Tribunal finds Alistair Wyvill justified in criticising Justice Southwood’s ‘politically partisan’ Stella Maris decision

by | Dec 16, 2020 | NT Politics | 1 comment

Professional misconduct allegations filed against former Labor leader Delia Lawrie’s lawyer Alistair Wyvill have been dismissed, five years after they were made, in a decision that has raised fresh questions over how the Stella Maris Inquiry and subsequent Supreme Court action were handled.

The Legal Practitioners Disciplinary Tribunal dismissed the allegations brought against Mr Wyvill by the Law Society NT, finding that his allegations against Supreme Court Justice Stephen Southwood were warranted and that he did not advise Ms Lawrie to make false statements during the inquiry.

The tribunal also said Mr Wyvill was justified in alleging that Justice Southwood was politically motivated when he rejected Ms Lawrie’s 2015 Supreme Court action in which she claimed she had been denied procedural fairness during the inquiry by commissioner John Lawler.

The tribunal found that decision to have been “extremely damaging” to Ms Lawrie politically and beneficial to her political opponents.

The three-member Disciplinary Tribunal, that was chaired by interstate retired Tasmanian judge Peter Evans, also supported claims that the Lawler inquiry was unfair.

The Stella Maris affair saw Unions NT gifted a lease on the building without going to public tender in the days leading up to the then-Labor government’s defeat at the 2012 election.

The ensuing saga eventually cost Ms Lawrie the leadership of the Labor party after Justice Southwood’s 2015 determination that Ms Lawrie, Mr Wyvill, lawyer Cathy Spurr and Ms Lawrie’s chief of staff Michael Gleeson had actively attempted to disengage and discredit the Stella Maris Inquiry, in a plan hatched by Mr Wyvill.

“There was a conscious and deliberate strategy adopted by Ms Lawrie to abandon her participation in the inquiry to enable her to come to this court and wrongly maintain that she had been denied procedural fairness …” Mr Southwood said in his decision at the time.

“In my opinion … Ms Lawrie’s claim that she was denied procedural fairness cannot be sustained. I find that she was accorded procedural fairness.”

Justice Southwood determined that Ms Lawrie had waived her entitlement to procedural fairness and discounted a 2014 email in which Mr Wyvill stated that Ms Lawrie was still “vitally interested in the outcome of the enquiry” because he felt it was “not a true statement”.

But the Disciplinary Tribunal determined that “this finding was erroneous” and “opened the way for his Honour to … make a number of serious findings against Mr Wyvill and others”.

Justice Southwood and then-Solicitor for the Northern Territory Michael Grant – who is now NT Chief Justice – wrote formal letters to the Law Society calling for Mr Wyvill to be disciplined after the findings, which if proven would have seen him disbarred.

It’s unclear why it took nearly six years for those complaints to be heard and dismissed.

Law Society takes offence to Wyvill criticising Justice Southwood’s ‘politically partisan’ antics

Mr Wyvill had resigned his position as president of the Bar Council as a result of the 2015 findings, but later wrote an email to the Bar Council’s members alleging misconduct on the part of Justice Southwood, including that he acted with malice and was “politically partisan” and did not afford him the right to reply to the “unnecessary decision”.

The Law Society NT said the claims had “impugned the independence, character and motivations” of Justice Southwood, but the tribunal found that the role of a judge “carries with it exposure to grounds of appeal that can impugn the independence, character and motives of the judicial officer”.

The tribunal found Justice Southwood had not heard evidence from Mr Wyvill or others involved before determining that they were trying to disengage from the inquiry. The tribunal accepted that Mr Wyvill had grounds for suggesting that finding was politically motivated.

Former NT Labor leader Delia Lawrie

“The findings were extremely damaging to Ms Lawrie who was the then Leader of the Labor Party and for that reason the findings were beneficial to her political opponents, the Country Liberal Party Government,” they wrote.

“The findings were made in the course of his Honour’s unnecessary consideration of the issue of waiver. Their apparent relevance was to justify the incorrect finding that ‘It must have been obvious to Mr Wyvill that the Inquiry was not going well’.

“We are satisfied that what we have canvassed provides a basis for a belief that the findings were politically partisan.”

Justice Southwood had rejected the inclusion of an email by Mr Wyvill to Ms Lawrie’s chief of staff which showed he felt the inquiry was going well and that Ms Lawrie had performed well during testimony. But because Ms Lawrie’s then-legal team did not want Mr Wyvill to testify, the email was not included for consideration.

The tribunal questioned Justice Southwood’s decision that Ms Lawrie had attempted to withdraw from participating in the inquiry, noting that Mr Lawler’s final inquiry report found her to be honest about her beliefs of what transpired, despite the adverse findings, and that the tribunal felt after reviewing transcripts that she had been “a good and forthcoming witness”.

‘Lawler is an under-qualified southerner’: Tribunal supports criticism of 2014 Stella Maris Inquiry commissioner

The tribunal was also critical of how commissioner John Lawler handled the Stella Maris Inquiry, including that he had not offered Ms Lawrie advance notice that he would be making adverse findings against her, despite pledging to do so in an email from February 2014.

His findings had included that Ms Lawrie “acted with bias over many years” in granting the lease to Unions NT.

Emails showed Mr Wyvill and Labor operatives thought the adverse findings were going to be made against Mr McCarthy who had been the responsible minister at the time, not Ms Lawrie who was then deputy leader and treasurer, and had prepared a dissenting report that was never used due to the unexpected adverse findings against Ms Lawrie.

Mr Wyvill had said in an email to Ms Lawrie and her chief of staff in May 2014, that Mr Lawler had not conducted the inquiry fairly and that he had been “hand-picked” by the CLP to deliver the outcomes they sought to discredit Ms Lawrie.

“Lawler is an under-qualified southerner who should never have been appointed to run any Territory inquiry,” he wrote. “He is not a lawyer. It appears he has not (sic) knowledge or experience of leasing. He has never conducted an inquiry of this kind.”

The tribunal accepted Mr Wyvill’s assessment, writing that “the evidence suggests unfairness”, pointing out that Mr Lawler had not provided an opportunity for Ms Lawrie or Gerry McCarthy to comment on the procedures establishing the inquiry, had not permitted them to listen to evidence from all witnesses, conducted the inquiry without counsel assisting which they said “reduced his ability to step back and impartially assess the evidence”, and that he did not provide transcripts of the hearings in an apparent attempt to save $60,000, which the tribunal said was unfair to Ms Lawrie’s legal team.

The tribunal also wrote that they believed Mr Lawler had pre-judged the outcome before hearing all the evidence and that he had stated that Unions NT’s historic connection to Stella Maris was an “urban myth”.

“He made adverse findings against Ms Lawrie in his report without first providing her with notice in accordance with his letter of 17th February 2014,” they wrote.

“More generally, the matters we have referred to [relate] to unfairness, provide a sufficient basis for a belief that the Inquiry was conducted unfairly from the beginning and this reflected the commissioner’s lack of the qualifications, experience or skills to run it.”

‘Evidence’ of bullying supports calls that ‘question [Justice Southwood’s] fitness to be a judge’: Tribunal

On the accusation by Mr Wyvill that Justice Southwood was not fit to be a judge, the tribunal reflected on an incident from 2013, in which Justice Southwood was alleged to have bullied a NAAJA lawyer in his first trial, calling him incompetent and ultimately attempting to hold him in contempt of court for not obeying instructions.

Mr Wyvill represented the NAAJA lawyer, claiming Justice Southwood had an apprehended bias in determining the contempt of court charge because he had called the lawyer incompetent during the trial. The matter was later resolved with an apology by the lawyer.

“We consider that the evidence of his Honour bullying and disparaging the lawyer provides a basis for calling into question his Honour’s fitness to be a judge and the evidence of Mr Wyvill’s involvement provides a basis for suggesting that his Honour may have been ill-disposed towards Mr Wyvill,” the tribunal wrote.

They concluded Mr Wyvill did not make “inappropriate and unsubstantiated allegations against his Honour” and dismissed the allegations.

The tribunal stated that their findings were “solely as between the parties to these proceedings”.

Costs for the long delayed hearing will be heard this week.

 

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