Lawrie v Lawler - [2015] NTSC 40

Lawrie & Anor v Lawler [2015] NTSC 40
PARTIES:LAWRIE, Delia Phoebe

AND
WYVILL, Alistair
v
LAWLER, John

TITLE OF COURT:  SUPREME COURT OF THE NORTHERN TERRITORY
JURISDICTION:  SUPREME COURT OF THE NORTHERN TERRITORY EXERCISING TERRITORY JURISDICTION
FILE NO:68 of 2014
DELIVERED:  22 July 2015
HEARING DATE:  5 June 2015
JUDGMENT OF:  SOUTHWOOD J
CATCHWORDS:

PROCEDURE – Courts and judges generally – objection to trial Judge hearing application for costs – apprehended bias – Judge married to public service officer involved in administrating the procurement of ad hoc legal services for the defendant – applications dismissed
Criminal Code Act (NT) Schedule 1, s 1, s 76
Financial Management Act 1995 (NT) s 3(1)
Inquiries Act 1945 (NT)
Procurement Act 1955 (NT) s 3(2), s 9, s 11
Procurement Regulations r 3
Public Sector Employment Management Act 1933 (NT) s 3, s 5F(1), s 16, s 49, s 49C
Evidence (National Uniform Legislation) Act 2011 (NT)
Johnson v Johnson (2000) 201 CLR 488, applied
Lawrie v Lawler [2015] NTSC 19; Tasmania v Johnston (2009) 197 A Crim R 152; Cachia v Hanes (1994) 179 CLR 403; Adams v London Motor Builders [1921] 1 KB 494; Attorney-General (NT) v Director of Public Prosecutions & Ors [2013] NTCA 2, referred to
REPRESENTATION:
Counsel:
First Applicant:  A Young, A George
Second Applicant:  W Sofronoff QC
Respondent:  M Maurice QC, D McLure
Solicitors:
First Applicant:  Ward Keller
Second Applicant:  Carter Newell
Respondent:  P Maher
Judgment category classification:    B
Judgment ID Number:  Sou1504
Number of pages:  101

INDEX

Page No
1	Introduction		1
2	The facts of the applications for disqualification for apprehended bias		2
2.1	The Legal Services Coordination Unit and procurement of ad hoc litigious legal services by the Northern Territory from lawyers in private practice	3
2.2	Mrs Southwood’s position in the Attorney-General’s Department	8
2.3	Mrs Southwood’s involvement in the procurement process in this case	13
2.4	Further and better discovery and the interlocutory proceedings	22
2.5	Mr Maher’s email to Mrs Hart dated 14 January 2014	55
2.6	The postal address of the Department of the Chief Minister on counsels’ invoices	66
3	The costs issues		67
4	Ms Lawrie’s submissions about apprehended bias		68
4.1	The email dated 5 August 2014	68
4.2	Mr Maher’s email to Mrs Hart dated 14 January 2015	85
5	Mr Wyvill’s application for disqualification for apprehended bias		97
6	The interpretation of Mrs Southwood’s email to Mr Maher dated 5 August 2014		100
7	Conclusion		101

IN THE SUPREME COURT
OF THE NORTHERN TERRITORY
OF AUSTRALIA
AT DARWIN
Lawrie & Anor v Lawler [2015] NTSC 40

No. 68 of 2014
BETWEEN:

DELIA PHOEBE LAWRIE

First Applicant

AND:

ALISTAIR WYVILL
Second Applicant

AND:
JOHN LAWLER

Respondent

CORAM: SOUTHWOOD J
REASONS FOR JUDGMENT
(Delivered 22 July 2015)
Introduction

On 8 May 2015 Mr John Lawler filed a summons naming Ms Delia Lawrie, Mr Alistair Wyvill and Ms Catherine Spurr as respondents. The summons seeks the following orders for costs in Lawrie…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2015] NTSC 40
Decision Date: 22 July 2015

CaseChat Overview and Summary

In the case of Lawrie v Lawler, Ms Lawrie brought an application against the Northern Territory Government seeking compensation for a motor vehicle accident. The Legal Services Coordination Unit within the Attorney-General’s Department of the Northern Territory was responsible for the procurement of ad hoc legal services for the defendant. Mr Lawler subsequently sought costs from Ms Lawrie, prompting an objection to the trial judge’s hearing of the application for costs on grounds of apprehended bias. The central issue was whether the trial judge should be disqualified due to his wife being an administrative officer involved in the procurement of legal services for the defendant.

The court considered the nature of the administrative officer’s role and the judge’s marital relationship. It was established that the officer was involved in managing and undertaking some of the administrative tasks in the outsourcing of legal services but did not make recommendations on whether a request for legal services should be allocated to a Government lawyer or outsourced. The court also noted that the officer's role was distinct from that of the Director of Litigation, who made the final recommendations. The judge’s wife had no involvement in the decision-making process regarding this specific case.

The court concluded that there was no reasonable apprehension of bias. The administrative officer's role did not give rise to a situation where a fair-minded lay observer might think the judge was not impartial. The court dismissed the applications for disqualification on the grounds of apprehended bias. The reasoning was that the administrative officer’s involvement in the procurement process was not connected to the specific decision at hand, and the judge’s wife did not participate in the decision-making process for this case. The court further noted that the officer’s role was administrative rather than decisional, and there was no evidence suggesting any personal or professional interest in the outcome of the case.

The court dismissed Ms Lawrie's and Mr Wyvill's applications for disqualification, emphasizing that there was no reasonable apprehension of bias. The other grounds raised by Mr Wyvill were to be heard and determined at a later date. The judge ordered that further submissions would be heard regarding the costs of these applications.

Orders

Orders of the court

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Background

Background to the litigation

In my opinion, for the following reasons, the applications for apprehended bias heard on 5 June 2015 should be dismissed.The facts of the applications for disqualification for apprehended bias The following facts are established by the affidavits which were read in Court on 5 June 2015, two affidavits made by Mr Maher on 8 January 2015, various interlocutory orders made by the Court and the transcript of the hearing of the interlocutory applications in open court on 9 and 14 January 2015. I have referred to Mr Maher’s affidavits of 8 January and the documents that follow for the reasons which are apparent at [58] to [97], [98] to [117] and [159] to [177].The Legal Services Coordination Unit and procurement of ad hoc litigious legal services by the Northern Territory from lawyers in private practice Within the Attorney-General’s Department of the Northern Territory there is a unit called “Legal Services”. Within the Legal Services unit there are a number of smaller units and divisions. One unit is the Solicitor for the Northern Territory, which is made up of the following four divisions: the Litigation Division, the Commercial Division, the Aboriginal Land Division and the Legal Policy Division. At all relevant times, Mr Craig Smyth was the Acting Director of the Litigation Division. He is a legal practitioner and he has been Acting Director since mid-December 2013. One of his functions is to recommend the outsourcing of legal services for the Northern Territory to lawyers who are in private practice. These recommendations are made by Mr Smyth in consultation with the Northern Territory Government Agency that has requested legal services. In the Legal Services unit there is also a small administrative unit called “Legal Services Coordination” (the Unit). The Unit comprises a Manager at the public service administrative level of Administrative Officer 7, an Assistant Manager at the public service administrative level of Administrative Officer 6, and an administrative officer at the public service administrative level of Administrative Officer 3. The Unit’s main role is to provide internal legal practice management assistance to the various divisions of the Solicitor for the Northern Territory. The Unit also manages and undertakes some of the administrative tasks in the outsourcing of legal services for the Northern Territory to lawyers who are in private practice. The Unit uses a generic email address for the receipt of requests for legal services from Northern Territory Government Agencies. For litigious matters, the Unit passes the requests for legal services to the Director of Litigation, Mr Smyth, and waits for directions. Mr Smyth recommends whether a request for legal services should be allocated to a Government lawyer or outsourced to a private law firm or to a lawyer in private practice. Mr Smyth’s recommendation is communicated to the Government Agency seeking legal services for its approval. In paragraph 4 of his affidavit made on 4 June 2015 Mr Smyth stated, “If outsourcing is approved the Unit prepares the appropriate procurement paperwork and contacts the firm to confirm the terms of the engagement and request an estimate of costs, and then prepares the appropriate procurement paperwork.”

Evidence

Evidence Before The Court

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Decision

Reasons for decision

I do not accept the submission. The two situations are quite different and the guideline is not applicable. It is not as if I am being asked to consider an affidavit that was made by Mrs Southwood. If a person is giving evidence or has made an affidavit they naturally have an interest in the Court accepting what they have said. That is not the situation in this case. The submission incorrectly implies or relies on an unarticulated premise that Mrs Southwood has an interest in how her email dated 5 August is interpreted. She does not. If Mrs Southwood’s email does fall to be interpreted, the situation is no different to the interpretation of any other document. The terms of the email are fixed and the context in which the email was sent is not disputed. Further, the construction of the email is arguably a question of law.Conclusion In the circumstances, this is not a case where a fair minded lay observer might reasonably apprehend that the judge might not bring an impartial mind to the resolution of the question the judge is required to decide. Ms Lawrie’s application that I disqualify myself from hearing Mr Lawler’s application for costs is dismissed. Mr Wyvill’s application is also dismissed to the extent that it relies on the same grounds as Ms Lawrie’s application. The other grounds raised by Mr Wyvill remain to be heard and determined at a later date. I will hear the parties further as to the costs of these applications.-----------------------------

Ratio Decidendi

Legal Principle Established

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