnest consideration.