Lawrie v Lawler
[2016] NTCA 3
•2 June 2016
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 Ltd (1992) 67 ALJR 170; Queensland Police Credit Union Ltd v Criminal Justice Commission [2000] 1 Qd R 626; Ramsay v Pigram (1968) 118 CLR 271; Roadshow Films Pty Ltd v iinet Ltd (2011) 248 CLR 37; Sargent v ASL Developments Ltd (1974) 131 CLR 634; Smits v Roach (2006) 227 CLR 423; SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs (2006) 228 CLR 152; Telstra Corporation Ltd v Smith (2008) 105 ALD 521; Vakauta v Kelly (1989) 167 CLR 568, applied.
Associated Provincial Picture Houses Ltd v Wednesbury Corp [1948] 1 KB 223; Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321; British American Tobacco Australia Services Ltd v Cowell (2002) 7 VR 524; Chiropractors Association of Australia (South Australia) Ltd v Workcover Corporation of South Australia [1999] SASC 120; Commonwealth of Australia v Construction, Forestry, Mining and Energy Union (2000) 98 FCR 31; Corporate Affairs Commission v Bradley [1974] 1 NSWLR 391; Craine v Colonial Mutual Fire Insurance Co Ltd (1920) 28 CLR 305; Cunneen v Independent Commission Against Corruption [2014] NSWCA 421; Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337; Escobar v Spindaleri (1986) 7 NSWLR 51; Greiner v Independent Commission Against Corruption (1992) 28 NSWLR 125; Grundt v Great Boulder Pty Gold Mines Ltd (1937) 59 CLR 641; Hall v University of New South Wales [2003]
NSWSC 669; Haoucher v Minister for Immigration & Ethnic Affairs (1990) 169 CLR 648; Harmer v Oracle Corporation Australia Pty Ltd (2013) 299 ALR 236; Henderson v Queensland (2014) 255 CLR 1; Inglis v Moore (No 2) (1979) 46 FLR 470; J v Lieschke (1987) 162 CLR 447; Lenthall v Hillson [1933] SASR 31; MH6 v Mental Health Review Board (2009) 25 VR 382; Minister for Immigration and Citizenship v Li (2013) 249 CLR 332; Minister for Immigration and Multicultural Affairs v Eshetu (1999) 197 CLR 611; National Australia Bank Ltd v Hokit Pty Ltd (1996) 39 NSWLR 377; Noye v Robbins(No 6) [2008] WASC 266; Noye v Robbins [2010] WASCA 83; Police Integrity Commission v Shaw (2006) 66 NSWLR 446; R v Australian Broadcasting Tribunal; Ex parte Hardiman (1980) 144 CLR 13; R v GJ (2005) 16 NTLR 230; R v Ludeke & Ors; Ex parte Customs Officers’ Association of Australia, Fourth Division (1985) 155 CLR 513; Rushby v Roberts [1983] 1 NSWLR 350; Salemi v MacKellar(No 2) (1977) 137 CLR 396; Trevorrow v State of South Australia(No 7) (2008) 251 LSJS 91; Victims Compensation Fund Corporation v Nguyen (2001) 52 NSWLR 213; Wells v Carmody [2014] QSC 59; Wilson v British American Tobacco Australia Services Ltd (CA (Vic) - 26 July 2002); Witness v Marsden (2000) 49 NSWLR 429, referred to.
Bond v Australian Broadcasting Tribunal (No 2) (1988) 19 FCR 494, distinguished in the Reasons of Heenan AJ.
REPRESENTATION:
Counsel:
Appellant: on 1 and 2
March 2016A Scott
on 8 – 10 March 2016: PJ Davis QC and
A Scott
Respondent: on 1 and 2
March 2016 D McLure SC and
G O’Mahoney
on 8 – 10 March 2016 D McLure SC and
G O’Mahoney
Applicant to Intervene –
on 1 and 2 March 2016 - W Sofronoff QC and
D Skennar
Solicitors:
Appellant:Ward Keller Lawyers
Respondent: Paul Maher Solicitors
Applicant to Intervene - Carter Newell
Judgment category classification: A
Number of pages: 208
IN THE COURT OF APPEAL
OF THE NORTHERN TERRITORY
OF AUSTRALIA
AT DARWINLawrie v Lawler [2016] NTCA 03
No. AP 5, 6 and 8 of 2015 (21434660)
BETWEEN:
DELIA PHOEBE LAWRIE
Appellant
AND:
JOHN LAWLER
Respondent
CORAM: DOYLE, DUGGAN & HEENAN AJJ
REASONS FOR JUDGMENT
(Delivered 2 June 2016)
DOYLE & DUGGAN AJJ:
Background
On 10 July 2012 the Cabinet of the Northern Territory Government approved the offer of a Crown Lease for a “term of 10 + 10 years” to “Unions NT”. “Unions NT” is the operating name of the Northern Territory Trades and Labour Council Incorporated. For convenience we will refer to that body as “Unions NT”.
The proposed lease was to be a lease of land in the city of Darwin, known as the “Stella Maris site”. We will refer to it in the same way.
When the Cabinet made its decision a general election for the Northern Territory Parliament was to take place on 25 August 2012. We understand that the caretaker period was to begin on 6 August 2012.
After the Cabinet decision the lease conditions and a letter of offer were prepared by the Department of Lands and Planning. The documents were stamped with the relevant Minister’s signature on 3 August 2012, the last working day before the caretaker period began. The documents were emailed to the secretary of Unions NT that same day. The secretary signed them that day but did not pay the required lodgement fee, nor fix the seal of Unions NT to the document, until 9 August 2012.
The election on 25 August 2012 resulted in a change of government. The new government was not favourably disposed to the proposed lease. In fact, the lease was never registered. The Stella Maris site remains unalienated Crown Land. The details of the dealings with the Stella Maris site after the election are not now relevant.
On 18 December 2013 the Administrator of the Northern Territory, exercising power conferred by s 4A(1) of the Inquiries Act 1945 (NT) (Inquiries Act), appointed Mr John Lawler as Commissioner. Mr Lawler was required to enquire 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 site to Unions NT without putting the matter out to expressions of interest or public tender.
3.The performance of relevant persons, including the then Minister for Lands and Planning, in carrying out their obligations under the relevant regulatory regime and ensuring the proper accountability processes were applied in the tenure management of the site.
4.The adequacy and effectiveness of the regulatory regime in ensuring transparency, good governance and community input into the process of leasing or granting Crown land.
5.The provision and accessibility of relevant information to affected stakeholders and the public in relation to the proposal and purported decision to grant the lease of the site to Unions NT.
6.Any measures that might help ensure transparency, good governance and community input into the process of leasing or granting Crown land with particular reference to the purported decision to grant the lease of the site to Unions NT.
7.Any other suggestions or recommendations the Commissioner considers relevant to the above matters.
Mr Lawler embarked on the Inquiry. He presented his Report (“the Report”) to the Administrator on 26 May 2015.
Mr A Wyvill SC (Mr Wyvill) and Ms C Spurr (Ms Spurr) acted as counsel and solicitor respectively for Ms Delia Lawrie (Ms Lawrie) in connection with the Inquiry.
The Report contains a number of findings and criticisms adverse to Ms Lawrie. When the Cabinet decision was made Ms Lawrie was Deputy Chief Minister and Treasurer. She had been the Minister for Lands and Planning until 4 December 2009. The Department of Lands and Planning was, in the ordinary course of things, the Department responsible for the grant of the proposed lease over the Stella Maris site, if the proposed lease were to be granted. At this stage it suffices to say Ms Lawrie was firmly in favour of the proposed lease to Unions NT; was convinced that in the event of a change of government at the forthcoming August election the lease of the Stella Maris site to Unions NT might not be granted; had been closely involved, over a period of time, in the taking of steps that led to the Cabinet decision, and took an active part in ensuring that the matter came before Cabinet on 10 July 2012, in circumstances suggestive of some urgency.
Mr Lawler found that Ms Lawrie was, over a period of years, determined to ensure that the Stella Maris site was granted to Unions NT, believing that to be in the public interest. She took steps to exclude from the process other bodies that might have had an interest in obtaining a grant of a lease over the Stella Maris site. She failed to follow certain established practices regulating the application for a grant in such a case, and the making of a grant in such a case.
There is no suggestion of corruption. Mr Lawler accepted that Ms Lawrie believed that her objective was in the public interest, and that it was appropriate to act as she had. However, he criticised her conduct in a number of respects.
On 30 July 2014 Ms Lawrie instituted proceedings in the Supreme Court of the Northern Territory against Mr Lawler. She claimed the following relief:
1.A declaration that, in reporting adversely to the plaintiff in his report entitled “Inquiry into Stella Maris – 2014” (“the Report”) purportedly pursuant to s 4A (3) of the Inquiries Act, the defendant failed to observe the requirements of procedural fairness.
2.An order in the nature of certiorari to quash the Report.
In brief Ms Lawrie complained that she was denied any or an adequate opportunity to respond to the criticisms before Mr Lawler published his Report.
On 1 April 2015 a Judge of the Supreme Court dismissed the action. The Judge found that Ms Lawrie was accorded procedural fairness.
Ms Lawrie appeared before the Commissioner. He took her through relevant documents, disclosing the history of the dealings with the Stella Maris site, that led up to the Cabinet decision. This was done informally. Ms Lawrie then gave evidence before Mr Lawler, and was given an opportunity to comment on all of these documents, and to comment on pertinent issues put to her by the Commissioner.
But Ms Lawrie claimed that, in addition to this, she was entitled to be informed by Mr Lawler, before publication of his Report, of any adverse findings that Mr Lawler proposed to make about her and her conduct, and that she was entitled to an opportunity to respond to these foreshadowed adverse findings.
The Judge had an alternative basis for the order dismissing the action.
The Judge found at [141] that:
Ms Lawrie and her lawyers had, by their conduct, abandoned the entitlement to any such notice and further opportunity to be heard.
The Judge said at [142] that the conduct of Ms Lawrie and her lawyers:
had waived the right to claim procedural fairness beyond what Ms Lawrie was in fact accorded by Mr Lawler.
In the course of explaining his conclusions on this aspect of the matter, the Judge made serious adverse findings relating to conduct on the part of Ms Lawrie, Mr Wyvill and Ms Spurr.
On 1 May 2015 Mr Lawler made an application for costs. Mr Lawler applied for an order that Ms Lawrie pay Mr Lawler’s costs “in the gross amount specified by the Court”, and in the alternative that Ms Lawrie pay Mr Lawler’s costs on an indemnity basis; Lawrie & Anor v Lawler [2015] NTSC 40 at [1]. Mr Lawler further applied for an order that Mr Wyvill and Ms Spurr be made jointly and severally liable for the costs payable by Ms Lawrie to Mr Lawler.
Ms Lawrie and Mr Wyvill submitted to the Judge that he should withdraw from hearing the application for costs.
The application to the Judge to recuse himself arose from the following circumstances. The Judge’s wife was employed by the Northern Territory Government in the Attorney-General’s Department. Her role, as described by the Judge at [23], was to:
act as a point of communication between the Agency requesting legal services, the lawyer who was in private practice and the director of the relevant division within the Solicitor for the Northern Territory.
In other words, she had a part to play when a government agency requested that arrangements be made for the provision of legal advice or representation by a lawyer in private practice. In that capacity in August 2014 she had played a part in arranging legal representation for Mr Lawler in connection with the proceedings brought by Ms Lawrie against Mr Lawler. In January 2015 Mr Maher, the solicitor representing Mr Lawler, sent an email to an officer in the Department of the Chief Minister: at [98]. The report provided “an updated estimate of costs” and explained, in some detail, various twists and turns in the proceedings between Ms Lawrie and Mr Lawler, by way of an explanation for the anticipated costs having increased substantially. The email included some references to prospects of success. On 20 January 2015 the Judge’s wife asked Mr Maher for “an updated estimate of your fees.” Mr Maher explained that he had overlooked forwarding to the Judge’s wife a copy of the detailed email to the officer in the Department of the Chief Minister and forwarded a copy of that earlier email.
On the recusal application, Ms Lawrie and Mr Wyvill argued that the involvement of the Judge’s wife in the provision of legal services for Mr Lawler put her “in the camp” of Mr Lawler and that, for those reasons, an observer might reasonably have apprehended that the Judge might not decide the costs issue impartially.
There was another point taken. It was that the basis on which the Judge’s wife arranged for legal services was such that Mr Lawler did not incur any liability to pay Mr Maher’s costs or Ms Lawrie’s costs, because he was wholly indemnified in respect of costs by the Northern Territory Government, and accordingly costs should not be awarded in his favour. Mr Lawler had paid no costs, had incurred no liability to pay costs, and so the argument ran, was unable to obtain a costs order against Ms Lawrie: at [18].
On 22 July 2015 the Judge dismissed the recusal application.
On 1 August 2015 the Judge heard the costs application against Ms Lawrie. He awarded costs against her, in part, on an indemnity basis.
Ms Lawrie now appeals (in some instances by leave or with an extension of time to appeal) against each of these decisions.
As to the first judgment under appeal, the grounds are as follows:
1.The judgment was attended by an apprehension of bias.
2.The learned Judge at first instance erred:
a.by considering the wrong question, namely whether the findings made in the respondent’s report as to the Inquiry were true;
b.by further considering whether the appellant had notice of “issues”;
c.by not considering whether the appellant had notice of particular possible adverse findings;
d.otherwise found that procedural fairness had been afforded to the appellant when it had not; and
e.by finding against the weight of the evidence that the appellant waived any breach of the rules of natural justice.
The first ground raises the matters relied upon in the application made to the Judge that he recuse himself. The second ground, raised some time after the first ground, challenges the Judge’s findings relating to procedural fairness.
In the second appeal the grounds are:
1.The Honourable Judge erred in law in his interlocutory judgment by not finding that there was apprehension of bias and by not disqualifying himself from hearing the application for costs.
2.The interlocutory judgment was attended by an apprehension of bias.
The issue of bias that is raised here is the same issue as is raised in relation to the first judgment.
The third appeal is an appeal against the decision on costs. The grounds are as follows:
(i) the judgment is affected by apprehended bias;
(ii)there was no liability by the respondent for costs and therefore no liability which he could or should have been indemnified against by a costs order;
(iii)there was no basis or no reasonable basis, to award costs to the respondent on an indemnity basis.
These grounds raise the same issue of bias as is raised in the other appeals, the question of whether Mr Lawler was unable to recover costs because he had no liability to pay costs, and finally the merits of the decision to award costs on an indemnity basis.
The three appeals were heard concurrently. Before the Court embarked upon the hearing of these appeals, it dealt with some procedural matters.
We heard an application by Mr Wyvill, who, as we have said, acted as counsel for Ms Lawrie during the Inquiry or during most of it. Mr Wyvill applied for leave to intervene, or to be joined as appellant, or to be heard as amicus curiae, in each appeal.
In his first judgment, the subject of the first appeal, the Judge had said at [142]:
I have found that Ms Lawrie was accorded procedural fairness by Mr Lawler. However, if am wrong about that, I find that Ms Lawrie and her lawyers, on her behalf, waived the right to any greater procedural fairness for Ms Lawrie than Mr Lawler accorded her.
In the course of his reasons of so finding the Judge made serious findings against Ms Lawrie, Mr Wyvill and Ms Spurr. The Judge said at [144]:
Mr McLure submitted that from on or about 31 March 2014 Ms Lawrie and her lawyers made a conscious decision to change their strategy and withdraw from further participation in the Inquiry. He submitted that Ms Lawrie and her lawyers engaged in a deceptive strategy to ignore, disengage and discredit the Inquiry. The words “ignore, disengage and discredit” are words that were used by Mr Wyvill when developing the strategy. I accept the respondent’s submission. I find that by engaging in that strategy Ms Lawrie and her lawyers waived her right to any greater procedural fairness. They intentionally and knowingly abandoned any further participation in the Inquiry by engaging in conduct inconsistent with a right to be further heard by Mr Lawler. Instead of further participating in the Inquiry, Ms Lawrie chose a political course of action.
It suffices to say that the Judge found that they set out to deceive Mr Lawler, and acted in a deceptive manner, so as to preserve for Ms Lawrie an ability, when his Report was complete, to attack any adverse findings on the basis that Ms Lawrie had not been accorded procedural fairness.
As can be seen, these were serious criticisms. The Judge’s reasons in support of this conclusion occupy a substantial part of his judgment.
Mr Wyvill was neither a party to the proceedings before the Judge nor a witness (although at one stage it was foreshadowed that he would give evidence) nor was he counsel in the first proceedings. Mr Wyvill argues that the situation is unfair. He has been the subject of findings which are likely to harm substantially his personal and professional reputation. He argued that in one way or another he should be heard to enable him to defend his reputation.
On this application we heard Mr Sofronoff QC for Mr Wyvill and Mr McLure SC for Mr Lawler. Counsel for Ms Lawrie supported Mr Wyvill’s submissions.
Having heard these submissions, we concluded that the application should be refused. The hearing of the appeals accordingly proceeded without Mr Wyvill participating. The reasons for our decision on Mr Wyvill’s application follow.
Application by Mr Wyvill
On 1 April 2015 the Judge gave judgment for Mr Lawler on the application by Ms Lawrie, and published his Reasons. In those Reasons he made findings and observations severely critical of the conduct of Mr Wyvill in connection with his role as counsel for Ms Lawrie. The Judge was equally severe in his criticisms of Ms Spurr and Ms Lawrie.
On 18 August 2015 Mr Wyvill filed a summons in the appeal by Ms Lawrie against that Judgment. He sought “…leave to intervene in the appeal…”. On 9 September he filed an Amended Summons seeking leave “… to intervene in and/or be joined as a party to the appeal.” On the hearing of these applications his counsel Mr Sofronoff, applied for leave, in the alternative, to be heard on the appeal as amicus curiae.
Earlier in our Reasons we referred to the criticisms of Mr Wyvill made by the Judge. It is not necessary to repeat them. Further detail can be found in the reasons of Heenan AJ. It suffices to say that they are likely to injure his personal and professional character and reputation. The criticisms were made in the course of proceedings in which Mr Wyvill was not a party. Nor was he called as a witness. He was available to be called, and the Judge had been told that he was likely to be called or would be called. Mr Wyvill, Ms Spurr and Ms Lawrie each swore affidavits on the morning of 27 January 2015 (the first day of the trial). Counsel for Ms Lawrie had these affidavits in his possession. But on the morning of the second day of the trial (28 January 2015), and after some discussion with the Judge, counsel for Ms Lawrie told the Judge that the affidavits would not be read; Reasons Lawrie v Lawler [2015] NTSC 19 at [224].
By s 51 of the Supreme Court Act (NT) a party to a proceeding can appeal to the Full Court “… from a Judgment given in that proceeding …”. “Judgment” is defined in s 9(1) as follows:
Judgment includes a decree, order, declaration, determination, finding (including a finding of guilt) conviction or sentence and a refusal to make a decree, order, declaration, determination or finding, whether final or otherwise.
Mr Sofronoff did not submit that s 51 permits an appeal other than against a judgment or order. He accepted that s 51 does not permit an appeal against reasons for decision, as distinct from an appeal that challenges the correctness of an order or judgment, albeit by attacking the reasons given for that order or judgment.
Rule 85.11 of the Supreme Court Rules 1987 (NT) provides:
(1)Each party to a proceeding who is affected by the relief sought by a notice of appeal or is interested in maintaining the judgment appealed from shall be joined as a party appellant or respondent to the appeal.
(2)The Court of Appeal or a Judge may order the addition or removal of a person as a party appellant or respondent to an appeal.
(3)A person shall not be made an appellant without his consent.
Mr Sofronoff based his application on Rule 85.11(2), and in the alternative he relied on the Court’s inherent jurisdiction. His submissions did not explore the inherent jurisdiction in any detail, in particular its relationship to Rule 85.11(2). Suffice it to say that whatever may be the source of our power, in our opinion Mr Wyvill could be joined as a party to the appeal only for the purpose of challenging an order or judgment by which he was bound. He could not be joined for the purpose of an attack only upon the Judge’s Reasons.
Mr Sofronoff identified no relevant order or judgment other than the order by the Judge of 1 April 2015, by which he dismissed Ms Lawrie’s action. Mr Sofronoff identified no ancillary or interlocutory order or decision, binding Mr Wyvill, and by which he was aggrieved, which might in its own right be susceptible to appeal by Mr Wyvill: cfWitness v Marsden (2000) 49 NSWLR 429 (‘Witness v Marsden’); Commonwealth of Australia v Construction, Forestry, Mining and Energy Union (2000) 98 FCR 31 (‘CFMEU’).
As to the Judge’s order dismissing the application by Ms Lawrie, Mr Wyvill has no standing in relation to or interest in that order as such. It does not bind him. Nor, of itself, does it or can it affect any right or interest of his. If the entitlement to be joined, upon which Mr Sofronoff relies, does exist, it can only have arisen, we consider, once it became apparent that the Judge might make findings adverse to Mr Wyvill’s reputation. Once again, Mr Sofronoff did not identify the stage at which the right to be joined as a party to the trial arose.
The practical difficulties in identifying the stage at which the right to be joined arose are evident. Also evident are the practical difficulties of permitting joinder of a new party part way through a trial. We leave that aside for the moment. We are concerned with an appeal against a decision or judgments already made. If the right to be joined exists, then in one way or another it must have arisen by this stage.
We accept that reputation is an interest that the law will, in a variety of circumstances, protect; see Annetts v McCann (1990) 170 CLR 596 at 608 (‘Annetts v McCann’); Ainsworth v Criminal Justice Commission (1992) 175 CLR 564 at 578 (‘Ainsworth’). But that general proposition does not dispose of the difficulty that Mr Wyvill faces. The fact that the reasons given for a judgment or order, which has no direct effect on an interest or right of Mr Wyvill’s, affect Mr Wyvill’s interest in his reputation, is not of itself sufficient to entitle him to be joined as a party. The difficulty is that the judgment or order does not bind him.
We have been assisted by the reasons of the Full Court of the Federal Court of Australia in Ashby v Slipper (2014) 219 FCR 322 (‘Ashby v Slipper’). In that case a Judge of the Federal Court dismissed civil proceedings brought by Mr Ashby, as an abuse of process. The Judge made serious criticisms of the professional conduct of Mr Harmer, the solicitor for Mr Ashby. Mr Harmer gave evidence in the case. Mr Ashby sought leave to appeal against the decision, the decision being an interlocutory decision. He succeeded on appeal, the order striking out the action being set aside. Before Mr Ashby’s appeal was heard Mr Harmer applied for leave to appeal. That leave was refused.
Mansfield J and Gilmour J agreed with the Reasons of Siopis J for refusing leave to appeal.
Siopis J approached the question of leave to appeal on the following basis at [310]:
The Federal Court Act does not make any express provision for the circumstances in which a non-party can appeal from a final judgment or seek leave to appeal from an interlocutory judgment. However, the authorities demonstrate that a non-party with the necessary standing may obtain leave to appeal from a final or an interlocutory judgment. The question is whether Mr Harmer has the necessary standing.
Siopis J referred to Witness v Marsden and to CFMEU. In those cases orders were made in the course of proceedings, affecting a person who was not a party to the proceedings. But the court held that the ancillary or interlocutory order in question, being an order binding the person in question, could be the subject of an appeal, and so of a grant of leave to appeal. Siopis J then said at [320]:
In this case, it is apparent that Mr Harmer could never have been a party to the main proceeding which embraced the controversy between Mr Ashby and Mr Slipper and the Commonwealth. Mr Harmer’s involvement in that controversy arises from his retainer as a legal practitioner and agent of Mr Ashby for the purposes of Mr Ashby prosecuting his claim against Mr Slipper and the Commonwealth, and also, from the fact that he was a witness in the interlocutory proceeding. Therefore, Mr Harmer, having no personal interest in the controversy between the parties to the proceeding, is not adversely affected by the interlocutory order dismissing the proceeding to which he was not a party.
The analogy with this case is apparent. He then said at [321]:
Rather, as is apparent from his affidavit of 14 January 2013, Mr Harmer’s complaint is in relation to the findings which were made by the primary judge in the reasons for judgment published by the primary judge. It is those findings and criticisms which, said Mr Harmer, have affected, or have the potential to affect, his professional reputation and, consequently, his financial interests and that of his firm. It is those findings which Mr Harmer challenges. However, as is evident from the authorities referred to above, this is not a sufficient basis for a non-party to obtain leave to appeal. Rather the non-party must show that he or she is in the words of Heydon JA “substantially affected” by the operation of the interlocutory order.
Again, the analogy is evident. He added at [325]:
As previously mentioned, Mr Harmer cannot demonstrate that he is adversely affected by the order of the primary judge dismissing Mr Ashby’s application. There may, however, be cases where a court order may have an adverse effect upon the reputation of a non-party, in which case the non-party may have sufficient standing to appeal (Harmer v Oracle Corporation Australia Pty Ltd (2013) 299 ALR 236). However, this is not such a case.
Siopis J then considered a variety of circumstances in which a court might have occasion to comment adversely on the manner in which a legal practitioner had acted in the conduct of a proceeding before the court. The point he made was that it is not uncommon for a court to find reason or justification for a consideration of the conduct of a practitioner and to comment on that conduct. It is not necessary for our purposes to summarise those occasions. Siopis J concluded his discussion of the situations in which a court may be entitled or even required to comment adversely on a practitioner’s conduct, by saying at [339]:
In all of these circumstances, a court’s findings or observations may have the propensity adversely to affect the professional reputation of the legal practitioner concerned. However, the authorities do not support a contention that, in relation to standing to appeal, a non-party legal practitioner whose complaint is no more than that he or she has been the subject of adverse judicial comment, is to be treated differently from any other non-party who has been the subject of adverse judicial comment with a propensity to affect his or her professional reputation. Rather, the authorities show that an aggrieved non-party will have the standing to obtain leave to appeal only if that non-party is adversely affected by an order made by the court.
For those reasons in his opinion the application for leave to appeal should be refused, as it was.
To the like effect is the decision of the Full Court of the Federal Court in Harmer v Oracle Corporation Australia Pty Ltd (2013) 299 ALR 236 (‘Harmer’). In that case Mr Harmer acted as solicitor for a plaintiff in an action in the Federal Court. In the course of dealing with an application for costs, after the trial of the action the Judge criticised Mr Harmer’s behaviour in connection with the case. Mr Harmer applied to the Court for leave to appeal from the costs order, on the basis that he had been treated unfairly. But he was not appealing against the costs order itself. It was the Judge’s criticisms, part of his reasons for the order, that Mr Harmer wished to challenge. The Court made the point that it was necessary, for Mr Harmer to obtain the order that he sought, that he appeal against some “dispositive order”, and not against the Judge’s reasons; at [22]. The Court said at [23]:
In his draft notice of appeal Mr Harmer, no doubt recognising this requirement, seeks orders setting aside the indemnity costs order made against Ms Richardson. At first blush, it is difficult to see why Mr Harmer has any personal interest in that question for he does not have to pay them and is not financially affected by them. Senior counsel for Mr Harmer submitted that he did have an interest in having the indemnity costs order set aside because while they remained in force there was a possibility that Oracle might seek a personal costs order against him or that he might be faced with professional misconduct proceedings.
The Court then said at [34] and [35]:
We turn then to the question of whether leave to appeal should be granted. Mr Harmer, of course, is a non-party. It was not in dispute that a person who is not a party to a proceeding but who is either bound by an order or aggrieved or prejudicially affected by it or is otherwise sufficiently interested in it may appeal but only with leave: Fortress Credit Corp (Australia) II Pty Ltd v Fletcher (2011) 281 ALR 38; 85 ACSR 38; [2011] FCAFC 89 AT [32].
We would accept that reputational damage arising from a judgment or orders could, in some circumstances, provide sufficient standing to seek leave to appeal. That is not this case; and it is not the claim made by Mr Harmer: see [24] – [25] above.
Mr Sofronoff urged us to prefer the approach of the Court of Appeal of the Supreme Court of Victoria in Wilson v British American Tobacco Australia Services Ltd (CA (Vic) - 26 July 2002) (‘Wilson’), action number 8121 of 2001. This was an interlocutory ruling by the Court on an application made on summons. A trial had been conducted before the Supreme Court of Victoria. The trial Judge, in his reasons, made findings which seriously damaged the reputation and professional standing of Mr Wilson, a solicitor. Mr Wilson was not a party to the action, nor did he give evidence. On the appeal by the unsuccessful defendant, Mr Wilson applied for an order that he have leave to appear and make submissions on the appeal. The application was opposed by the respondent to the appeal.
The court granted that leave, and Mr Wilson, through counsel, subsequently participated in the hearing of the appeal, which appeal was ultimately successful.
In brief reasons for making the order, the two members of the court concerned said that prima facie natural justice should require that a person against whom serious findings have been made should have leave to address the appellate court to challenge the trial Judge’s findings; at [5]. The respondent argued that there could be no right to intervene because the judgment in question did not directly affect Mr Wilsons’s legal interest in any way. As to that, the court said at [6]:
This may be so, but the Court has a broad discretion to hear counsel on a person’s behalf as amicus curiae.
Accordingly the court held that leave should be given. Clearly enough, this decision rests on the power of the court to hear a person as amicus curiae. That power involves the exercise of a broad discretion.
To the extent that there is a conflict between the decisions in Ashby v Slipper and Wilson (and we do not think there is), we followed the decision and reasoning in Ashby v Slipper. That decision is consistent with such authority as there is on this topic and refers to relevant cases not apparently considered by the Court of Appeal of the Supreme Court of Victoria.
In coming to our decision we paid careful attention to the observations by Brennan CJ in Levy v Victoria (1997) 189 CLR 579 (‘Levy v Victoria’). At 601 Brennan CJ said:
It is of the nature of that jurisdiction that it should be exercised in accordance with the rules of natural justice. Accordingly, its exercise should not affect the legal interests of persons who have not had an opportunity to be heard. Therefore, a non-party whose interests would be affected directly by a decision in the proceedings – that is, one who would be bound by the decision albeit not a party – must be entitled to intervene to protect the interest liable to be affected. This, indeed, is the explanation of many of the cases in which intervention has been allowed in probate and admiralty cases and in other cases where an intervener and a party are privies in estate or interest. (Footnotes omitted)
He went on to say that a legal interest may be affected in more indirect ways than as a result of the holder of that interest being bound by a decision. But none of the illustrations that he gave are pertinent to the present case, nor do they provide any assistance to Mr Sofronoff. He went on to make the following observations at 603 which are pertinent to the exercise of the court’s discretion:
The exercise of this Court’s jurisdiction to determine controversies between parties is not, and could not be, conditioned on allowing intervention by all those whose interests are susceptible to affection by the Court’s judgments. Such a condition would virtually paralyse the exercise of that jurisdiction. The principles of natural justice which control the exercise of curial power must take account of the nature of the jurisdiction to be exercised.
However, where a person having the necessary legal interest to apply for leave to intervene can show that the parties to the particular proceeding may not present fully the submissions on a particular issue, being submissions which the Court should have to assist it to reach a correct determination, the Court may exercise its jurisdiction by granting leave to intervene.
There has been no suggestion in this case that Ms Lawrie is not able to and would not provide submissions on the findings made by the Judge adverse to Mr Wyvill. In any event, the observations by Brennan CJ relate to a person whose legal interests are affected, and in the present case Mr Wyvill cannot establish that.
These statements were approved and followed by the High Court in Roadshow Films Pty Ltd v iinet Ltd (2011) 248 CLR 37 (‘Roadshow Films’). There the High Court said at [2] and [3]:
In determining whether to allow a non-party intervention the following considerations, reflected in the observations of Brennan CJ in Levy v Victoria (2), are relevant. A non-party whose interest would be directly affected by a decision in the proceeding, that is one who would be bound by the decision, is entitled to intervene to protect the interest likely to be affected. A non-party whose legal interest, for example, in other pending litigation is likely to be affected substantially by the outcome of the proceedings in this Court will satisfy a precondition for leave to intervene. Intervention will not ordinarily be supported by an indirect or contingent affection of legal interest following from the extra-curial operation of the principles enunciated in the decision of the Court or their affect upon future litigation.
Where a person having the necessary legal interest can show that the parties to the particular proceedings may not present fully the submissions on a particular issue, being submissions which the Court should have to assist it to reach a correct determination, the Court may exercise its jurisdiction by granting leave to intervene, albeit subject to such limitations and conditions as to costs as between all parties as it sees fit to impose.
Again, there is nothing inconsistent in these observations with the approach we have taken.
Accordingly, we concluded that Mr Wyvill was not bound by the orders made by the Judge at first instance. We doubt whether Mr Wyvill could have been joined as a party at first instance. It is not necessary to decide this point. Focussing on the issue of the power of the Court to join Mr Wyvill in the appeal, we consider that that power does not arise because Mr Wyvill is not bound by the orders made at first instance.
If the power does arise, one must then consider the exercise of the discretion that the power confers. Likewise, if it is a question of Mr Wyvill being heard as amicus curiae, the Court is concerned with the exercise of a wide discretion. We considered that this discretion should not be exercised in Mr Wyvill’s favour. First, to do so would erode the underlying principle relating to joinder of additional parties. It would not be uncommon for persons, not parties to an action, to wish to complain about findings in the judgment on the action. At the end of the day, that is all that arises here. Moreover, to allow Mr Wyvill to be joined as a party or to be heard as amicus curiae will enable him to do no more than attack the reasons of the Judge, or some of the reasons, and not the ultimate order in which Mr Wyvill has no interest. Nor is there any reason to think that an order joining Mr Wyvill, or permitting him to be heard as amicus curiae, is necessary to enable the appeal to be properly argued, including in relation to the matters of which Mr Wyvill complains.
Those are our reasons for the order that was made before the hearing of the appeals began.
The application to the Judge to disqualify himself
As we said earlier, the application to the Judge to disqualify himself was based on the involvement of his wife, in her capacity as an employee of the Northern Territory Government, in the arrangements made for the legal representation of Mr Lawler in the proceedings brought against him by Ms Lawrie. The application was made by Ms Lawrie and by Mr Wyvill. Mr Wyvill was the subject of an application that he be jointly and severally liable for costs payable by Ms Lawrie, and so was entitled to be heard on this point.
The statements of principle in Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337 are authoritative. It suffices to refer to some brief passages from the reasons of Gleeson CJ, McHugh, and Hayne JJ. Their Honours said at [6]:
Where, in the absence of any suggestion of actual bias, a question arises as to the independence or impartiality of a Judge … the governing principle is that … a Judge is disqualified if 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. That principle gives effect to the requirement that justice should both be done and be seen to be done, a requirement which reflects the fundamental importance of the principle that the tribunal be independent and impartial. It is convenient to refer to it as the apprehension of bias principle. [Footnotes omitted]
A little later, with reference to the apprehension of bias principle, they said at [8]:
First, it requires the identification of what it is said might lead a judge (or juror) to decide a case other than on its legal and factual merits. The second step is no less important. There must be an articulation of the logical connection between the matter and the feared deviation from the course of deciding the case on its merits. The bare assertion that a judge (or juror) has an “interest” in litigation, or an interest in a party to it, will be of no assistance until the nature of the interest, and the asserted connection with the possibility of departure from impartial decision making, is articulated. Only then can the reasonableness of the asserted apprehension of bias be assessed.
What is it in this case that might have led the Judge to decide the case other than fairly and on its merits? It is not enough to say that the Judge’s wife played some part in arranging legal services or legal representation for Mr Lawler in the proceedings brought by Ms Lawrie. Some greater detail is required before one can make sense of the submission on bias. And, one must ask, what is the logical connection between that matter, the wife’s role in arranging legal representation, and the “feared deviation from the course of deciding the case on its merits”? Again more detail is required before this question can be answered.
Our first task is to identify the matter which it is said might cause the Judge to decide the case other than fairly and on its merits. That requires a careful consideration of just what the Judge’s wife did, and in what circumstances. One can then articulate or consider the logical connection between the role of the Judge’s wife and the “feared deviation” from a decision on the merits. Accordingly, we turn to the Judge’s findings, findings which have not been challenged on appeal.
The Judge’s wife was employed in the Attorney-General’s Department. She worked in a small “administrative unit” called Legal Services Coordination; Lawrie & Anor v Lawler [2015] NTSC 40 at [8]. The Judge referred to an affidavit sworn by Mr Smyth, one of the Judge’s wife’s superiors. It is convenient to record here what the Judge said at [23]:
In paragraph 8 of his affidavit made on 4 June 2014, Mr Smyth stated that [the Judge’s wife] has no significant or substantive decision making authority, delegated or otherwise, for procuring ad hoc legal services that are outsourced to lawyers in private practice. Nor does she have any financial authority for such matters. Any decisions, apart from very routine administrative decisions, are made by the relevant Directors of the various Divisions within the Solicitor for the Northern Territory in conjunction with the Government Agency that requested legal services and the lawyer who is in private practice. [the Judge’s wife’s] role is to act as a point of communication between the Agency requesting legal services, the lawyer who is in private practice and the Director of the relevant Division within the Solicitor for the Northern Territory.
On 1 August 2014 an officer of the Department of the Chief Minister sent an email headed “URGENT Request for Legal Services.” This request came to the Judge’s wife in the usual way and for her to deal with in the usual way. The email described the subject of the request as the Stella Maris Inquiry and the “Issue” was information that Ms Spurr (the solicitor for Ms Lawrie) had informed someone in the Department of the Chief Minister on 31 July 2014 that she had filed an Originating Motion in the Supreme Court. Ms Spurr was enquiring whether Mr Lawler could be served with the Originating Motion and supporting Summons. At that stage the claim being made was not known, but clearly enough it was likely to be some kind of attack on Mr Lawler’s procedures or findings. The email stated that Mr Maher had previously been engaged to advise Mr Lawler, and the author of the email requested that Mr Maher be engaged in view of his familiarity with the matter; Reasons Lawrie & Anor v Lawler [2015] NTSC 40 at [36]. The Judge’s wife forwarded the request to her superior, Mr Smyth, the Acting Director of the Litigation Division. One of his functions was to recommend the outsourcing of legal services to lawyers who were in private practice, a function which he performed in consultation with the Government agency that made the request for legal services; Reasons Lawrie & Anor v Lawler [2015] NTSC 40 at [7].
On 1 August Mr Smyth approved the request, and the retaining of Mr Maher. Mr Smyth emailed the Judge’s wife to that effect. On 5 August 2014 the Judge’s wife asked Mr Smyth if she was to ask Mr Maher to act on behalf of the Department of the Chief Minister. Mr Smyth replied that Mr Maher was to be engaged by the Department of the Chief Minister to act for Commissioner Lawler; Reasons Lawrie & Anor v Lawler [2015] NTSC 40 at [40] and [41]. The Judge’s wife spoke to Mr Maher by telephone. Later that day she sent to Mr Maher what appears to be a routine and standard form of email engaging, or offering to engage, Mr Maher. The email is as follows: Reasons Lawrie & Anor v Lawler [2015] NTSC 40 at [43]:
New Instructions: Ad hoc Legal Referral: Stella Maris Inquiry – Our ref: 20142426
Further to my phone call of today, I attach the request we received from the Department of the Chief Minister to engage you to act on behalf of Commissioner Lawler in this matter.
As advised on the phone we have not received the Originating Motion and Summons filed by Halfpennys but I will contact Cathy Spurr to let her know that you will accept service on behalf of Commissioner Lawler.
Once you have received the documents and have had the opportunity to consider the matter, it would be appreciated if you could provide me with an estimate of your fees.
Please note your invoice should be sent to the Legal Services Coordination Unit via email ([email protected]) but addressed to the Department of the Chief Minister as follows:
Attention: Terri Hart
Department of Chief Minister
GPO Box 4396
DARWIN NT 0801There were some further communications relating to accepting service of the proceedings issued by Ms Spurr.
On 14 August 2014 Mr Maher sent an email to the Judge’s wife with an estimate of his fees and the fees of counsel, and attaching certain documents required to be provided upon the engagement of a solicitor. The Judge’s wife then emailed Mrs Hart, informing her that Mr Maher had been engaged and requesting approval of the fees as estimated by Mr Maher. On 14 August 2014 that approval was given and the Judge’s wife was informed of that by email. On 18 August 2014 the Judge’s wife informed Mr Maher that his estimate of fees had been approved. On 20 August 2014 the Judge’s wife prepared two “Approvals to engage Ad Hoc legal and other expert services”. One of these related to Mr Maher, the other to counsel who had been engaged. These documents were submitted to Mr Smyth for his approval, which he duly gave. On 16 October 2014 a revised estimate of fees was approved by the Deputy Chief Executive Officer of the Department of the Chief Minister. This approval was sent to Mrs Hart with a copy to the Judge’s wife.
This summary is drawn from the Judge’s Reasons Lawrie & Anor v Lawler [2015] NTSC 40 at [51] – [55]. None of this material is challenged.
We interpolate at this stage the observation that the function of the Judge’s wife was an administrative one. She did not decide whether the request for legal services should be made, whether if made it should be granted, who was to be engaged to provide the legal representation, nor did she have authority to approve or disapprove of fee estimates from legal practitioners engaged in this way.
There is one other matter we should record at this stage. Its relevance will appear later. On 15 December 2014, in a discussion between Mr Maher and Mrs Hart, Mrs Hart advised Mr Maher that the Government indemnified Mr Lawler not only in respect of his own solicitor/client costs, but also in respect of any adverse costs order that might be made in the proceedings brought by Ms Lawrie; Reasons Lawrie & Anor v Lawler [2015] NTSC 40 at [72]. Mrs Hart confirmed this by email on 24 December 2014; Reasons Lawrie & Anor v Lawler [2015] NTSC 40 at [77].
In the meantime the action by Ms Lawrie against Mr Lawler was proceeding. Between September and late January, when the trial was due to commence, the matter of discovery gave rise to a number of contested interlocutory applications and hearings.
On 14 January 2015 Mr Maher sent an email to Mrs Hart. She was the officer in the Department of the Chief Minister who had originally made the request for legal services. The email began: “I am providing the report I promised and update estimate of costs” Reasons Lawrie & Anor v Lawler [2015] NTSC 40 at [98]. The email canvassed various aspects of the litigation. It referred to the prospects of Ms Lawrie succeeding in the litigation, indicating that originally counsel for Mr Lawler had thought that Ms Lawrie might well obtain a declaration that she had not been accorded procedural fairness. But documents recently discovered and disclosed by Ms Lawrie caused counsel to think that there had been a significant improvement of the prospects of success, and it was now more likely than not that a declaration would be refused; Reasons Lawrie & Anor v Lawler [2015] NTSC 40 at [98]. The email contained a revised upwards estimate of fees. The thrust of the email was to explain, by reference to the events occurring in the course of the litigation, the substantial increase in the estimated legal costs. It may well be that the email was unnecessarily lengthy for its purpose, but in fairness to the author it is fair to say that it explained clearly what had transpired in the litigation.
At [101] the Judge said that most of the matters raised in this email were known to the plaintiff, her legal advisors and to the Court, having been canvassed at some length during an interlocutory application on 9 January 2015 and 14 January 2015. The Judge said that most of these matters were not in any way confidential.
On 20 January 2015 the Judge’s wife emailed Mr Maher, asking for an updated estimate of fees. That same day Mr Maher sent to the Judge’s wife the email that he had sent to Mrs Hart on 14 January 2015, saying
My apologies – I should have copied you in of my email of 14 January to Terri Hart, which I now forward to you. I will also forward the invoices I subsequently sent to Terri.
Reasons Lawrie & Anor v Lawler [2015] NTSC 40 at [114].
As the Judge said at [115], it is clear that the reason for providing a copy of the email to the Judge’s wife was to provide an update of an estimate of legal costs, and nothing more than that; Reasons Lawrie & Anor v Lawler [2015] NTSC 40 at [115].
That completes our summary of the relevant facts. We turn to the question of bias.
It was argued that the email sent by the Judge’s wife to Mr Maher on 5 August 2014 was a potential source of embarrassment to the Judge’s wife. The submission was that the email to Mr Maher, properly understood, gave rise to an agreement that Mr Lawler was not liable for Mr Maher’s costs and disbursements under any circumstances, nor those of Ms Lawrie, and so Mr Lawler could not recover costs from Ms Lawrie. Accordingly, the Northern Territory Government would not be able to recover the money it had paid to Mr Maher and to counsel for Mr Lawler.
The submission was that a fair-minded lay observer might reasonably apprehend that the Judge would not bring an impartial mind to the application for costs, because the Judge would not want to decide this point in a manner that might cause embarrassment to his wife. That is, by deciding that Mr Lawler could not recover costs, and so the Northern Territory Government could not recover costs. A fair-minded lay observer might fear that the Judge would decide the point other than on its legal and factual merits to avoid the embarrassment.
In our opinion there is no substance in this submission. There is nothing in the email to Mr Maher to support it. That email appears to us to be quite routine. We referred above to a conversation between Mr Maher and Mrs Hart on 15 December 2014 and a confirmatory email of 24 December 2014, in which Mrs Hart confirmed that the Government indemnified Mr Lawler in respect of his own costs and in respect of any adverse costs order. We cannot see any conflict with anything that the Judge’s wife did, or said to Mr Maher. In our opinion the suggestion that the Judge’s wife faced any embarrassment arising out of her involvement in the arrangements for legal representation is completely unsubstantiated. There is nothing in it at all.
A further submission before the Judge was that the Judge’s wife should have been called to explain the email of 5 August 2014. If she had been called, her involvement in the grant of legal representation could have been explored by way of cross examination and in that event the Judge would have been embarrassed by having to decide whether or not to accept her evidence. Moreover, it was said her employment might be at risk if she had made a mistake. The short answer to this is that she was not called. The Judge did not have to consider her evidence. The failure to call her was something for the Judge to take into account in deciding the issue before him. But we mention that by way of precaution. In our opinion there was no need for the Judge’s wife to be called and there is nothing to be made of the fact that she was not called. We fail to see how one can argue that if she had been called there would have been a problem, bearing in mind that she was not called.
The submission on bias was supported by reference to the email of 14 January, a copy of which was sent to the Judge’s wife on 20 January 2015. This was one week before the trial of the action was to begin. We referred to this email above at [91]. Ms Lawrie submitted that the receipt of the email gave rise to an apprehension that the Judge’s wife was “in the defendant’s camp to some degree, at least”; Lawrie & Anor v Lawler [2015] NTSC 40 at [162]. The submission was that the email disclosed to the Judge’s wife the strategy that had been adopted by Mr Lawler and his advisers in the lead up to the trial, a strategy unknown to Ms Lawrie; that the email contained comment about prospects of success and how they had improved, and outlined how the discovery process had generated material from Ms Lawrie’s advisers that led to a challenge to their credibility; and to the claim that Ms Lawrie had waived any entitlement to be given notice of potential adverse findings.
That is a fair summary of the email, but the context of the email is significant. It was sent to the Judge’s wife because she was responsible for keeping track of the likely legal costs arising out of the grant of representation to Mr Lawler. The email is an explanation for a substantial increase in the costs already incurred, and the costs likely to be incurred. As the Judge also observed, much of the material contained in the email was known to Ms Lawrie and to her advisors, and had been known for some time; Lawrie & Anor v Lawler [2015] NTSC 40 at [166] and following.
These are the circumstances of the involvement of the Judge’s wife that, it is said, might cause a fair-minded lay observer reasonably to apprehend that the Judge might not bring an impartial mind to the resolution of the questions he had to decide.
The involvement of the Judge’s wife having been identified, and put in context, one must then articulate the logical connection between that involvement and the “feared deviation” from deciding the questions on their merits.
How or why would the involvement of the Judge’s wife, outlined above, cause a fair-minded lay observer to fear that the Judge might not bring an impartial mind to the resolution of issues before him? As we have already remarked, there was no reason at all to think that the Judge’s wife faced any criticism or embarrassment at all because of the manner in which she couched the documents recording the decision, made by others, to provide legal representation. Nor did she face any threat from her employer or to her employment. Any such suggestion is fanciful. There was no reason why she should have been called as a witness before the Judge, but in any event she was not called. The email of 20 January 2015 did not, in any way at all, put her in Mr Lawler’s camp. The Judge’s wife was an administrative officer, performing administrative functions. The email, or the information in it, was relevant to that function. Faced with a substantial increase in the estimated costs, it was appropriate for the Judge’s wife to be informed of the reasons for that. There is no way in which the receipt of the email by the Judge’s wife leads to a conclusion that she had identified herself in some way with Mr Lawler’s camp. However one looks at it, the suggestion that the Judge might not decide the case fairly lacks any support at all.
The articulation of the logical connection between that matter and the feared deviation, leads to the firm conclusion that the suggested apprehension of bias is completely unfounded. We reject the criticism of the Judge’s reasoning.
There are some further points that should be made. We refer now to submissions on appeal and in particular to the written submissions provided by counsel for Ms Lawrie.
The point was made that the case was “inherently political”. The present Government and Opposition were said to have an interest in the outcome. That can be conceded. But then the submission was made that the Judge’s wife was employed by the Government, and “directly involved” in Mr Lawler’s defence of Ms Lawrie’s claim. It was submitted that the Judge’s wife, in this respect, was “on the respondent side”. We reject that suggestion. The suggestion that, because she was employed by the Government and had some involvement in the grant of legal representation, she became partisan, should be rejected out of hand. The same point was elaborated in the written submissions. Counsel argued that the contest in the case was “in substance” between the present Government and the present Opposition, the Judge’s wife was employed by the present Government, she was “directly involved” in the defence of the proceedings and this would lead the Judge to favour the cause in which his wife was a participant and in which she had an interest (through her employer). We reject that submission out of hand. We think it regrettable that some of these submissions were put.
The claim that the Judge should have disqualified himself was raised in the appeal against the first judgment: see above at [32]. It was not explained to us how this ground could succeed. The matters relied upon as a basis for the submission that the Judge should disqualify himself were matters of which the Judge was unaware, as we understand things, until after the completion of the trial and sometime not long before the issue of costs was argued. As the submission to the Judge was based upon the belief or apprehension of a fair-minded observer, based on circumstances known to the Judge, the fact that the circumstances were not known to the Judge at the time of the trial seems to be an insuperable obstacle.
Procedural fairness
The Stella Maris site is situated in a prominent position in Darwin. A heritage-listed railway house was erected on the site in the early part of the 20th century and, since then, other buildings have been added to meet the purposes of various occupants of the site. The site was associated with the North Australia Railway for a lengthy period of time. The Railway ceased operation in 1976. Shortly thereafter, the site was transferred to the Northern Territory Government. In 1979 it was leased to the Apostleship of the Sea, an organisation which conducted a seafarers’ centre on the premises and gave the site its present name. The Apostleship of the Sea surrendered the lease on 29 September 2007.
At the time of the surrender of the lease a Labor government was in power in the Northern Territory. The Chief Minister was Ms Clare Martin and the Minister for Lands and Planning was Ms Lawrie.
When the previous occupant of the site advised its intention to surrender the lease, Ms Lawrie wrote to the Chief Minister on 3 September 2007 and stated that she would “brief Unions NT and the local member on the proposed surrender of the lease”. Ms Lawrie then requested the Department to appoint a Working Party to report on the site. It appears that no such report was prepared.
The next significant event was on 31 March 2009 when Unions NT first contacted Ms Lawrie about the site and she agreed to meet their representatives on 27 May 2009. At the meeting one of the representatives handed her a redevelopment proposal for the site which contemplated its use by Unions NT for its purposes.
It is not in dispute that Ms Lawrie formed the view that Unions NT should be given a lease of the Stella Maris site at or about the time of this meeting.
Some months before the meeting between Ms Lawrie and the representatives of Unions NT the Department commenced preparing a draft Cabinet Submission relating to the future of the site. Ms Jackie Stanger of the Lands Administration Services section of the Department co-ordinated the preparation of this document.
The first draft recommended that the site be leased for low-scale commercial development through an expression of interest process. Subsequently, at the request of the Deputy Chief Executive of the Department, the draft was amended to include the option of community use of the site.
The amended draft Cabinet Submission was provided to Ms Lawrie’s office and then returned with a request to include an option to offer the site exclusively to Unions NT without an expression of interest process.
It appears that little or no progress was made in relation to the matter for the next two years. In the meantime, on 4 December 2009, Mr Gerald McCarthy was appointed as the Minister for Lands and Planning and Ms Lawrie moved to another portfolio.
The precise date is unclear, but sometime in 2011 Mr McCarthy received a copy of the application for a lease of the site by Unions NT. The application was dated 26 May 2009. There is no record of the application being provided to the Department.
At this stage the draft Submission prepared by the Department recommended the option to re-lease the site by expression of interest for low-scale community use or commercial development. However, it also included the option of offering leasehold tenure of the site to the National Trust of Australia or Unions NT. It was stated in the draft that this was not the preferred option:
... as Government may attract criticism for dealing preferentially with select groups for such a high-profile site.
The draft Submission was forwarded to Mr McCarthy on 17 August 2011 and circulated to relevant departments for comment on 7 February 2012. The comments which were received were largely supportive of the recommended option that included an expression of interest process being followed.
At this time a Northern Territory election had been called and Mr McCarthy was travelling in a remote electorate from which he rarely returned. The caretaker period was due to commence on 6 August 2012 and a Cabinet meeting was scheduled for 10 July 2012.
Prior to the Cabinet meeting a waiver of the time for the lodgement of Cabinet business was obtained in relation to the proposal for the lease of the site.
Four of the eight Cabinet ministers attended the Cabinet meeting. Mr McCarthy was absent. It was decided at the meeting that Unions NT would be offered a lease of the site without an expression of interest process.
There was a change of government as a result of the election held on 25 August 2012 and the proposed lease of the site to Unions NT was never registered.
It was argued on behalf of Ms Lawrie that she was denied procedural fairness by reason of the failure of Mr Lawler to identify to her potential adverse findings so as to provide her with the opportunity to make submissions or otherwise respond to them.
In support of this argument Mr Davis SC relied upon cases such as Mahon v Air New Zealand Ltd [1984] AC 808 (‘Mahon’) at 821 where their Lordships held that any person represented at an inquiry who may be adversely affected by the decision:
….should not be left in the dark as to the risk of the finding being made and thus deprived of any opportunity to adduce additional material of probative value which might have deterred [the decision maker] from making the finding even though it cannot be predicted that it would inevitably have had that result.
Mr Davis submitted that this requirement was particularly relevant in what he called inquisitorial inquiries. He said it was not enough that the issues in the Inquiry be identified; it was necessary for the potential adverse findings to be brought to the attention of the person affected.
According to the argument the trial Judge erred in dealing with Ms Lawrie’s complaint in this respect in that, instead of determining whether she was given sufficient notice of the proposed adverse findings and an opportunity to comment on them, the Judge restricted his analysis to the validity of the findings.
Mr McLure, for Mr Lawler, pointed out that there were no immutable rules setting out the requirements of procedural fairness. He referred to the authorities which hold that whether or not a person was accorded procedural fairness was dependent upon the circumstances of the particular case. He also referred to the observation of Gleeson CJ in Re Minister for Immigration and Multicultural and Indigenous Affairs, Re; Ex parte Lam (2003) 214 CLR 1 (‘Lam’) at 821 that fairness in this context is not an abstract concept, but rather the concern of the law to avoid practical injustice.
The arguments of both counsel necessitate a review of the steps leading to the appointment of Mr Lawler as Commissioner and the procedure adopted by Mr Lawler in conducting the Inquiry.
According to the findings of Mr Lawler public disquiet was expressed in the media concerning the circumstances in which the proposed lease of the Stella Maris site to Unions NT evolved.
The Terms of Reference of the Inquiry are set out above. Paragraph 2 directs enquiry into:
...the public policy and accountability considerations involved in making the purported decision to grant a lease of the site to Unions NT without putting the matter out to expressions of interest or public tender.
Paragraph 3 directs enquiry into:
... the performance of relevant persons, including the then Minister for Lands and Planning, in carrying out their obligations under the relevant regulatory regime and ensuring the proper accountability processes were applied in the tenure management of the site.
Paragraph 5 refers to:
... the provision and accessibility of relevant information to affected stakeholders and the public in relation to the proposal and purported decision to grant the lease of the site to Unions NT.
Ms Lawrie was involved in recommending a grant of the lease to Unions NT from when the issue was raised with her in early 2007 to the time of the Cabinet decision in favour of Unions NT on 10 July 2012. It must have been apparent to her at the time the Commissioner was appointed and the Terms of Reference announced that her role in the process would come under scrutiny. She was aware that it was her decision to promote the grant of the lease to Unions NT without inviting expressions of interest. The fact that expressions of interest were not called for was a consideration referred to in the Terms of Reference.
Mr Lawler commenced formal hearings on 12 February 2014. By that time he had been presented with documentation, including files from the Department of Lands and Planning, which revealed details of Ms Lawrie’s involvement in the future of the Stella Maris site. In the course of making a public statement at the commencement of public hearings Mr Lawler stated that the Inquiry had the opportunity to test the levels of government transparency and the application of due process in managing the Stella Maris site.
Mr Lawler conducted a pre-hearing interview with Ms Lawrie on 10 March 2014 and took evidence from her on 13 and 14 March 2014. Mr Wyvill was present on each occasion. He took an active role in the proceedings responding to various questions asked of Ms Lawrie and, on occasions, proffering information on the issues being discussed.
At the pre-hearing interview Mr Lawler explained that he intended to advise Ms Lawrie how he was going to conduct the Inquiry. He said he intended to put a large number of documents to her and ask her questions about them when the time came for her to give evidence. He stated that he would identify the documents at the pre-hearing interview so that Ms Lawrie had advance notice of the material prior to giving evidence. She was given copies of the documents during the interview.
There was some discussion about the documents during the interview. Mr Lawler said that the purpose of drawing her attention to one series of documents was to establish that there were other community groups interested in the site at the time the leasing of it was under consideration. There was also discussion during the interview about documents which referred to a meeting which took place between Ms Lawrie and representatives of Unions NT in July 2009 for the purpose of discussing the Stella Maris site. Other documents shown to her related to her involvement in the matter up to the time of the Cabinet decision to grant the lease to Unions NT. These documents were discussed in greater detail when Ms Lawrie came to give evidence.
As stated above, Ms Lawrie complains that she was not given any or adequate opportunity to respond to certain adverse findings before the publication of Mr Lawler’s Report. The adverse findings to which Mr Davis has drawn attention are set out in the Report (Report pp 12, 16, 37, 58, 59 and 60) and the summary in the judgment of the trial Judge delivered on 1 April 2015 at [91].
Further reference will be made to the topics relied upon later in these reasons. However, it is appropriate to observe at this point that the major findings relate to Mr Lawler’s conclusion that Ms Lawrie acted “with bias” in forming the view that Unions NT should be granted a lease over the Stella Maris site without calling for expressions of interest from other organisations or persons in the community who might be interested in leasing the site. It is principally in respect of these matters that it is claimed Mr Lawler failed to give appropriate notice of adverse findings which might be made.
It must be said the dealings which Ms Lawrie had with Unions NT and her apparent determination to ensure Unions NT would be granted the lease without inviting expressions of interest was a theme which pervaded the questioning of her by Mr Lawler.
Mr Lawler stated in his Report (Report p 28) that when the previous occupant of the site advised its intention to surrender the lease, Ms Lawrie wrote to the Chief Minister on 3 September 2007 and, inter alia, stated that she would “brief Unions NT and the local member on the proposed surrender of the lease”. Mr Lawler pointed out that at this stage Unions NT had shown no formal interest in the site and that a similar briefing was not offered to 24HR Art, an organization which had made a formal approach.
Ms Lawrie was asked about her memorandum to the Chief Minister in the following passage in her evidence (Appeal Book Vol 1 at p 63):
QBut I understand your position to be that – well, let me ask you; you were going to brief the local member. I think that’s perfectly appropriate and a reasonable thing to have done. But why were you going to brief Unions NT?
ABecause they’d been involved in the site for decades through the union movement.
QFor all the reasons that you have given us?
AAll the reasons I’ve previously stated. I felt that they should be kept informed of the process that Government was following. As you can see, this is a memo from myself to the Chief Minister confirming that following the surrender of the lot, it would revert to Crown land. The Government will need to consider the future use of the site, and that you know, for example, 24HR Art Board is aware and proposed an expression in the site. I’m asking the Chief Minister for her views, particularly on the future of the site. As you can see from the notation, Syd [Syd Stirling] was Acting Chief. He said wait until Clare [Clare Martin Chief Minister] sees this – Clare then noted to me ‘note to Cabinet please on all issues to do with the future of Stella Maris’.
And later (Appeal Book Vol 1 at p 64):
QWell let me say, why you wouldn’t have briefed 24HR Art?
ABecause they just had no prior involvement in the site; they had no customer deal arrangements with the site. They weren’t linked to the site. I was briefing people who were linked to the site, so the local member, of course, the site falls within her electorate. And the union movement had been taking care of the site, using the site for decades. So I was trying to brief the people who had been linked to the site.
QSo that was a very deliberate decision by you not to brief 24 HR Art?
ANo. That’s a sort of extreme twist on what I was doing. No, no deliberate decision not to brief them. A deliberate decision to brief the people who were linked to the site.
Mr Lawler also questioned Ms Lawrie about the possibility of the National Trust becoming involved in the site (Appeal Book Vol 1 at p 66):
QNow Ms Close has told the Inquiry that the National Trust would have been interested in the management of the Stella Maris site and felt that the National Trust was an important organization to have a say and be involved in conversations regarding the site. What would you say to that?
AWell that’s her submission.
QWould you agree with that?
AI’ve stated my position very clearly, Commissioner. My position has been that I was putting prime importance to the custodians of the site for decades, people who had invested in the site – you know, I’ve been very clear on that I thought.
In his Report Mr Lawler found that Unions NT first contacted Ms Lawrie about the site on 31 March 2009 when she was the Minister for Lands and Planning. Ms Lawrie agreed to meet representatives of Unions NT on 27 May 2009. At the meeting a representative of Unions NT handed her a redevelopment proposal for the site which contemplated its use by Unions NT for its purposes. Mr Lawler asked Ms Lawrie about the meeting and she responded (Appeal Book Vol 1 at p 75):
I have no doubt that I would have expressed my support for their submission and their intention, no doubt about that at all. My memory of it was then to say go away and work with the department on your proposal in terms of, you know, needing to follow a process which is the party [sic] between Unions NT and the Department.
At another stage in her evidence when the topic of other entities being involved was being discussed Mr Lawler asked Ms Lawrie if she had formed a view that the site should go to Unions NT. She replied “Yes, absolutely.” She added that she formed that view in 2009 (Appeal Book Vol 1 at p 59).
Later in her evidence Ms Lawrie explained why she had made up her mind in 2009 that she wanted Unions NT to get the site (Appeal Book Vol 1 at p 75):
QBut it is fair to say that, based on your earlier testimony, you’ve made up your mind in 2009 that you wanted Unions NT to get the site?
AI thought it was a good thing, definitely. I thought it was the right thing to do to preserve the site, to ensure that the site was not just preserved but actually – there was a lot of work that needed to occur, a lot of investment that needed to occur – that it would be a community use. It could be used for training which I thought was a fantastic thing to do. It was an organization that reflected the previous decades of relationship with the site. So for me I was pleased that the unions were coming forward to, I guess, step up and invest in their own piece of Darwin’s history in terms of its presentation. But also its use, it won’t just lie idle. It would be used once again by the community and used for training. So I thought it was great.
As previously stated, the fact that no expressions of interest were sought from other organizations which might be interested in the site was a central issue in the questioning of Ms Lawrie. This was a topic which was linked to Ms Lawrie’s view that Unions NT, and not any other organisation, should be granted the lease despite the fact that the desirability of inviting expressions of interest was urged by officers in the Department of Lands and Planning from an early stage in the consideration of the future of the site.
The allegations of impropriety and dishonesty, could at the most have demonstrated that the content of the letter of 15 April 2014 was not true or was disingenuous but even that would not have established waiver. It was therefore, unnecessary for these allegations of impropriety or dishonesty against the appellant and her lawyers to have been pursued. Having regard to the conclusion which has been reached on the issue of waiver generally and the circumstances under which they were raised they should not be accepted. The direct effect of this conclusion is that the findings cannot be regarded as standing against Ms Lawrie. Because they were not parties, those findings never bound Mr Wyvill or Ms Spurr but, in all the circumstances, especially in view of their gravity and effect upon reputation, it is necessary to say that these findings as to their conduct and motivation should not be accepted either.
Relief
For these reasons I consider that the appeal against the dismissal of the application for review should be allowed. The Court should declare that in making the findings of improper conduct and other adverse observations against the respondent more particularly identified in the Schedule to these reasons, the Inquiry was conducted without necessary procedural fairness being accorded to the appellant and that, consequently, those findings were not made in accordance with law and each is thereby a nullity.
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.
Costs Appeal
Was the respondent ever under a liability to pay his solicitor’s costs resulting in an entitlement by him for payment of costs by the successful appellant?
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.
The explanation for the sum of $214,876 is set out in [31] of the Costs decision. The evidence before his Honour showed that at 8 May 2015 the respondent’s solicitor’s total fees and disbursements, including counsel fees, was $168,408.38 excluding GST. Further evidence showed that the total of the respondent’s solicitor fees and disbursements at 10 August 2015 was $245,855.74. That latter date was when the costs application was heard. The difference between those two figures is $77,447.36 which his Honour concluded represented the fees and disbursements charged to the respondent for the recusal applications and costs applications. His Honour then concluded that a fair assessment of the costs and disbursements charged for the recusal and costs applications on a party and party basis would be 60% of that amount or $46,468.42. That added to the total of the fees and disbursements to 8 May 2015 gave the total of $214,876 rounded to the nearest dollar.
Arithmetically, the calculation is as follows:
100% of the respondent’s costs
to 8 May 2015 $168,408.38 (a)
Extra costs from 8 May 2015 to
10 August 2015 $77,477.36 (b)60% of this figure on a party/party basis $46,468.42 (c)
a + c = $214,876.
The relief sought by the appellant in this third appeal is that the judgment for costs should be set aside and the respondent pay the appellant’s costs of the appeal [the Costs appeal] and of the principal application.
Was the respondent ever under a liability to pay his solicitor’s costs resulting in an entitlement by him for payment of costs by the unsuccessful appellant?
This submission that the respondent Mr Lawler had no obligation to pay the costs of the solicitors acting on his behalf, and therefore no entitlement to an indemnity for that liability in the shape of a costs order in the proceedings itself has two related aspects. The first is the contention by the appellant that the solicitors acting throughout the judicial review proceedings for Mr Lawler were not retained by him but, rather, were retained by the Northern Territory Government which was, consequently, alone responsible for those solicitors costs.
The second related aspect is that, by the terms of the retainer of the solicitors for the respondent, all invoices and fees, and liability which Mr Lawler might be found to have for costs, were to be met and discharged by the Northern Territory Government. This gave rise, according to the submission, to an implication that there would never be any circumstances under which Mr Lawler might himself be responsible for costs so that he would never require an indemnity. That latter aspect of the submission faces a large obstacle when considered in the light of the potential for an order for costs to be made by the court against Mr Lawler in the judicial review proceedings. This is because in that eventuality, as a party before the court, he would have a personal liability to meet those costs so that the assurances given to him by the Northern Territory Government must mean that, in such circumstances, he would be indemnified for his own personal liability. On the face of it there is little reason to suppose that this situation would have been different in relation to solicitor and client costs incurred by the solicitors acting for Mr Lawler in the judicial review proceedings.
The findings in relation to the engagement of the firm of solicitors acting for the respondent, P Maher, are in several places throughout the reasons of the primary judge both in the recusal decision and in the costs decision. So far as is presently material the findings are as follows:
(a)Within the Attorney-General’s Department of the Northern Territory there is a unit known as the Solicitor for the Northern Territory made up of four divisions. Within the litigation division the acting director has functions which include recommending the outsourcing of legal services to lawyers in private practice in appropriate circumstances – recusal decision [6] and [7].
(b)If outsourcing of particular services is approved in any particular case the legal services co-ordination unit prepares the appropriate documents and communicates with the private legal firm selected and proposes the financial terms of the engagement – recusal decision [9].
(c)When the judicial review proceedings commenced on behalf of the appellant her solicitor contacted the Department of the Chief Minister inquiring about service of the initiating process. This led to a departmental request for legal services to outsource the representation of the respondent to Mr Paul Maher a solicitor who had acted previously on his behalf in the inquiry and identified that the paying agency would be the Department of the Chief Minister – recusal decision [36].
(d)That request for outsourcing was duly approved by the appropriate officer. In due course that led to an email being sent from the appropriate officer within the Legal Services Unit to the solicitor Mr Maher:
‘new instructions: Ad hoc Legal Referral: Stella Maris inquiry – our ref:20142426
Further to my phone call of today, I attach the request we received from the Department of the Chief Minister to engage you to act on behalf of Commissioner Lawler in this matter.
As advised on the phone we have not received the Originating Motion and Summons filed by Halfpennys but I will contact Cathy Spurr to let her know that you will accept service on behalf of Commissioner Lawler.
Once you have received the documents and have had the opportunity to consider the matter, it would be appreciated if you could provide me with an estimate of your fees.
Please note your invoice should be sent to the Legal Services Coordination Unit by email ([email protected]) but addressed to the Department of the Chief Minister as follows:
Attention Terri Hart
Department of Chief Minister
GPO Box 4396
Darwin NT 0801
If you have any queries in regards to this engagement please do not hesitate to contact me on…’ (see recusal decision [36 to 44].(e)Later on 24 December 2014 Mrs Teresa (Terri) Hart who was Executive Director of the Office of the Deputy Chief Officer of the Department of the Chief Minister sent an email to the solicitor Mr P Maher as follows:
“’On Mr Gary Barnes’ [Chief Executive Officer of the Department of the Chief Minister] behalf, this email is to confirm the earlier verbal advice provided to you on 15 December 2015 that the Northern Territory Government indemnifies Mr John Lawler in respect not only of his own solicitor/client costs but also in respect of any adverse costs order which may be made in the present Supreme Court proceedings brought by Ms Lawrie” (recusal decision [77]).’
(f)Later at various points, officers of the Legal Services Department communicated with Mr Maher requesting estimates of fees and invoices for payment (recusal decision [112] to [118]) and incidental matters.
(g)Furthermore, it is common ground that the Northern Territory Government in fact paid all of Mr Maher’s fees and disbursements associated with the judicial review proceedings (costs decision [18]).
(h)The learned Judge did not accept the submission on behalf of the appellant that under no circumstances might Mr Lawler be liable for Mr Maher’s costs (costs decision [21] and [22]) his finding was that there had been an agreement between the Northern Territory Government and Mr Maher dealing in part with the liability for Mr Maher’s costs. His Honour found that the request for legal services sent to Mr Maher on 5 August 2014 suggested that he was to be retained on the same or similar basis as he had been retained during the Inquiry and his services and his engagement had been requested by the Department of the Chief Minister. Mr Smyth who was the Case Manager within the Office of the Solicitor for the Northern Territory determined that Mr Maher was to be engaged by the Department of the Chief Minister to act for Mr Lawler and Mr Maher responded by an email on 6 August 2014 in which he stated:
’Thanks for these instructions.’
At [22] of the costs decision his Honour found:
In his email to Mr Lawler on 7 August 2014, Mr Maher stated ‘Ms Hart of the Department of the Chief Minister has confirmed that all my invoices should be directed to the Department for payment’. This seems to be the only communication between Mr Maher and Mr Lawler about costs. On 14 August 2015, Mr Maher sent his costs disclosure statement and agreement to Legal Services SFNT. He then sent all of his costs estimates, revised costs estimates and invoices to the Department of the Chief Minister through the established procurement process. His costs estimates were approved … and his fees and disbursements were paid by the Northern Territory Government. Mr Maher did not send his costs disclosure statement and agreement to Mr Lawler nor did he copy any invoices to Mr Lawler or seek Mr Lawler’s approval for his fees.
Apart from these arrangements and documentation leading to the engagement of Mr Maher and the progressive submission of invoices and corresponding payments, there were no communications between the Legal Services Department or the Department of the Chief Minister or any other organ of the Northern Territory Government and Mr Maher giving or directing instructions as to how Mr Maher should act or in relation to any points in the conduct of the litigation. It is also significant to note, as set out in [470](e)above that by the email of 24 December 2014 from Ms Hart to Mr Maher that the indemnity offered to Mr Lawler was “in respect not only of his own solicitor/client costs but also in respect of any adverse costs orders which may be made …” which clearly connotes that Mr Maher was to be Mr Lawler’s own solicitor and that Mr Lawler would have a responsibility to Mr Maher for his own costs.
This is where the so called indemnity principle as to costs needs to be considered. Southwood J cited the relevant passages in Dyktynski v BHP Titanium Minerals Pty Ltd (2004) 60 NSWLR 203 where McColl JA at [68] and [69] referred to the principle saying:
The fundamental principle to be applied in deciding whether a costs order ought be made was stated by Lord Cranworth in Clarke & Chapman v Hart (1858) 6 H.L.Cas 632 at 67; 10 E.R.1443 at 1457; ‘… I think that the general principle upon the subject of costs is, and ought to be … that the costs ought never be considered as a penalty or punishment, but merely a necessary consequence of a party having created a litigation in which he has failed …
Lord Cranworth’s statement is reflected in the underlying rationale of a costs order that ‘that it is just and reasonable that the party who has caused the other party to incur costs of litigation should reimburse that party for the liability incurred’; Latoudis v Casey (1990) 170 CLR 534 at 567 per McHugh J.
At [28] of the costs decision the learned Judge held that the agreement between the Northern Territory Government and Mr P Maher about costs fell within the first limb of Adams v London Improved Motor Builders Limited [1921] 1 KB 495 at 501 or that, in other words, it did not create a situation in which Mr Lawler might never have any personal liability for the costs of the judicial review proceedings either to his own solicitor or to the appellant were she to be successful.
Counsel for the respondent referred to a series of cases in which a government officer, whether represented by a government lawyer or by a private lawyer, whose costs were to be met primarily by the government or some other official source was nevertheless entitled to an order for the costs if successful in proceedings. The cases include Lenthall v Hillson [1933] SASR 31 at 36; Inglis v Moore (No 2) (1979) 46 FLR 470 at 472 both approved in Dtyktnyski; see also Noye v Robbins [2010] WASCA 83 affirming the decision in Noye v Robbins(No 6) [2008] WASC 266; Trevorrow v State of South Australia(No 7) (2008) 251 LSJS 91.
Very recently the indemnity principle has been examined and applied in Marsh v Baxter (No 2) [2016] WASCA 51 in a case between private litigants where the successful defendant had received an indemnity from a company marketing and promoting the use of genetically modified canola to assist the defendant in opposing a claim for damages alleged to arise out of his practice of growing GM canola on his farm adjoining the plaintiff’s property. In upholding an order made by the trial Judge that the unsuccessful plaintiff should pay the defendant his costs of the action, McLure P, Newnes and Murphy JJA said at [37] and [38]:
The onus of establishing that the respondent had no liability to Bradley Bayly Legal for their costs lies on the appellants. In the absence of proof of an agreement to the contrary, a solicitor who acts on instructions for a party on the record is taken to be entitled to look to that party for costs, even if the instructions have come to the solicitor from another party or from some non-party interested in the litigation; see Davies v Taylor(No 2) [1974] A.C. 225, 230; Hudgson v Endrust (Aust) Pty Ltd (1986) 11 FCR 152; Halliday v High Performance Personnel Pty Ltd (in liq) [1993] 113 ALR 637 at 639.
In the present case, there is no doubt that Bradley Bayly Legal was instructed by the respondent to act on his behalf and act solely on his instructions. The respondent was therefore liable for their costs in the absence of an agreement between Monsanto [the purveyor of GM Canola] and Bradley Bayly Legal, or between the respondent and Bradley Bayly Legal, that in no circumstances could Bradley Bayly Legal look to the respondent for its costs. There is nothing to suggest any such agreement and there is no reason to believe that such an agreement might have been entered into …
In the present case, while it is clear that the Northern Territory Government intended to indemnify the respondent, Mr Lawler, for any costs for which he may be liable in respect of the judicial review proceedings, there is nothing to suggest that under no circumstances might Mr Lawler incur a personal liability for costs. Indeed two features of the situation, already mentioned, suggest the contrary, namely that the government indemnity was in respect of his “own solicitors costs” and that this extended to any order for costs which might be made against the respondent in favour of the appellant or some other.
For these reasons, I consider that the learned Judge was correct in concluding that the arrangements for the payment of his costs by the Northern Territory Government did not remove all potential liability which Mr Lawler might have for costs arising from these proceedings and that, consequently, consistent with the authorities cited, he was entitled to an order for costs against the appellant where he was successful in the litigation. This does not mean the respondent is necessarily entitled to the whole of the costs awarded in his favour by the learned Judge but rather, that there is no impediment arising from the application of the indemnity principle, for an award of costs to be made in the respondent’s favour on conventional principles. The second of the appellant’s grounds in this appeal must, therefore, fail.
The award of costs on an indemnity basis
The appellant, by her third ground of appeal, contends that even if she is otherwise liable for the costs arising from the principal decision, they should not have been awarded on an indemnity basis but rather upon a party/party basis.
These reasons have already set out why the finding that the appellant had waived any applicable entitlement to procedural fairness cannot stand. It is therefore necessary to approach this ground in the costs appeal on the footing that there is no finding of waiver to support the decision to award those costs on an indemnity basis.
The reasons for decision in the costs appeal repeat the findings in the principal decision which lead to the conclusion of waiver with some further elaboration. See the reasons for decision in the costs decision at [6], [8], [9], [12], [14] and [17]. Included among these findings was the conclusion that without the appellant’s alleged reliance on the letter from the respondent of 17 January 2014, her claim was doomed to fail (costs decision [12]). For reasons already given I do not consider that the appellant’s case was ever one where the result turned upon whether or not there had been reliance on that letter. Otherwise these several findings have been examined in the section of these reasons dealing with the issue of waiver and the reasons for rejecting them are to be found there.
This rejection of the respondent’s alternative defence of waiver and the conclusions reached about why the findings concerning the conduct of Ms Lawrie, Mr Wyvill and Ms Spurr cannot stand mean that there is no sufficient basis to justify an award of indemnity costs. Consequently, if the appellant had brought the review proceedings but failed in them there would be no reason to depart from the usual practice of awarding costs against her in the normal way on a party and party basis.
Consequently I consider that the third ground of appeal in this costs appeal should succeed, I would allow this appeal and set aside the order for payment of costs insofar as it directs the payment of costs on an indemnity basis. In this notice of appeal the appellant also sought an order the respondent should pay her costs of the appeal and the principal application. That, however, assumes that the appellant will be successful in her appeal from the principal decision but that expectation will depend on the ultimate decision of this Court. Therefore, I consider that the ultimate form of the relief to be granted in relation to the costs of this third appeal and the appeal against the principal decision should await the final outcome of these three appeals.
Conclusions and orders
For these reasons, therefore, I propose that this Court make the following orders on the three appeals:
A Appeal from Principal Decision:
· order that the appeal be allowed;
· set aside the order of 1 April 2015 dismissing the appellant’s application for judicial review;
· declare that in making the findings of improper conduct and other adverse observations against the respondent more particularly identified in the Schedule to these reasons, the Inquiry by the respondent was conducted without necessary procedural fairness being accorded to the appellant and that consequently those findings were not made in accordance with law and are thereby each a nullity;
· direct that the parties exchange and file written submissions within a period to be fixed by the court, if not agreed, in relation to what orders should now be made in relation to the costs of the judicial review proceedings.
B The Recusal Decision:
· that the appeal by the appellant against the judgment and orders of 22 July 2015 be dismissed;
C The appeal against the Costs Decision:
· the appellant’s appeal from the decision of 14 August 2015 be allowed;
· it be declared that the respondent is not entitled to any component of costs arising from the judicial review proceedings on an indemnity basis;
· otherwise, reserve for consideration after the decisions in each of these three appeals have been given the question of what orders for costs should be made in relation to the disposition of all three decisions the subject of these appeals.
SCHEDULE
List of certain findings made by the respondent in the Report dated 26 May 2014 entitled “Inquiry into Stella Maris”, without according due procedural fairness –
The numbering of these findings adopts the numbering appearing in [91] of the reasons for decision of the Supreme Court of the Northern Territory in Lawrie v Lawler [2015] NTSC 19 delivered on 1 April 2015.
2.Minister Lawrie acted with bias over many years.
4.Minister Lawrie should have ensured that her office provided this application [a redevelopment proposal for the Stella Maris site prepared by Unions NT] to the Department after a meeting in 2009 with Unions NT’s representatives.
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.
9.This concern and preference [to grant the site to Unions NT] 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 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.
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 [sic Lawrie’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 way, 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 51(1) it wishes to refer any alleged breach of the code to the Privileges Committee.
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