Lawrie v Lawler - [2015] NTSC 19

Lawrie v Lawler [2015] NTSC 19
PARTIES:LAWRIE, Delia Phoebe

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:  1 April 2015
HEARING DATES:  27, 28, 29 and 30 January 2015
JUDGMENT OF:  SOUTHWOOD J
CATCHWORDS:

ADMINISTRATIVE LAW – Judicial review - procedural fairness – inquiry into proposed Government Grant of Lease of Crown Land – whether plaintiff given a fair hearing – requirement to provide notice of adverse findings – whether right to any greater procedural fairness waived
Inquiries Act 1985
Crown Lands Act 1992
Legislative Assembly (Members’ Code of Conduct and Ethical Standards) Act 2008
Ainsworth and Another v Criminal Justice Commission (1992) 175 CLR 564
Annetts v McCann (1990) 170 CLR 596
Briginshaw v Briginshaw (1938) 60 CLR 336
Commissioner for Australian Capital Territory Revenue v Alphaone Pty Ltd (1994) 49 FCR
Craine v Mutual Fire Insurance Co Ltd (1920) 28 CLR 305
Escobar v Spindareli (1986) 7 NSWLR 51
Grundt v Great Boulder Pty Gold Mines Ltd (1937) 59 CLR 641
Jones v Dunkel (1959) 101 CLR 298

Mahon v Air New Zealand [1984] AC 808
MH6 v Mental Health Review Board (2009) 25 VR 382
National Companies and Securities Commission v News Corporation (1984) 156 CLR 296
REPRESENTATION:
Counsel:
Plaintiff:A Young, A George
Defendant:M Maurice QC, D McLure
Solicitors:
Plaintiff:Halfpennys
Defendant:P Maher
Judgment category classification:   B
Judgment ID Number:  Sou1503
Number of pages:  120

IN THE SUPREME COURT
OF THE NORTHERN TERRITORY
OF AUSTRALIA
AT DARWIN
Lawrie v Lawler [2015] NTSC 19

No. 68 of 2014
BETWEEN:

DELIA PHOEBE LAWRIE

Plaintiff

AND:

JOHN LAWLER

Defendant

CORAM: SOUTHWOOD J
REASONS FOR JUDGMENT
(Delivered 1 April 2015)
Introduction

On 5 December 2013, under s 4A of the Inquiries Act (NT), the Legislative Assembly of the Northern Territory resolved that a person be appointed to inquire into and report to the Administrator on the following matter.
The circumstances of the purported decision of the then Minister for Lands and Planning to grant a lease over Lot 5260 Town of Darwin known as Stella Maris to Unions NT on or about 3 August 2012.
On about 3 August 2012 the Minister for Lands and Planning of the previous Labor Government made the decision to grant a lease of the Stella Maris site to Unions NT in accordance with a Cabinet decision made on 10 July 2012. It is this decision that was the subject of the Inquiry into the Stella Maris site (the Inquiry).
On 18 December 2013 the Administrator appointed Mr Lawler as Commissioner to inquire into and report on the following matters.
1.The circumstances of the purported decision of the then Minister for Lands and Planning to grant a lease over Lot 5260 Town of Darwin known as Stella Maris (the site) to Unions NT on or about 3 August 2012.
2.The public policy and public accountability considerations involved in making the purported decision to grant a lease of the…

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 19
Decision Date: 1 April 2015

CaseChat Overview and Summary

In the case of Lawrie v Lawler, the primary focus was on the procedural fairness granted to Ms Lawrie during an inquiry into the proposed Government Grant of Lease of Crown Land. The dispute arose from Ms Lawrie's conduct and alleged bias in favour of Unions NT in relation to the Stella Maris site in Darwin. The core legal issues centred on whether Ms Lawrie was afforded procedural fairness during the inquiry and whether her right to a fair hearing was waived. The court examined whether there was a requirement to notify Ms Lawrie of adverse findings before they were finalised and whether any procedural fairness was waived.

The court concluded that Ms Lawrie was provided with a fair opportunity to articulate her justification for her conduct, based on Unions NT's attachment to the site and their capacity to maintain it. The court found that the fact Mr Lawler did not accept Ms Lawrie's justification did not imply a denial of procedural fairness. The court further found that Ms Lawrie's withdrawal of her allegations and her failure to seek further evidence or an adjournment meant that any procedural fairness issues were waived. Therefore, the application was dismissed, and the court directed that the parties would address the issue of costs.

Orders

Orders of the court

the application is dismissed and I will hear the parties as to costs.

Background

Background to the litigation

Ms Lawrie and Mr Wyvill elected to deal with the issues which obviously arose in the Inquiry by putting forward a considered and well developed justification for Ms Lawrie’s conduct based on Unions NT’s attachment to the site, their capacity to maintain the site, and the rapidly approaching caretaker period of government. Ms Lawrie and Mr Wyvill were granted a fair opportunity to articulate that justification. The fact that Mr Lawler did not accept that justification does not mean that Ms Lawrie was denied procedural fairness.Background to the Inquiry The Stella Maris site is at 1 McMinn Street in the Central Business District of Darwin. Today there are three buildings on the site: the heritage listed railway house, the accommodation building, and the bar building. The railway house is at least 73 years old. It was one of many houses built in this area to accommodate employees of what became the North Australian Railway. From 1979 to 2007 an agency of the Catholic Church which cares for seafarers, the Apostleship of the Sea (Darwin) Inc. (the Apostleship of the Sea), held a Crown lease over the Stella Maris site to run a seafarers centre. The lease was surrendered to the Northern Territory in 2007 and compensation of $630,000 was paid to the Apostleship of the Sea. Thereafter, the Stella Maris site has largely remained vacant. It remained vacant from the surrender of the Crown lease by the Apostleship of the Sea until the Cabinet decision of 10 July 2012 because the Department of Lands and Planning was awaiting the decision of Cabinet about the future of the site. On 3 September 2007 Ms Lawrie sent a memorandum to the then Chief Minister Claire Martin confirming that she had written to Apostleship of the Sea making an offer of $630,000 as compensation for the improvements on Lot 5260, subject to the surrender of the whole Crown lease. The memorandum also stated:My office will brief Unions NT and the local member on the proposed surrender of the lease [emphasis added].Following the surrender, Lot 5260 will revert to Crown land and Government will need to consider the future use of this site. I note that the 24HR Art Board of Management is aware of the proposed surrender of the lease and has written to you expressing an interest in the site [emphasis added].I would appreciate your views, particularly on the future use of the site. On 2 October 2007 the Chief Minister asked Ms Lawrie to provide a note to Cabinet about all issues to do with Stella Maris. On 8 November 2007 Ms Lawrie received a draft note to Cabinet which had been prepared by the Department of Planning and Infrastructure. The Department recommended that Ms Lawrie endorse the note to Cabinet. The draft note raised the following options for consideration by Government.1.Possible commercial/residential development.The significant costs in providing access to the site, other than a restricted delivery or drop off access, suggests that only a substantial commercial/residential development would be viable.While such a development is required to justify the cost of providing an access, it is likely to have a detrimental impact on Travellers Walk and the amenity of adjoining existing residential development. At this stage, there seems to be little prospect of the site being developed in accordance with its current CB zoning.2.Low scale commercial development.Continued use of the buildings would avoid problems of illegal occupation/vandalism. In the short term, some low key commercial development, café/kiosk type establishment, which only has pedestrian access in a park like setting may be appropriate. There may at a later date also be potential to integrate such a development with the existing heritage structure on the site, depending on the facilities provided within the Waterfront and the rest of the locality.This option may result in the NT Government having to expend funds to bring the buildings up to a standard, to enter into a commercial leasing arrangement and any change in the use of the land, will need to take into consideration car parking requirements under the NT Planning Scheme. 3.Offer leasehold tenure of the site to the National Trust of Australia (Northern Territory).The National Trust is aware that the site is being returned to the Northern Territory Government, and along with some options mentioned above, has suggested further possible options for consideration being:· To highlight the importance of Travellers Walk as a historic link between the wharf and the city;· The preservation of the whole site (except the accommodation unit) on which Stella Maris is located, would provide a point of interest and information on the way from the waterfront to the city; and· Railway House could be reconstructed to its original design and possibly used as an interpretive centre for the past railway use at the waterfront or a wider story of the working waterfront; and possibly a site to house the Sandfly in the long term. The Sandfly is historically significant to the Northern Territory as the first and longest serving locomotive to operate on the North Australian Railway (NAR). The Sandfly operated on the NAR between 1887 and 1950 and was instrumental in its construction. The Sandfly is currently on display at the Cruise Ship Terminal at Stokes Hill wharf.A copy of the National Trust’s letter is at Attachment BIt is not known at this stage if the National Trust is seeking to secure the site.This option would be consistent with the proposal by the Planning Action Network that the site be set aside as a park. Note that, as a “park”, management and/or ownership of the site would need to be vested in an appropriate body such as Darwin City Council or the Waterfront Corporation. However, this option may have the potential to alienate the site for any future proposed development.4.Given the shortage of Crown land within the Central Business zoning – land bank the site.The residential component of the Waterfront Development and the potential for future residential development on the adjacent old railway yards will increase the number of people living in the locality. In the absence of any compelling immediate use of the land, it may be prudent for the Northern Territory Government to “land bank” the site pending the completion of current construction in the locality.In the interim, use of the existing demountable accommodation should be limited to occupation by a caretaker. DPI is in the process of formalising this arrangement with two current residents. The grounds will also continue to be maintained by the proposed caretakers as they are adjacent to Travellers Walk, however, public access to the site would be precluded.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

The application of the principles of Jones v Dunkel has been complicated in this case by Ms Lawrie’s proper withdrawal of her allegations based on Mr Lawler’s letter of 17 February 2014. All plaintiffs are entitled to amend the basis on which they make a claim for relief and most amendments will have an impact on the evidence that a plaintiff needs to call in support of her case. However, after Ms Lawrie was informed of the basis on which Mr Lawler put the allegations of waiver, she did not instruct Mr Young to seek to read the affidavits that had been filed. Nor did she instruct Mr Young to make an application for an adjournment so fresh affidavits could be filed on her behalf. I note that Ms Lawrie was in Court for most of the hearing.Conclusion In the circumstances the application is dismissed and I will hear the parties as to costs.-----------------------------

Ratio Decidendi

Legal Principle Established

At the end of her evidence before the Inquiry Ms Lawrie was given an opportunity to make a closing statement. They had also been given the opportunity to call further evidence. Both Ms Lawrie and Mr Wyvill made closing statements and they also called evidence about the valuation of the Stella Maris site.Consideration of Ms Lawrie’s complaints Ms Lawrie complains about the following adverse findings which she says she was not given an opportunity to respond to before Mr Lawler finalised his report.1.Minister Lawrie directed her office to brief Unions NT over another community group that had expressed an interest in the site when it was surrendered to the government in 2007.2.Minister Lawrie acted with bias over many years, forming a view in 2009 that Unions NT should be exclusively granted a lease over the site without an expression of interest process.3.Ms Lawrie formed this view in 2009 after a meeting with Unions NT representatives and receiving a redevelopment proposal for the site, which became the application document.4.Minister Lawrie should have ensured that her office provided this application to the Department following this meeting. This did not occur. The first time the Department received the application was 17 July 2012, by which time it was three years out of date and largely irrelevant.5.Minister Lawrie should have made it clear to the Department that it was her intention to grant the site to Unions NT without an expression of interest process. This should have been done in writing from either the Minister or a member of staff.6.The Inquiry has found no evidence to suggest that this was done.7.Years after the 2009 meeting with Unions NT, in July 2012, Minister Lawrie intervened to bring the submission to the 10 July 2012 cabinet meeting, even though Minister G McCarthy was the Minister for Lands and Planning at the time. It is unlikely that the submission would have gone to that Cabinet meeting or that the letter of offer would have been made on 3 August 2012 without Minister Lawrie’s intervention.8.Minister Lawrie maintained that this intervention was due to her concern that the incoming government could sell the site for commercial or residential high rise development and her long standing preference was to grant the site to Unions NT.9.This concern and preference did not justify the decision that was ultimately made by Minister G McCarthy: a decision that would not have been made without Minister Lawrie’s intervention.10.Notwithstanding that Minister Lawrie may have genuinely believed that granting the site exclusively to Unions NT was in the public interest, the way she involved herself in the process was not proper and was unfair to the public and other community groups.11.The fact remains that Minister Lawrie acted with bias in favouring Unions NT over other community groups.12.From her time as Minister for Planning and Lands in 2007 up until the Cabinet meeting of 10 July 2012, Minister Lawrie acted in a biased way by favouring Unions NT in its attempts to be granted a lease of the site.13.Mr Loenneker’s interventions, on Minister Lawrie’s behalf, with the Department in 2009 were not proper.14.Notwithstanding her knowledge of the Northern Territory, Minister Lawrie could not have possibly known who else might have expressed an interest in the site and what partnership arrangements that might have involved.15.If Minister Lawrie was so biased as to be unable to allow other interested community groups to advance their proposals to be compared and properly assessed against Union NT’s application, then she should have excluded herself from participating in the Cabinet decision-making process.16.The approaching caretaker period, the potential for a change of Government and a view that this would mean the site would be used for commercial/residential high rise, does not adequately justify Minister Lawry’s conduct.17.As such I find that Minister Lawrie exerted influence over the Cabinet process and over Minister G McCarthy and his office in a way that was designed to further her view that Unions NT should be offered an exclusive lease to the site. By acting in such away, Minister Lawrie deprived the public and other community groups of an opportunity to have their claims for the site properly and fairly considered.18.As the Minister for Planning and Lands, Minister Lawrie must also take responsibility for the actions of her senior lands advisor at the time, Mr Loenneker, whose conduct was not of the highest standards expected.19.I find that notwithstanding Minister Lawrie may have genuinely believed that granting the site to Unions NT was in the public interest, the way she involved herself in the process was not proper and was unfair to the public and other community groups.20.I recommend that the Legislative Assembly consider whether there has been an alleged breach of the Northern Territory of Australia Legislative Assembly (Members’ Code of Conduct and Ethical Standards) Act 2008, by Ms Delia Lawrie MLA … and whether under the provisions of s 5(1) it wishes to refer any alleged breach of the code to the Privileges Committee.