(NB See my previous post on this important NT Supreme Court decision). News that CLP Attorney-General John Elferink has referred the Delia Lawrie matter to the Director of Public Prosecutions is hardly a surprise, given adverse comments about her behaviour in a Supreme Court judgment last week. In a realpolitik sense it’s the governing party’s job to put the heat on the Opposition whenever possible, and vice versa:
Northern Territory Opposition Leader Delia Lawrie has been referred to the Director of Public Prosecutions (DPP) by her political rivals after a Supreme Court judge said she knowingly made false allegations. …
“The fact that you have the Leader of the Opposition colluding to put information in front of a Supreme Court, ultimately to encourage it to make the wrong decision, is a very serious matter indeed,” he said.
“I’m asking the question as to whether or not an affidavit that potentially contains false information may become a breach of the Oath Act or ultimately a breach of the criminal code.”
Another news story suggested that Elferink was asserting that Lawrie and her lawyers may have engaged in a conspiracy to pervert the course of justice.
But what are the prospects that the DPP would decide to lay charges, or that they might succeed? I am not a criminal law expert nor do I have a complete knowledge of the facts in Lawrie v Lawler nor access to the relevant court documents. However, as an administrative law expert and very experienced general civil litigation lawyer I can make a few tentative observations. (warning – may be a bit dry and legalistic for some tastes)
First, as Elferink notes but deliberately blurs, Lawrie filed affidavits but ultimately did not tender them in evidence or rely on them in any way. Consequently, even if they contain false statements (which we don’t know because they are not publicly available) it seems to me that the most that could be said is that she contemplated making false allegations to the Court but decided (no doubt wisely in the circumstances) not to do so.
As for the Plaintiff’s Statement of Facts, Issues and Contentions (as a pleading is called in administrative law proceedings), it certainly contained statements which Southwood J found to be false to Ms Lawrie’s knowledge.1 Lawrie asserted that she and her lawyers had “relied” on a statement in a letter from Commissioner Lawler that he would give her an opportunity to comment and make submissions before publication of his Report if he intended to make adverse findings about her (see my previous post), and that:
The plaintiff and legal representatives acted in the belief that, by reason of the defendant’s conduct, he was not considering making any findings which were adverse to the plaintiff.
There are a couple of observations that can be made about these statements. First, I think the suggestion that asserting something in a pleading could amount to an attempt to pervert the course of justice fundamentally misunderstands the function of a pleading in civil litigation. In Laws v Australian Broadcasting Commission (1990) 170 CLR 70, the High Court approved the following observations about pleadings from an old 1848 English case:
“It would seem that (bills in equity), as well as pleadings at common law, are not to be treated as positive allegations of the truth of the facts therein, for all purposes, but only as statements of the case of the party, to be admitted or denied by the opposite side, and if denied to be proved, and ultimately submitted for judicial decision.” …
“(T)he statements of a party in a declaration or plea, though, for the purposes of the cause, he is bound by those that are material, and the evidence must be confined to them upon an issue, ought not, it should seem, to be treated as confessions of the truth of the facts stated.”
A pleading is merely the statement of a party’s case, which she will then need to prove by admissible evidence. Indeed a pleading can and often does contain alternative formulations of the factual elements of a claim e.g. “If, which is denied, X did not occur then the plaintiff says that Y occurred.” If a party later swears to the truth of a fact in an affidavit or sworn oral evidence then that could certainly provide a basis either for a charge of perjury or (perhaps) attempting to pervert the course of justice. But I doubt that a statement in a pleading could be so regarded.
My other observation is to wonder whether Southwood J may have overreached in finding that Lawrie’s statements of reliance on and belief in Commissioner Lawler’s promise (of prior notice of an adverse finding) were knowingly false. Clearly both Lawrie and her lawyers harboured suspicions and doubts about Lawler’s impartiality (arguably quite reasonably having regard to the report that eventually emerged), but that fact doesn’t negate that they may nevertheless have in a legal sense relied on his promise and at least hoped (if not quite believed) that he would honour it. If, as was no doubt the case, they thought they had already put their case clearly and forcefully to Commissioner Lawler, they may reasonably have concluded that there wasn’t much more that could usefully be done until they were in a position to read his conclusions and reasoning and respond to them (as they had been promised they would be given an opportunity to do before the Report was published).
The fact that they decided to embark on an approach of “disengage, ignore and discredit” in view of the suspicions they had come to hold about Lawler’s partiality/bias, and that they contemplated putting in place a “fall-back” strategy of preparing a response to Lawler’s report and then seeking natural justice judicial review if he failed to honour his promise, is not inconsistent with legal reliance on that promise. If the conduct of a Commissioner leads you to suspect that he is partial and biased (which, correctly or otherwise, was clearly the belief of Lawrie and her lawyers), you would be stupid and naïve not to make contingency plans against the possibility that the promise might not be honoured.
Southwood J appears to have reasoned on the basis that he was justified in treating everything Lawrie and her lawyers did after their “disengage, ignore and discredit” musing in private correspondence on 31 March 2014 as being merely a part of a cynical political strategy. I must say I am a long way from convinced that that is an inference that could properly be drawn on the evidence (even on the civil “balance of probabilities” onus let alone the criminal “beyond reasonable doubt” one that would apply if Lawrie were ever charged with a criminal offence).
His Honour appears especially to have seen solicitor Cathy Spurr’s letter to Commissioner Lawler, advising that she and Wyvill SC were no longer representing Lawrie pro bono before the Commission, as merely a manifestation of a “disengage, ignore and discredit” strategy. However that is hardly an irresistible inference. Any lawyer is entitled to offer his or her services pro bono to whatever extent they see fit, and to withdraw them when they see fit. From the outset Lawrie was not legally represented throughout every sitting of the Commission. No doubt neither Spurr nor Wyvill could afford so much time away from their normal legal practices given that they weren’t being paid for their services.2 If they later formed the view that there was little useful purpose to be served by continuing to appear before the Commission or make further written submissions to it, it was properly open to them to decline to continue providing pro bono services for work before the Commission. The fact that Wyvill nevertheless continued advising in relation to a possible written public response and judicial review proceedings if Lawler’s report was adverse (as they rightly suspected it might be) is not logically inconsistent with declining to undertake further unpaid work in the Commission proceedings themselves. In other words, they may well have simply concluded that further pro bono work before the Commission was a waste of their valuable time that could be better spent on other things.
Southwood J also appears to have interpreted Wyvill’s fairly aggressive oral submissions before the Commission on 1 April 2014, in which he demanded that Lawler disqualify himself for bias from further hearing the matter, as also merely an embodiment of a cynical strategy of “disengage, ignore and discredit”.3 However, it is easy to see why the words apparently used by Commissioner Lawler about the extent of historical trade union involvement with Stella Maris gave rise to a concern about bias by way of prejudgment of the issues on the part of Lawrie and her lawyers, even if he didn’t use the expression “urban myth” (which remains an open question). In those circumstances it was Wyvill’s clear duty as a lawyer to raise those concerns and submit to Lawler that he should disqualify himself. As I emphasise every year to my CDU Civil Procedure students, this is one of the scariest situations a courtroom lawyer can ever face. But it is the lawyer’s duty just the same, because failure to make that submission promptly may result in a conclusion that the right to object has been lost by waiver. The High Court explained this principle in Vakauta v Kelly (1989) 167 CLR 568 (per Brennan, Deane and Gaudron JJ):
Where such comments which are likely to convey to a reasonable and intelligent lay observer an impression of bias have been made, a party who has legal representation is not entitled to stand by until the contents of the final judgment are known and then, if those contents prove unpalatable, attack the judgment on the ground that, by reason of those earlier comments, there has been a failure to observe the requirement of the appearance of impartial judgment. By standing by, such a party has waived the right subsequently to object. The reason why that is so is obvious. In such a case, if clear objection had been taken to the comments at the time when they were made or the judge had then been asked to refrain from further hearing the matter, the judge may have been able to correct the wrong impression of bias which had been given or alternatively may have refrained from further hearing. It would be unfair and wrong if failure to object until the contents of the final judgment were known were to give the party in default the advantage of an effective choice between acceptance and rejection of the judgment and to subject the other party to a situation in which it was likely that the judgment would be allowed to stand only if it proved to be unfavourable to him or her.
Although Southwood J chose to adopt the submissions of Lawler’s counsel that the conduct of Lawrie and her lawyers after 31 March 2014 should be regarded as the execution of a cynical strategy to discredit the Commission for political reasons, perhaps that conduct is better explained as a rational and proper response to a situation where they had developed an entirely genuine apprehension that the tribunal before which they were appearing was biased and had prejudged the case without first hearing the evidence. I can’t help wondering why Lawrie’s lawyers decided to confine the subsequent judicial review proceedings to the issue of denial of procedural fairness and didn’t squarely put in issue the bias ground against Lawler as well.
2 Incidentally, the Cabinet Handbook and Ministerial Code of Conduct recently adopted by the CLP government (one of the recommendations of the Lawler Report) fairly clearly indicates that Delia Lawrie SHOULD have been provided with government funding for legal representation before the Commission. Clause 5.1 of the Code of Conduct reads: “It is a convention of government that Ministers should be indemnified by the Crown for any actions taken against them for things done or decisions made in the course of their Ministerial duties. The Crown normally gives such an indemnity to all its servants, and Ministers are servants of the Crown.”