naalas' application to adduce further evidence
10 NAALAS sought to rely upon the affidavits of Michael Jones, affirmed on 15 August 2001, and Stephen Southwood, sworn on 16 August 2001.
11 The respondents objected to NAALAS' application to adduce this evidence. They submitted that there was no basis, in principle, for receiving evidence which was said to go to the circumstances under which the proceeding had been commenced, or maintained as distinct from the manner in which the proceeding had been conducted.
12 It is necessary to set out in some detail the contents of the affidavits sought to be relied upon.
13 Mr Jones was, at all relevant times, NAALAS' Principal Solicitor, Crime, having been employed in that capacity since 18 August 1997. He deposed to having received instructions on 28 March 2000 from a juvenile, Tasha Marie Clancy, to apply to Mr Bradley to disqualify himself from hearing a criminal proceeding listed before him that day. The basis of that application was apprehended bias. Mr Jones said that after the application had been made, and rejected, Mr Bradley adjourned the case to 14 April 2000.
14 On 4 April 2000, Mr Jones issued proceedings in the Supreme Court of the Northern Territory seeking to prohibit Mr Bradley from hearing the case. On 7 April, Thomas J adjourned the matter generally to 14 April. It was fixed for hearing before Olney J on 22 May 2000.
15 On 12 April 2000, Mr Jones sent two letters to Cridlands, the solicitors acting for Mr Bradley in the Clancy proceeding. Those letters are of considerable importance to NAALAS' contentions on the costs application.
16 The first letter was in the following terms:
"I understand that you act for Mr Bradley.
I enclose a letter addressed to your firm. While the letter is addressed to your firm, it is directed to Mr Bradley.
I shall be grateful if you would seek your client's instructions."
17 The second letter commenced by referring to a recent ABC media report regarding Mr Bradley's appointment as Chief Magistrate.
18 It then drew attention to a letter sent by Mr Bradley to the Law Society of Northern Territory on 27 March 2000. That letter is set out at par 175 of the primary judgment. Mr Jones noted that in his letter, Mr Bradley had expressed concern at certain comments made by the President regarding his appointment and had claimed that he had at all times believed (albeit erroneously) that the terms upon which he had been appointed were publicly available. Mr Bradley had attached to his letter to the Law Society copies of his Instrument of Appointment and what I described in the primary judgment as the Special Determination, governing his remuneration and conditions. Mr Bradley had asked that it be noted that he had been appointed in accordance with the terms of the Magistrates Act 1977 (NT), until he reached age 65. Importantly, Mr Bradley wrote, in relation to the Special Determination:
"[t]he terms were for 2 years (it was and remained the case that after the completion of 2 years I would revert to standard conditions)."(emphasis added)
19 Mr Jones, in his second letter to Cridlands, addressed to Mr Bradley's attention, referred to the reasons which he had given for having refused to disqualify himself in the Clancy case, and commented that these "raised more questions than they had answered". Mr Jones then proffered his own views regarding Mr Bradley's appointment. He observed that the Special Determination was for a period of two years, expiring on 8 March 2000. He also observed that the Special Determination had revoked an earlier Determination relating to the position of Chief Magistrate. That meant, according to Mr Jones, that there was no Determination "back to which to revert" once the period covered by the Special Determination had expired. It also meant, according to Mr Jones, that what Mr Bradley had said in his letter of 27 March 2000 had been incorrect.
20 Mr Jones asserted that, "on its face", the Special Determination gave rise to the suspicion that, despite the terms of the Instrument of Appointment, Mr Bradley's was a two year appointment, subject to re-negotiation by the Executive Government if, and only if, that Government was satisfied with his performance during his first two years in office. According to Mr Jones, such an arrangement would subvert, in a most fundamental way, the independence of the Chief Magistrate. It would also conflict with the terms of the Magistrates Act. As Mr Jones put it:
"A reasonable person might suspect that your special determination was merely a device for getting around the restriction of executive government's power to appoint Magistrates for a limited term."
21 Mr Jones commented that Mr Bradley might dispute some or all of the allegations set out in his letter. He invited Mr Bradley to set out his own version of the facts. He went on to pose 16 questions which he said remained unanswered. These questions were extremely detailed. Because of the importance that NAALAS placed upon Mr Bradley's alleged failure to respond to them, I set them out in full.
"1. How was the level of remuneration reflected in the 27 February 1998 determination arrived at? It seems to us $193,602 plus whatever salary sacrifice was involved in upgrading to a Calais is unlikely to have been a figure plucked from the air. Where did it come from? By reference to what other position, or standard or person was it arrived at? With whom was it negotiated?
2. In the reasons you gave for refusing to disqualify yourself you said the person in charge of the Office of Courts Administration was "the person with whom I discussed my appointment". Did you mean by this to convey that you did not discuss your appointment with anyone else from the Government? If not, with what other person or persons did you discuss your appointment and what were the substance of those conversations?
3. In your letter to the Law Society you say, "it was and remained the case that after the completion of two years I would revert to standard conditions". Your contention is contradicted by clause (a) of your special determination; there were no "standard" conditions to which to revert because your determination unambiguously revoked them. How do you explain this? With whom was it agreed that you would revert to "standard" conditions and where is that agreement recorded?
4. Your appointment was made at a time when Mr Shane Stone was Chief Minister and held the Attorney-General's portfolio. Mr Dennis Burke is Mr Stone's successor in both these positions. From an interview recorded by Murray McLaughlin of the ABC on 14 March 2000 with Mr Burke it does not seem Mr Burke agrees with your assertion that it was agreed at the time of your appointment that, after the first two years in office, you would "revert" to remuneration and allowances recommended by the Remuneration Tribunal. In the interview, Mr Burke said: It was an arrangement put in place by the previous Chief Minister. I inherited the arrangement. To my mind there is nothing untoward about the arrangement, it's simply from a perception point of view I don't believe in fixed terms for chief magistrates. He was employed on a fixed term that has now expired and he will be employed on an open term with a package as recommended. Later in the interview Mr Burke said: All I know is the Chief Magistrate was employed on a two year term… How is the ordinary reasonable person to understand the conflict between your recent claims and what Mr Burke has had to say on the matter?
5. Mr Burke's view of the original arrangement concerning yourself appears to be shared by the Remuneration Tribunal itself in its Report and Recommendation No.1 of 1999 entitled Magistrates of the Northern Territory it states: On 9 March 1998 a two-year term appointment was made to the position of Chief Magistrate. In Attachment "A" to the report yours is described as "a short term special appointment". (The report also reveals it was initiated by a letter to the Tribunal from the Chief Minister dated 10 March 1999.) How is the ordinary reasonable person to understand this conflict between your recent claims and the Remuneration Tribunal's understanding of the nature of your employment? Will you produce for inspection your submissions and other communications with the Remuneration Tribunal?
6. Given that the level of remuneration established by your special determination was, on its face, at least $37,000 more that [sic] recommended by the Remuneration Tribunal, why did you agree (if you did) to revert to "standard conditions" at the end of two years? The question that must be on everybody's lips is: Why would he have agreed to take a big drop in salary after two years, to swap the luxury Calais for an ordinary sedan and go back to tourist class travel? (In fact, it seems that you have recently dropped from a salary of $206, 186 to a base salary of $163,630.) Why shouldn't reasonable people conclude from the arrangements actually documented that Mr Stone must have created in your mind some sort of expectation about other appointments or positions at the end of two years, a promise upon which he can no longer deliver because he has lost the leadership and now is not even a member of the Legislative Assembly? You can dismiss all this as scurrilous, but let me assure you it is what people believe and you should meet it by evidence and reasoned argument -not silence or personal criticism of those asking the questions.
7. Given that in early 1999 Steve Southwood went to see you specifically for the purpose of speaking to you about rumours yours was a short-term appointment, how do explain him leaving your chambers without any knowledge that the 27 February 98 determination was for only two years? If, as you suggest in your reasons for refusing to disqualify yourself, he had the opportunity to read your special determination, why would it not have been obvious to you that he had not done so? After all, given the purpose of his visit, had he read the document then, for certain, he would have questioned you about why only two years and what were your expectations after that time. Yet nothing like this occurred as you, in the reasons you gave for not disqualifying yourself, reveal -if only obliquely.
8. Why did you wait until 27 March 2000 to release your special determination? On 14 March 2000 the ABC investigative journalist Murray McLaughlin spoke with you to find out about the terms of your appointment. You did not disclose them to him. The 7.30 Report which was so damaging to you and the office of Chief Magistrate was televised nationally on Thursday 16 March 2000. You watched it as it went to air in the Northern Territory. The segment of the program concerning you was introduced as a story about the "secret pay deal" between the Northern Territory and its Chief Magistrate. During the story the words "secret, special determination", "secret contract", "special and secret deal" and "secret deal" were used to describe your pay package. In addition, it was claimed your special determination had not been tabled and even the Clerk of the Legislative Assembly was unable to obtain a copy. The need to set the record straight by releasing the terms of your appointment was clear and immediate. You waited another 11 days before doing so. Indeed, it was only after you received the Chief Justice's letter of 22 March 2000 that you reacted, advising the Law Society and others that you would release the terms and conditions of your appointment during the following week. The impression one could gain from this sequence of events is that it was the unbearable pressure applied by the Judges and Master of the Supreme Court which led to the disclosure of your special determination and not, as you appear to suggest in your reasons for refusing to disqualify yourself, a decision taken "independently", without having "spoken to anyone else", as if there was and had never been a secret about it.
I pause to note here that when you dealt with my application to disqualify yourself from the Clancy case, no-one else knew about the Chief Justice's letter. Its existence was only revealed on 6 April 2000 when your counsel, Mr Reeves QC, faxed a copy of it to my counsel by way of disclosure of the basis of your impending application to Justice Thomas to disqualify herself from hearing the prohibition proceedings against you on the grounds of apprehended bias. It is highly improbable the Chief Justice would have convened a meeting of the Judges and Master on the evening of 21 March 2000 to consider the issue of the recent publicity surrounding your appointment without speaking to you first. It is much more likely that he spoke to you beforehand and, not being able to get a satisfactory response, convened an extraordinary meeting which then agreed he should write to you in the formal and unequivocal terms which he did. Once again the perception is reinforced of you wishing to keep your special determination secret.
9. How do you explain these delays in responding to the 7.30 Report allegations consistently with your claim that there was no secrecy regarding the terms of your appointment?
10. In his letter to you, the Chief Justice advised the Judges and Master thought you should make "full public disclosure of [the terms and conditions upon which you were appointed as Chief Magistrate] accompanied by any documents relating to them"(my emphasis). In your reasons for refusing to disqualify yourself you said: "There was no secrecy regarding the circumstances of my appointment." There was no secrecy regarding the terms of my appointment? So far you have only released information about terms, and then only those contained in your special determination. There must be other documents in your possession or control relating to the terms and conditions of your appointment other than your special determination. What is in those documents? Why have you not made them public? When will you do so?
11. Consistently with your statement on the bench that there was no secrecy regarding the circumstances (as contrasted to "terms") of your appointment, will you release the documents in your possession or control relating to those circumstances?
12. In your letter to the Law Society you say "my salary includes superannuation". How much of your salary is superannuation? How was it possible for you to opt out of the obligation to pay superannuation? Where is the agreement recording that you forewent superannuation contributions from the NT? Do you say you received no superannuation benefits from the NT up to and including 8 March 2000? If not, what have you received?
13. Did you telephone Mr Southwood on 26 March 2000? Why? Did you say to him words to the effect: "I want to avoid a conflict between my recollection of what occurred and yours"? If so, why were you concerned to avoid conflict between your recollection and his?
14. If you have reverted to Remuneration Tribunal conditions as you claim, how is it that you are still driving a Holden Calais supplied by the Northern Territory?
15. We have not been able to obtain a copy of the Administrator's determination (if any) under which you are currently paid. What are its terms? Will you provide a copy of it?
16. Are you prepared to disclose to me all documents relating to the circumstances of your appointment? If not, why not?"
22 Mr Jones' letter concluded with the following exhortation:
"Of course, you can choose not to answer these questions. But the perceptions I have raised remain and, meanwhile, you continue to sit on cases in which the NT or one of its emanations is a party and to deal with sentencing property offenders at a time when the executive government's strong views about punishing offenders and its dissatisfaction with the criminal justice system is well known. In my view, if you choose not to make full disclosure now and answer the questions raised in this letter fully and fairly you should stand down from hearing cases of this kind until the prohibition proceedings have been dealt with by the Supreme Court."
23 The response on behalf of Mr Bradley was swift. On 13 April 2000, David Farquhar, a partner at Cridlands, wrote to Mr Jones in the following terms:
"We acknowledge receipt of your letter of 12 April 2000 and as requested, we immediately passed it on to Mr Bradley.
The writer feels some unease because it appears that the letter may be an ex parte communication to the Magistrate about a matter that is before him.
As the letter may be interpreted to relate to the judicial functions of the Chief Magistrate we have not sought his instructions about the matters raised by you."
24 NAALAS submitted that Mr Jones' letter of 12 April 2000 was, in substance, a letter of demand, which called for a reasonable response from Mr Bradley. It submitted that no such response had been forthcoming.
25 Mr Jones said that the Clancy proceeding had been settled on 19 April 2000 on the basis of a consensual prohibition order. According to him, that left serious questions about the validity of Mr Bradley's appointment unanswered. In those circumstances, he contended, NAALAS had had no choice but to institute this proceeding, which it did on 20 April 2000. He said that had Mr Bradley provided answers to the questions set out in his letter of 12 April 2000, that may never have occurred.
26 The next matter raised by Mr Jones in his affidavit amounted to a complaint that the respondents had failed to provide important documents which NAALAS had legitimately sought. He contended that this failure had contributed to the proceedings having been continued. That complaint was summarised in pars 16 and 17:
"16. Subpoenas issued by the Plaintiff in the Supreme Court case and in this proceeding (when it was before the Supreme Court) had sought documents relating to the terms and circumstances of the First Respondent's appointment and were returnable on 7th April, 2000, 14th April, 2000, 19th April, 2000, 28th April, 2000, 3rd May, 2000 and 5th May, 2000.
17. On each of those occasions, the Respondents declined to produce any documents relating to the terms or circumstances of the First Respondent's appointment in response to those subpoenas, other than for one occasion when the First Respondent provided a copy of a document dated 30th November, 1999 a true copy of which is incorporated in Volume 6 of the Court Book in this proceeding as Court Book Document 170, at pages 523 to 524."
27 Finally, Mr Jones noted that Mr Bradley's appointment under s 4 of the Magistrates Act had not been Gazetted until 26 May 2000, some two years and three months after the appointment was made. By implication at least, that called for an explanation.
28 NAALAS also sought to rely upon the affidavit of Mr Southwood, one of her Majesty's Counsel for the Northern Territory, and the President of the Law Society between September 1997 and September 1999. That affidavit was said to be relevant for two reasons.
29 First, it was said to demonstrate that during the course of a conversation that Mr Bradley had had with Mr Southwood in late 1998 or early 1999, he had lied, or at least been less than frank, about the terms of his appointment. Mr Southwood said that he had initiated that conversation as a result of certain rumours that were then circulating suggesting that Mr Bradley had been appointed for a fixed term of two years. He said that Mr Bradley had assured him that this was not the case. However, Mr Southwood said that Mr Bradley had not mentioned the fact that he had negotiated a special loading of 10 %, in addition to his normal salary, to compensate him for what was described as "a short term appointment".
30 Second, Mr Southwood's evidence was said to be relevant because it demonstrated that during the course of a conversation between them on 26 March 2000, Mr Bradley had lied. Mr Southwood said that Mr Bradley had telephoned him on that day in response to certain media comments which had been made regarding the terms of his appointment. Mr Southwood said that Mr Bradley told him that he wished to avoid a conflict between their respective memories of their earlier conversation. Mr Bradley suggested to Mr Southwood that in that conversation, he had disclosed the background and circumstances of his appointment, and that Mr Southwood had been satisfied with what he had been told. Mr Southwood went on to say that during the telephone conversation, Mr Bradley told him:
"It was always to be the case that I would get the package for two years and then it would revert back to the Remuneration Tribunal determinations."
Mr Southwood said that this was the first time that Mr Bradley had mentioned that his original remuneration had been fixed for two years, and that after that period his salary would revert to that fixed from time to time by the Remuneration Tribunal.
31 NAALAS' attempt to rely upon Mr Southwood's evidence to support its claim that it had been provoked by Mr Bradley's conduct into instituting this proceeding was fraught with difficulty. There was nothing in his affidavit to link either of the conversations to which he deposed to NAALAS' decision to commence the litigation. Mr Southwood made no mention of having told Mr Jones, or anyone else associated with NAALAS, the substance of either conversation. Nor, in his affidavit, did Mr Jones.
32 It is true that, in his letter to Cridlands of 12 April 2000, Mr Jones alluded to Mr Southwood having spoken to Mr Bradley in early 1999 and again on 26 March 2000 (see questions 7 and 13). However, whether that information contributed significantly to the decision to commence the litigation is not apparent from the letter, nor, as I will explain, from Mr Jones' evidence.
33 Counsel for NAALAS, recognising that there was an important deficiency in the affidavits of Mr Jones and Mr Southwood, sought leave to ask them additional questions in order to overcome that difficulty. Leave was granted.
34 The substance of Mr Jones' additional evidence was that on 28 March 2000, he received instructions to apply to Mr Bradley to disqualify himself from hearing the Clancy matter. As noted earlier, Mr Jones made that application, and it was refused. He said that in the days that followed, he had a number of conversations of an informal nature with Mr Southwood. He recalled one particular conversation that had occurred on 4 April 2000 at Mr Jones' home. He remembered that date because he had sworn and filed an affidavit in the Clancy matter earlier on that day. That affidavit had contained a reference to his home address.
35 Mr Jones said that at about 6:00 that evening, Mr Southwood appeared at his back door. He said that he was taken by surprise because Mr Southwood had never been to his home, and he had no idea how he had discovered where he lived. Mr Southwood had explained that he had obtained the address from Mr Jones' affidavit.
36 Mr Jones continued:
"…He then, without any inquiry from me, said, as best I can recall, 'Bradley's a blinking liar' and I took it to be a reference to material that he had read in connection with the affidavit."
37 Mr Jones was asked whether the could recall what Mr Southwood said after referring to Mr Bradley in that manner. He replied:
"Not in any clear detail, but I do recall him saying that he had talked with Mr Bradley about his appointment sometime ago, a year or two earlier, and, as best as I can recall, Mr Bradley had made no reference to it, to your [sic] appointment."
38 Mr Jones said that he was aware that Mr Southwood was engaged in preparing an affidavit in relation to the proceeding concerning the validity of Mr Bradley's appointment. However, he could not recall specifically speaking with Mr Southwood about either of his conversations with Mr Bradley in any greater detail. He was then asked whether he had taken into consideration, in deciding to proceed with the challenge to Mr Bradley's appointment, what Mr Southwood had said to him on 4 April 2000. He replied:
"It certainly reinforced my view that it was right to challenge the appointment. I was convinced that it was right to do so, although it was a very difficult decision to make. But I was considerably relieved that such a senior member of the profession, as Mr Southwood, would offer the comment that he did. It gave me the clear idea that I was on the right track."
39 Under cross-examination, Mr Jones acknowledged that, in his affidavit of 15 August 2001, he had not mentioned his meeting with Mr Southwood.
40 Mr Jones was pressed about his claim that the respondents had "declined" to produce any documents relating to the terms of Mr Bradley's appointment in response to the subpoenas issued by NAALAS and returnable on the dates set out in par 16 of his affidavit. He acknowledged that what he had deposed in pars 16 and 17 was not accurate, and accepted that those paragraphs were misleading.
41 Mr Jones also agreed that, on the morning of 20 April 2000, he had been interviewed by the ABC. In that interview, he had commented strongly upon the personal integrity of Mr Bradley. He had also spoken of the Bradley appointment as an illustration why the CLP Government should not be re-elected.
42 Finally, Mr Jones acknowledged that, in advising NAALAS that the present proceeding should be instituted, he had acted upon the advice of Mr Maurice QC and Mr Tippett, who had at one time been retained to act in the matter.
43 Mr Southwood was also asked a number of additional questions. In particular, he was asked whether he could recall, prior to May 2000, having had a discussion with Mr Jones regarding the circumstances surrounding the appointment of Mr Bradley. He replied:
"I'm uncertain about the date. I don't recall having a discussion with Mr Jones prior to providing either he or Mr Tippett with a draft affidavit which was in or about May of - April/May 2000."
44 Having regard to that answer, it was scarcely suprising that Mr Southwood was not cross-examined.
45 In the end, there was virtually no evidence to suggest that anything said to Mr Southwood by Mr Bradley had provoked, or contributed significantly, to the decision by NAALAS to institute this proceeding. At its highest, Mr Jones regarded what Mr Southwood told him as reinforcing a view that he had already formed, that it was right to challenge the validity of Mr Bradley's appointment.
46 The only basis upon which Mr Southwood's evidence was said to be relevant was that it was causally linked to the decision to commence this litigation. The foundation for that contention was not established. Accordingly, I ruled Mr Southwood's evidence to be inadmissible.