Parliamentary privilege called into question by NT Law Society
The Northern Territory Law Society has unsuccessfully alleged that a barrister’s advice to prominent members of Parliament concerning a controversial inquiry in 2014 was in breach of his legal duties and amounted to unsatisfactory professional conduct. These allegations were held in contention by the Legal Practitioners Disciplinary Tribunal.
In an application bought by originating motion by the Law Society sought orders in the nature of certiorari and prohibition against the Legal Practitioners Disciplinary Tribunal, with respect to two decisions of the tribunal dismissing complaints made against NT-based barrister Alistair Wyvill SC that alleged unprofessional conduct.
The disciplinary tribunal had also ruled as inadmissible a number of documents, which the Law Society intended to tender into evidence. It sought declaratory relief and order prohibiting the tribunal from making a final determination of the disciplinary application without “reconsideration of evidentiary findings”. It was not successful in either case.
In July 2012, the NT’s cabinet approved an offer of a crown lease over land known as the Stella Maris site to Unions NT. At the time, Delia Lawrie was deputy chief minister, and was also involved in the Stella Maris site with the intention of offering the lease to Unions NT. The approval was ultimately overturned with the next election.
In 2013, the new government commissioned an inquiry into the circumstances behind the purported decision to offer the lease to Unions NT. Ms Lawrie and then-minister for lands and planning Gerald McCarthy were called to give evidence, when they were respectively leader of the opposition and deputy leader of the opposition. Their counsel Mr Wyvill instructed them, advised by a firm of solicitors, on their evidence.
When the inquiry tabled its report to the legislative assembly, it contained a number of adverse findings concerning Ms Lawrie’s conduct. Not long after, chief of staff Michael Gleeson sent an email to Mr Wyvill which formed the basis for allegation one that the Law Society was using to argue the barrister had breached his legal obligations.
In short, the disciplinary tribunal found that the emails were inadmissible because they were subject to parliamentary privilege and found it would be unlawful to receive them into evidence. It also meant that allegation one against the barrister was dismissed.
In a later telephone conversation, advice was given for Ms Lawrie to pretend “complete surprise” when she spoke at the legislative assembly about the inquiry’s findings. That advice was then emailed to Ms Lawrie with a general script of what to say and included allegations that she was not given notice about the adverse findings. The Law Society alleged that this was reckless advice, as Mr Wyvill knew this assertion was false.
When the commissioner’s report was tabled, Ms Lawrie’s comments reflected his legal advice, with remarks such as “we have only just received the report” and, on occasion, that “…no notice of adverse findings has been provided to us [prior]”.
Counsel for the Law Society submitted that there was no request for any advice before the telephone call, and that, therefore, parliamentary privilege did not arise in the emails they wanted to use in evidence. However, the tribunal found it was covered by privilege as it came from Ms Lawrie’s chief of staff and related to what she said in Parliament.
“In my opinion, the telephone call between [Mr Wyvill] and Mr Gleeson was privileged, for essentially the same reasons as the emails in allegation one were privileged,” noted the Supreme Court in the current judgment. “Although the first defendant made some mistakes in timings of emails, it did not violate the decision that was correct on facts.”
This case can be found on Austlii: Law Society Northern Territory v Legal Practitioners Disciplinary Tribunal (NT) & Anor  NTSC 79 (11 December 2020).