This morning George Brandis’ most recent judicial selection will be formally appointed to the Federal Circuit Court in a ceremonial sitting in the NT Supreme Court in Darwin.
It has been a mixed few weeks for Darwin barrister Tony Young of William Forster Chambers. On 16 July 2015 Attorney-General George “Bookshelves” Brandis announced Young’s appointment–with the faintest of praise–as a judge of the Federal Circuit Court (previously known as the Federal Magistrates Court) based in Darwin. The Brandis presser did little more than rephrase the content of Young’s web-page at his chambers.
It is a curious appointment for several reasons, not least because Tony Young was, until recently at least, chair of the NT Environment Centre, which recently made a successful NT Supreme Court challenge, run by the local Environmental Defenders Office, to a series of decisions involving massive water allocations in the NT by the CLP government. As the NT Environment Centre media release noted at the time, the Federal Government has cut all funding to EDO’s across Australia, and the NT Government has cut all funding to the Environment Centre NT.
Six days after Brandis announced Young’s appointment Justice Stephen Southwood of the NT Supreme Court delivered his judgment in the matter of Lawrie & Wyvill v Lawler, the latest instalment in the NT Supreme Court action bought by former NT Labor Opposition leader Delia Lawrie against Commissioner John Lawler and his conduct of an inquiry into the proposed grant of a lease of Crown land to a local union group during the dying days of Labor’s administration in 2012.
Lawrie claimed that Lawler failed to accord her procedural fairness by not providing her with notice of any adverse findings made against her in his report. You can read my earlier pieces on this matter here, here and here.
Alistair Wyvill SC (head of William Forster Chambers, the largest barristers chambers in the NT, and until early April 2015 president of the NT Bar Association) acted for Delia Lawrie and Deputy Opposition Leader Gerry McCarthy, instructed by solicitor Cathy Spurr of the Labor-friendly local firm Halfpennys, during the Lawler inquiry and for at least part of her Supreme Court action against Lawler.
Tony Young was counsel for Delia Lawrie during the latter pre-trial stages of Lawrie’s matter from some time in November 2014, during the four-day trial in late January 2015 and also during the most recent hearing of applications by Lawrie and Wyvill that Justice Southwood disqualify himself for apprehended bias.
Those applications arose from the employment of Justice Southwood’s wife in an administrative role for an NT government agency responsible for the administration of the ad-hoc engagement of legal advisors on behalf of NT government departments and agencies.
Relationships between Tony Young, for Lawrie, and Justice Southwood were strained from the first day of proceedings in late January. Things didn’t improve during the hearing of the apprehended bias applications by Lawrie and Wyvill on 5 June 2015, when the ABC reported the following exchange between Justice Southwood and Tony Young.
While listening to argument by Mr Young, Justice Southwood said the case had been “mishandled” by Mr Young, to which Mr Young replied “ … quite frankly, that is discourteous, Your Honour.”
As noted above, on 22 July 2015, Justice Southwood delivered his judgment in the matter of Lawrie & Wyvill v Lawler. It is a remarkable document for a number of reasons, two of which I will examine here. The first is not directly related to the applications that Justice Southwood disqualify himself for apprehended bias – which applications were dismissed.
This first issue concerns the analysis by Justice Southwood of the conduct of the pre-hearing stages of the trial, including several apparent strategic failings by Lawrie’s legal team.
The first mention of Lawrie’s case was before Justice Judith Kelly on 11 September 2014 where she made the usual, and wholly unexceptional, procedural orders for provision of various statements and affidavits by the parties to the court and set the next court date. At the next court date in mid-October 2014 Justice Kelly made further orders for the production of documents in relation to assertions made by the applicant in court documents.
Those assertions concerned the reliance by Lawrie and her legal representatives on statements made by Lawler in a letter to them in the early stages of the Commission’s hearings and the state of mind of Lawrie and her legal team in relation to their belief that no adverse findings would be made against Lawrie by Lawler in his report.
Later that month Cathy Spurr filed an affidavit purportedly in compliance with Justice Kelly’s orders, and claimed legal professional privilege in relation to a number of documents that she objected to the production of.
In late November–by which time Tony Young had apparently been engaged by Delia Lawrie in the stead of Alistair Wyvill SC–Paul Maher, solicitor for Commissioner Lawler, replied to Spurr, claiming that legal professional privilege had already been waived for the documents identified by Spurr. Maher called for the documents to be provided to him.
Spurr replied to Maher on 15 December 2014, maintaining that privilege had not been waived but agreeing to provide the documents to Maher on the basis that be seen only by him.
On 16 December 2014 Maher wrote to Spurr, telling her that:
I confirm that we have no present intention to call or cross-examine either you [Spurr] or Mr Wyvill. Neither Mr Maurice [Michael Maurice QC, senior counsel for Lawler] or I want that situation to arise if it can be avoided at all. The only thing that would change our view is if any of the documents produced by you appear to clearly contradict what is in your own or Mr Wyvill’s affidavit.
Those documents were provided to Maher on 22 December 2014 and were examined by both Maher and senior counsel Michael Maurice QC overnight.
The next day Maher wrote again to Spurr, noting that:
Those documents are inconsistent with the position taken in the affidavits of Mr Wyvill, the plaintiff [Lawrie] and you that the plaintiff had no expectation of the possibility of Commissioner Lawler making adverse findings [against Lawrie].
Then followed in January 2015 several interlocutory hearings (now before Justice Southwood), the preparation of affidavits and exchange of correspondence.
On 14 January 2015 Maher wrote an email to an officer in the Department of the NT Chief Minister, the agency responsible for paying the invoices for Commissioner Lawler’s legal representatives, that reveals the remarkable impact of the documents the subject of the failed claim for legal professional privilege by Lawrie’s legal team.
Referring to earlier advice of 18 November 2014 by Michael Maurice QC, Maher told the department that at that time the prospects for a successful defence of Lawrie’s claims were slim.
Mr Maurice felt that the facts were probably against us, based on the facts of our situation.
There was one other potential issue at that time, but neither Mr Maurice nor I really expected it to so dramatically impact on the case. It had seemed at first inconceivable to Mr Maurice and I that Ms Lawrie and her advisers Cathy Spurr and Alistair Wyvill did not expect adverse findings to be made. Even when it was asserted in Ms Lawrie’s Statement of Facts, Issues and Contentions that neither she nor her advisers expected an adverse finding, we found that difficult to believe. We were therefore surprised when both Alistair Wyvill and Cathy Spurr swore affidavits stating that they did not expect adverse findings.
Although Mr Maurice and I felt it highly unlikely that Alistair Wyvill and Cathy Spurr would make affidavits that were not true and accurate, we felt at least we should explore the issue in order to satisfy our obligation to Mr Lawler. The fact that the plaintiff has made those assertions acted as a waiver of the privilege she would otherwise have been able to maintain over communications between her, Cathy Spurr and Alistair Wyvill relating to that issue.
Maher then refers to the correspondence between himself and Spurr and the provision of documents to him just before Christmas 2014, noting that when he and Mr Maurice examined the documents they:
… were surprised indeed. We had expected they would confirm what Alistair Wyvill and Cathy Spurr had asserted in their affidavits, but the contrary was the case.
The first impact is that it has significantly increased the prospect of success … the argument that we now have is that the plaintiff and her advisers fully expected an adverse finding.
The other significant impact is that in order to run this argument we must cross-examine not only the plaintiff but also Cathy Spurr and Alistair Wyvill.
The prospect of cross-examination of Spurr and Wyvill presented great difficulties for Maher in that he had known Cathy Spurr and Alistair Wyvill for many years, as had Michael Maurice QC known Alistair Wyvill. Maher reported that Maurice QC felt unable to conduct a cross-examination of Wyvill in the manner required. In those circumstances Maurice QC considered it appropriate to step down from the case.
Maher notes that when these concerns were raised with Justice Southwood he was loath to delay the trial and suggested that Maher and Maurice QC engage junior counsel to conduct any cross-examination if required. Finally Maher advised the Department that due to the extra time required for the anticipated cross-examination and the extra cost of engaging junior counsel that his previous estimates of costs had “blown out … extensively.”
This sequence of events came to a head in the opening moments of Lawrie’s substantive case on 27 January 2015, when the following exchange occurred between Justice Southwood and Tony Young in relation to the tender of affidavits—and subsequent exposure to cross-examination on the content of those affidavits–by Delia Lawrie, Alistair Wyvill and Cathy Spurr.
His Honour: Well, it also has the effect of extending these proceedings and exposing a number of the witnesses to quite serious cross-examination …
Tony Young: It does, your Honour.
HH: Mr Young, with potentially quite serious factual findings open at the end of the day.
TY: Yes, your Honour.
HH: But nonetheless you’re proceeding.
TY: They’re my instructions your Honour.
Following a break to allow the respondents to consider a “late flurry of affidavits,” Young told the court:
TY: Your Honour, during the adjournment I sought further instructions about the conduct of this case on the plaintiff … I don’t propose to rely on the affidavits of Ms Spurr, Ms Lawrie and Mr Wyvill.
Later, in an exchange related to the tender of a document, Justice Southwood noted that Alistair Wyvill should be made available for cross-examination if the document were tendered. Tony Young advised that Wyvill would not be made available for cross-examination and the document was not tendered in evidence.
All counsel in trials—whether as politically-charged as Lawrie’s case or more mundane—make forensic decisions and give advice about the conduct of and strategies in each case. Some in the NT legal profession are more than curious that this matter proceeded as far, and in the manner that it did, when there were such apparent difficulties with the case.
As I’ve noted previously, the findings of Lawler’s enquiry were little more than a political flea-bite for Lawrie and NT Labor. For mine, Lawrie’s continued pursuit of this matter appears to be driven more by hubris and poor advice than sound political reasoning.
Once the cat—the failed claim for legal professional privilege of documents that Lawrie’s legal team should have known would fundamentally undermine their case once provided to the respondents—was out of the bag then in my view the preferable option would—or should—have been to “save the furniture” and Lawrie’s exposure to a costs order.
As Justice Southwood noted, Lawrie’s legal team had been aware since at least mid-January of the likely strategy to be adopted by Lawler’s counsel, including testing the truthfulness and accuracy of the allegations pleaded in two paragraphs of Lawrie’s Statement of Facts, Issues and Contentions, what appeared in the affidavits of Lawrie, Spurr and Wyvill and the inconsistencies apparent from the respondent’s examination of the material previously claimed to be subject to legal professional privilege.
The second issue of present interest emerging from Justice Southwood’s judgment of 22 July 2015 are the claims that Justice Southwood’s wife’s employment and her involvement with the engagement of Paul Maher to represent Commissioner Lawler founded the applications for apprehended bias against the her husband.
Justice Southwood detailed Tony Young’s written and oral submissions supporting Lawrie’s application for apprehended bias and then swatted them away in a blink.
All of the above submissions are utter conjecture and are an attempt to embellish the true situation.
In a lengthy analysis of each ground forming Young’s submissions, Justice Southwood described one as appearing to be “nothing more than a gratuitous insult.”
Justice Southwood also provided as cutting a judicial retort to submissions as I’ve seen in many a long year:
… the irony of Mr Young’s statements … is profound. There is nothing more frightful than the conjecture and speculation which is the product of ignorance.
Hopefully Tony Young’s judicial career will get off to a better start than his career as a barrister has ended.
Alistair Wyvill’s further submissions that Justice Southwood disqualify himself for apprehended bias are adjourned.
* On 29 July 2015 counsel for Delia Lawrie made application for leave to appeal from the decision of Justice Southwood in Lawrie v Lawler of 1 April 2015. The Northern Myth understands that appeal is almost 3 months outside the usual period for appeals in the Supreme Court of the NT and has been adjourned to 10 August 2015.