Insipid movement at the Northern Territory Judicial Commission … Complaints against the NT chief justice and the court’s second most senior judge … Allegations of conflicts … Ducks on a small legal pond bumping into themselves … NT correspondent Buffalo Bruce reports
In October 2022 Northern Territory silk Alistair Wyvill lodged a complaint with the Judicial Commission about the conduct of Chief Justice Michael Grant.
The essence of the complaint is that Grant appears to have had his fingerprints on the Stella Maris inquiry and on the following litigation as solicitor general.
Later, as chief justice, he took on functions that would have been best avoided, in view of his earlier involvement.
The inquiry was established by the former Giles CLP government to investigate the grant of a lease by the former Labor government of an historic Darwin property to Unions NT.
It was an undisguised political stunt designed to embarrass the previous Labor government and Lawrie, the then leader of the NT Opposition.
Former senior federal police officer John Lawler was appointed as the commissioner to run the inquiry. Alistair Wyvill SC and solicitor Cathy Spurr from Halfpennys acted pro-bong for Lawrie.
Lawler found that Lawrie, as Deputy Chief Minister, had displayed bias in favour of Unions NT and that other expressions of interest in the lease had not been allowed.
This was akin to the decision ICAC made against Premier Nick Greiner – findings not based on standards recognised at law, but on the basis of a subjective assessment of right and wrong. It is hardly surprising, let alone unlawful, for a Labor Cabinet to support the union movement.
The complaint lodged with the Judicial Commission claims that Grant as solicitor general was advising Lawler and influencing the conduct of the inquiry. Lawler was not a lawyer and did not have a counsel assisting.
It is claimed that this conflicted with Grant’s role as the government’s chief lawyer and compromised the independence of the inquiry.
Further, Lawler was under the impression Grant had advised him in April 2014 that it was unnecessary to give notice to people against whom he proposed to make adverse findings – in spite of a reassurance two months earlier to do exactly that.
Grant disputes this, although he agrees that he gave advice in February 2014 to give the reassurance about notice of possible adverse findings.
Lawler’s file notes also indicate that as commissioner he believed he was told by the solicitor general that his report could be released without prior notice to those subject to criticism – because “the inquiry had been conducted fairly from the outset [and] key witnesses would’ve been aware of the areas of concerns and potential criticism”.
Delia Lawrie challenged Lawler’s findings as a denial of procedural fairness, but Justice Stephen Southwood argued that by claiming the pro bono legal services to Lawrie had been exhausted there had been a strategy, devised by Wyvill and solicitor Cathy Spurr, to “disengage or discredit” the commission by abandoning participation, and that Lawrie had waived her right to procedural fairness.
Lawrie resigned as leader of the opposition and Wyvill resigned as president of the NT bar.
After delivering his critical judgment in Lawrie v Lawler, Southwood proceeded to hear various applications for Lawler’s costs to be paid on an indemnity basis by Lawrie, Wyvill and Spurr.
At the time he was hearing the case, the judge’s wife, Denise Southwood, was the public servant in the NT Attorney General’s Department responsible for securing the approval and payment of Lawler’s costs and who, in that capacity, was copied into apparently privileged correspondence between Lawler’s legal team and the CLP Chief Minister’s Department.
Southwood’s findings were overturned by the Court of Appeal which found that Lawrie’s right to procedural fairness had not been waived.
There was no reason for the judge to explore the motives of Lawrie’s legal advisers and make unwarranted observations about them.
Within hours of Southwood’s critical judgment coming down in April 2015, the machinery cranked into action to commence disciplinary action against Wyvill.
The documents suggest that Grant privately communicated with both Southwood and Lawler’s legal team to coordinate the preparation of professional misconduct complaints against both Wyvill and Spurr.
It was Grant who then initiated the NT Law Society’s misconduct proceedings against them, using his power under the Legal Profession Act.
It appears that behind the scenes Grant had been communicating with Southwood about the same matters and at the same time as Southwood was dealing in court with applications against Wyvill and Spurr to recover the money Grant’s client had spent on Lawler’s defence, as approved by Mrs Southwood.
In December 2020, the Legal Profession Disciplinary Tribunal delivered a thumping determination, dismissing all the complaints against Wyvill.
The tribunal was presided over by retired Tasmanian Supreme Court judge Peter Evans QC. The NT Law Society then also agreed that the case against Spurr had to be thrown out.
The LPDT accepted Wyvill’s evidence that he had relied on Lawler’s reassurance that notice of possible adverse findings would be given in the way he conducted Lawrie’s case and that there was no conspiracy as Southwood had suggested.
It also accepted that Wyvill had reasonable grounds for saying to the NT Bar Council in an email in June 2015 that Southwood had made “findings which [were] both unnecessary and politically partisan”, that his judgment was “suggestive of malice and calls into question his fitness to be a judge” and that something should be done about that.
The LPDT’s funding fell on deaf ears in the Territory. Indeed, the NT Bar and Grill must still be at lunch. Wyvill has yet to receive a response.
In the process the NT Law Society racked up costs of close to $1 million in addition to agreeing to pay over $500k of Wyvill’s costs.
Six months later, Wyvill complained to the previous NT Attorney General, Selena Ubo, about Southwood and the lack of any response to these findings.
In August 2021 Ms Ubo “strongly” recommended Wyvill take his complaint against Southwood to the Judicial Commission, as soon as it commenced operations, advising that if his serious concerns were well founded “a three person investigation panel must be appointed”.
It was left to Wyvill and Delia Lawrie to file complaints about Southwood with the NT Judicial Commission when it was eventually established in November 2021, alleging his judgment in Laurie v Lawler was “politically partisan … suggestive of malice … [and] called into question his fitness to be a judge” as per the LPDT’s decision.
There were also allegations of “extraordinary delay” in the delivery of judgments of up to five years and bullying lawyers who appeared before him.
In spite of his connection with the Stella Maris Inquiry and the Lawrie v Lawler litigation, Grant commenced chairing the Judicial Commission in its consideration of Wyvill’s and Lawrie’s complaints against Southwood.
That was until July 2022, when Wyvill wrote to the chief justice spelling out his allegation of Grant’s behind the scenes involvement in the inquiry and the litigation. Much of those details emerged after Wyvill was given access to Lawler’s solicitors’ file.
Grant disqualified himself but revealed for the first time the hitherto unknown communications between himself and Southwood starting on the day after the judgment was handed down.
Wyvill’s complaint asks how it was that Grant held off disclosing this apparently relevant material to Wyvill, Lawrie and, it seems, Grant’s colleagues on the Judicial Commission, as well as a number of other questions about Grant’s response as CJ to Southwood’s conduct as a judge.
The CJ denies any wrongdoing.
The Judicial Commission is now comprised of the third most senior judge (Justice Judith Kelly), the Chief Judge of the Local Court (Chief Judge Elisabeth Morris), the Local Court judge in charge of NTCAT (Judge Mark O’Reilly), a representative of the President of the NT Law Society (which was so spectacularly unsuccessful in prosecuting Grant’s and Southwood’s case against Wyvill and Spurr) and a local lay person.
These three local judges, all of whom have are junior to Grant and Southwood and have known them for decades, are charged with determining these career-imperilling complaints against them.
Now, nearly two years after Ubo’s strong recommendation, the process has turns out to be glacial.
Wyvill wrote to the current AG, Chansey Paech on March 22, 2023, in relation to his complaints about Southwood and Grant, pointing out that despite the lapse of time, an investigation panel had yet to be established in respect of the complaints against Southwood and that “the commission has yet to complete the first stage in its consideration of (the Grant) complaint”.
Two and a half months later, on 2 June 2023, the AG responded with the limpest of defensive strokes.
Apparently, he is content simply “to assume that the Commission believes it capable of dealing with your complaints” and to indicate nothing more than a preparedness “to write to the Commission to determine if additional resources are required”.
The size of the legal profession in the Northern Territory is too close for comfortable distance between judges, lawyers and legal institutions.
Judicial members of the commission from time to time are likely to have their judgments determined on appeal by the commission’s chairman, the chief justice – which risks compromising the appeal process.
The Judicial Commission Act says that a Northern Territory Supreme Court judge can only be removed from office by parliament on the recommendation of an “investigation panel” established under the Act.
Only the Judicial Commission, made up with a majority of local judges, can decide to create such a panel.
It means the attorney general is dealt out of the process and has no power to inquire into a judge’s conduct and recommend removal from office.
This gives the judges a handy veto over defenestrating anyone from the Supreme Court, and may explain the lack of progess by the Judicial Commission on the Grant and Southwood complaints.
We’ve approached Chief Justice Grant and Justice Southwood for their comments and will post them when they come to hand.