Delia Phoebe Lawrie(Appellant) v John Lawler

• Jurisdiction: Northern Territory
• Court: Court of Appeal
• Judge: Doyle,Duggan AJJ:,Heenan AJ
• Judgment Date: 02 June 2016
• Docket Number: FILE NO: AP 5, 6 and 8 of 2015 (21434660)
• Date: 02 June 2016

[2016] NTCA 3

COURT OF APPEAL OF THE NORTHERN TERRITORY

IN THE COURT OF APPEAL OF THE NORTHERN TERRITORY OF AUSTRALIA AT DARWIN

Judgment of:

Doyle, Duggan & Heenan AJJ

FILE NO: AP 5, 6 and 8 of 2015 (21434660)

Between:

Delia Phoebe Lawrie

Appellant

and

John Lawler

Respondent

REPRESENTATION:

Counsel:

Appellant: on 1 and 2 March 2016 on 8–10 March 2016: A ScottPJ Davis QC and A Scott

Respondent: on 1 and 2 March 2016 on 8–10 March 2016 D McLure SC and G O.MahoneyD McLure SC and G O.Mahoney

Applicant to Intervene — on 1 and 2 March 2016 W Sofronoff QC and D Skennar

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 Zealand Ltd [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.

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 Act 1979 (NT) s 9(1), s 51

Supreme Court Rules 1987 (NT) r 85.11, r 85.11(2)

APPEAL — Judicial review — requirements of procedural fairness — inquiry pursuant to s 4A of the Inquiries Act 1945 (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

REASONS FOR JUDGMENT

(Delivered 2 June 2016)

Doyle & Duggan AJJ:

Background

1 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’.

2 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.

3 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.

4 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.

5 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.

6 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.

7 Mr Lawler embarked on the Inquiry. He presented his Report (‘the Report’) to the Administrator on 26 May 2015.

8 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.

9 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...