FEDERAL COURT OF AUSTRALIA

Wyvill v Law Society Northern Territory [2019] FCA 2050

ORDERS

THE COURT ORDERS THAT:

1.    The further amended originating application filed on 30 May 2019 be dismissed.

2.    The applicant pay the first respondent’s costs.

Note:    Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

REASONS FOR JUDGMENT

MARKOVIC J:

1    The applicant, Alistair Wyvill, is a barrister who holds the rank of senior counsel and practises in the Northern Territory. By further amended originating application filed with leave granted at the hearing (FAOA), Mr Wyvill seeks declarations and orders which, if made would, in substance, result in two disciplinary proceedings pending against him (collectively the Tribunal Applications) being heard in and determined in this Court and not in the Northern Territory Legal Practitioners Disciplinary Tribunal (Tribunal). Mr Wyvill also seeks a declaration to the effect that the Law Society Northern Territory (Law Society) cannot bring, and the Tribunal cannot hear, one of the grounds raised in one of the Tribunal Applications on the basis of parliamentary privilege.

2    The first respondent, the Law Society, opposes the making of the declarations and orders sought by Mr Wyvill. There are three other respondents to the proceeding: the Tribunal established by s 669 of the Legal Profession Act 2006 (NT) (Act), the statutory supervisor under the Act (Statutory Supervisor) and Paul Gerard Maher who, as explained below, lodged a complaint with the Law Society in relation to Mr Wyvill’s conduct. The Tribunal, the Statutory Supervisor and Mr Maher each filed a submitting notice and took no active role in the proceeding.

3    The resolution of the central issue raised by Mr Wyvill, namely whether this Court can hear and determine the Tribunal Applications, raises two principal issues for determination. First, whether the Law Society is bound to pursue proceedings in the Tribunal. The determination of that question depends on the construction of the Act. Secondly, whether it would be appropriate, in the Court’s discretion, to order that the complaints be removed from the Tribunal to this Court.

background facts

4    Mr Wyvill relies on an affidavit sworn by him on 1 April 2019, an affidavit sworn by Simon Crispin Cureton, the partner of Squire Patton Boggs (SPB) with carriage of the proceeding on his behalf, on 1 April 2019, and an affidavit sworn by Tom Henty Silvester, a solicitor in the employ of SPB, on 16 May 2019. The Law Society made a number of objections to the evidence relied on by Mr Wyvill, principally on the ground of relevance, and indicated to the Court that they would be addressed where required in the course of submissions but ultimately they were matters of weight.

5    In its written submissions, the Law Society noted that it took issue with some aspects of Mr Wyvill’s evidence. However, it did not rely on any evidence to contradict Mr Wyvill’s evidence, insofar as it took issue with it, nor was Mr Wyvill cross-examined. The Law Society only tendered one letter in evidence.

6    I set out below a summary of the evidence insofar as it provides background and is relevant to the matters in issue.

Inquiry under the Inquiries Act (NT)

7    In December 2013 the Legislative Assembly of the Northern Territory resolved to commence an inquiry under s 4A of the Inquiries Act (NT) in relation to “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 to Unions NT on or about 3 August 2012” (Inquiry). John Lawler was appointed as the Commissioner of the Inquiry. Mr Maher was engaged to provide advice and assistance to Mr Lawler during the Inquiry.

8    Mr Wyvill represented three people, including the Hon Gerard McCarthy MLA and the Hon Delia Lawrie MLA, before the Inquiry. He was instructed by Cathy Spurr of Halfpennys Solicitors.

9    On 26 May 2014 Mr Lawler presented his report entitled “Inquiry into Stella Maris – 2014” to the Administrator of the Northern Territory (Inquiry Report). The report was made public on 19 June 2014. The Inquiry Report made adverse findings about Mr McCarthy and Ms Lawrie.

Proceeding in the Supreme Court of the Northern Territory

10    On 30 July 2014 Ms Lawrie commenced proceeding No 68 of 2014 in the Supreme Court of the Northern Territory (Supreme Court) against Mr Lawler seeking relief in relation to Mr Lawler’s alleged failure to afford procedural fairness to Ms Lawrie in the Inquiry (Supreme Court Proceeding).

11    Mr Wyvill represented Ms Lawrie in the Supreme Court Proceeding until mid-October 2014 when it became apparent to Mr Wyvill that he may be required to give evidence in the proceeding and thus returned his brief. Mr Wyvill swore two affidavits in the Supreme Court Proceeding.

12    The Supreme Court Proceeding was listed for hearing before Southwood J (Trial Judge) commencing on 27 January 2015. Ultimately Mr Wyvill’s affidavits were not read. This was because in the course of the hearing Ms Lawrie abandoned the alternative basis upon which she said that she had been denied procedural fairness, which was based on representations included in a letter dated 17 February 2014 from Mr Lawler to Ms Spurr on which Ms Lawrie alleged she relied as to the course of the hearing before the Inquiry.

13    According to Mr Wyvill, during the trial Mr Lawler, the defendant, was granted leave to file a “Second Amended Statement of Facts and Contentions” which included the following pleading:

27A. By Not later than 15 April 2014, alternatively by no later than 18 June 2014, the plaintiff and or alternatively her legal representatives Mr Wyvill and Ms Spurr:

a.    understood the issues that were being examined by Mr Lawler that could lead to adverse findings about Ms Lawrie; and

b.    believed that it was likely that Mr Lawler would make one or more findings that were adverse to Ms Lawrie in his report.

27B. On 15 April 2014 and at all times until Mr Lawler’s report was made public on 19 June 2014, the plaintiff and her legal representatives adopted a deliberate and deceptive strategy of not engaging in dialogue with Mr Lawler about the substantive issues in the inquiry affecting the plaintiff. The motivation for the plaintiff’s strategy was to avoid prompting Mr Lawler to provide additional measures of procedural fairness, so that once the report was made public the plaintiff could complain that she had been denied procedural fairness.

27C. In the circumstances, the plaintiff waived any additional entitlement she had to procedural fairness.

14    On 18 March 2015 Mr Wyvill sent an email to Kellie Grainger, at the time the Law Society’s manager regulatory services, providing a copy of a newspaper article and informing her of the allegations made in the course of the Supreme Court Proceeding concerning his conduct. Ms Grainger responded by email dated 1 April 2015 noting that the Law Society was aware of the article and that for the time being it would not take any further action but that it may reconsider its position if it received any further information.

15    On 1 April 2015 judgment was delivered in the Supreme Court Proceeding and an order made dismissing Ms Lawrie’s application: see Lawrie v Lawler [2015] NTSC 19 (Lawrie v Lawler). In Lawrie v Lawler the Trial Judge made a number of findings that were critical of Mr Wyvill’s conduct. They are included in Mr Wyvill’s affidavit and referred to here as the Adverse Findings. It is not necessary to set out those parts of Lawrie v Lawler in these reasons. Mr Wyvill received no notification of the potential for findings to be made about his conduct.

Events following the delivery of judgment in the Supreme Court Proceeding

16    On 1 April 2015 Mr Wyvill sent an email to Ms Grainger at the Law Society providing her with a copy of Lawrie v Lawler and noting that:

As I mentioned, I was not a party to these proceedings, I did not give evidence, I was not given notice of the particular allegations that were to be made against me and I was not given an opportunity to put my account of the relevant events to the court.

I take issue with many of the findings in the judgment. I am seeking advice as to whether I can and should appeal.

If I do decide to appeal I will inform you.

17    On 2 April 2015:

(1)    Mr Wyvill resigned as president of the Northern Territory Bar Association. An email sent by Mr Wyvill at 8.58 am recorded, among other things, that as a result of the decision in Lawrie v Lawler, he had decided to resign as president of the Northern Territory Bar Association and that although he “was not a party to these proceedings, did not give evidence and take issue with the findings in the judgment” he thought that the best interests of the Norther Territory Bar Association required his resignation; and

(2)    the Associate to the Trial Judge:

(a)    sent an email to Megan Lawton, at the time the chief executive officer of the Law Society, at 8.45 am informing Ms Lawton that:

His Honour has determined to refer to the Law Society for investigation Alistair Wyvill SC’s conduct during the Stella Maris Inquiry and his representation of Ms Lawrie.

Would you please advise to whom the referral should be addressed.

(b)    emailed a letter to Mr Wyvill at 9.19 am which included:

Following upon his Honour’s decision in Lawrie v Lawler, his Honour has determined that your conduct during the Stella Maris Inquiry and your representation of Ms Lawrie, including whether you may have sworn a false affidavit, should be referred to the Law Society for investigation. The Law Society will also be asked to consider whether there are any matters which should be referred to the Director of Public Prosecutions.

His Honour has asked me to inquire into whether you would like an opportunity to be heard before the matter is referred to the Law Society. Please advise me accordingly.

18    On 23 April 2015 Mr Wyvill’s solicitors informed the Associate to the Trial Judge that Mr Wyvill declined the opportunity to be heard prior to referral of the matter to the Law Society.

19    On 7 May 2015 (May 2015 Letter) the Associate to the Trial Judge sent a letter to Michael Grant QC in his capacity as Statutory Supervisor under the Act (Statutory Supervisor) (as his Honour the Chief Justice of the Northern Territory then was). The Associate to the Trial Judge informed the Statutory Supervisor that the Trial Judge had determined, among other things, to refer Mr Wyvill’s conduct during the Inquiry and in the Supreme Court Proceeding to him.

20    On 26 May 2015 the Statutory Supervisor sent a letter of complaint (Complaint Letter) to the Law Society about Mr Wyvill and Ms Spurr (SS Complaint). In September 2018 Mr Wyvill became aware that the Complaint Letter included attachments A to S of which attachment A was a document titled “Description and Particulars of Complaint” (Particulars of Complaint) and attachment C was the May 2015 Letter. Mr Wyvill first saw a copy of the Particulars of Complaint and the May 2015 Letter on or about 8 October 2015 when Timothy Scotter, the Law Society’s investigator, provided copies of those documents to the solicitors acting for him at the time. However neither of those documents were identified as attachments to the Complaint Letter and at that time were not accompanied by the Complaint Letter itself.

21    In about late May 2015 Mr Wyvill was informed by the Statutory Supervisor that, as the Law Society had refused to make an “own motion” complaint, he felt obliged to make a complaint against Mr Wyvill himself. Mr Wyvill deposes that the Statutory Supervisor did not then, or on any other occasion, inform him of the terms of the complaint which he was contemplating making, offer him an opportunity to challenge the allegations he was proposing to make against him or disclose the fact of his involvement in the conduct of Mr Lawler’s defence of the Supreme Court Proceeding.

22    On 2 June 2015 Mr Wyvill sent an email to members of the Northern Territory Bar Council, of which he remained an ex officio member, attaching an affidavit he had affirmed on 26 May 2015 filed in the Supreme Court Proceeding in response to an application made by Mr Lawler for a personal costs order against him (Bar Council Email). It is not necessary to set out the content of that email save to note that it was critical of the conduct of the Trial Judge. The email concluded with a request that its recipients treat it “as confidential to members of the Bar Council”.

Appeal from the orders made in Lawrie v Lawler

23    On 3 July 2015 Ms Lawrie applied to the Court of Appeal of the Supreme Court of the Northern Territory (NT Court of Appeal) for leave to appeal from the orders made in Lawrie v Lawler out of time (Appeal Proceeding). On 18 August 2015 Mr Wyvill’s solicitors made an application for him to intervene in the Appeal Proceeding. That application was refused on 4 March 2016 in the course of the hearing of the Appeal Proceeding which took place on 1, 2, 8, 9 and 10 March 2016.

24    There were three issues in the Appeal Proceeding: the first concerned the Trial Judge’s findings that there was no breach of procedural fairness on the part of Mr Lawler (Procedural Fairness Ground); the second concerned the Trial Judge’s decision not to disqualify himself (Recusal Ground); and the third concerned the order made by the Trial Judge that Ms Lawrie pay Mr Lawler’s costs, in part, on an indemnity basis (Costs Ground). On 2 June 2016 the NT Court of Appeal delivered judgment in the Appeal Proceeding: see Lawrie v Lawler (No 3) (2016) 39 NTLR 1 (Lawrie v Lawler Appeal). The NT Court of Appeal by majority (Doyle and Duggan AJJ, Heenan AJ dissenting) dismissed the Procedural Fairness Ground and the Recusal Ground but all members of the Court upheld the Costs Ground.

25    In considering the Procedural Fairness Ground, Doyle and Duggan AJJ agreed with Heenan AJ that the Trial Judge erred in relation to “the alternative defence of waiver”. Acting Justice Heenan said the following at [248] and [250]-[252] in relation to a letter dated 15 April 2014 from Ms Spurr to Mr Lawler:

[248]    The meaning and effect of the letter are to be assessed in light of the text of the letter, not by reference to the motive or strategy that prompted the letter.

…

[250]    As the letter was to be assessed at face value, there was no reason to enquire into the conduct of Ms Lawrie, Mr Wyvill and Ms Spurr, in the detail to which Southwood J descended.

[251]    We have said earlier in these reasons at [232] that if Mr Lawler had offered Ms Lawrie an opportunity to supplement her evidence, she would not have done so. But the effect of the letter does not turn on the motive or strategy that the Judge explored, and did not call for close scrutiny of the motives and strategy that lay behind the letter. The effect of a failure to utilise an opportunity to give further evidence would have depended on the surrounding circumstances at the time , not on the motive or strategy that led her to decline to give further evidence.

[252]    For these reasons we consider, with respect, that Southwood J erred in this respect. He should not have upheld the alternative defence of waiver. There was no reason to explore the motives and strategy that lay behind the conduct of Ms Lawrie and her advisers.

26    Commencing at [447] under the heading “findings of dishonesty and deceit” Heenan AJ addressed the Trial Judge’s findings of impropriety on the part of Ms Lawrie, Mr Wyvill and Ms Spurr noting that it “is difficult to disengage or to separate [those findings] from the fate of the defence of waiver”. At [453]-[455] and [457] his Honour said:

[453]    Any party advancing a serious allegation of professional impropriety, dishonesty or false swearing has the obligation to make that allegation clearly and distinctly and then, if possible, to prove it. Even the last amended statement of facts issues and contentions relied on by the respondent (as amended on 29 January 2015) made no allegation that:

(a)    the statement of facts issues and contentions filed by the appellant in support of the originating motion contained statements known to be false by the appellant and her solicitors and counsel;

(b)    that the affidavits sworn by the appellant and her counsel and solicitor in support of the application contained statements known to be false;

(c)    that Mr Wyvill had advised Ms Lawrie to make a false statement;

(d)    that the contents of the letter from the appellant’ s solicitors Mr Lawler of 15 April 2014 were deliberately and knowingly false and that the statement that the appellant remain vitally interested in the inquiry was misleading and disingenuous; or

(e)    that the judicial review proceedings had been commenced in wilful disregard of known facts and ought not have been commenced.

[454]    No notice of any of those allegations was given to Mr Wyvill or·to Ms Spurr who were not parties to the proceedings before Southwood J. Although Ms Lawrie was, of course, represented by counsel before Southwood J these submissions were only made in the course of the closing address by counsel for the respondent. Counsel for the appellant had, for reasons already described, contended that there was no basis for waiver and that the issue of reliance on the letter of 17 February 2014 was not material.

[455]    It is unfortunate that these allegations were entertained having regard to the state of the pleadings and the absence of any notice to Mr Wyvill or Ms Spurr. That one or both of them may have learned about them indirectly through colleagues or the media is not to the point because the primary position of the respondent is that neither had any right to be heard on his or her own interests which, however, was followed by the alternative contradictory submission that if Mr Wyvill did have a right to be heard it had been waived by his inaction. It is not necessary to dwell on that alternative plea other than to observe shortly that the requirements of waiver were not present in that situation.

…

[457]    In the present case whatever suspicions or doubts might have arisen from the allegations advanced by the respondent against the personal integrity of the appellant, Mr Wyvill and Ms Spurr, there was no direct evidence upon which findings of impropriety or dishonesty could be made. Having regard to the manner in which the allegations had been advanced at the very end of the proceedings and had not been pleaded and when none of the three persons concerned had been confronted with those allegations, such findings should not have been made.

Complaint by Mr Maher

27    On 17 September 2015 Mr Maher made a complaint of professional misconduct against Mr Wyvill arising out the Bar Council Email (Maher Complaint). Mr Wyvill is not aware of how Mr Maher came into possession of a copy of the Bar Council Email.

Investigation by the Law Society

28    By email dated 22 September 2015 Ms Grainger informed Mr Wyvill’s solicitors that the Law Society had appointed Mr Scotter, counsel at the Victorian Bar, to investigate the SS Complaint and the Maher Complaint. By email of the same date Mr Wyvill’s then solicitors requested a copy of the SS Complaint. In her email dated 30 September 2015, Ms Grainger noted that “[y]our client is provided with a copy of the complaint by the complaint investigator and invited to provide a response to the complaint as part of that investigation process”. A copy of the SS Complaint was not provided at that time.

29    At Mr Wyvill’s request, Mr Scotter agreed to defer his investigation pending the outcome of the Appeal Proceeding.

30    By letter dated 1 July 2016 to Mr Wyvill’s then solicitors Mr Scotter noted that the NT Court of Appeal had delivered judgment; queried whether Mr Wyvill sought a further deferment of the investigation and, if so, why; and indicated that, in the event that Mr Wyvill was of the view that the complaint ought to be investigated or Mr Scotter determined to continue the investigation in any event, Mr Wyvill was invited to provide any further submissions within 21 days.

31    In about August 2016 Mr Wyvill retained his current solicitors, SPB, to act for him. Correspondence from SPB to Mr Scotter and others, commencing in August 2016, was in evidence before me.

32    By letter dated 14 November 2016 from SPB to the then Statutory Supervisor, Sonia Brownhill SC, Mr Wyvill sought to have the SS Complaint withdrawn in light of, among other things, the findings in Lawrie v Lawler Appeal by which SPB noted that the findings made by the Trial Judge against Mr Wyvill were set aside. At [7]-[8] of their letter SPB relevantly noted that:

7    The Complaint contains 19 separate grounds. As explained below, the Complaint provides no true particulars in support of any of these grounds. Although clearly it arises out of the context of Justice Southwood’s findings, it makes no reference to any of them. Further, as Mr Wyvill has pointed out at [94] to [118] of his affidavit at 26 May 2015 (included in the documents enclosed) many of his Honour’s findings are, with respect, illogical or unfounded. In addition, as Mr Wyvill’s enclosed statement illustrates, the findings are contradicted by or inconsistent with material (much of which cannot be contentious) which was not before his Honour. The difficulty for our client in these circumstances is understanding with sufficient clarity the specific bases upon which each of these very serious allegations is made

8    Doing his best in these circumstances, Mr Wyvill has attempted to answer each of the 19 grounds of complaint. …

SPB noted that there were serious deficiencies in the SS Complaint requiring its withdrawal or, in the alternative, that it be redrafted. According to Mr Cureton, at that time Mr Wyvill’s understanding was that the SS Complaint was constituted by the Description and Particulars of Complaint.

33    By letter dated 16 November 2016, among other things, the Statutory Supervisor informed SPB that she declined to withdraw or redraft the SS Complaint. By letter dated 16 February 2017 to the Statutory Supervisor, SPB noted that their client was still considering the matters raised by the Statutory Supervisor in her letter dated 16 November 2016 and that they would endeavour to respond as soon as possible.

34    After an exchange of correspondence, Mr Scotter informed SPB that he was hopeful that he would complete his report “not too long after” 30 June 2017. By letter dated 6 September 2017 Mr Scotter updated the expected date of completion of his report to the end of October 2017.

35    On 15 September 2017 SPB responded to Mr Scotter’s letter dated 6 September 2017. That response included:

3.    In relation to the housekeeping matters you have raised:

…

(c)    Our client has not provided submissions specifically addressed to the individual findings in the judgment of 1 April 2015. Because the Statutory Supervisor’s complaint does not rely on any of the findings in the judgment, and because much of the material before you was not before Justice Southwood, we have assumed that you will not be placing any weight on those findings. Please advise us promptly if this assumption is wrong and you will wish to receive submissions in respect of the individual findings in the judgment.

In response Mr Scotter informed SPB that he did not seek any submissions in relation to “the individual findings and the judgment” of the Trial Judge.

36    By letter dated 2 November 2017 SPB sought an update on the completion of Mr Scotter’s report and requested that Mr Wyvill “be given the opportunity to review and comment on the report ideally prior to it being handed to the Law Society” as, in their view, “it would be fairer and more efficient for the Law Society … to review the report with the benefit of [their] client’s comments upon it”. In response, Mr Scotter relevantly noted that he proposed to provide a draft of the relevant parts of the report to Mr Wyvill for his comment prior to it being delivered to the Law Society.

37    By letter dated 25 January 2018 Mr Scotter informed SPB and the solicitors for Ms Spurr, Hunt & Hunt, that despite his earlier indication to the contrary and having thought further about the matter, he had decided not to provide a draft of the relevant parts of his report in relation to the SS Complaint to their respective clients and that he considered it appropriate to leave the seeking of any further input by each of them to the Law Society. Accordingly, on the same day SPB wrote to the Law Society noting that in light of Mr Scotter’s change in approach, Mr Wyvill requested that the Law Society provide a copy of Mr Scotter’s report to them as soon as possible and before it made any decision pursuant to s 496(1) of the Act.

38    By letter dated 1 February 2018 the Law Society responded to SPB’s letter dated 25 January 2018 noting, among other things, that:

We confirm that no decision will be made pursuant to section 496 of the Legal Profession Act (the LPA) without your client first having the opportunity to respond to any potential adverse findings.

In line with the Society’s usual complaints process the investigation report will be provided to the non-conflicted members of the Society’s Ethics Committee for a review and discussion. The Ethics Committee is advisory only and has no decision-making role.

Once the Ethics Committee have reviewed the investigation report the matter is then referred to Council for it to make a determination about the outcome of the complaint as required by the LPA.

Prior to the Council considering the matter the Society will provide to you a copy of the investigation report together with any comments or recommendations from the Ethics Committee. An invitation will be extended to your client to provide anything further he wishes Council to consider when it deals with the complaint.

Your client will therefore have an opportunity to be appraised of all the information that Council will be receiving in order for it to determine the matter and he will be afforded the opportunity to respond to any matters raised either in the investigation report or by the Ethics Committee before any decision is made under section 496 of the LPA.

39    There followed an exchange of correspondence between SPB and the Law Society about the provision of Mr Scotter’s report to Mr Wyvill and the timing of the provision of that report.

40    Under cover of a letter dated 29 March 2018 the Law Society provided a copy of Mr Scotter’s report dated 30 January 2018 in relation to the SS Complaint (SS Complaint Report) to SPB. In its letter the Law Society stated, among other things, that:

Further to previous correspondence with you about this matter we advise that the non- conflicted members of the Society’s Ethics Committee have now had the opportunity to consider the investigation report in respect of this complaint.

As a result the Ethics Committee has made recommendations that the some of the grounds of complaint be referred to the Legal Practitioners Disciplinary Tribunal (the Tribunal) and some be dismissed.

A copy of the Ethics Committee Recommendations are enclosed together with a copy of the Investigation Report prepared by Mr Scotter dated 30 January 2018. As previously advised by email this report also deals with the complaint against Ms Spurr and we have confirmed with both parties’ legal representatives there is no objection to a full copy of the report being provided to both of you in the circumstances.

Pursuant to section 496 of the Legal Profession Act only the Society’s Council can make a decision to refer part or all of a complaint to the Tribunal or to dismiss it.

…

Your client is invited to make any further submissions about the Investigation Report, the Ethics Committee Recommendations or the conduct under consideration in the complaint for the Council to take into account when it considers and determines this complaint. Please provide any further submissions to the Society within 28 days of the date of this correspondence.

The Law Society subsequently allowed Mr Wyvill until 2 July 2018 to provide his response to the SS Complaint Report and the Ethics Committee’s recommendations.

41    Under cover of a letter dated 16 May 2018 the Law Society provided a copy of Mr Scotter’s report dated 9 February 2018 in relation to the Maher Complaint (Maher Complaint Report) to SPB together with the Ethics Committee’s recommendation noting that the “Ethics Committee has made a recommendation to the Society’s Council that it should be satisfied that the conduct constitutes professional misconduct and refer the complaint to the [Tribunal]”. Mr Wyvill was invited to make any further submissions about the Maher Complaint Report, the Ethics Committee’s recommendations and the conduct under consideration in the Maher Complaint by Monday 2 July 2018.

42    On 23 May 2018 the Law Society provided SPB with a copy of Mr Scotter’s supplementary report in relation to the SS Complaint in which Mr Scotter addressed a specific question raised by the Ethics Committee of the Law Society (SS Complaint Supplementary Report).

43    On 18 and 19 July 2018 respectively SPB provided the Law Society with Mr Wyvill’s further submissions in relation to the Maher Complaint Report, the Ethics Committee’s recommendations and the conduct under consideration in the Maher Complaint and his further submissions in relation to the SS Complaint Report, the Ethics Committee’s recommendations, the conduct under consideration in the SS Complaint and SS Complaint Supplementary Report. In each case those submissions included submissions to the effect that:

(1)    should the Law Society be of the opinion that formal disciplinary proceedings should be commenced, those proceedings should be commenced in a tribunal constituted by one or more superior court judges. Mr Wyvill said that this course was appropriate in the unusual circumstances of the case because, in the case of the Maher Complaint the subject matter “concerns a superior court judge [the Trial Judge] and is closely related to a complaint made by another superior court judge [the former Statutory Supervisor]” and, in the case of the SS Complaint, the complaint itself “was made by one superior court judge [the former Statutory Supervisor] on the request of another [the Trial Judge]”;

(2)    accordingly, if the Law Society came to the view that the subject matter of the Maher Complaint and/or the subject matter of the SS Complaint calls for formal disciplinary proceedings, “the appropriate course is for it to invoke the inherent powers in relation to the control and discipline of local lawyers preserved by s 554 of the [Act]”;

(3)    in the unusual circumstances of this case it would be “undesirable and inappropriate for such powers to be sought to be invoked in the [Supreme Court]”; and

(4)    instead, if those powers are sought to be invoked that should be done in this Court.

44    By letter dated 3 September 2018 the Law Society provided documents to SPB in response to a request included in Mr Wyvill’s submissions dated 19 July 2018 concerning the SS Complaint. It was as at that time that Mr Cureton first became aware of the fact and content of the Complaint Letter and other email communications passing between the Trial Judge’s Associate and the Law Society in April 2015.

45    There followed correspondence between SPB and the Law Society which, in summary, among other things, addressed the material provided to Mr Wyvill concerning the SS Complaint over the life of that complaint; whether, as Mr Wyvill asserted, the Complaint Letter was only received by him on 3 September 2018 and, if so, the effect of that; and whether the documents that were provided by the Law Society to Mr Wyvill under cover of its letter dated 3 September 2018 were relevant to the determination of the SS Complaint.

46    On 18 December 2018 the Law Society informed SPB that its Council held meetings on 25 September 2018, 22 October 2018 and 7 November 2018 and had resolved to initiate a disciplinary application in the Tribunal pursuant to s 496(1)(a) of the Act in relation to some of the grounds of the SS Complaint and to dismiss the balance of the grounds pursuant to s 496(1)(b) of the Act and that the statement of reasons pursuant to s 501 of the Act would be provided in due course. A statement of reasons dated 15 February 2019 was provided to SPB by the Law Society under cover of a letter dated 18 February 2019.

47    On 21 February 2019 the Law Society informed SPB that its Council had determined that the Law Society would refer three grounds of the Maher Complaint to the Tribunal by filing a disciplinary application within six months of its decision and that it would dismiss one ground of the Maher Complaint. It provided a statement of reasons of the same date pursuant to s 501 of the Act.

48    On 27 February 2019 the Law Society served a disciplinary application filed in the Tribunal in relation to the Maher Complaint (Maher Complaint Application) on Mr Wyvill.

49    On 4 March 2019 SPB wrote to the Law Society noting, among other things:

3    We have not identified in the Law Society’s reasons for decision to commence the Statutory Supervisor Complaint Disciplinary Application or the Maher Complaint Disciplinary Application any confirmation that the Law Society has considered Mr Wyvill SC’s submissions to the effect that – given the subject matter of the complaints and particularly the close connection of that subject matter to the two most senior judicial officers in the Northern Territory – the appropriate forum for the conduct of the Disciplinary Applications of the Federal Court. The Law Society’s commencement of proceedings in the Legal Practitioners Disciplinary Tribunal would seem to indicate that the Law Society has either not turned its mind to our client’s submissions or does not agree with it for reasons which have not been explained.

4    Mr Wyvill SC remains of the opinion that the interests of administration of justice strongly favour the conduct of both Disciplinary Applications in the Federal Court. He holds that view for the following reasons:

(a)    given that both of the Disciplinary Applications are intimately connected with the two most senior judicial officers in the Northern Territory and will likely involve receiving evidence from another judicial officer (Judge Young of the Federal Circuit Court), it is appropriate for those applications to be dealt with by a tribunal constituted by one or more superior court judges rather than an inferior tribunal comprised as the Disciplinary Tribunal is required to be comprised. In addition, Mr Wyvill SC notes that, whilst he has complete confidence in the new Chairperson of the Tribunal, former Local Court Judge Sue Oliver, they are well-known to each other with the result that the judge may decide that it is not be appropriate for her to sit on the matter.

(b)    If both Disciplinary Applications were to proceed before the Tribunal, we note that s 533 of the Legal Profession Act 2006 (NT) provides a right to appeal from a decision of the Disciplinary Tribunal. Such an appeal is by way of rehearing with the appellate court having the power to draw its own inferences and to receive further evidence: see Supreme Court Act (NT) s 22(4). If any of the grounds of complaint were to be upheld by the Disciplinary Tribunal, Mr Wyvill SC would almost certainly exercise his right of appeal. The matter would then need to be dealt with, in effect, afresh, with resultant substantial further delay and additional legal costs as well as calling into question the utility of the proceedings before the Tribunal. In this regard, we note that one complaint has been the subject of a press report raising concerns over the reasons for the extended period of the Law Society’s conduct of the complaint processes. Clearly, there is the potential for an adverse community perception to be drawn concerning the administration of the complaints processes in the Northern Territory. That risk will be exacerbated if the appeal procedure was subsequently engaged by Mr Wyvill SC, particularly if he is successful. Finally, you would also appreciate-that the continuation of these complaints is having a damaging effect on Mr Wyvil SC’s practice and on his Chambers and colleagues (he felt obliged to resign as Head of Chambers when he commenced the present proceedings against the Law Society). It is also having a corrosive effect on relations within the profession and between the profession and the Supreme Court. For those reasons as well, it is highly desirable for the proceedings to be resolved promptly once and for all in the Federal Court.

…

10    Can you please let us have the Law Society’s views in relation to the above. In particular, please let us know:

(a)    whether the Law Society consents to the Disciplinary Applications being removed to the Federal Court or otherwise agrees to invoke the jurisdiction of the Federal Court to determine the substance of those applications; and

(b)    if not, whether the Law Society would consent to Mr Wyvill SC amending his originating application in the existing Federal Court proceedings to seek an order removing the Disciplinary Applications to the Federal Court so that this issue may be argued and determined as soon as possible.

50    By letter dated 11 March 2019 the Law Society informed SPB that it did not reject Mr Wyvill’s concerns about the appropriate forum for the disciplinary actions but considered “itself bound by statute to commence and pursue proceedings in the Tribunal”. The Law Society also said:

After completing an investigation, the Society “must” either start Tribunal proceedings, or dismiss the complaint. In this way, section 496 appears to grant exclusive jurisdiction over proceedings for complaints following Part 4.6 Investigations to the Tribunal (or, at the very least, mandates that such proceedings are commenced in the Tribunal). Whilst the Supreme Court clearly retains “inherent jurisdiction” in respect of disciplinary matters (see section 554 of the Act), the Society does not consider the commencement of proceedings in the inherent jurisdiction of the Supreme Court to be a statutory alternative available to the Society under section 496(1) once it has completed an investigation under Chapter 4.

Accordingly, the Society considered itself bound to commence the Maher Complaint Disciplinary Application in the Tribunal and will, in accordance with its statutory obligations also file the Disciplinary Application relating to the complaint by the Statutory Supervisor in the Tribunal.

In relation to the arguments you raise as to the availability of the cross-vesting provisions, the Society does not disagree that proceedings in the nature of those against Mr Wyvill SC may be cross-vested from the Supreme Court to the Federal Court. However, the Society considers that the cross-vesting issue does not arise until the issue of the jurisdiction of the Supreme Court – rather than the Tribunal – to entertain the complaint (as per our position outlined above) is resolved.

51    On 27 March 2019 the Law Society served its disciplinary application filed in the Tribunal in relation to the SS Complaint (SS Tribunal Application) on Mr Wyvill.

52    On 15 April 2019 the Tribunal made orders staying the Tribunal Applications.

Correspondence with the Statutory Supervisor and Mr Maher

53    On 8 March 2019 SPB wrote to the Statutory Supervisor providing, among other things, an update of the progress of the SS Complaint and the Maher Complaint (collectively the Complaints), informing the Statutory Supervisor that Mr Wyvill had made submissions to the Law Society that the most appropriate forum for the conduct of any disciplinary applications is this Court and setting out why Mr Wyvill considered that to be so. Their letter included:

Our client seeks your support for his submission to the Law Society that the Disciplinary Applications be removed and conducted in the Federal Court. He respectfully suggests that, as the second law officer of the Northern Territory, you would share his concern that these matters need to be determined authoritatively and finally as soon as reasonably possible.

A letter in similar terms was sent to Mr Maher.

54    By letter dated 11 March 2019 the Statutory Supervisor responded to SPB’s letter dated 8 March 2019. That letter included:

Without expressing any view about the jurisdiction of the Federal Court of Australia to do so, or the proper procedure by which such jurisdiction would be invoked, and assuming that jurisdiction can properly be invoked, I support the Federal Court’s hearing and determination of the disciplinary actions, essentially because of matters identified in paragraph 8 of your letter to me and paragraph 4 of your letter to the [Law Society] dated 4 March 2019.

55    By email dated 11 March 2019 Mr Maher informed Mr Cureton that he did not wish to have any unnecessary involvement, he had no standing, saw the matter as one entirely for the Law Society and was content to leave it in the Law Society’s hands.

Mr Wyvill’s reasons for seeking transfer of the Tribunal Applications to this Court

56    Mr Wyvill has set out why he believes it is in the interests of the administration of justice in the Northern Territory for the Tribunal Applications to be removed to and heard by this Court. That evidence is, in my opinion, largely in the nature of a submission and is addressed as such below. However, there are three matters raised by Mr Wyvill which are rather in the nature of Mr Wyvill’s belief in relation to the impact of what has or may occur. They are Mr Wyvill’s belief that:

(1)    if any of the grounds of complaint are upheld by the Tribunal he would almost certainly exercise his right of appeal and would rely upon cross-vesting legislation to commence any appeal in this Court. Mr Wyvill is of the opinion that the matter would then, in effect, need to be dealt with afresh, with resulting further delay and additional legal costs which would call into question the utility of the proceedings before the Tribunal;

(2)    the continuation of the Complaints is having a damaging effect on his practice and on his chambers and colleagues. Mr Wyvill stepped down as head of William Forster Chambers when he commenced this proceeding against the Law Society; and

(3)    these proceedings are having a corrosive effect on relations within the profession and between the profession and the Supreme Court.

the construction issue

57    The first issue that arises is the construction of s 496 of the Act and whether the Law Society is not prohibited from commencing and pursuing proceedings in relation to the Complaints in the Supreme Court as opposed to the Tribunal.

58    Whether Mr Wyvill is entitled to the relief sought in paras 1A, 5A and 5B of the FAOA depends in the first instance on his establishing that the construction for which he contends is the proper construction of s 496 of the Act. The effect of the relief sought would be declarations that the Law Society is not prohibited from commencing and pursuing proceedings in this Court and is not bound to pursue proceedings in the Tribunal, declarations that the decisions made by the Law Society to commence the Tribunal Applications are void and orders preventing the Law Society from taking any further steps in the Tribunal Applications.

59    In para 1B of the FAOA Mr Wyvill seeks relief in the exercise of the inherent jurisdiction and the powers reserved by s 554 of the Act staying the Tribunal Applications and for the making of such directions as the Court thinks fit to facilitate the determination of the subject matter of each of the Tribunal Applications in this Court. While senior counsel for Mr Wyvill noted that in theory the relief sought in para 1B did not depend on a finding that the Act should be construed in the way contended for by Mr Wyvill, he also conceded that, as a practical matter, in the exercise of my discretion, I would not grant the relief sought in para 1B if the Law Society is not able to bring the Tribunal Applications in this Court.

60    Before considering whether the construction of the Act urged by Mr Wyvill is available, it is convenient to set out a summary of the relevant legislative provisions.

Statutory framework

61    The main purposes of the Act are set out in s 3 and are:

 (a)    to promote the administration of justice;

(b)    to provide for the protection of consumers of legal services and the public generally;

(c)    to regulate legal practice in this jurisdiction, including the legal practice of foreign law by foreign lawyers;

 (d)    to facilitate the regulation of legal practice on a national basis.

Section 4 of the Act defines “this jurisdiction” to mean “the Territory”.

62    Chapter 4 of the Act concerns complaints and discipline. It is divided into 15 parts addressing: preliminary matters (Pt 4.1); key concepts (Pt 4.2); application of Ch 4 (Pt 4.3); complaints about Australian legal practitioners (Pt 4.4); mediation (Pt 4.5); investigation of complaints (Pt 4.6); decisions of Law Society (Pt 4.7); immediate suspension of local practising certificate (Pt 4.8); general procedural matters (Pt 4.9); appeals against Law Society decisions (Pt 4.10); proceedings in Tribunal for disciplinary applications (Pt 4.11); compensation (Pt 4.12); publicising disciplinary action (Pt 4.13); inter-jurisdictional provisions (Pt 4.14); and miscellaneous matters (Pt 4.15)

63    The purposes of Ch 4 are set out in s 461 which relevantly provides:

(1)    The purposes of this Chapter are as follows:

(a)    to provide a nationally consistent scheme for the discipline of the legal profession in this jurisdiction, in the interests of the administration of justice and for the protection of consumers of the services of the legal profession and the public generally;

(b)    to promote and enforce the professional standards, competence and honesty of the legal profession;

(c)    to provide a means of redress for complaints about lawyers;

(d)    to enable lay persons to participate in complaints and disciplinary processes involving lawyers to ensure community interests and perspectives are recognised;

(e)    to give complainants, lawyers and other participants in the system immunity from civil liability for communications made by them in good faith in connection with the complaints and disciplinary system.

…

(3)    The purposes of this Chapter relating to the providers of legal services are as follows:

(a)    to ensure information is readily available to lawyers about the means of redress that are available under the scheme;

(b)    to ensure the rules of natural justice (being rules for procedural fairness) are applied to any disciplinary proceedings taken against lawyers;

(c)    to ensure lawyers are aware of the standards of honesty, competence and diligence expected of them.

…

64    Section 462 of the Act defines “disciplinary application” for the purposes of Ch 4 to mean “an application made to the Disciplinary Tribunal under section 515”. The phrase “Disciplinary Tribunal” is defined in s 4 of the Act to mean “the Legal Practitioners Disciplinary Tribunal established by section 669” (referred to in these reasons as the Tribunal).

65    Section 468(1) of the Act provides that, subject to subs (3), Ch 4 applies to an Australian legal practitioner’s conduct occurring in the Northern Territory. Section 468(3) excludes the application of Ch 4 to conduct occurring in the Northern Territory if the Law Society or the complainant and the Australian legal practitioner consent to it being dealt with under a corresponding law and the conduct is capable of being dealt with under the corresponding law: subs (4).

66    Section 488 of the Act provides that, subject to the exceptions listed in subs (2), the Law Society must investigate each complaint under Pt 4.6 of Ch 4.

67    Section 496, in Pt 4.7, is titled “Decision after investigation”. It sets out the actions which must follow after the completion of an investigation of a complaint and provides:

(1)    After completing an investigation of a complaint against an Australian legal practitioner, the Law Society must:

(a)    start proceedings in the Disciplinary Tribunal under this Chapter; or

(b)    dismiss the complaint under this Chapter; or

(c)    take action under section 499.

(2)    Unless section 499 applies, the Society must start proceedings in the Tribunal in relation to a complaint against an Australian legal practitioner if satisfied there is a reasonable likelihood the practitioner will be found by the Tribunal to have engaged in unsatisfactory professional conduct or professional misconduct.

(3)    Nothing in this section affects section 479.

68    Section 499 of the Act provides for a mechanism by which the Law Society may reprimand or fine a legal practitioner where, upon completion of an investigation, the Law Society:

(1)    …

(b)    is satisfied there is a reasonable likelihood that the practitioner would be found guilty by the Disciplinary Tribunal of unsatisfactory professional conduct (but not professional misconduct); and

(c)    is satisfied the practitioner is generally competent and diligent and that no other material complaints have been made against the practitioner.

69    Section 502 of the Act gives the Law Society the power to immediately suspend a local practising certificate. It includes:

(1)    This section applies if the Law Society considers it necessary in the public interest to immediately suspend a local practising certificate on the ground of the seriousness of the conduct in relation to which a complaint has been made in relation to the holder of the certificate.

 (2)    The Society may immediately suspend the practising certificate.

 (3)    The suspension operates until the earliest of the following:

(a)    the complaint is withdrawn or dismissed;

(b)    the suspension is revoked;

(c)    the subject matter of the complaint is finally dealt with by the Disciplinary Tribunal;

(d)    the suspension is successfully appealed.

70    Section 505 of the Act provides that it is the duty of the Law Society to deal with complaints as efficiently and expeditiously as is practicable.

71    Aspects of Pt 4.11, concerning proceedings in the Tribunal for disciplinary applications, were brought to my attention.

72    Section 515 concerns the commencement of proceedings and relevantly provides:

(1)    Proceedings may be started in the Disciplinary Tribunal in relation to the whole or part of a complaint against an Australian legal practitioner by an application (a “disciplinary application”) made by the Law Society under this Chapter.

(2)    The application may contain one or more allegations of unsatisfactory professional conduct or professional misconduct.

(3)    An allegation in the application must relate to the subject matter of the complaint but need not be an allegation made in the original complaint or have been the subject of separate or further investigation under this Chapter.

73    Section 516 of the Act concerns the time for starting proceedings and provides that an application may be made to the Tribunal at any time within six months after the Law Society decides that proceedings be started in the Tribunal in relation to the complaint. The Tribunal may, on written application by the Law Society, extend the time for making such an application, even where the time has expired. In doing so it must have regard to all the circumstances of the case and the matters set out in subs (4).

74    Section 523 provides that a hearing under Pt 4.11 must be open to the public unless the Tribunal orders otherwise. Section 525, titled “Decisions of Disciplinary Tribunal’, applies if, after completing a hearing under Pt 4.11, the Tribunal is satisfied that the practitioner is guilty of unsatisfactory professional conduct or professional misconduct. If so, the Tribunal can make the order it considers appropriate including any one or more of the orders specified in that section. The available orders are extensive. They include suspension for a specified period or cancellation of a local practising certificate, imposing conditions on a practitioner’s practising certificate, public reprimand, imposing a fine and an order recommending that the practitioner’s name be removed from the local roll.

75    If the Tribunal makes an order recommending that the name of an Australian legal practitioner who is a local lawyer be removed from the local roll, the Supreme Court may order the removal of the name from the role: s 528(3) of the Act.

76    Section 533 of the Act concerns appeals against orders of the Tribunal. Either the complainant or the Australian legal practitioner or other person against whom an order is made by the Tribunal under s 525 of the Act may appeal against the Tribunal’s decision to make that order. An appeal must be started within 28 days after receipt of the notice of the decision. On hearing the appeal, the Supreme Court may make the order it considers appropriate.

77    Section 554 of the Act, in Pt 4.15, is titled “jurisdiction of Supreme Court” and provides:

The inherent jurisdiction and powers of the Supreme Court in relation to the control and discipline of local lawyers are not affected by anything in this Chapter and extend to:

(a)    local legal practitioners; and

(b)    interstate legal practitioners engaged in legal practice in this jurisdiction.

Mr Wyvill’s submissions

78    Mr Wyvill observed that the question of whether the Law Society was bound by the Act to commence proceedings in the Tribunal, as it suggested it was, is not determinative given that proceedings have now been commenced. He said that what remains in issue is whether the Law Society is bound to pursue proceedings in the Tribunal in relation to the Complaints and prohibited from commencing and pursuing proceedings in this Court, which he contended was not the case.

79    Mr Wyvill submitted that the terms of s 496 must be read “on the prima facie basis that [the Act’s] provisions are intended to give effect to harmonious goals”, quoting Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355 (Project Blue Sky) at [69]-[70] per McHugh, Gummow, Kirby and Hayne JJ, and thus must be read with s 554 of the Act. He further submitted that the Law Society’s ability to bring proceedings in the Supreme Court of the kind regularly taken by law societies is thereby preserved.

80    Mr Wyvill submitted that there is nothing in the Act that expressly imposes a duty on the Law Society to pursue the Tribunal Applications in the Tribunal as opposed to in another forum of competent jurisdiction such as this Court and nor would such a duty and prohibition be implied. To that end, Mr Wyvill submitted that implication of such a duty and prohibition would be inconsistent with the express preservation by s 554 of the Act of what is there described as the “inherent jurisdiction and powers of the Supreme Court in relation to the control and discipline of local lawyers”.

81    Mr Wyvill contended that that being so, just as s 34 of the Mutual Recognition Act 1992 (Cth), which permits a person to apply to the Administrative Appeals Tribunal for review of a decision to admit or refuse to admit an interstate legal practitioner to practice in a State or Territory, does not oust the courts’ inherent jurisdiction as to control and discipline of lawyers, nor does s 496 or any other provision of the Act oust that jurisdiction or prohibit it from being invoked where proceedings in the Tribunal have been started as contemplated by ss 496(1)(a) and 516(1).

82    Mr Wyvill referred to the decision in Re Lee (2015) 35 NTLR 82 (Re Lee) in which the practitioner applied to the Supreme Court to remove his name from the local roll after the Law Society had commenced proceedings in relation to the practitioner in the Tribunal. Mr Wyvill noted that in that case the Law Society submitted that the public interest would be protected by the orders sought by the practitioner and, if the order was made, the Law Society would seek the Tribunal’s leave to discontinue its disciplinary proceeding. Mr Wyvill submitted that, although in Lee the practitioner applied to be removed from the local roll, no substantively different analysis is called for in relation to the question of whether the Law Society can invoke the inherent jurisdiction after it has completed an investigation into a complaint and that, if the inherent jurisdiction is invoked, a similar course could be taken in this case in relation to the pending disciplinary proceedings against him.

83    Mr Wyvill submitted that the contrary view has consequences which are most unlikely to have been intended. He noted, by way of example, that under the Act the Tribunal has no power to remove the name of a practitioner from the local roll and, at most, it is empowered to make an order recommending that the name of the practitioner be removed from the local roll. Mr Wyvill said that this meant, on the Law Society’s approach, it will be bound to commence and pursue proceedings in the Tribunal in relation to certain complaints even where the subject matter of that complaint clearly calls for a remedy that the Tribunal has no power to give, a result that is “even stranger” if a completed investigation into a complaint revealed egregious and admitted conduct of a kind that calls for a legal practitioner to be removed from the local roll immediately.

84    Mr Wyvill contended that the correct view is that the inherent jurisdiction and powers of the Supreme Court “comfortably, and workably, co-exist”, such that the Act is not to be construed as prohibiting the Law Society from invoking the inherent jurisdiction in a particular case and instead requiring it to pursue proceedings in the Tribunal. Mr Wyvill said that the Court should make a declaration to that effect and that, as he understands it, the Law Society accepts that this Court has power to make such a declaration if persuaded of the argument.

Legal principles

85    In Federal Commissioner of Taxation v Consolidated Media Holdings Ltd (2012) 250 CLR 503 (Consolidated Media Holdings) at [39] the High Court (French CJ, Hayne, Crennan, Bell and Gageler JJ) said:

“This Court has stated on many occasions that the task of statutory construction must begin with a consideration of the [statutory] text”. So must the task of statutory construction end. The statutory text must be considered in its context. That context includes legislative history and extrinsic materials. Understanding context has utility if, and in so far as, it assists in fixing the meaning of the statutory text. Legislative history and extrinsic materials cannot displace the meaning of the statutory text. Nor is their examination an end in itself.

(footnote omitted.)

86    As to purpose, in Project Blue Sky at [69]-[70], the majority (McHugh, Gummow, Kirby and Hayne JJ) said:

69    The primary object of statutory construction is to construe the relevant provision so that it is consistent with the language and purpose of all the provisions of the statute. The meaning of the provision must be determined “by reference to the language of the instrument viewed as a whole”. In Commissioner for Railways (NSW) v Agalianos, Dixon CJ pointed out that “the context, the general purpose and policy of a provision and its consistency and fairness are surer guides to its meaning than the logic with which it is constructed”. Thus, the process of construction must always begin by examining the context of the provision that is being construed.

70    A legislative instrument must be construed on the prima facie basis that its provisions are intended to give effect to harmonious goals. Where conflict appears to arise from the language of particular provisions, the conflict must be alleviated, so far as possible, by adjusting the meaning of the competing provisions to achieve that result which will best give effect to the purpose and language of those provisions while maintaining the unity of all the statutory provisions. Reconciling conflicting provisions will often require the court “to determine which is the leading provision and which the subordinate provision, and which must give way to the other”. Only by determining the hierarchy of the provisions will it be possible in many cases to give each provision the meaning which best gives effect to its purpose and language while maintaining the unity of the statutory scheme.

(footnotes omitted.)

87    In Federal Commissioner of Taxation v Unit Trend Services Pty Ltd (2013) 250 CLR 523 at [47], after referring to the observations of the Court in Consolidated Media Holdings at [39] that the task of statutory construction must commence with the text but that context and purpose are also important, the High Court (French CJ, Crennan., Kiefel, Gageler and Keane JJ) continued as follows:

In Certain Lloyd’s Underwriters v Cross French CJ and Hayne J said:

“The context and purpose of a provision are important to its proper construction because, as the plurality said in Project Blue Sky Inc v Australian Broadcasting Authority, ‘[t]he primary object of statutory construction is to construe the relevant provision so that it is consistent with the language and purpose of all the provisions of the statute’ … That is, statutory construction requires deciding what is the legal meaning of the relevant provision ‘by reference to the language of the instrument viewed as a whole’ and ‘the context, the general purpose and policy of a provision and its consistency and fairness are surer guides to its meaning than the logic with which it is constructed’. (Emphasis of French CJ and Hayne J.)

(footnotes omitted.)

88    More recently, in SZTAL v Minister for Immigration and Border Protection (2017) 262 CLR 362 (SZTAL) at [14] a majority of the High Court (Kiefel CJ, Nettle and Gordon JJ) set out the approach to statutory interpretation as follows:

The starting point for the ascertainment of the meaning of a statutory provision is the text of the statute whilst, at the same time, regard is had to its context and purpose. Context should be regarded at this first stage and not at some later stage and it should be regarded in its widest sense. This is not to deny the importance of the natural and ordinary meaning of a word, namely how it is ordinarily understood in discourse, to the process of construction. Considerations of context and purpose simply recognise that, understood in its statutory, historical or other context, some other meaning of a word may be suggested, and so too, if its ordinary meaning is not consistent with the statutory purpose, that meaning must be rejected.

(footnotes omitted.)

89    After quoting from K & S Lake City Freighters Pty Ltd v Gordon & Gotch Ltd (1985) 157 CLR 309 at 315 and CIC Insurance Ltd v Bankstown Football Club Ltd (1997) 187 CLR 384 at 408, which emphasise that in the “modern approach” to statutory interpretation context, used in its widest sense, must be considered at the first instance, Gageler J in SZTAL at [37]-[39] added that:

37.    Both of those passages have been “cited too often to be doubted”. Their import has been reinforced, not superseded or contradicted, by more recent statements emphasising that statutory construction involves attribution of meaning to statutory text. The task of construction begins, as it ends, with the statutory text. But the statutory text from beginning to end is construed in context, and an understanding of context has utility “if, and in so far as, it assists in fixing the meaning of the statutory text”.

38.    The constructional choice presented by a statutory text read in context is sometimes between one meaning which can be characterised as the ordinary or grammatical meaning and another meaning which cannot be so characterised. More commonly, the choice is from “a range of potential meanings, some of which may be less immediately obvious or more awkward than others, but none of which is wholly ungrammatical or unnatural”, in which case the choice “turns less on linguistic fit than on evaluation of the relative coherence of the alternatives with identified statutory objects or policies”.

39.    Integral to making such a choice is discernment of statutory purpose. The unqualified statutory instruction that, in interpreting a provision of a Commonwealth Act, “the interpretation that would best achieve the purpose or object of the Act (whether or not that purpose or object is expressly stated in the Act) is to be preferred to each other interpretation” “is in that respect a particular statutory reflection of a general systemic principle”.

(footnotes omitted.)

Consideration

90    In light of the principles set out above I turn then to consider the provisions of the Act in issue before me.

91    Central to the debate between the parties is s 496 of the Act. The construction of that section must start with its text. In that regard, its language is mandatory. That is, it provides that upon completing its investigation of a complaint, the Law Society must do one of three things: dismiss the complaint; commence proceedings in the Tribunal; or take action under s 499 of the Act. Section 496(2) also provides that, unless s 499 applies, the Law Society must commence proceedings in the Tribunal if it is satisfied that there is a reasonable likelihood that the practitioner will be found by the Tribunal to have engaged in unsatisfactory professional misconduct. The language of s 496 is clear and prescriptive of the steps that the Law Society is able to take after it completes an investigation into a complaint undertaken pursuant to Pt 4.6 of Ch 4 of the Act.

92    Mr Wyvill contended that s 496 is not an exhaustive statement of the options available to the Law Society and that it has at least one more option open to it because of s 554, which must be read in the context of the whole of the Act.

93    The Act, through s 554, undeniably preserves the inherent jurisdiction and power of the Supreme Court in relation to the control and discipline of local lawyers and interstate practitioners practising in the jurisdiction. However, that does not mean that an alternative avenue is open to the Law Society upon it completing its investigation into a complaint. If the Law Society elects to commence a proceeding, s 496 mandates that it be commenced in the Tribunal, there is no discretion reserved to the Law Society to commence it in another venue of its choosing. That that is so is evident when s 496 is considered in context and having regard to the purpose of the Act.

94    The purposes of the Act include to provide for the protection of consumers of legal services and the public generally. More specifically, the purposes of Ch 4 include to provide a means of redress for complaints about lawyers and to enable lay persons to participate in disciplinary processes involving lawyers to ensure community interests and perspectives are recognised. The scheme set out in Ch 4 of the Act prescribes a procedure to be followed where there is a complaint about the conduct of a legal practitioner, the steps to be taken upon the conclusion of an investigation and, where a proceeding is commenced in the Tribunal, the way in which that proceeding is to be conducted and the orders that can be made at the conclusion of the proceeding.

95    An aspect of that process, the commencement and maintenance of disciplinary proceedings in the Tribunal as mandated by s 496 of the Act, of itself achieves the purposes of Ch 4. For a disciplinary hearing the Tribunal is to be constituted by between three and five members who may include the chairperson of the Tribunal and must include a lay person and an Australian lawyer: see s 674 of the Act. That is, Parliament has not only mandated when a disciplinary proceeding must be commenced and that such a proceeding must be commenced in the Tribunal but has also prescribed the requirements for the constitution of the Tribunal which is to include at least one lay person and one peer, that is, an Australian lawyer. Part 4.11 then sets out how the Tribunal will conduct the proceeding in the Tribunal including that the rules of evidence will apply; the hearing will be in public, unless otherwise ordered; and the range of orders that the Tribunal can make if it is satisfied that the relevant practitioner is guilty of unsatisfactory professional conduct or professional misconduct.

96    It is evident, when seen in context, that s 496 is part of a scheme for the orderly investigation of complaints and their resolution either by their termination, disposal by way of summary dismissal or by commencement of a proceeding in the Tribunal. The scheme of Ch 4 of the Act provides for a comprehensive and transparent procedure to be followed, easily accessible to the public and legal practitioners and to be consistently applied, in terms of procedure, by the Law Society to all legal practitioners.

97    To construe the Act in the way that I have is not inconsistent with the preservation of the inherent powers of the Supreme Court provided by s 554 of the Act. Those powers are, as de Jersey CJ observed in Re Petroulias [2005] 1 Qd R 643 at 653, “a pervasive jurisdiction not readily diminished or displaced”, which was found to exist notwithstanding a right of review to the Administrative Appeals Tribunal under the legislation being considered in that case.

98    There is no dispute that, notwithstanding the provisions of Ch 4 of the Act, the Supreme Court retains its inherent jurisdiction in relation to the control and discipline of lawyers. But the fact that that is so does not mean that the Law Society has a discretion as to where it may commence or even continue a disciplinary proceeding. To reach that conclusion would be to read Ch 4 as subject to s 554 in a way that, in my view, is not intended, having regard to the context of s 496 and the purposes of the Act. Section 554 is not intended to preserve a discretion to the Law Society but is intended to reserve the undisputed jurisdiction in the Supreme Court of control of its own officers. That is a wide jurisdiction but, in my view, having regard to the scheme of the Act, falls short of giving the Law Society the discretion to prosecute a complaint by a disciplinary application following the completion of an investigation pursuant to the scheme under the Act outside of the confines of the mandatory wording of s 496.

99    Nor does the fact that the Tribunal lacks power to remove a practitioner from the roll cause me to come to a different conclusion. It is unsurprising that the exercise of that power, at the extreme end of available sanctions, is reserved to the Supreme Court. That that is so is not unique to the Northern Territory as the cases discussed at [102]-[108] below reveal. The power to remove a solicitor from the roll is an incident of the power to admit persons to practice as officers of the court: see Re Lee at [7]. Even if an investigation reveals, as Mr Wyvill described, “egregious and admitted conduct of a kind that called for a legal practitioner to be removed from the local roll immediately”, there is no warrant for the Law Society not to follow the process in s 496 of the Act. In the example given a disciplinary proceeding would be commenced in the Tribunal and would proceed in accordance with the Act concluding with the making of orders by the Tribunal, if satisfied that the claim is made out. The legal practitioner the subject of the complaint would have a right to defend the proceeding or may of his own motion commence a proceeding in the Supreme Court seeking removal from the roll: see, for example, Re Lee (at [102] below).

100    In any event the Law Society is empowered under s 502 of the Act to immediately suspend a local practising certificate if the conduct the subject of the complaint is sufficiently serious and the Law Society considers it necessary in the public interest, thus pre-empting the need for it to approach the Court until the disciplinary proceeding provided for in Ch 4 of the Act has been concluded in the Tribunal. There is no reason for the Law Society to take matters into its own hands and to effectively deny the legal practitioner the right to that intermediate step prescribed by the legislation.

101    Mr Wyvill relies on a series of cases to support his construction of the Act, none of which expressly address the issue now before me. I consider each of those cases below.

102    In Re Lee a legal practitioner who was subject to disciplinary proceedings applied to the Supreme Court to have his name removed from the roll of practitioners. He was in ill health and had ceased to practise. At [7], Barr J observed that the court’s power to remove a legal practitioner’s name from the roll is an aspect of its inherent jurisdiction in relation to the control and discipline of legal practitioners which is not affected by the Act, referring to s 554 of the Act. His Honour also noted that “the power to ‘strike off’ is an incident of the power to admit”.

103    I did not understand it to be in dispute that an application can be made to the Supreme Court after the Law Society has commenced disciplinary proceedings in the Tribunal as was the case in Re Lee. Rather, the issue is whether disciplinary proceedings can be commenced in the Supreme Court or removed to that court after their commencement in the Tribunal. Re Lee did not consider that issue and the facts before the Supreme Court in that matter were quite different to those before me. The application made by the legal practitioner in that case was not to remove the disciplinary proceeding that had been commenced in the Tribunal to the Supreme Court but to remove the legal practitioner’s name from the roll. That application was made against the background of a disciplinary proceeding that had been commenced against the legal practitioner in the Tribunal. Presumably, for that reason the Law Society sought leave to appear at the hearing of the application. At [10], in making the order sought by the legal practitioner, Barr J observed that:

The court might decline to make an order on the application of a practitioner if the public interest demanded that the court (or the appropriate body) exercise its disciplinary jurisdiction, which could result in the making of orders additional to the removal of the practitioner’s name from the roll. In this context, there is a disciplinary proceeding against the applicant pending in the Legal Practitioners Disciplinary Tribunal. The Law Society initiated the complaint which led to that proceeding. No hearing has yet taken place. In this Court, however, the Law Society did not make any submission to the effect that the public interest required that the disciplinary proceeding should continue to hearing or other conclusion. Rather, I was informed that, if this Court made the order sought by the applicant, the Law Society would seek the leave of the Tribunal to discontinue the disciplinary proceeding.

104    Justice Barr emphasised the public interest in the continuation of disciplinary proceedings by the appropriate body as a reason why the Supreme Court might decline to exercise its jurisdiction in the circumstances before his Honour. In doing so, his Honour recognised the possibility that such proceedings could be before the Supreme Court. However, given the issues in the case before him, his Honour did not consider in what circumstances that would be so and the role of that court in such proceedings.

105    Mr Wyvill also relies on Council of the Law Society of New South Wales v Kim [2017] NSWCA 292 (Kim) as an example of a law society or equivalent body commencing proceedings directly in a supreme court to seek disciplinary relief. In Kim the Council of the Law Society of New South Wales (Law Society NSW) commenced proceedings seeking declarations and orders against Ms Kim. At [3] the New South Wales Court of Appeal (McColl and White JJA, Barrett AJA) noted that in pursuing its application the Law Society NSW did not rely on any provision of the Legal Profession Uniform Law (NSW) (Uniform Law) but invoked the inherent jurisdiction of the Supreme Court of New South Wales to control and discipline lawyers, which jurisdiction is expressly recognised and preserved by s 264(1) of the Uniform Law.

106    Section 264 is in Ch 5 of the Uniform Law which concerns “dispute resolution and professional discipline”. Section 264(1) is in similar terms to s 554 of the Act and provides that:

The inherent jurisdiction and powers of the Supreme Court with respect to the control and discipline of Australian lawyers are not affected by anything in this Chapter, and extend to Australian legal practitioners whose home jurisdiction is this jurisdiction and to other Australian legal practitioners engaged in legal practice in this jurisdiction.

107    As the Law Society pointed out, the Uniform Law differs to the Act in that s 300 of the Uniform Law, which like s 496 of the Act concerns the commencement of proceedings in the “designated tribunal”, uses permissive language. It provides that “[t]he designated local regulatory authority may initiate and prosecute proceedings against a respondent lawyer in the designated tribunal” where the designated local authority forms the necessary state of satisfaction about the lawyer’s alleged conduct. In other words, the Law Society NSW has a discretion whether to commence proceedings in the designated tribunal. Section 496 of the Act does not confer such a discretion on the Law Society.

108    In a similar vein Mr Wyvill also took the Court to Law Society of the Australian Capital Territory v Burns (2012) 6 ACTLR 282 (Burns) in which the Law Society of the Australian Capital Territory (Law Society ACT) sought an order for removal of Ms Burns’ name from the roll of people admitted to the legal profession under the Legal Profession Act 2006 (ACT) (LP Act ACT) on the basis that she was not a fit and proper person to remain admitted to the legal profession. Ms Burns consented to the making of the order. The Law Society ACT did not apply for or invite the Court to make any findings about whether Ms Burns’ conduct constituted professional misconduct or unsatisfactory professional conduct. The LP Act ACT included s 462 which, like s 554 of the Act, preserved the inherent jurisdiction of the Supreme Court of the Australian Capital Territory (Supreme Court ACT) in relation to the control and discipline of local lawyers. The LP Act ACT also included s 410 which is in the same terms as s 496(1) of the Act and prescribes the alternate three steps which the Law Society ACT must take upon completing an investigation of a complaint against a person, one of which is the making of an application in the relevant tribunal.

109    Once again, as Mr Wyvill accepted, the issue before me was not determined in Burns. However Mr Wyvill relies on Burns as an illustration of the utility of the construction of the Act that he propounds. He also pointed out that the Law Society ACT did not feel constrained, in the way that the Law Society does in the present case, from commencing a proceeding in the Supreme Court ACT. For my part, I find it difficult to draw any analogy or indeed comfort from Burns. It was not apparent from the reasons whether the Law Society ACT had completed an investigation prior to commencing proceedings seeking removal of Ms Burns’ name from the roll or if there was an extant application before the relevant tribunal, although one might infer, given that the matter proceeded as an application for the exercise of that court’s inherent jurisdiction, that that was not the case.

110    For those reasons I would reject Mr Wyvill’s construction of the Act. In my opinion, where the Law Society completes an investigation it is required to take one of the steps in s 496 of the Act. Insofar as it determines, or is required because of subs (2), to commence disciplinary proceedings it must do so in the Tribunal. That is what has occurred in this case. Further, having regard to the scheme of Ch 4 and the purposes of the Act and Ch 4, in my opinion the Law Society, as the regulator and effectively the prosecutor is required to continue those proceedings in the Tribunal. It follows that I would decline to make the declaration sought in para 1A of the FAOA. For completeness I note that it also follows that, in my opinion, there was no error of law on the part of the Law Society in commencing the Tribunal Applications in the Tribunal. Similarly, because of the conclusion I have reached in relation to the construction of the Act, I do not need to consider whether orders or declarations should be made in the terms sought in paras 1B, 5A or 5B of the FAOA.

certiorari to remove

111    By para 1C of the FAOA Mr Wyvill seeks, in the alternative to para 1B, an order in the nature of certiorari, or alternatively a writ of certiorari, removing to this Court for hearing the Tribunal Applications. As I understood Mr Wyvill’s position, his entitlement to that relief could arise for consideration in two ways:

(1)    as set out in Mr Wyvill’s written submissions, in the event that the Court accepts his construction of the Act and makes a declaration in the form of para 1A but, despite that, the Law Society does not propose to commence disciplinary proceedings in this Court; or

(2)    as put in its oral submission, as a standalone remedy by which the Court would issue a writ removing the Tribunal Applications from the Tribunal to this Court.

112    The Law Society’s position is that, even if the proposed declaration in para 1A of the FAOA was made by the Court, it would not propose to commence or re-commence proceedings in this Court and, in any event, opposes the removal of the Tribunal Applications to this Court.

Mr Wyvill’s submissions

113    Mr Wyvill submitted that, although the granting of relief in the form of the writ of certiorari to remove has been rarely used in recent times, there is no reason to think that the power to issue certiorari for such a purpose no longer exists. He contended that the power’s limited use in recent times is explained by the existence of more modern procedures for transfers and statutory removals but that the power remains available in appropriate cases.

114    Mr Wyvill submitted that this Court should exercise its power to issue a writ of certiorari to remove to the Tribunal, or to make an order to like effect, and that the jurisdiction and power that this Court has to take that course arises as follows:

(1)    the Supreme Court and thus this Court has continued “inherent” jurisdiction to deal with disciplinary matters;

(2)    the Supreme Court also has, subject to presently irrelevant exceptions, the same original jurisdiction, both civil and criminal, as the Supreme Court of South Australia had in relation to the state of South Australia immediately before 1 January 1911 (when the Northern Territory was separated from South Australia): see s 14(1)(b) of Supreme Court Act 1979 (NT);

(3)    immediately before 1 January 1911, the Supreme Court of South Australia had “jurisdiction in all cases whatsoever as fully and amply in [South Australia] and its dependencies as Her Majesty’s Courts of King’s Bench, Common Pleas, and Exchequer … lawfully have or hath in England”: see s 7 of the Supreme Court Act 1855-6 (SA);

(4)    the Courts of King’s Bench had jurisdiction and power to try matters removed from inferior courts or tribunals; and

(5)    pursuant to s 23 of the Federal Court of Australia Act 1976 (Cth) (FCA Act), this Court has power “in relation to matters in which it has jurisdiction, to make orders of such kinds…and to issue, or direct the issue of, writs of such kinds, as the Court thinks appropriate”, which would extend to the writ at issue here.

115    Mr Wyvill submitted that in the unusual circumstances of this case the power should be exercised for the following reasons:

(1)    the pending disciplinary proceedings are intimately connected with complaints of the two most senior judicial officers in the Northern Territory. That being so, it is appropriate that those proceedings be determined by a tribunal constituted by persons of similar status to those judicial officers, that is, one or more other superior court judges. A judge of the Federal Circuit Court may also be required to give evidence. There are no superior court judges who are members of the Tribunal and there are no provisions in the Act which authorise the appointment of acting Tribunal members for particular cases;

(2)    it is in the interests of justice being done and being seen to be done that the subject matter of the pending disciplinary proceedings be determined by a tribunal constituted by a persons who are not connected with the administration of justice in the Northern Territory. Mr Wyvill points out that the NT Court of Appeal was constituted by interstate acting judges when hearing and determining the Appeal Proceeding and the Law Society appointed a Victorian barrister to investigate the Complaints;

(3)    reasons of procedural efficiency support the disciplinary proceedings being determined once and for all in this Court. If those proceedings are determined in the Tribunal adversely to Mr Wyvill, he will almost certainly exercise his right under s 533 of the Act to appeal from that determination and would likely commence that appeal in this Court. Mr Wyvill notes that such an appeal would be by way of rehearing and would include a power for the Court to draw its own inferences and to receive further evidence, referring to s 22(4) of the Supreme Court Act 1979 (NT). Removing the pending disciplinary proceedings to this Court offers the prospect that the Complaints can be dealt with once and relatively promptly. Mr Wyvill notes that the Complaints have now been pending for about four years and their continued pendency is having a damaging effect on his practice and a corrosive effect on relations within the Norther Territory legal profession and between the profession and the Supreme Court. Mr Wyvill notes that certiorari is issued “to insure that the applicant for the writ may have the more sure and speedy justice” which is called for in this case; and

(4)    the principle complainant, the current Statutory Supervisor, supports the Court hearing and determining the disciplinary actions, essentially for the reasons set out at [49] above, while the other complainant, Mr Maher, does not object to the proceedings concerning his complaint being removed to this Court. Mr Wyvill contended that the Law Society has not, to date, articulated any substantive reason why this Court is said to be an inappropriate forum to determine the proceedings.

116    Mr Wyvill therefore submitted that a writ of certiorari should issue or an order should be made in the nature of certiorari removing the proceedings presently before the Tribunal to this Court for hearing and determination. He also noted that there was an alternative route to the same outcome by granting the relief sought in para 1B. That would be for this Court, in aid of the jurisdiction and powers preserved by s 554 of the Act and exercisable by this Court, to order that the proceedings in the Tribunal be stayed and to make directions to facilitate the determination of the subject matter of the disciplinary proceedings in this Court. However, as noted at [59] and [110] above, because of the practical effect of the conclusion I have reached in relation to the construction of the Act, I do not propose to consider the availability of the relief sought in para 1B of the FAOA any further.

117    The Law Society opposes the making of orders effecting the removal of the Tribunal Applications to this Court. It contends that the remedy of certiorari should only be available to quash decisions of the Tribunal where there is jurisdictional error by the Tribunal, and that in this case there is no record for the Court to review because the Tribunal has not made a decision. In any event, the Law Society submits that this Court does not need to resolve the question of whether the Court has the power asserted by My Wyvill as there is no basis for the exercise of any discretion to remove the proceedings from the Tribunal to this Court.

Consideration

118    The first issue to resolve is whether, as Mr Wyvill contends, the relief sought remains available.

119    The historical development of the writ of certiorari was discussed in Re McBain; ex parte Australian Catholic Bishops Conference (2002) 209 CLR 372 (Re McBain). In that case a proceeding was brought in the original jurisdiction of the High Court to quash a decision of a single judge of this Court because it was said to be wrong in law. Relevantly, no party to the proceeding before the primary judge sought to question his Honour’s decision. That is, the applicants in the High Court were not parties to the action in this Court. The primary question that arose for consideration was the manner in which the challenge to the decision of this Court was made. The applications before the High Court sought relief in the form of certiorari, quashing the decision in this Court, for error of law on the face of the record. In his reasons McHugh J considered the nature of certiorari to quash, noting that it is a discretionary remedy: at [95]. In doing so, commencing at [98], his Honour addressed the historical development of certiorari, including at [98]-[99] that:

98    The discretionary nature of the writ of certiorari is the product of its historical development. Although the common law courts had developed the writ by the early part of the fourteenth century, they did not use the writ to quash proceedings until well into the seventeenth century. Historically, the function of the writ was to call up the records of proceedings in inferior courts and tribunals and any records in the custody of an administrative officer where a question had arisen concerning the correctness of the record or proceedings. In early times, the writ was also frequently used to remove indictments from lower courts – the Commissioners of Sewers, the Court of Admiralty and the Courts of the Forests, for example – so that they could be tried in the King’s Bench. When such a case reached the King’s Bench, the defendant could go to trial in that Court or make objections to the proceedings in the lower court. Edith Henderson has pointed out:

“(1)    He could object that the base court did not have jurisdiction to require him to answer the charge, or that the record did not fully make out their jurisdiction …

 (2)    He could object to the form or matter of the indictment. But he could also traverse the indictment and go to trial instead, and in the course of trial he could raise any other questions of fact or law that became relevant.

The point to be noted is that at this stage of the case nothing about the lower court’s proceedings had any relevance to the defendant’s fate in King’s Bench – no issues of law were presented – except its jurisdiction and the text of the indictment or presentment, the record sent up. But every issue of fact or law could be tried de novo if the defendant chose to traverse instead of demurring.’’

99    Professor Sawer has pointed out that, in all the reported cases decided between 1300-1640, no suggestion was made that the writ could be used to prevent inferior courts and tribunals from exceeding their jurisdiction, or to quash their decisions because they had made an error of law. Instead, certiorari was used to remove the record “for some purpose controlled by a proceeding other than the certiorari”. In 1642 in Commins v Massam, however, Heath J expressed the view that the King’s Bench could use certiorari not merely to remove proceedings but also to review the merits of the proceedings. Thereafter, “the new removal procedure quickly became popular”. Once the King’s Bench permitted certiorari to be used to quash proceedings in the lower courts, the demand for its use brought about a change in practice that “eliminated, in most cases, the possibility of a trial at bar [in the King’s Bench] after certiorari for orders”. By 1702, certiorari to quash rather than certiorari to remove had become the primary use of the writ.

(footnotes omitted, emphasis in original.)

120    According to his Honour’s analysis, by 1702 the writ of certiorari to remove was no longer the primary use of the writ. Rather, its more common use was to quash a proceeding in a lower court.

121    In Ch 12 of Judicial Review of Administrative Action and Government Liability (6th Ed, LawBook Co., 2017) Aronson, Groves and Weeks address the nature of certiorari and prohibition. At [12.20] they note that there used to be two forms of certiorari “but one has now disappeared”, namely “certiorari to remove a record from one court into another so that the case could be heard in the latter”. The authors observed that the writ of certiorari to remove “was a way that a litigant fearing local prejudice could get a case transferred to a court far from the locality, or a way that the King’s Bench could aggrandise its jurisdiction by compelling the removal of a case from another (competent) court”. The authors relevantly conclude that they now “believe that all of the statutory provisions using that sort of certiorari have now been repealed”, that “[c]hanges to venue or jurisdiction are now regulated by statute without reference to this sort of certiorari” and that “the High Court concluded that it appears to be obsolete”, citing Craig v South Australia (1995) 184 CLR 163 (Craig) at 175 and Re McBain at 462.

122    In Craig at 175 the High Court said:

Where available, certiorari is a process by which a superior court, in the exercise of original jurisdiction, supervises the acts of an inferior court or other tribunal. It is not an appellate procedure enabling either a general review of the order or decision of the inferior court or tribunal or a substitution of the order or decision which the superior court thinks should have been made. Where the writ runs, it merely enables the quashing of the impugned order or decision upon one or more of a number of distinct established grounds, most importantly, jurisdictional error, failure to observe some applicable requirement of procedural fairness, fraud and “error of law on the face of the record”.

(footnotes omitted.)

123    Relevantly at footnote 55 to this part of the High Court’s reasons in Craig, the Court noted that “[t]he early form of certiorari to remove and hear, while of historical relevance to the nature and scope of certiorari, would now seem to be obsolete”. It is this observation to which the authors of Judicial Review of Administrative Action and Government Liability refer at [12.20]. This same observation is repeated in Re McBain at [253] at footnote 309 where Hayne J set out the same passage from Craig.

124    The Law Society submitted that a writ of certiorari can only issue to quash decisions of a tribunal if there is jurisdictional error. It in effect rejects the availability of the writ of certiorari to remove and, in its written submissions, appears to adopt the position articulated by the authors of Judicial Review of Administrative Action and Government Liability that the writ of certiorari to remove is obsolete. As a caveat to the argument put by Mr Wyvill the Law Society referred me to Kirk v Industrial Court of New South Wales (2010) 239 CLR 531 at [66] where a majority of the High Court, in pointing out the difficulty of maintaining the distinction between jurisdictional and non-jurisdictional error referred to in Re Refugee Review Tribunal; Ex parte Aala (2000) 204 CLR 82 at 141, included the observation therein that “there can be no automatic transposition in Australia of the principles that developed in England in relation to the availability of certiorari and prohibition”.

125    Mr Wyvill’s request that I revive the remedy of writ of certiorari to remove is novel. Mr Wyvill contends that the High Court in Craig went no further than to suggest that the writ may be obsolete not that it was so. But the fact that the writ of certiorari to remove a proceeding has, according to the historical analysis in Re McBain, not been used for some 200 years and, according to the authors of Judicial Review of Administrative Action and Government Liability, any statutory provision using the writ of certiorari in that form has been repealed, strongly suggests that at the very least the relief is no longer in use and, indeed, must be considered to be outdated.

126    In any event, whether such relief is presently available or can be revised despite the length of time since it was last in use and, if so available, whether the Court has the jurisdiction and power to grant the relief as Mr Wyvill says it does (see [114] above), is not an issue which I need to resolve. That is because, even assuming it is so available, I would not exercise my discretion in favour of Mr Wyvill to grant it. That is so for the reasons that follow.

127    First, Mr Wyvill was the subject of the Complaints which were investigated and which have resulted in the Tribunal Applications. The proceedings in the Tribunal are to run in accordance with the provisions of the Act. There is no proper basis on which the Court would conclude that that process should not proceed and that the Tribunal Applications should be removed to this Court because the Tribunal ought to be constituted by persons of similar status to some of the complainants. That is, the Trial Judge and the former Statutory Supervisor. The Statutory Supervisor at the time brought the complaint in that capacity, as he was empowered to do by s 471(1)(c) of the Act. It is not the actions of the Complainants or the Trial Judge which will be in issue before the Tribunal. The question for the Tribunal is whether, on the evidence before it, Mr Wyvill has engaged in unsatisfactory professional conduct or professional misconduct.

128    Secondly, the submission that the interests of justice warrant the determination of the Tribunal Applications by a tribunal not connected with the administration of justice in the Northern Territory is not a basis on which I wold exercise my discretion in favour of granting the relief sought. As the Law Society observed, that submission ignores one of the purposes of Ch 4 of the Act, namely “to enable lay persons to participate in complaints and disciplinary processes involving lawyers to ensure community interests and perspectives are recognised”: see s 461(1)(d). As I have already observed, it is Mr Wyvill’s conduct that will be considered and not the conduct of any of the complainants or other persons involved in the circumstances giving rise to the conduct the subject of the Complaints.

129    Relevantly, the Tribunal is to be constituted in accordance with the requirements of the Act. There was no evidence before me as to the membership of the Tribunal for the purposes of determining the Tribunal Applications. It was not said, for example, that it was not possible to constitute the Tribunal or that its constitution in fact presented issues because, for example, of any issues of apprehension of bias. As to the latter matter, that is an issue to be determined in the context of a recusal application before the Tribunal in accordance with applicable principles: see Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337 at [8], where a majority of the High Court set out the two-staged inquiry to be undertaken where there is an allegation of apprehended bias.

130    Thirdly, that Mr Wyvill will almost certainly appeal the findings of the Tribunal in the event that there is a finding against him on the Tribunal Applications is not a reason to remove the Tribunal Applications to this Court. The procedure set out in the Act provides for a two-step process: a hearing before the Tribunal and a right of appeal to the Supreme Court at the suit of the complainant or the legal practitioner or other person. That process should not be avoided because a litigant apparently wishes to gain an efficiency. One could envisage many cases where a litigant expresses their intention to appeal orders made against them before the orders are made. But that does not mean that the prescribed processes should be sidestepped. The process should be permitted to run its course.

131    Mr Wyvill asserts that the ongoing process is having a negative effect on his practice. Although Mr Wyvill has not provided any details of how the asserted negative effect has manifested itself, I would accept that to be so. But there is no evidence before me that the Tribunal will, other than having agreed to stay the Tribunal Applications pending the outcome of this proceeding, cause any delay in the hearing of those applications. Despite Mr Wyvill’s emphatic evidence that he will appeal if there are findings against him in the Tribunal Applications, that evidence at this stage can be no more than speculation as to whether there will be an appeal. What occurs next will of course depend on the outcome of the Tribunal Applications.

132    Finally, while the current Statutory Supervisor would support this Court hearing the Tribunal Applications, that of itself would not be in any way determinative of the question of whether the relief should be granted. Although the Statutory Supervisor is a party to this proceeding, she filed a submitting appearance and did not appear. Accordingly she did not, as far as I am aware, have the benefit of the parties’ submissions, nor did she provide any reasons for her position beyond that set out in her letter dated 11 March 2019 (see [54] above).

parliamentary privilege

133    By para 5 of the FAOA, Mr Wyvill seeks a declaration that the Law Society has no power to bring disciplinary proceedings, and the Tribunal has no power to conduct a hearing into or make an order in connection with, the allegation referred to as ground 3 (counselling Ms Lawrie to make an allegation in Parliament of serious misconduct for which there was no or insufficient evidence) in the Law Society’s statement of reasons dated 18 February 2019 (Ground 3). Mr Wyvill’s position is that this claim for relief arises regardless of whether the matter proceeds in the Tribunal or in this Court.

134    Ground 3 is included in the SS Tribunal Application as “Allegation 1” and is in the following terms:

On 19 May 2014, [Mr Wyvill] engaged in professional misconduct, pursuant to section 465 of the LPA, or alternatively unsatisfactory professional conduct, contrary to section 464 of the LPA, by advising Michael Gleeson, who was then Chief of Staff to Ms Lawrie, that Ms Lawrie should make a statement in the Legislative Assembly of the Northern Territory to the effect that (i) the Stella Maris Inquiry never had any independence from the beginning, (ii) the government had picked the Commissioner because they knew he would do what he was asked to do, and (iii) a recent statement made by the Chief Minister confirmed that the Inquiry was a set up from the beginning. [Mr Wyvill] knew or ought to have known that such a statement amounted to an allegation of serious misconduct on the part of the government and the Commissioner, for which there was no evidence, or insufficient evidence, to justify it being made.

Particulars to Allegation 1

1.1.    On 19 May 2014 at 9:33 am, Mr Michael Gleeson, who was at that time the Chief of Staff to Ms Lawrie, sent an email to [Mr Wyvill] concerning statements made by Adam Giles, who at the time was the Chief Minister of the Country Liberal Party. The email said:

Hi Alistair

In the last week’s censure debate, Giles made these comments.

Mr GILES: You cannot even accept your name being presented this way. My challenge to the Leader of the Opposition, the member for Karama, and the members for Arnhem, Fannie Bay, Johnston and Wanguri is quite simple: if you believe your claims to be true, take them outside and make them public. If you do not have the courage to take them outside, then clearly you do not believe these claims to be true and you are simply playing politics in coward’s castle. If you are true to your word about elements of corruption and wanting inquiries - I challenge you, member for Barkly, .you misled the Stella Maris inquiry...

Mr McCarthy: Will you call me Gerry Obeid outside? Bring your Hansard.

Madam SPEAKER: Member for Barkly!

Mr GILES: I ask you to step aside from your position for misleading an inquiry under the Inquiries Act, which has been proven to be true and correct. Should you believe the professional standards of politics and inquiries, I ask you to resign because you mislead the Stella Maris inquiry, which you admit and for which you were found guilty.

Clearly the Chief Minister’s assertion is untrue - the Member for Barkly has not be (sic) found guilty of anything and the Chief Minister’s comments are highly prejudicial to the Inquiry’s finding and recommendations.

Maybe the Chief Minister has received a final report which has already drawn the findings he asserts.

In the event that he hasn’t, one conclusion is that he has used parliamentary privilege to pressure or influence the commission in the preparation of its final report.

In my view even though the submissions may have been closed, this would justify a strong letter to the Commissioner and could be used in the debates in the Assembly.

What do you think, Alistair?

[…]

1.2.    At 12:02 pm of that day, [Mr Wyvill] sent an email to Mr Gleeson in the following terms:

Hi Mike

I would think the best point to make - in parliament - is that Giles’ statements suggest he has been provided with a draft of the report apparently for his review and approval. Getting this on the record in the House will help with labelling this the CLP’s report. I would prefer to adopt the position that this process never had any independence from the beginning, they picked Lawler because they knew he would do what he was asked to do and this just confirms that this whole process was a set up from the beginning.

Writing to Lawler suggests that he has an independence to be influenced! What do you think?

Dissenting report underway!

1.3.    By his email of 12:02 pm on 19 May 2014, [Mr Wyvill] was counselling Ms Lawrie to make certain statements in the Legislative Assembly in response to those made by Mr Giles.

1.4.    [Mr Wyvill] knew or ought to have known that the statements which by his email he was counselling Ms Lawrie to make, either taken separately or together, amounted to an allegation or allegations of serious misconduct on the part of the government, without any evidence, or with insufficient evidence, to justify it being made.

Parties’ submissions

135    Mr Wyvill submitted that the Tribunal is not entitled to hear or determine Ground 3 because to do so would be to call into question proceedings in Parliament in contravention of Art 9 of the Bill of Rights 1688 (Imp) (Bill of Rights), which provides (in modern language) “that the freedom of speech and debates or proceedings in Parliament are not to be impeached or questioned in any court or place out of Parliament”. Mr Wyvill contended that s 6 of the Legislative Assembly (Powers and Privileges) Act 1992 (NT) (LAPP Act) (see [141] below) confirms and arguably extends the operation of Art 9 of the Bill of Rights

136    Mr Wyvill noted that Ground 3 is a complaint that he sent an email to Ms Lawrie’s chief of staff, Mr Gleeson, which “included a recommendation by [Mr Wyvill] that certain statements should be made by [Ms Lawrie] in the Legislative Assembly” and that it is alleged that the recommendation was made with “no or insufficient evidence to justify it being made”. Mr Wyvill submitted that his email to Mr Gleeson was sent for the purposes of or incidental to the transacting of business of the Legislative Assembly and therefore cannot be questioned out of Parliament. He further submitted that if issue is to be taken with that email that is a matter for the Legislative Assembly and not a matter for the Law Society, the Tribunal or this Court.

137    Mr Wyvill, having observed that a submission to this effect was made to the Law Society but was rejected on the grounds that the email would not come within the scope of Art 9 of the Bill of Rights or s 6 of the LAPP Act, submitted that it was difficult to see how sending an email which advised as to the content of “a statement [that] should be made in the Legislative Assembly” would not be categorised as an act that is “for the purposes of or incidental to, the transacting of business of the Assembly”.

138    Mr Wyvill observed that, in substance, Ground 3 is an allegation that Mr Wyvill sent an email that was untrue and was sent in bad faith but referred to the terms of s 6(3) of the LAPP Act (see [141] below). Mr Wyvill submitted that the jurisdiction of the Tribunal should be read consistently with the Bill of Rights and the LAPP Act such that the Tribunal has no jurisdiction or power to conduct a hearing into or make any order in connection with Ground 3.

139    The Law Society submitted that Mr Wyvill is not, and was not, a member of Parliament and that the Legislative Assembly therefore has no power to either determine whether he had misconducted himself or to discipline him for misconduct. The Law Society further submitted that, to the extent that Mr Wyvill contends that the email by which the impugned recommendation was made to Ms Lawrie “was done for the purposes of or incidental to the transacting of business of the Assembly”, there is no evidence to support that contention and no evidence has been led as to any claim by Ms Lawrie for privilege over the email.

140    The Law Society also submitted that, contrary to Mr Wyvill’s submission, determination of the allegation relating to the email neither “concern[s] … proceedings in the Assembly” nor entails a process of “questioning … anything forming a part of … proceedings in the Assembly”. It submitted that in counselling Ms Lawrie, Mr Wyvill was not performing a parliamentary duty and his communication was to Ms Lawrie and not to, with, or within the Parliament. The Law Society contended that the impugned communication had no particular connection to Parliamentary proceedings or the internal procedures of Parliament and that denying privilege over the communication has no potential to impact adversely on the core business of Parliament.

Statutory framework and legal principles

141    Section 6 of the LAPP Act provides:

(1)    For the avoidance of doubt, it is hereby declared and enacted that the provisions of article 9 of the Bill of Rights, 1688 apply in relation to the Assembly and, as so applying, shall be taken to have, in addition to any other operation, the effect of the subsequent provisions of this section.

(2)    For the purposes of the provisions of article 9 of the Bill of Rights, 1688 as applying in relation to the Assembly, and for the purposes of this section, proceedings in Parliament means all words spoken and acts done in the course of, or for the purposes of or incidental to, the transacting of the business of the Assembly or of a committee, and, without limiting the generality of the foregoing, includes:

(a)    the giving of evidence before the Assembly or a committee, and evidence so given;

(b)    the presentation or submission of a document to the Assembly or a committee;

(c)    the preparation of a document for purposes of or incidental to the transacting of any such business; and

(d)    the formulation, making or publication of a document, including a report, by or pursuant to an order of the Assembly or a committee and the document so formulated, made or published.

(3)    In proceedings in a court or tribunal, it is not lawful for evidence to be tendered or received, questions asked or statements, submission or comments made, concerning proceedings in the Assembly, by way of, or for the purpose of:

(a)    questioning or relying on the truth, motive, intention or good faith of anything forming part of those proceedings in the Assembly;

(b)    otherwise questioning or establishing the credibility, motive, intention or good faith of a person;

(c)    drawing, or inviting the drawing of, inferences or conclusions wholly or partly from anything forming part of those proceedings in the Assembly.

…

142    In Carrigan v Honourable Senator Michaelia Cash [2016] FCA 1466 (Carrigan) White J considered an application by two of the respondents for the strike out of pleadings, summary judgment, or in the alternative, for rulings in advance of the trial that some of Ms Carrigan’s evidence would be inadmissible at the trial. His Honour noted that central to each application was the assertion made by those respondents that Ms Carrigan’s claims made statements about, and would require the Court to receive evidence and to make assessments concerning, proceedings in the Commonwealth Parliament, being matters proscribed by s 16(3) of the Parliamentary Privileges Act 1987 (Cth) (PP Act). The primary judge allowed the applications for summary judgment.

143    As set out by White J at [2]-[5], the first respondent, at the time the Minister for Employment, appointed the second respondent, Mr Heerey, to conduct an inquiry into and report on complaints and related issues concerning the then vice president of the Fair Work Commission. Mr Heerey’s appointment contained six terms of reference, the first of which concerned complaints made by Ms Carrigan to the Minister’s predecessor. On 15 February 2016 Mr Heerey provided his report (Heerey Report) to the Minister. On 15 March 2016 the Minister tabled a redacted copy of the Heerey Report in the Senate of the Australian Parliament and caused copies to be circulated. In the proceeding Ms Carrigan sought forms of judicial review. She contended that she had been denied procedural fairness by Mr Heerey in the preparation and provision of his report to the Minister and by the Minister in her tabling of a redacted version of the report in the Senate leading to the subsequent publication of the report more generally.

144    In issue before the Court was whether the matters which Ms Carrigan wished to raise in the proceeding were matters which were caught by s 16 of the PP Act, which is in substantially the same terms as s 6 of the LAPP Act, so that they could not be dealt with by a court.

145    At [10]-[15] White J set out the principles in relation to the application of s 16 of the PP Act. At [10] his Honour said the following about the effect of the section:

As can be seen, s 16(1) is declaratory as to the effect of Art 9 of the Bill of Rights in relation to the Australian Parliament but specifies that, in addition to any other operation which Art 9 may have, it includes those in the following subsections in s 16. The consequence is that s 16 is not to be regarded as limited in its scope to the operation of Art 9. On the contrary, s 16(1) is an express indication that the Parliament contemplated that s 16 may have an operation which is additional to that of Art 9: Rann v Olsen [2000] SASC 83, (2000) 76 SASR 450 at [53], [100] (Doyle CJ, with whom Mullighan J agreed), [236]-[245] (Perry J), [393] (Lander J); R v Theophanous [2003] VSCA 78, (2003) 141 A Crim R 216 at [66].

146    After referring to the principle of “non-intervention” which underpins s 16 of the PP Act White J continued at [12]-[14] as follows:

12.    … The privilege is not concerned simply with protecting parliamentarians from legal action but is intended to ensure that parliamentarians and others can engage in the parliamentary process without concern that those actions may be subject to later scrutiny by the courts: Prebble v Television New Zealand Limited [1995] 1 AC 321 at 334B. The privilege also operates to avoid conflicts between Parliament and the courts: Halden v Marks (1995) 17 WAR 447 at 463. It has been said that provisions such as Art 9 and s 16 reflect a broader principle pursuant to which courts and the Parliament are “astute to recognise their respective constitutional roles”: Prebble at 332D, 335G; Rann v Olsen at [116]-[122], [171]-[172], [242]-[244]; Theophanous at [66]; Halden v Marks at 462.

13    The Respondents acknowledged that the privilege may produce consequences which are regarded as unfair in court proceedings. So much has been recognised in a number of the authorities: Prebble at 336G; Rann v Olsen at [125], [190]. The responsibility for addressing such circumstances is said to lie with the Parliament itself: Halden v Marks at 463; Crane v Gething [2000] FCA 45, (2000) 97 FCR 9 at [49].

14    It is for the courts to determine the existence of the privilege when that arises as an issue in proceedings properly before it: Egan v Willis [1998] HCA 71; (1998) 195 CLR 424 at [27]. The Full Court of the Supreme Court of Western Australia explained the position more fully in Halden v Marks at 462 when outlining the first of two situations in which courts do consider parliamentary privilege:

First, there are cases where a question of parliamentary privilege is raised in a case already before the court, as, for example, where a party seeks to rely on something said or done in parliament. In the exercise [of] its general jurisdiction, and in the regulation of its own proceedings, the court will decide whether the relevant action will breach parliamentary privilege and will refuse to allow the particular matter to be ventilated, or the particular evidence to be tendered, if the court concludes that to do so would be a breach of privilege. In regulating its conduct in this way, the court is endeavouring to ensure that neither it nor the parties before it question or impeach any speech, debate or proceeding in Parliament …

147    At [37], after outlining the nature of Ms Carrigan’s substantive claims and noting that Ms Carrigan contended that s 16(2) of the PP Act should be construed narrowly, White J observed that it was established that s 16 of the PP Act should be “interpreted according to its tenor and not read down or given a restricted meaning”, citing R v Theophanous (2003) 141 A Crim R 216; [2003] VSCA 78.

148    Commencing at [44] White J considered the purpose for which Mr Heerey had prepared his report. His Honour noted that the question of whether words were spoken or acts were done for a specified purpose was a question of fact, it prima facie requires an assessment of the subjective purpose of the actor in question and the ascertainment of that purpose is informed by “an objective consideration of the circumstances”, being a consideration of “those matters which stand independently of any statement by the actor of his or her purpose, especially statements made in retrospect”. Justice White identified the issue as being whether at the time Mr Heerey prepared his report he did so for purposes of or incidental to the transacting of the business of either House of Parliament and that it was Mr Heerey’s purpose in preparing the report which was to be considered: at [46].

149    At [51] White J observed that inferences as to Mr Heerey’s purpose could be drawn from the letter by which the Minister appointed him, including the terms of reference, and the report which he provided in response as well as from the circumstances more generally in which Mr Heerey was appointed and which existed while he was carrying out his inquiry and report. After reviewing the evidence, at [69] White J concluded that Mr Heerey provided his report with the knowledge and intention and that “it could, and in all probability would, be used by each House of Parliament in considering whether or not to make a recommendation to the Governor-General concerning the termination of” the vice president’s office as vice president of the Fair Work Commission. His Honour concluded that Mr Heerey had no other purpose in preparing his report. Justice White thus concluded that Mr Heerey’s report when prepared and thereafter was a “proceeding in Parliament” for the purposes of s 16(2) of the PP Act.

150    In Rann v Olsen (2000) 76 SASR 450 three questions were stated to the Full Court of the Supreme Court of South Australia for determination. The case stated raised questions as to the effect of s 49 of the Constitution and of s 16 of the PP Act upon the ability of the defendant, Mr Olsen, to maintain and support defences he had pleaded in defending a proceeding for slander. The ultimate and final question raised for consideration was whether the action should be stayed as a result of the impact on the case of s 16(3) of the PP Act.

151    At [110]-[111] Doyle CJ referred to the view taken by Davies JA in Laurance v Katter [2000] 1 Qd R 147 (Katter) that, “read literally s 16(3) would prevent a parliamentarian, who had been defamed by reference to what he or she said in Parliament, from adducing evidence of the statements made in Parliament to prove that he or she had been defamed, or to rebut a defence of truth or fair comment which might otherwise be open to the defendant”. Chief Justice Doyle did not agree that read literally s 16(3) of the PP Act would prevent a parliamentarian from suing on a defamatory statement related to what the parliamentarian had said in Parliament. He noted that in the present case it did not prevent Mr Rann, a witness, from suing Mr Olsen.

152    At [113] Doyle CJ rejected the construction of s 16(3) of the PP Act propounded by Davies JA in Katter, namely that s 16(3) made it unlawful for evidence to be tendered or received, questions to be asked, or for statements, submissions or comments to be made concerning proceedings in parliament only if “that would impeach or question the freedom of proceedings in Parliament”, which Davies JA considered would be a matter to be decided by the judge in each case. Chief Justice Doyle said of that construction:

… It is to read into the provision an unexpressed proviso, namely that something apparently made unlawful by the provision is not rendered unlawful unless, in the opinion of the court in which the matter arises, the apparently prohibited activity in fact impairs the freedom of speech in Parliament of the person whose statements are to be challenged. It is one thing to accept that preserving the freedom of speech in parliament underpins s 16(3). It is another thing to read into the provision an unexpressed proviso, that makes the operation of the provision dependent upon a judicial determination that freedom of speech is impaired. There is the further difficulty that this approach appears to make the operation of the provision dependent upon a case by case judicial assessment of the impact on freedom of speech of the relevant evidence. There will be clear cases, but there will also be borderline cases, and this is an area in which there is plenty of room for differences of opinion. Parliament could not have intended that such an important provision would depend upon judicial assessment of the impact, in the particular case, of the proposed course of conduct.

153    At [123] Doyle CJ referred to what he called the “principle of non-intervention” stating that:

Like any principle, this principle of non-intervention, as I am content to call it, must be applied with a mind to its purpose and in a discriminating fashion. Nevertheless, to my mind the submissions by Mr Heywood-Smith pay inadequate attention to the principle of non-intervention. They do so by failing to reflect what I consider to be an evident intention behind s 16 of the Privileges Act. That intention is to foreclose judicial enquiry when the purpose of that enquiry is to question or rely on the truth of what is said in Parliament. (Again, for convenience, I omit the other matters identified as attracting the operation of s 16.) I consider that proper attention is not paid to the principle of non-intervention if one takes the approach, for example, that the section will apply only when the Court concludes that its application is required to protect freedom of speech in Parliament for the benefit of a particular person. To my mind, Parliament has made the judgment about when s 16 should apply, and has made that judgment by reference to the purpose of the line of enquiry, rather than by reference to a court's conclusion as to the likely ultimate effect on freedom of speech in Parliament. As well, Parliament has manifested an intention that the courts are not to enquire into the truth of things said in proceedings in Parliament. It has asserted an exclusive authority over such a matter.

Should the Court determine this ground?

154    In the course of argument the Law Society raised the issue of whether, in circumstances where I was not persuaded that the matter should be transferred to this Court in one of the ways contended for by Mr Wyvill, I would determine this issue. The Law Society contended that rather, this was a matter to be raised at the appropriate time in the Tribunal, presumably by way of an answer or defence to Ground 3, and that Mr Wyvill should feel free to raise it in the Tribunal at the appropriate time. Senior counsel for the Law Society also suggested that deferring the issue for determination by the Tribunal would permit Mr Wyvill to put material before the Tribunal. I understood this latter submission to be made in the context of the Law Society’s contention that there was no evidence as to the purported use of the email the subject of Ground 3 by its initial recipient, Ms Lawrie.

155    In response senior counsel appearing for Mr Wyvill said that the “point is never going to get any better”, that the complaint itself is based on the email exchange set out in Ground 3 and “[i]t ain’t going to improve”. Senior counsel for the Law Society then indicated to the Court that if matters were not going to improve in terms of the evidence to be relied on by Mr Wyvill to support his claim for parliamentary privilege the Court could proceed to deal with the matter.

156    Notwithstanding that the parties addressed me on this issue and ultimately, despite the Law Society’s perceived inadequacy with Mr Wyvill’s evidence, invited me to determine it, I decline to do so. That is not because Mr Wyvill should be given an opportunity to lead more evidence but because to address the issue in this forum would mean, in effect, that different aspects of the SS Tribunal Application would be determined in different fora with attendant differing processes of appeal arising out of the one application and the additional delay that would undoubtedly follow.

157    The effect of my findings in relation to what I have termed the construction issue and the certiorari to remove issue is that the Tribunal Applications are to remain in the Tribunal for hearing in their entirety. No submissions were made that the Tribunal would not have jurisdiction to determine the issue of whether parliamentary privilege would preclude the Law Society from raising Ground 3 for determination. Mr Wyvill would be free to raise the issue as a preliminary issue or as an answer or defence to Ground 3. In those circumstances in my opinion it is premature and inapposite for this Court to determine one of the grounds in the SS Tribunal Application and to leave the balance for the Tribunal. It is more appropriate for all grounds and issues to be determined in a single forum seized of the jurisdiction to determine the Tribunal Applications. To do otherwise would not serve the objectives of s 37M of the FCA Act.

158    I would arrive at the same conclusion even if I had determined the construction issue and/or the availability of certiorari to remove in Mr Wyvill’s favour and had determined that I would make orders which would result in the Tribunal Applications being heard in this Court. In those circumstances it would be equally inapposite to split the determination of the grounds raised in answer to the SS Tribunal Application and to determine, in effect, as a preliminary matter and outside the context of the proceedings to be brought and determined in this Court whether the Law Society could proceed with one of the grounds. In the event that the Tribunal Applications were to be dealt with in this Court the question of whether Ground 3 could properly be included in the SS Tribunal Application would, in my opinion, be a matter for determination by the docket judge to whom the proceeding was allocated.

conclusion

159    It follows from the reasons set out above that the FAOA should be dismissed with costs. I will make orders accordingly.

Associate:

Dated:    5 December 2019