Northern Territory MP Delia Lawrie and her former lawyers have applied for a judge to be disqualified for “actual or apprehended bias” after his wife arranged government-funded legal representation for their opponent.
Supreme court justice Stephen Southwood has been asked to make a $185,000 costs order against Lawrie after he rejected her challenge to misconduct findings by a commission of inquiry into a government lease offer to Unions NT in 2012.
The inquiry commissioner John Lawler has taken the unusual step of seeking that Lawrie’s barrister Alistair Wyvill and solicitor Cathy Spurr also foot the bill for his defence of her court action.
But Lawrie and her legal team, who were the subject of damning findings by Southwood over their conduct in the inquiry, have moved for the judge to step aside because his wife Denise organised Lawler’s legal assistance.
Emails filed in court reveal that Denise Southwood, an assistant manager of legal services coordination in the office of the solicitor for the NT, arranged to retain Lawler’s solicitor and seek an estimate of fees while her office received invoices for payment.
Southwood will hear the application that he disqualify himself in the Darwin supreme court on Friday.
Lawler is seeking $185,199.23 in costs despite his legal bill being paid by the NT government, which offered him full indemnity.
Wyvill and Spurr will further claim that Southwood is incapable of hearing costs because he showed “actual or apprehended bias” by prejudging their conduct when they had no opportunity to defend themselves.
The lawyers, who acted pro bono for Lawrie, will argue they are not legally bound by the rulings as they were not parties to her supreme court case, and misconduct would need to be proven in a new trial.
Southwood upheld the inquiry’s findings that Lawrie acted unfairly and with bias over the former Labor government’s offer of a 10-year rent-free lease of the historic Stella Maris site in Darwin to Unions NT.
Lawrie was treasurer when the government made the offer without a tender process or any public announcement, in the days leading up to the government entering caretaker mode before the 2012 NT election. The new Country Liberal party government tasked Lawler with running the inquiry the following year.
Southwood found that Lawrie had “acted with bias over many years”, and when it became apparent the inquiry was not going their way, she and Wyvil adopted “a conscious and deliberate strategy” to abandon participation so she could claim she had been denied procedural fairness.
“The strategy suggested by Mr Wyvill involved two components,” he said in his judgment.
“First, Ms Lawrie and her lawyers would ignore Mr Lawler in the future and disengage from the inquiry. Second, they would discredit the inquiry.
“It followed that there had to be some explanation or justification for Ms Lawrie ignoring and disengaging with the inquiry. The explanation or justification was to be a political one which involved discrediting the inquiry as being an unfair inquiry that was merely serving the (CLP’s) purposes.”
Southwood also said Wyvil counselled Lawrie to make “deliberately and knowingly false” statements.
The judge’s findings led to Lawrie’s demise as opposition leader and Wyvill, one of the NT’s foremost silks and a known Labor supporter, resigned as president of the bar association.
They prompted a Labor leadership spill, which Lawrie said she would contest, sparking the lengthy rank-and-file process now required in a Labor party leadership battle. Lawrie then resigned when it was revealed police were investigating her for “possible breaches of the criminal law” in seeking to “obstruct, prevent, pervert or defeat the course of justice” during the Lawler inquiry.
Lawler’s costs application has given Wyvill his first public opportunity to respond to Southwood’s adverse findings against him.
In a 35-page affidavit, Wyvill said he rejected Southwoods’ “untrue” characterisation of a strategy he proposed to secure Lawrie redress in the event the commission unfairly ruled against her.
The barrister said the outcome of the inquiry came as a genuine surprise to him after Lawler undertook to give advance notice of any adverse findings against his client but had not.
It was only then that the decision was made to launch legal proceedings in which “a necessary and obvious consequence of success ... was that it would discredit the commissioner and his report”.
The fact Lawrie had not been called back to hearings meant there was little opportunity to “ignore” the inquiry, and he and Spurr stopped corresponding with it when they ceased representing her, no longer having the resources to do so pro bono, Wyvill said.
He took exception to Southwood’s comment that his statement that “our clients remain vitally interested in the outcome of the inquiry” was merely “a device capable of being used to suggest Mr Lawler failed to accord Ms Lawrie procedural fairness”.
“I do not understand how it could be concluded that I would attempt to set up a ‘device’ to exploit an opportunity that hadn’t occurred to me,” Wyvill said.
