Lawrie v Lawler [2015] NTSC 19

Lawrie v Lawler [2015] NTSC 19 | Case summary | Zoe

[15]

[2] On about 3 August 2012 the Minister for Lands and Planning of the previous Labor Government made the decision to grant a lease of the Stella Maris site to Unions NT in accordance with a Cabinet decision made on 10 July 2012. It is this decision that was the subject of the Inquiry into the Stella Maris site (the Inquiry).

[3] On 18 December 2013 the Administrator appointed Mr Lawler as Commissioner to inquire into and report on the following matters.

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.

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.

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 [emphasis added].

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.

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.

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.

Any other suggestions or recommendations the Commissioner considers relevant to the above matters.

[4] On 12 February 2014 the formal hearings conducted by the Inquiry started, Mr Lawler made his opening statement, and the first witnesses were called before the Inquiry. An audio recording of Mr Lawler's opening statement and the evidence of each witness was placed on the Inquiry website. On 26 May 2014 Mr Lawler presented his Report entitled "Inquiry into Stella Maris - 2014" to the Administrator. On 19 June 2014 the Report was tabled in the Legislative Assembly of the Northern Territory. His report contained a number of criticisms of Ms Lawrie's conduct.

[16]

[5] Ms Lawrie claims that Mr Lawler's Report contains adverse findings and recommendations which damage her reputation. On 30 July 2014 she filed an Originating Motion in the Supreme Court claiming the following relief.

A declaration that, in reporting adversely to the plaintiff in his report entitled "Inquiry into Stella Maris - 2014" ("the Report") purportedly pursuant to s 4A (3) of the Inquiries Act, the defendant failed to observe the requirements of procedural fairness.

An order in the nature of certiorari to quash the Report.

[6] Ms Lawrie says that she is entitled to the relief claimed because she was denied an opportunity to respond to the adverse findings about her before Mr Lawler finalised his Report. It is common ground between the parties that Ms Lawrie had standing to make an application for a declaration.[1]

[7] Counsel for Ms Lawrie, Mr Young, submitted that as the Inquiry was an inquisitorial inquiry with quite wide terms of reference, Mr Lawler's potential findings were open ended. In the circumstances, Mr Lawler was required to define the issues[2] and give Ms Lawrie (1) adequate notice of any adverse findings which he tentatively reached,[3] and (2) a further opportunity to show why the findings should not be made.[4] Mr Lawler failed to do so and Ms Lawrie was left in the dark as to the risk of the adverse findings being made and thus deprived of the opportunity to make further submissions which might have deterred him from making those findings.[5]

[8] In particular, Mr Young says that Mr Lawler failed to give Ms Lawrie notice of his findings about (1) Ms Lawrie's preference for Unions NT over another community group; (2) Ms Lawrie was biased in favour of Unions NT; (3) Ms Lawrie's or her office's failure to inform the Department of Lands and Planning clearly and in writing of her decision that a Crown lease of the Stella Maris site should be granted to Unions NT without an expression of interest; (4) the manner of Ms Lawrie's intervention and influence over Cabinet; (5) Ms Lawrie's failure to justify the decision to grant a Crown lease to Unions NT without an expression of interest; (6) Ms Lawrie's intervention was not proper and unfair; and (7) Mr Lawler's recommendation that the Legislative Assembly consider whether Ms Lawrie's conduct amounted to a breach of the Members Code of Conduct and Ethical Standards.

[9] Mr Young submitted that Ms Lawrie's predicament was aggravated by the neutral manner in which Mr Lawler asked her questions and his failure to specify the above matters before Mr Wyvill and Ms Lawrie made their final statements to the Inquiry. I do not accept this submission. Mr Lawler's questioning style was assertive without being aggressive and it was persistent. Further, it is apparent from the closing submission of Ms Lawrie and Mr Wyvill that they understood what the issues were.

[10] In my opinion, for the following reasons which are developed in full below, Ms Lawrie's claim that she was denied procedural fairness cannot be sustained. I find that she was accorded procedural fairness.

[11] I accept the submission of junior counsel for Mr Lawler, Mr McLure that the content of the duty to provide procedural fairness depends on all of the circumstances of the case. There are no immutable rules about the content of the duty to provide procedural fairness. In most cases, a decision maker is not required to define issues which are obvious to a party who may be affected by any decision. Nor is a decision maker obliged to invite comment on his evaluation of a potentially affected party's case. Further, a person who may be affected by a decision to which the requirements of procedural fairness apply cannot complain if the argument that they have contended for is not accepted by the decision maker.[6]

[12] The issues in the Inquiry were very clear and must have been obvious to Ms Lawrie. It must not be forgotten that Ms Lawrie is a very senior and experienced politician who would naturally be acutely aware of the kinds of issues referred to in [8]. The manner in which the decision was made to grant a Crown lease of the Stella Maris site to Unions NT without an expression of interest was inherently unfair. It completely favoured Unions NT at the expense of other community groups. They were not even given the opportunity to compete for the site. The Cabinet decision meant that, unlike other community groups, it was not necessary for Unions NT to go through the 'proper' process for applying for a community land grant. Unions NT's proposal was not subject to the 'proper' Departmental assessment processes. Further, the Cabinet decision making process was not transparent.

[13] Ms Lawrie was integral to all matters leading up to Cabinet decision and the making of the Cabinet decision on 10 July 2012. For all intents and purposes, Ms Lawrie was the Minister who sponsored the Cabinet decision. When the Cabinet decision was made she had been involved in the Stella Maris site for a period of five years. She was aware that the Department of Lands and Planning had a procedure for processing applications for community land grants. The decision to grant the lease to Unions NT was made in the way it was because Ms Lawrie and her office mishandled Union NT's concept proposal for the future development of the Stella Maris site. Ms Lawrie was warned by the Department of Lands and Planning a number of times that she and the Labor Government would be criticised if a decision was made to grant a Crown lease of the Stella Maris site to Unions NT without an expression of interest.

[14] If Ms Lawrie had forgotten any of the details of how the Cabinet decision came to be made, Mr Lawler gave her an opportunity to refresh her memory by providing her with all relevant documents. Those documents, which form part of exhibit P1 in this proceeding, largely and clearly defined the issues. They raised all of the issues referred to in [8]. It is only necessary to see what occurred to understand the issues. Mr Lawler had a preliminary conference with Ms Lawrie during which he raised the key documents and the issues they gave rise to. At all times Ms Lawrie was represented by Mr Wyvill SC who is an experienced senior counsel. He was present at the preliminary interview and during the taking of Ms Lawrie's evidence before the Inquiry. During the taking of her evidence before the Inquiry, Mr Lawler painstakingly went through the relevant documents and asked Ms Lawrie questions about the issues set out in [8]. The documents defined the issues.

[15] Ms Lawrie and Mr Wyvill elected to deal with the issues which obviously arose in the Inquiry by putting forward a considered and well developed justification for Ms Lawrie's conduct based on Unions NT's attachment to the site, their capacity to maintain the site, and the rapidly approaching caretaker period of government. Ms Lawrie and Mr Wyvill were granted a fair opportunity to articulate that justification. The fact that Mr Lawler did not accept that justification does not mean that Ms Lawrie was denied procedural fairness.

[51]

[29] As matters transpired the meeting planned for 22 April 2009 was adjourned to 27 May 2009.

[30] On 25 May 2009 there was a meeting of the Unions NT Council. During the meeting Mr P Shepherd presented a Stella Maris/NT Workers Club Report and updated the Council members on the progress of the application. During the meeting it was noted that Stella Maris was to be known as NT Workers Club and that there was to be a meeting with Ms Lawrie on 27 May 2009.

[31] On 26 May 2009 Business and Community Development NT prepared a proposal document for Unions NT. The document was entitled, "Unions NT Proposed re-development of the Stella Maris site, Unions NT in association with other community groups". The document contains a detailed concept proposal for the future development and use of Stella Maris, including future community use of the site.

[32] On 27 May 2009 there was a meeting in Ms Lawrie's boardroom. At that meeting Ms Lawrie received Unions NT's written proposal for the development of the Stella Maris site and was supportive of the initiative. Mr Glen Williams, who was the Chairperson of the NT Workers Club sub-committee of Unions NT, was informally notified that Ms Lawrie had the support of the Chief Minister for Unions NT's initiative for the Stella Maris site. Ms Lawrie raised the possibility of a working party to explore any issues that may need to be resolved before the next step could progress. No such working party was ever established.

[33] In about May 2009, Ms Lawrie formed the view that the Stella Maris site should be granted to Unions NT, and the grant should be made without calling for expressions of interest from other community groups or organisations. Her view did not change between then and the Cabinet meeting on 10 July 2012. She was aware that other community groups and organisations were interested in the site.

[34] On 29 June 2009 there was a further meeting of the Unions NT Council. At the meeting it was reported that there had been a meeting with the Treasurer [Ms Lawrie] and it was noted that the Government had given support to Unions NT's proposal for Stella Maris and a formal recommendation would be made to Cabinet. The minutes of the meeting of the Unions NT Council potentially reflect a development in Ms Lawrie's plans. In addition to the proposed working party, it seems that there was also to be a recommendation to Cabinet that the site be granted to Unions NT.

[35] On 30 July 2009 there was a telephone conversation between Ms Jackie Stranger, a public servant within the Department of Lands and Planning, and Mr Wolf Loenneker about the Cabinet submission being prepared on the options for development of the Stella Maris site. Ms Stranger made a file note of the telephone conversation. During the telephone call Mr Loenneker advised Ms Stranger of the following.

... although the original Cab decision was to provide a Cab Sub outlining options, it is now agreed that the site will be offered to Unions NT and not as an expression of interest.

Unions NT would make the buildings available to other community groups

Unions NT would take on responsibility for all the buildings.

The accommodation block should stay (even though the plan was to remove, landscape and provide more parking)

We should mention the itinerant problem in the Cab sub but not a recommendation to remove the accommodation block

No need to include Tourist NT or NRETAS in preparing this updated Cab sub.

[36] Ms Stranger noted that she had some concerns about not involving NRETAS as that Department had spent money on the old heritage building and last NRETAS knew the site was being offered for commercial/community use through an expression of interest process. They were not aware that the site would be offered to one party without an expression of interest process being followed.

[37] Mr Loenneker did not confirm his instructions to Ms Stranger in writing and he did not give her a copy of Unions NT's proposal for the development of the Stella Maris site.

[38] On 10 August 2009 Mr Terry Lawler, who was an Industry Development Officer of Unions NT, sent the following email to Mr Wolf Loenneker.

[122]

[61] The proposal attached to Mr Loenneker's email was the written proposal that Unions NT gave to Ms Lawrie in May 2009. This was the first time that Ms Lawrie's office had provided Unions NT's proposal to the Department of Lands and Planning. While Ms Lawrie was familiar with the written proposal put forward by Unions NT in 2009, there is nothing to suggest that the proposal was before the Cabinet when the decision was made to offer the Crown lease to Unions NT.

[62] On 23 July 2012 Mr Loenneker sent an email to Mr McCarthy informing him about Cabinet's decision to offer to grant Unions NT a Crown lease over the Stella Maris site. Mr Loenneker also advised Mr McCarthy that the Department of Lands and Planning was working with Unions NT so that a formal letter of offer could be made by Mr McCarthy to Unions NT.

[63] Minister McCarthy, as he then was, treated the decision of Cabinet as determinative of how he should exercise his discretion under s 12(3) of the Crown Lands Act. By letter dated 3 August 2012, Minister McCarthy offered Unions NT a grant of a lease of the Stella Maris site.

[64] The offer was accepted by Unions NT on 3 August 2012.

[65] It is apparent that Ms Lawrie had been integrally involved in all these matters over a period of about five years. Throughout the period she was warned a number of times that the Labor Government would be criticised if it granted a lease over such a high profile site to Unions NT without an expression of interest because such a decision involved preferential dealing with a particular group and was inconsistent with Government transparency policies.

[66] On 25 August 2012 there was a general election and the Labor Government of which Ms Lawrie was a Minister was defeated. Prior to the election, the public was not informed of the Labor Government's decision to grant a Crown lease of the Stella Maris site to Unions NT.

[67] On 29 September 2012 a notice of the offer of the Crown lease of the Stella Maris site was published in the Government gazette.

[68] Ultimately, the offer of a Crown lease to Unions NT was withdrawn by the current Country Liberal Party Government.

[126]

The decision to offer a lease of Stella Maris to Unions NT was a decision made by Cabinet. You will appreciate that both of our clients are obliged to maintain cabinet confidentiality and cannot say anything about what cabinet considered and what was discussed by its members unless and until that confidentiality is waived by the Attorney. Our clients will be writing to the Attorney seeking that waiver [emphasis added].
When Mr McCarthy wrote to Unions NT on 3 August 2012, he was fulfilling his duty as a Minister to carry out a decision of Cabinet. If the decision to make the offer set out in the letter is to be criticised, that criticism should be directed towards Cabinet [emphasis added].
In discharging their functions as members of Cabinet in this respect, neither of our clients acted otherwise than bona fide and, they believed, consistent with Government policy on community land grants. They believed at the time - and still believe - that this decision was in the best interests of the Territory in order to best preserve and promote the heritage values of Stella Maris. They did not believe that they were offering Unions NT an asset which was likely to generate any substantial net financial benefit or which could be sold to realise a substantial net return. They had no knowledge of any agenda on the part of Unions NT to obtain any such benefit.
Unions NT was not in fact receiving an asset which was likely to generate any substantial net financial benefit or which could be sold to realise a substantial net return. If a lease of the kind proposed had been entered into between the NT Government and Unions NT, it is unlikely to have produced any substantial net financial return for Unions NT, quite the opposite. Further, the proposed lease did not have any value as a saleable interest in real property and could not have been sold to generate any funds.
As subsequent events demonstrate, the acceptance of the letter of 3 August 2012 and the payment of the fee mentioned in that letter by Unions NT did not give rise to an agreement to enter into a lease between the NT Government and Unions NT enforceable by action in the courts. The offer was a non-binding indication of an intention to exercise a statutory power for a public purpose on terms which are insufficiently precise (particularly in relation to the development proposal referred to in paragraph (c) of the letter) to create enforceable contractual rights. Consistent with this legal position, the new NT Government has not to proceed with the transaction and Unions NT has not demonstrated any appetite for contesting that decision. The result is that whatever view one may take of Cabinet's decision to offer the lease of Stella Maris to Unions NT, it was left to be implemented by the new Government, and, as a result, nothing came of it.

[131]

[71] The letter then went on to request access to documents and deal with the summons to Ms Lawrie to produce documents dated 7 February 2014.

[72] Ms Spurr's letter does a number of things. The letter reveals: (1) Ms Spurr and Ms Lawrie had heard or been informed about the opening statement of Mr Lawler and were aware of how he intended to conduct the inquiry; (2) Ms Spurr and Ms Lawrie were aware that the two main issues during the Inquiry were (a) the manner or procedure by which the decision to offer the lease of the Stella Maris site to Unions NT was made, and (b) whether Unions NT was wrongly granted a benefit; (3) Ms Spurr and Ms Lawrie were aware that the manner or procedure by which the decision to grant the lease was made, may be criticised, and they suggested to Mr Lawler that any criticism should be directed towards Cabinet; and (4) Ms Spurr and Ms Lawrie knew enough about the Inquiry to set out Ms Lawrie's position in general terms and to request access to the documents that Ms Lawrie needed to peruse before giving evidence at the Inquiry.

[73] As to the procedure by which the decision to grant the lease was made, Ms Spurr, and through her Ms Lawrie, stated that the decision was a bona fide Cabinet decision which was consistent with Government policy on community land grants. The decision was made in the best interests of the Territory in order to best preserve and promote the heritage values of Stella Maris. As to whether Unions NT wrongly obtained a benefit, Ms Spurr, and through her, Ms Lawrie, stated Unions NT was not receiving an asset which was likely to generate any net financial benefit and, in any event, no harm was done as ultimately the lease was not granted.

[74] Finally, Ms Spurr, and through her Ms Lawrie, expressed the opinion that the Inquiry was pointless, politically motivated and a waste of tax payers' money.

[75] Despite the complaint in her letter, Ms Spurr made no request to Mr Lawler for Ms Lawrie to have a lawyer present throughout the Inquiry or to cross examine witnesses who were called before the Inquiry.

[76] There was no basis for the assertion in Ms Spurr's letter that Ms Lawrie was entitled to have input into the manner in which Mr Lawler conducted the Inquiry and, in any event, Ms Spurr did not ask to be given an opportunity to make submissions to Mr Lawler about how the Inquiry should be conducted. Nor was there any basis for the assertion that it was not open to Mr Lawler to find that Ms Lawrie had been guilty of misconduct. The Inquiry had barely started at the time Ms Spurr sent the letter to Mr Lawler. Section 6 of the Inquiries Act 1945 (NT) states that a Commissioner shall make a thorough investigation without regard to legal forms and solemnities and shall not be bound by any rules of evidence, but may inform himself on any matter in such manner as it or he thinks fit.

[77] Subject to the availability of all relevant documents, it was open to Ms Lawrie at the beginning of the Inquiry to provide a detailed statement and submissions to Mr Lawler setting out the full history and background to Cabinet's decision to offer a lease of the Stella Maris site to Unions NT. Ms Lawrie and her lawyers elected not to do so.

[78] On 17 February 2014 Mr Lawler sent a letter to Ms Spurr in which he stated the following which is of relevance.

[156]

[82] There is absolutely no basis for the criticism of the Inquiry contained in the above submission of Ms Lawrie and Mr McCarthy. Mr Lawler was entitled to inform himself on any matter in such a manner as he thought fit and neither Ms Lawrie nor her legal advisers asked to make legal submissions about how the Inquiry should be conducted or to cross-examine witnesses in circumstances where the Inquiry website set out the names of witnesses, the dates when they were to be called and audio recordings of their evidence. Further, so far as Ms Lawrie was concerned, Cabinet confidentiality did not in any way prevent her from putting her case to Mr Lawler. What Ms Lawrie wanted to say publicly was of no concern to Mr Lawler in the conduct of the Inquiry.

[83] On 10 March 2014 there was a prehearing interview which was attended by Ms Lawrie, Mr Wyvill and Mr Lawler. The purpose of the interview was for Mr Lawler to inform Ms Lawrie of the matters he was interested in asking her questions about and to take her to the specific documents that he would question her about at the hearing of her evidence.

[84] At the outset of the preliminary interview Mr Lawler told Ms Lawrie the following. The purpose of the prehearing was to help Ms Lawrie assist the Inquiry. As best he could, Mr Lawler would try to avoid any surprises. It was not an adversarial process. It was not a criminal investigation. At the hearing he would ask Ms Lawrie about the background and history of the decision to offer the Crown lease of the Stella Maris site to Unions NT. He would then put a whole series of documents to Ms Lawrie. Mr Lawler then told Ms Lawrie that during the prehearing interview he would tell her about the matters he was going to question her about at the hearing so that she had an opportunity to reflect on those matters before the documents were formally put to her during the course of the Inquiry.

[85] During the course of the preliminary interview Mr Lawler briefly went through all of the matters that he would be raising with Ms Lawrie during her evidence before the Inquiry, including the following matters.

Background and history

The surrender of the Crown lease by the Apostleship of the Sea - Ms Lawrie was taken to a memorandum recommending she approve the payment of a certain amount of compensation to the Apostleship of the Sea for the surrender of the Crown lease of the Stella Maris site.

The community land grant business process - Ms Lawrie was taken to the Community Land Grant Business Process document. Mr Lawler told Ms Lawrie that the document was authorised by the Chief Executive Officer of the Department of Lands and Planning. The process had been in use for a decade, and it contained the standard of how the Department responded to such matters.

The number of community groups who had expressed an interest in the Stella Maris site - These groups included 24Hr Art, Plan NT, the National Trust, ... Ms Lawrie was taken to correspondence from or about these groups and informed that the purpose of going to them was to establish there were other community groups who were interested in the site for community purposes.

[162]

[91] Ms Lawrie complains about the following adverse findings which she says she was not given an opportunity to respond to before Mr Lawler finalised his report.

Minister Lawrie directed her office to brief Unions NT over another community group that had expressed an interest in the site when it was surrendered to the government in 2007.

Minister Lawrie acted with bias over many years, forming a view in 2009 that Unions NT should be exclusively granted a lease over the site without an expression of interest process.

Ms Lawrie formed this view in 2009 after a meeting with Unions NT representatives and receiving a redevelopment proposal for the site, which became the application document.

Minister Lawrie should have ensured that her office provided this application to the Department following this meeting. This did not occur. The first time the Department received the application was 17 July 2012, by which time it was three years out of date and largely irrelevant.

Minister Lawrie should have made it clear to the Department that it was her intention to grant the site to Unions NT without an expression of interest process. This should have been done in writing from either the Minister or a member of staff.

The Inquiry has found no evidence to suggest that this was done.

Years after the 2009 meeting with Unions NT, in July 2012, Minister Lawrie intervened to bring the submission to the 10 July 2012 cabinet meeting, even though Minister G McCarthy was the Minister for Lands and Planning at the time. It is unlikely that the submission would have gone to that Cabinet meeting or that the letter of offer would have been made on 3 August 2012 without Minister Lawrie's intervention.

Minister Lawrie maintained that this intervention was due to her concern that the incoming government could sell the site for commercial or residential high rise development and her long standing preference was to grant the site to Unions NT.

This concern and preference did not justify the decision that was ultimately made by Minister G McCarthy: a decision that would not have been made without Minister Lawrie's intervention.

Notwithstanding that Minister Lawrie may have genuinely believed that granting the site exclusively to Unions NT was in the public interest, the way she involved herself in the process was not proper and was unfair to the public and other community groups.

The fact remains that Minister Lawrie acted with bias in favouring Unions NT over other community groups.

From her time as Minister for Planning and Lands in 2007 up until the Cabinet meeting of 10 July 2012, Minister Lawrie acted in a biased way by favouring Unions NT in its attempts to be granted a lease of the site.

Mr Loenneker's interventions, on Minister Lawrie's behalf, with the Department in 2009 were not proper.

Notwithstanding her knowledge of the Northern Territory, Minister Lawrie could not have possibly known who else might have expressed an interest in the site and what partnership arrangements that might have involved.

If Minister Lawrie was so biased as to be unable to allow other interested community groups to advance their proposals to be compared and properly assessed against Union NT's application, then she should have excluded herself from participating in the Cabinet decision-making process.

The approaching caretaker period, the potential for a change of Government and a view that this would mean the site would be used for commercial/residential high rise, does not adequately justify Minister Lawry's conduct.

As such I find that Minister Lawrie exerted influence over the Cabinet process and over Minister G McCarthy and his office in a way that was designed to further her view that Unions NT should be offered an exclusive lease to the site. By acting in such away, Minister Lawrie deprived the public and other community groups of an opportunity to have their claims for the site properly and fairly considered.

As the Minister for Planning and Lands, Minister Lawrie must also take responsibility for the actions of her senior lands advisor at the time, Mr Loenneker, whose conduct was not of the highest standards expected.

I find that notwithstanding Minister Lawrie may have genuinely believed that granting the site to Unions NT was in the public interest, the way she involved herself in the process was not proper and was unfair to the public and other community groups.

I recommend that the Legislative Assembly consider whether there has been an alleged breach of the Northern Territory of Australia Legislative Assembly (Members' Code of Conduct and Ethical Standards) Act 2008, by Ms Delia Lawrie MLA ... and whether under the provisions of s 5(1) it wishes to refer any alleged breach of the code to the Privileges Committee.

[92] The adverse findings made by Mr Lawler, about which Ms Lawrie complains, are based on the following substratum of facts, which are either not in dispute, or clearly established by the documents which were provided to Ms Lawrie by Mr Lawler on 10 March 2014 and form part of exhibit P1 and by the transcript of Ms Lawrie's evidence during the Inquiry which also forms part of exhibit P1.

[169]

[98] As to Mr Lawler's findings 2, 3, 11, 12 and 15 in [91] - the findings of Ms Lawrie's bias, the following facts are unequivocally established.

[99] Ms Lawrie had a clear preference for the Stella Maris site being granted to Unions NT without an expression of interest. She told Mr Lawler so during the course of her evidence before the Inquiry. She briefed Unions NT in 2007.

[100] On 27 May 2009 Ms Lawrie met with Unions NT and received a proposal from them for the development of the Stella Maris site. She told Unions NT that she supported their proposal and that Chief Minister Henderson also supported their proposal. In 2009 Ms Lawrie formed the view that Unions NT should be exclusively granted a lease over the Stella Maris site without an expression of interest. Between 2007 and 2012 six or seven community groups expressed an interest in the Stella Maris site. At the time Ms Lawrie formed her view in favour of Unions NT, she was aware that other community groups had expressed an interest in the site. On 6 July 2012 a Cabinet submission prepared by the Department of Lands and Planning about the Stella Maris site was finalised and signed by Mr McCarthy who was then the Minister for Lands and Planning. The Cabinet submission recommended against a grant of a lease to Unions NT without an expression of interest. The recommendation was supported by the majority of other relevant Government Departments. An expression of interest process did not exclude Unions NT from competing for the site. Despite the recommendation against the grant of a Crown Lease to Unions NT, Ms Lawrie arranged for Cabinet's consideration of the 6 July 2012 Cabinet submission to be expedited. She met and spoke to Chief Minister Henderson before the Cabinet meeting on 10 July 2012 to ensure that she had his support for the grant of a Crown lease over the site to Unions NT without an expression of interest. On 10 July 2012 Cabinet approved granting a lease of the Stella Maris site to Unions NT without an expression of interest.

[101] The 10 July 2012 Cabinet decision approving that a Crown lease term of the Stella Maris site be offered to Unions NT for a term of 10 plus 10 years meant that Unions NT did not have to go through the established Departmental process for a community land grant. The Cabinet decision also precluded other community groups who were interested in the site from competing for the site.

[102] Ms Lawrie conducted herself in the above manner despite being aware: (1) that the Stella Maris site was a high profile site in the Darwin Central Business District; (2) a number of community groups had expressed an interest in the site and had been told, in effect, to await the outcome of the Cabinet decision (For example, when Ms Hinton advised Mr Loenneker, who was then Ms Lawrie's adviser, that Birds Australia had expressed an interest in the site and the Department supported it, Mr Loenneker sent her an email in which he stated, "This is not a good idea. Other groups have expressed an interest in the site, so why are we giving a preference to Birds Australia. We should wait until Cabinet has considered the future use of the site before giving any group exclusive access."); (3) there was an established process for dealing with community land grants; (4) Unions NT was not precluded from competing for the site if the Government adopted an expression of interest process for determining who should be granted a Crown lease of the Stella Maris site; and (5) the warnings by the Department of Lands and Planning on a number of occasions that the Labor Government would be criticised if the Stella Maris site was granted to Unions NT without an expression of interest.

[178]

[107] Following Ms Lawrie's meeting with Unions NT on 27 May 2009, neither Ms Lawrie nor her office informed the Department in writing that Ms Lawrie had rejected their advice and had told Unions NT she supported their proposal. It was not until 30 July 2009 that the Department of Lands and Planning was informed at all about the decision to support Unions NT's proposal.

[108] On 30 July 2009 Ms Stranger telephoned Mr Loenneker and she was advised of the following.

... although the original Cab decision was to provide a Cab Sub outlining options, it is now agreed that the site will be offered to Unions NT and not as an expression of interest.

Unions NT would make the buildings available to other community groups

Unions NT would take on responsibility for all the buildings.

The accommodation block should stay (even though the plan was to remove, landscape and provide more parking)

We should mention the itinerant problem in the Cab sub but not a recommendation to remove the accommodation block

No need to include Tourist NT or NRETAS in preparing this updated Cab sub.

[109] Ms Stranger was not provided with Unions NT's proposal and she was not instructed to contact Unions NT and assist them to make an application for a community land grant for the Stella Maris site.

[110] Further, at the meeting on 27 May 2009, Ms Lawrie suggested to Unions NT that a working party should be set up to progress the development of their proposal for the Stella Maris site. Neither Ms Lawrie nor her office informed the Department of Lands and Planning that it should set up a working party to progress Union NT's proposal. Indeed, even when Unions NT came back to Ms Lawrie's office with some suggestions about who should be on the working party, the Department was not informed and no working party was established.

[111] At no stage prior to 17 July 2012 was the Department given any written instructions about Ms Lawrie's decision to grant a Crown lease of Stella Maris to Unions NT without an expression of interest. Nor was the Department given any instructions to assist Unions NT make an application for a community land grant.

[112] At the time the Cabinet decision was made to offer a Crown lease of the Stella Maris site to Unions NT, Ms Lawrie must have known (1) that a work party had not been established to progress Unions NT's proposal, (2) no application had been received from Unions NT for the development of the Stella Maris site and processed by the Department of Lands and Planning, (3) Unions NT's proposal was out of date and had been allowed to get out of date because there has been inadequate communication with the Department of Lands and Planning, and (4) none of standard processes for consideration of an application for a community land grant had been undertaken by the Department of Lands and Planning. This is apparent from the 6 July 2012 Cabinet submission which makes no mention of Unions NT's proposal and says very little at all about Union NT's plans for the site.

[186]

[120] As to Mr Lawler's findings 8, 9, 14 and 16 in [91] - Ms Lawrie's failure to justify the decision that was ultimately made by Mr McCarthy to grant a lease of the Stella Maris site to Unions NT, these findings are essentially expressions of Mr Lawler's opinion.

[121] However, Ms Lawrie and Mr Wyvill were acutely aware that this was Mr Lawler's view and that he considered that this was an important issue for the Inquiry to consider. As I have stated, in par [141] to par [226] below, this view of Mr Lawler's very much influenced the advice that Mr Wyvill gave from 31 March 2014 onwards and the strategy of abandonment of the Inquiry that Ms Lawrie thereafter adopted.

[122] Ms Lawrie was accorded an extensive opportunity by Mr Lawler to justify the basis on which she made her decision and she did so, as did Mr Wyvill on her behalf. Her justification for granting a Crown lease of Stella Maris to Unions NT without an expression of interest was as follows. It was important to preserve the site. Unions NT had a substantial historical attachment to the site and the financial resources and other additional capacity to maintain the site. There would be no ongoing cost to the Government for maintenance of the site if a lease was granted to Unions NT. The other community groups had neither the attachment to the site nor the capacity to maintain the site that Unions NT had. It was not necessary to obtain expressions of interest from these community groups as the members of Cabinet were familiar with these community groups. The executive knew best. Ms Lawrie had been let down by either her office or the Department of Lands and Planning because they had failed to progress Unions NT's proposal. There was no time left for an expression of interest process because the caretaker phase of government was rapidly approaching prior to the next Northern Territory election.

[123] The fact that Mr Lawler did not accept this justification and expresses the opinions he does in findings 8, 9, 14 and 16 does not mean that Ms Lawrie was not accorded a fair opportunity to be heard. Mr Lawler's conclusions have not been challenged on the basis that they were unreasonable or that he failed to take into account relevant considerations.

[191]

[126] At the time the Cabinet decision was made there were Government policy guidelines for the sale or grant of Government land. The guidelines were set out in a document entitled, Policy Guidelines - Sale or Grant of Government Land. It is apparent from that document that different approaches may be taken to the sale of real property for commercial, residential and agricultural purposes, on the one hand, and a direct grant of real property for community purposes, on the other hand. The meaning of real property in the document included a grant of a Crown lease. The document stipulated a public competitive process including inviting expressions of interest was the usual method for the sale of real property for commercial, residential or agricultural purposes. Whereas the document recognised that the Minister may make a direct grant of real property for community purposes. This is also consistent with s 12(3) of the Crown Lands Act.

[127] Paragraphs 11, 12 and 13 of the Policy Guidelines - Sale or Grant of Government Land stated the following.

The Minister may make a direct grant of real property for community purposes.

The title to real property subject to a grant for community purposes at no cost shall be a Crown lease for the term of the proposed development period, convertible to a Crown lease in perpetuity. The holder of such a Crown lease can convert to freehold title on payment of the current market value of the land.

Applications will not be accepted for a direct sale or land grant for community purposes over land that the Government proposes to release by a public competitive process or has particularly set aside for future purposes.

[128] Clause 16 of the Policy Guidelines - Sale or Grant of Government Land also provides that if a particular application has merit but does not comply with the policy the Minister shall refer it to Cabinet for determination.

[129] The Department of Lands and Planning also had in place, in writing, a Community Land Grant Business Process for dealing with community land grants under s 12(3) of the Crown Lands Act. By July 2012 the process had been in use by the Department for about eight to 10 years. There was testimony before the Inquiry that it was considered to be "the Bible" as to how staff in the Department of Lands and Planning responded to an application for a community land grant. The process was as follows.

Expression of interest received.

Qualification criteria checked. The applicant must be an incorporated association, society, or institution which undertakes one of the following activities in whole or in part in the Northern Territory: a religious, educational, benevolent or charitable purpose; the purpose of promoting or encouraging literature, science, art or a cultural activity; or the purpose of sport or recreation for a period of three years. The applicant must also determine the source of finance and other resources necessary to complete the proposed development within a reasonable time.

Preliminary assessment. Status and availability of the land checked. Consultations regarding planning, environmental and service authority requirements are undertaken. Native title implications are reviewed.

Submission of the Community Land Grant Application by the applicant. Payment of application fee.

Formal assessment of the application. Formal request for submission from service authorities and public advertisement of the application (14 day comment period).

Minister considers application. The Minister determines the grant of an estate in fee simple or lease of Crown land to the applicant, pursuant to s 12(3) of the Crown Lands Act. If applicable, the Minister also determines the rent payable pursuant to s 28 of the Crown Lands Act.

The Minister makes a formal offer to the applicant subject to any relevant conditions.

The applicant accepts the offer.

The Minister or his/her delegate causes a notice of the determination made for the purposes of s 12(3) of the Crown Lands Act to be published in the Gazette within 60 days after the date on which the determination was made (s 12(6) of the Crown Lands Act).

[130] The above business process was the standard which was invariably applicable to community groups who were interested in obtaining a community land grant. Mr Lawler took Ms Lawrie to this document both at the preliminary interview on 10 March 2014 and during her evidence at the Inquiry. He made it very clear to her that he considered the document to be a very important document.

[131] While Ms Lawrie may not have been aware of all of the details of the community land grant process she was aware that such a process existed. At one point in her evidence to the Inquiry she stated that it was her understanding that the Department of Lands and Planning would have followed the process if they had done what she requested of them. However, it must have been apparent to her at the time the 10 July 2012 Cabinet decision was made that no such process had been followed.

[132] The Community Land Grant Business Process was not followed in this case. The natural consequence of the failure of Ms Lawrie to follow the process was that, unlike other community groups, Unions NT were excused from having to follow the process, Union NT's proposal was not subject to public scrutiny and all stipulated and necessary assessments of their proposal were not undertaken before a decision to grant the Crown lease was made. In my opinion, Ms Lawrie must have been aware of these consequences.

[133] As to fairness, Mr Lawler asked Ms Lawrie about whether she thought the process she adopted had been unfair. Her answers variously were to the effect that the Cabinet decision was fair because of the extent of the union movements' attachment to the Stella Maris, government decisions often involved preferring one group over another, and her decision was consistent with the mandate of an elected Labor Government.

[134] The facts of course are that the other community groups were deprived of an opportunity to compete with Unions NT and that Unions NT's proposal did not have to progress through the 'proper' process and assessment required of all other applicants for a community land grant.

[197]

[141] In addition to submitting that Ms Lawrie was accorded procedural fairness, Mr McLure on behalf of Mr Lawler also submitted that Ms Lawrie and her lawyers had waived the right to claim procedural fairness beyond what Ms Lawrie was in fact accorded by Mr Lawler. Put more specifically, if the Court was of the opinion that procedural fairness in this case required Mr Lawler to provide Ms Lawrie with specific notice of his adverse findings about her conduct and an opportunity to be further heard about them before Mr Lawler presented his final report to the Administrator, then in this case Ms Lawrie and her lawyers had, by their conduct, abandoned the entitlement to any such notice and further opportunity to be heard.

[142] For the following reasons, I accept the respondent's submission about waiver. I have found that Ms Lawrie was accorded procedural fairness by Mr Lawler. However, if am wrong about that, I find that Ms Lawrie and her lawyers, on her behalf, waived the right to any greater procedural fairness for Ms Lawrie than Mr Lawler accorded her.

[143] Waiver is an intentional act or conduct done with knowledge, whereby a person abandons a right by acting inconsistently with that right.[7] There is no reason in principle and no authority to doubt that full observance of the hearing rule may be waived.[8] It is well established that a party's lawyer may waive a party's procedural or forensic rights.[9]

[144] Mr McLure submitted that from on or about 31 March 2014 Ms Lawrie and her lawyers made a conscious decision to change their strategy and withdraw from further participation in the Inquiry. He submitted that Ms Lawrie and her lawyers engaged in a deceptive strategy to ignore, disengage and discredit the Inquiry. The words "ignore, disengage and discredit" are words that were used by Mr Wyvill when developing the strategy. I accept the respondent's submission. I find that by engaging in that strategy Ms Lawrie and her lawyers waived her right to any greater procedural fairness. They intentionally and knowingly abandoned any further participation in the Inquiry by engaging in conduct inconsistent with a right to be further heard by Mr Lawler. Instead of further participating in the Inquiry, Ms Lawrie chose a political course of action.

[145] The strategy was implemented in the following way.

[146] On 26 March 2014 Mr Lawler sent the following letter to Ms Spurr.

[222]

[155] Ms Lawrie was in full agreement with Mr Wyvill's suggested strategy to ignore Mr Lawler in future, disengage from further participation in the Inquiry and discredit Mr Lawler.

[156] On 1 April 2014 Mr McCarthy was recalled. The reason Mr McCarthy was recalled was that when examined by Mr Lawler on 13 March 2014 he had said that he personally attended the Cabinet meeting on 10 July 2012. Mr McCarthy gave this evidence despite a written Cabinet attendance record of the Cabinet meeting on 10 July 2012 showing he was absent. As to the attendance record, Mr McCarthy had earlier said on oath, "I can't accept that. I remember the Cabinet submission. I remember the Cabinet debate and therefore I am contesting that this is wrong. I am saying the Cabinet attendance record is in error, yes."

[157] Further investigation in the course of the Inquiry established that Mr McCarthy did not attend the Cabinet meeting on 10 July 2012. Mr McCarthy's telephone records, fuel card purchases, travel acquittal details and a letter from the Speaker of the Northern Territory Legislative Assembly about access to Parliament House established that Mr McCarthy was at the Alice Springs Show on 6 July 2012, in Elliot on 10 July 2012 and absent from Darwin between 24 June 2012 and 22 August 2012, a period of almost two months.

[158] This discovery gave rise to the following issues which Mr Lawler questioned Mr McCarthy about on 1 April 2012. Why was Mr McCarthy so adamant about being present at the Cabinet meeting on 10 July 2012 when he first appeared before the Inquiry? Did Mr McCarthy seek the six day waiver for the Stella Maris Cabinet submission so that it could be considered at the 10 July Cabinet meeting? If Mr McCarthy was not going to be at the 10 July 2012 Cabinet meeting, why did he seek the waiver of the six day time period? When did Mr McCarthy decide to bring the Stella Maris Cabinet submission to the 10 July 2012 Cabinet meeting? Did Mr McCarthy read the 6 July 2012 Stella Maris Cabinet submission? Did he authorise his signature stamp to be placed on the 6 July 2012 Stella Maris Cabinet submission? Did Mr McCarthy lodge the 6 July 2012 Cabinet submission? If Mr McCarthy was not going to be at the Cabinet meeting on 10 July 2012, did he nominate another Minister to sponsor the Cabinet submission; and so on?

[159] If Mr McCarthy did not do those things, the potential implication was that it may have been Ms Lawrie as the Deputy Chief Minister who arranged for them to be undertaken in his absence. The Cabinet submission which contained Mr McCarthy's signature made a recommendation in favour of an expression of interest process and against a Crown lease being granted to Unions NT without an expression of interest.

[160] Relevant to the strategy proposed by Mr Wyvill on 31 March 2014, on 1 April 2014 there were the following exchanges between Mr Lawler, Mr Wyvill and Mr McCarthy.

[317]

[181] This letter to Mr Lawler is part of the strategy of Ms Lawrie ignoring and disengaging with the Inquiry. The whole of the second paragraph in Ms Spurr's letter to Mr Lawler is deliberately and knowingly false. The making of the false statements was counselled by Mr Wyvill; and Ms Spurr sent the letter after obtaining instructions from Ms Lawrie. Ms Lawrie knew the statements were false. Ms Lawrie had not exhausted her ability to access pro bono advice from Mr Wyvill and Ms Spurr. That was not the reason why she did not respond to the advice of Mr Maher or the further report of Mr Harris. After this letter was sent to Mr Lawler, Mr Wyvill, and to a lesser degree Ms Spurr, continued to provide ongoing pro bono legal assistance, advice and representation to Ms Lawrie.

[182] The statement, "Please note that our clients remain vitally interested in the outcome of the enquiry", is also disingenuous and misleading. As I have said, it does not represent the true position of Ms Lawrie. It is a device which has been used deflect any suggestion that Ms Lawrie has abandoned the Inquiry. It is a device which was capable of being used to suggest that Mr Lawler failed to accord Ms Lawrie procedural fairness.

[183] Significantly, Ms Spurr's letter does not specifically ask Mr Lawler to notify Ms Lawrie if he is going to make any adverse findings against her so she and her advisers may respond before Mr Lawler finalises his report. Ms Lawrie and her advisers had forgotten about Mr Lawler's letter of 17 February 2014 until Mr Wyvill rediscovered it; and it may be inferred from Mr Wyvill's emails of 23 April 2014 and 10 June 2014 (set out below), they were hoping that Mr Lawler would not come back to Ms Lawrie at all before he delivered his report to the Administrator. They were concerned that if he did, and they had to respond, Mr Lawler would have time to respond and would be able to deal with any submissions that they made and "kill off their complaints". Ms Lawrie did not tender any evidence to the Court from her or Mr Wyvill or Ms Spurr to contradict the conclusions I have reached in this regard.

[184] The Inquiry was conducted in four phases: (1) planning; (2) information gathering; (3) analysis and assessment; and (4) report preparation. When Ms Spurr's letter of 15 April 2014 was sent to Mr Lawler the Inquiry was in its third phase. In his letter to Ms Spurr of 17 February 2014, Mr Lawler informed Ms Spurr that it would be during the third phase, depending on the available evidence, that he would be making any findings of wrong doing against any person or organisation. By abandoning participation in the Inquiry at this critical stage, Ms Lawrie not only abandoned opportunities to respond to (1) Mr Maher's letter and the conclusion stated in the letter which were of some significance and (2) Mr Harris's further valuation report which dealt with an issue that was of some significance to Ms Lawrie's position, but, most importantly, she also gave up the opportunity to be notified by Mr Lawler of any adverse findings and an opportunity to respond to them before Mr Lawler's report was finalised.

[185] I have not reached any of the conclusions I have set out in [181] above against Mr McCarthy. Mr McCarthy was not a party to the proceeding before Court. He has not been given an opportunity to state his understanding of the contents of Ms Spurr's draft letter of 14 April 2014 and on 14 April 2014 he sent the following email to Ms Spurr.

[367]

[201] Prior to this point in time, neither Ms Lawrie nor Mr Wyvill had relied on Ms Spurr's letter of 14 February 2014 or Mr Lawler's letter of 17 February 2014 in formulating their strategy for dealing with the issues that had arisen during the Inquiry. A fair indication of how little reliance they placed on Mr Lawler's letter is that Mr Wyvill appears to have highlighted the wrong paragraph. They were acutely aware that Ms Lawrie would be criticised by Mr Lawler. This is evident from Ms Lawrie's 9.30 am email in which she stated 'we expect an ugly report' and from the strategy which they had adopted since 31 March 2014. Ms Lawrie had been warned of such criticism by the Department of Lands and Planning from 15 April 2009 onwards. At no stage did Mr Wyvill or Ms Lawrie think that Mr Lawler was going to provide them with further notice of adverse findings.

[202] Ms Lawrie was not misled by Mr Lawler's letter of 17 February 2014 and she did not act to her detriment as a result of that letter. She and Mr Wyvill had forgotten about the letter until Mr Wyvill rediscovered it. This is evident from Mr Wyvill's email of 26 May 2014. During the proceeding before this Court, Mr Young unequivocally stated that Ms Lawrie had not relied on Mr Lawler's letter of 17 February 2014. Both Mr Wyvill and Ms Lawrie were of the view that Mr Lawler did not accept her explanation about why the decision to offer to grant the Crown lease of Stella Maris to Unions NT was made in the manner it was, and they developed a political strategy to try and deal with that outcome and the criticisms which were likely to be made about Ms Lawrie's conduct.

[203] Despite being reminded of the contents of Mr Lawler's letter of 17 February 2014 and knowing Mr Lawler's report would not be made public until 19 June 2014, neither Ms Lawrie nor Mr Wyvill nor Ms Spurr contacted Mr Lawler to ask to be notified of any adverse findings against Ms Lawrie and given an opportunity to make further submissions about any adverse findings. Instead, Ms Lawrie and Mr Wyvill maintained their strategy of deliberately ignoring and disengaging from the Inquiry and further developed it by deciding to commence legal proceedings based in part on an alleged reliance by Ms Lawrie on Mr Lawler's letter of 17 February 2014 and an alleged failure by Mr Lawler to give Ms Lawrie notice of his adverse findings prior to finalising his report.

[204] Returning to Mr Gleeson's email of 26 May 2014, it is unknown whether Mr Wyvill did as Mr Gleeson requested. But at 2.24 pm Cathryn Tilmouth, Ms Lawrie's Media Adviser, sent an email to Mr Wyvill containing a draft statement to the media. Mr Wyvill amended and settled the draft media statement and sent the following email back to her and Mr Gleeson. Mr Wyvill's amendments are underlined. This was fairly conceded by Mr Young.

[382]

There is no question that there is a strong connection between Stella Maris and the Union movement which goes back decades. It is not an "urban myth".
It was because of this connection that Unions NT was prepared to put substantial resources into renovating Stella Maris so it could be used as a community centre for the benefit of the whole community whilst preserving its heritage values. It (sic) the first year alone, the budget it prepared projected a loss of circa $170,000. Unions NT was aiming to cover this loss from its own funds, the work of volunteers and funding (sic) raising.
As the proposed lease expressly stated that no NT Government funding would be provided for Stella Maris, it imposed a substantial financial burden on Unions NT. No other organisation (including the National Trust or Music NT) had this commitment to Stella Maris or access to such resources to cover these costs.
Delia and Gerry, as experienced Ministers, knew this. This is why they and all other members of the Henderson Cabinet did not consider it necessary to go through an application process. Nor were they advised by any public servant at any stage that it would be unlawful or improper not to hold an application process. In fact, Parliament has given the Minister for Lands the express power to determine, should he wish to, that an application process need not be undertaken prior to the grant of a Crown lease: see section 12(3) of the Crown Lands Act [emphasis added].
The offer from Unions NT represented in 2012 and still represents today the best proposal for preserving Stella Maris for the whole community as a heritage site. Based on the Unions NT's budget, an independent, (sic) expert valuer has assessed the savings to the Taxpayer over the life of the proposed lease at over $1,000,000. We call upon the Government to proceed with it.
The inquiry was conducted unfairly from the beginning, reflecting we believe Lawler's lack of qualifications, experience or skills to run an inquiry such as this.
- By describing the connection between Stella Maris and the union movement as an "urban myth" before he had heard from any cabinet minister, Lawler appears to have prejudged one of the critical issues for the inquiry.
- No funding for legal representation was made available to those against whom the Inquiry was clearly targeted.
- No transcript of evidence was provided which has the practical effect of keeping the evidence secret.
- No notice of possible adverse findings has been given to Delia or Gerry, yet it appears from recent statements by the Chief Minister that Lawler has made serious and quite unjustified adverse findings against Gerry.
Finally, as the power to grant a lease under the Crown Lands Act was never exercised, and Unions NT never actually got a lease, never got the keys and never moved in to Stella Maris, why have the Giles Government and Lawler wasted so much time and money on something that never happened?

[383]

[214] Mr Wyvill's one page statement, in particular par 3 and par 4, demonstrates that he was aware of the areas about which Ms Lawrie's conduct was likely to be criticised, including the adverse findings to the affect that the process adopted by her and her office was not the proper process.

[215] The one page statement is consistent with Mr Wyvill's strategy which was accepted and adopted by Ms Lawrie. In that context, Mr Wyvill is also counselling Ms Lawrie to say to the public that the Inquiry was conducted unfairly from the beginning, reflecting Mr Lawler's lack of qualifications and experience to conduct the Inquiry. I accept Mr McLure's submission that in the final dot point of par 6 Mr Wyvill makes use of the fictitious device of no notice of possible adverse findings. There is also nothing to suggest that there had been any inappropriate communications between Mr Lawler and Mr Giles. It must be remembered that an audio recording of the evidence of each of the witnesses who gave evidence during the Inquiry was on the Inquiry website and it would have been well known that Mr McCarthy was recalled because he first told the Inquiry he attended the Cabinet meeting on 10 July 2012 and that evidence was demonstrably wrong.

[216] On 18 June 2014, which was the day before the report was made public, Mr Wyvill sent an email to Ms Lawrie, Mr Gleeson, Ms Spurr and Mr McCarthy which had attached to it a draft Originating Motion seeking a declaration that in his conduct of the Inquiry Mr Lawler had failed to observe the requirements of procedural fairness. Both Ms Lawrie and Mr McCarthy were named as plaintiffs on the document. The Originating Motion was drafted in circumstances where Ms Lawrie had abandoned any further participation in the Inquiry, Ms Lawrie was expecting an "ugly report", her solicitor had written to Mr Lawler and told him that neither she nor Mr Wyvill would be making any more submissions and Ms Lawrie had not requested to be notified of any adverse findings before Mr Lawler finalised his report.

[217] On 18 June 2014 Ms Lawrie sent the following email to Mr Wyvill, Mr Gleeson, Ms Spurr and Mr McCarthy.

[398]

[223] Apart from the partial admission pleaded in par 11 of the Plaintiff's Statement of Facts Issues and Contentions, the allegations pleaded in the document are untrue, as Ms Lawrie must know. It is a fair inference that Ms Lawrie would have seen the document before it was filed in Court because it was Ms Spurr's invariable practice to obtain instructions from Ms Lawrie before taking a step on her behalf. The filing of the Plaintiff's Statement of Facts Issues and Contentions appears to be the culmination of the Mr Wyvill's strategy to discredit Mr Lawler which has been approved and adopted by Ms Lawrie.

[224] In support of the pleading contained in par 6 to par 12 of the Plaintiff's Statement of Facts Issues and Contentions, affidavits of Ms Lawrie, Mr Wyvill and Ms Spurr were filed in Court but not read.

[225] During the course of this proceeding, the pleading in par 6 to par 12 of the Plaintiff's Statement of Facts Issues and Contentions were abandoned by Ms Lawrie, as they properly should have been. However, I am satisfied that, until the allegations pleaded in par 6 to par 12 of the Plaintiff's Statement of Facts Issues and Contentions were abandoned, 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 on the basis of Mr Lawler's letter of 17 February 2014.

[226] In the circumstances, as I have stated in [142], I find that Ms Lawrie has waived her right to any greater procedural fairness than she was accorded by Mr Lawler.

[227] In reaching the conclusions set out above, I have applied the principles in Briginshaw v Briginshaw.[10] I have taken into account the seriousness of the allegations made about the conduct giving rise to the waiver and I have very carefully and closely considered the evidence before the Court. I am comfortably satisfied that the conduct on which Mr Lawler relies to establish waiver has been proved clearly, unequivocally and strictly.

[228] In drawing the inferences that I have drawn, I have applied the principles in Jones v Dunkel.[11] As a result of the failure of Ms Lawrie to give evidence and to tender any evidence from Ms Spurr and Mr Wyvill, I have inferred that their evidence would not have helped Ms Lawrie's case against the allegations of waiver and therefore I have more confidently drawn the inferences that I have drawn.

[229] The application of the principles of Jones v Dunkel has been complicated in this case by Ms Lawrie's proper withdrawal of her allegations based on Mr Lawler's letter of 17 February 2014. All plaintiffs are entitled to amend the basis on which they make a claim for relief and most amendments will have an impact on the evidence that a plaintiff needs to call in support of her case. However, after Ms Lawrie was informed of the basis on which Mr Lawler put the allegations of waiver, she did not instruct Mr Young to seek to read the affidavits that had been filed. Nor did she instruct Mr Young to make an application for an adjournment so fresh affidavits could be filed on her behalf. I note that Ms Lawrie was in Court for most of the hearing.

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