Lawrie v Lawler

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Lawrie v Lawler [2016] NTCA 03

PARTIES:LAWRIE, Delia Phoebe

v

LAWLER, John

TITLE OF COURT:  COURT OF APPEAL OF THE NORTHERN TERRITORY

JURISDICTION:  CIVIL APPEAL FROM THE SUPREME COURT EXERCISING TERRITORY JURISDICTION

FILE NO:AP 5, 6 and 8 of 2015 (21434660)

DELIVERED:  2 June 2016

HEARING DATES:  1 and 2 March 2016 and 8, 9 and 10 March 2016

JUDGMENT OF:  DOYLE, DUGGAN & HEENAN AJJ

APPEAL FROM:  SOUTHWOOD J

CATCHWORDS:

APPEAL – Judicial review – requirements of procedural fairness – inquiry pursuant to s 4A of the Inquiries Act1945(NT) - extent of obligation of the Commissioner to notify parties likely to be affected by the inquiry of the issues under investigation and/or of likely adverse findings – sufficiency of notice - identification of issues – degree of precision required – alleged waiver of right to procedural fairness – refusal by Judge to recuse – application by non-party for leave to intervene or be joined as co-appellant – interests affected – personal reputation – officer of the court – costs – indemnity costs – indemnity principle – retainer of solicitors - remedies and relief

Crown Lands Act 1992 (NT) s 12(3)
Inquiries Act 1945 (NT) s 4A, s 4A(1), s 4A(3), s 7
Legislative Assembly (Members’ Code of Conduct and Ethical Standards) Act 2008 (NT) s 4, s 5, s 5(1), s 5(2), s 12(3)
Supreme Court Act1979 (NT) s 9(1), s 51
Supreme Court Rules 1987 (NT) r 85.11, r 85.11(2)

Adams v London Improved Motor Coach Builders Ltd [1921] 1 KB 495; Ah Toy v Registrar of Companies (NT) (1985) 10 FCR 280; Ainsworth v Criminal Justice Commission (1992) 175 CLR 564; Annetts v McCann (1990) 170 CLR 596; Ashby v Slipper (2014) 219 FCR 322; Brinsmead v Commissioner, Tweed Shire Council Public Inquiry (2007) 69 NSWLR 438; Carl Zeiss Stiftung v Rayner & Keeler Ltd(No 2) [1967] 1 AC 853; Commissioner for Australian Capital Territory Revenue v Alphaone Pty Ltd (1994) 49 FCR 576; Commonwealth of Australia v Verwayen (1990) 170 CLR 394; Driclad Pty Ltd v Federal Commissioner of Taxation (1968) 121 CLR 45; Dyktynski v BHP Titanium Minerals Pty Ltd (2004) 60 NSWLR 203; Freshmark Ltd v Mercantile Mutual Insurance (Australia) Ltd [1994] 2 Qd R 390; Hot Holdings Pty Ltd v Creasy (2002) 210 CLR 438; Kioa v West (1985) 159 CLR 550; Levy v The State of Victoria (1997) 189 CLR 579; Mahon v Air New ZealandLtd [1984] AC 808; Marsh v Baxter (No 2) [2016] WASCA 51; Michael Wilson & Partners Ltd v Nicholls (2011) 244 CLR 427; Minister for Immigration and Multicultural Affairs v Jia (2001) 205 CLR 507; Minister for Immigration and Multicultural and Indigenous Affairs, Re; Ex parte Lam (2003) 214 CLR 1; National Companies & Securities Commission v News Corporation Ltd (1984) 156 CLR 296; Neat Holdings Pty Ltd v Karajan Holdings Pty…

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Details
Case
[2016] NTCA 3
Decision Date

CaseChat Overview and Summary

This appeal concerns the judicial review of an inquiry conducted under the Inquiries Act 1945 (NT), focusing on the procedural fairness afforded to the appellant. The case involves Lawrie, the appellant, and Lawler, the respondent, with Lawrie appealing various decisions related to the inquiry, including the refusal of a judge to recuse, the costs ordered, and the adequacy of notice given in the inquiry. The central issue was whether Lawrie was provided with adequate notice of the issues under investigation and potential adverse findings, and if the findings were made without procedural fairness. The appellant argued that the inquiry did not provide her with sufficient notice of the issues and findings, which were critical to her ability to respond adequately. Additionally, the appeal addressed the judge's refusal to recuse, the application by a non-party to intervene or join as a co-appellant, and the basis for ordering indemnity costs against the appellant.

The court examined the obligations of the Commissioner to notify parties of the issues under investigation and the degree of precision required in such notices. It found that the Commissioner's duty to provide adequate notice included informing parties of the issues and potential adverse findings, especially when those findings could significantly impact their personal reputation. The court held that the Commissioner's failure to provide such notice amounted to a breach of procedural fairness. Regarding the recusal decision, the court dismissed the appeal, agreeing with the earlier decision that there was no apprehension of bias. The court also found that the appellant's strategy to disengage from the inquiry and the commencement of the judicial review proceeding without regard to known facts justified the order for indemnity costs. The court concluded that the judge's order for costs on an indemnity basis was appropriate due to the appellant's conduct and the findings that the judicial review proceeding was commenced in wilful disregard of known facts.

In summary, the court upheld the findings that the inquiry did not accord procedural fairness to Lawrie due to inadequate notice of the issues and potential findings. The appeal against the recusal decision and the order for indemnity costs was dismissed. The court found that the appellant's conduct warranted the indemnity costs order, reflecting the deliberate strategy to disengage from the inquiry and the commencement of judicial review proceedings in disregard of known facts.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

The identification of the particular findings listed in the Schedule which had been made without procedural fairness being accorded to the appellant has been determined by the character and consequence attributed by the respondent to certain conduct, although the historical account of facts and events was not in dispute. It is the attribution of fault, inadequacy of performance in carrying out obligations under the relevant regulatory regime, failure to ensure the application of proper accountability processes, findings of impropriety which have been made in breach and the requirements of the procedural fairness. That is because notice of that fault, impropriety, inadequacy of performance and failure was not given to the appellant. Nor were the sources or the contents of those obligations identified. Most of the historical facts were never in dispute but the significance placed on them amounting to serious misconduct was not disclosed. Recusal Decision This is the subject of the second appeal, which is from the decision in Lawrie & Anor v Lawler [2015] NTSC 40. The grounds for this and the orders sought have already been set out. As I have already observed they include a ground that the judgment was attended by an apprehension of bias. I have had the advantage of reading the reasons of Doyle and Duggan AJJ dealing with the Recusal Decision and the ground of apparent bias. I agree with their Honours decision that this appeal should be dismissed for the reasons which they give, and that the conclusion of this appeal also disposes of the grounds of apprehended bias advanced in the two other appeals. This third appeal is from the decision in Lawrie v Lawler (No 2) (2015) NTLR 106. The grounds of appeal and the relief sought have already been set out. The first ground is that the judgment is affected by apprehended bias. As explained this ground must fail. The two remaining grounds of appeal raise, respectively, issues of whether the respondent was ever under an actual or potential liability personally for costs arising from the judicial review proceedings including the recusal and costs applications, and, if so, whether there was a sufficient basis for some of those to be ordered against the appellant on an indemnity basis. By order dated 14 August 2015 Southwood J directed that Ms Lawrie should pay Mr Lawler’s costs fixed in the sum of $214,876. That amount is an aggregate of the appellant’s liability for costs arising from the principal decision, the recusal decision and the costs decision. However, his Honour considered that the costs for the principal decision should be assessed on an indemnity basis while the costs for the recusal application and of the costs applications themselves should be assessed on a party/party basis (see [30] of the costs decision). The basis for ordering costs on an indemnity basis for the principal decision was the findings, in the principal decision and in the costs decision, that Ms Lawrie had engaged in a deliberate strategy to disengage from the Inquiry and wrongly to maintain that she had been denied procedural fairness [12]; and that the judicial review proceeding had been commenced in wilful disregard of the known facts and ought not to have been commenced [17]. These findings reflect his Honour’s findings in the principal decision that by the conduct of the appellant and her counsel and solicitor from 31 March 2014 the appellant had commenced a strategy to ignore, disengage and discredit the Inquiry – (principal decision [150] and [151]). This led his Honour to conclude at [17] in the costs decision:-… this is an appropriate case to make a specific lump sum order for costs which are assessed on an indemnity basis up to the end of the hearing in January 2015 and on a party/party basis for the recusal applications and for the costs applications. At [30] his Honour concluded:The position taken by Ms Lawrie in relation to the bias applications was arguable, as was her position in relation to costs, and those applications arose out of recent discovery by Mr Lawler’s lawyers.

Ratio Decidendi

Legal Principle Established

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