Australia''s judicial system displays even more symptoms of a Malaysian Eusoffe Chin era problem

 COMMENT

Presented as reported except to say that this is yet another instance of Australia's judiciary suffering a Eusoffe Chin type problem.

Darwin lawyer Alistair Wyvill cleared of misconduct after claiming judge was 'politically partisan'

By Felicity James

Posted WedWednesday 16 DecDecember 2020 at 6:20pm, updated WedWednesday 16 DecDecember 2020 at 8:01pm

The tribunal found Justice Southwood's (right) decision seriously damaged Alistair Wyvill's (left) professional reputation.(Supplied / ABC News)

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A prominent Darwin barrister has been cleared of professional misconduct and his fears about a Supreme Court judge being "politically partisan" have sufficient basis, a tribunal has found.

Key points:

• Law Society NT has lost a long-running fight against Alistair Wyvill SC
• A tribunal found a judge's comments may have implied a "favourable view" of the Country Liberals
• Mr Wyvill acted for former Labor leader Delia Lawrie at the Stella Maris inquiry

Alistair Wyvill SC acted for the Northern Territory's former Labor leader Delia Lawrie during the controversial Stella Maris inquiry in 2013 and 2014, which was initiated by the Country Liberals government.

Supreme Court Justice Stephen Southwood later made several findings about Ms Lawrie and Mr Wyvill's political strategy during the Stella Maris inquiry, in a judgment that rejected Ms Lawrie's challenge to its fairness in 2015.

A few months after this decision, Mr Wyvill wrote a scathing email to his NT Bar Association colleagues accusing the judge of damaging his reputation, harbouring "ill will" towards him, and demonstrating political bias.

"He caused extraordinary damage to my professional reputation which will be irreversible to a significant extent regardless of what I might have to say and what any other tribunal, having heard what I have to say, might find," Mr Wyvill said in the email.

"This in my view is suggestive of malice and calls into question his fitness to be a judge."

A battle that has divided the NT's legal community then followed.

The Law Society NT last year responded by filing two complaints against Mr Wyvill, alleging his comments were improper and without basis, and that Mr Wyvill had also knowingly made misleading or false statements in court documents.

On Friday, the Legal Practitioners Disciplinary Tribunal dismissed these complaints and Supreme Court Acting Justice Dean Mildren rejected the Law Society NT's further attempt to challenge the tribunal's decision.

In his 2015 judgment, Justice Southwood said Mr Wyvill was pushing "a strategy to make the incredibly serious and completely baseless allegation that the Country Liberal government picked [Commissioner John Lawler] on the basis that he would find what they wanted to find".

Justice Southwood claimed Mr Wyvill had counselled a strategy to "ignore, disengage and discredit" the Stella Maris inquiry and that Ms Lawrie's evidence to the inquiry had been untruthful.

Judge's findings 'unnecessary'

But the tribunal found the judge's comments were not only irrelevant and unnecessary, but could imply a "favourable view of [the] Country Liberal Party".

It said comments about Ms Lawrie being untruthful were not supported in the evidence before the judge, and that his findings were "extremely damaging" to the reputations of Mr Wyvill and Ms Lawrie, while benefiting the CLP.

Delia Lawrie resigned as opposition leader shortly after Justice Southwood's "damaging" findings.(ABC News: Steven Schubert)

The tribunal's findings also mentioned help Mr Wyvill had previously given to a lawyer from the North Australian Aboriginal Justice Agency, who accused Justice Southwood of "bullying and disparaging" behaviour.

It found that could also be a basis for Mr Wyvill's suggestion the judge was unfit and for his fears about malice.

The tribunal described Mr Wyvill as a "victim" of the 2015 Supreme Court findings and said he had been a "forthcoming, careful, reliable and honest witness" before the tribunal.

It said Mr Wyvill's decision to write to the NT Bar Association about Justice Southwood was "understandable".

This was especially the case, the tribunal said, because there was no judicial commission in the NT at the time and Mr Wyvill had not been a party to proceedings that had made damaging findings against him.

Gunner challenged after 'damaging' findings

Soon after Justice Southwood's 2015 judgment Michael Gunner launched a leadership challenge against Ms Lawrie and she resigned, while Mr Wyvill stepped down as the NT Bar Association's president.

Ms Lawrie was also disendorsed by Labor because of concerns her ongoing legal matters had become a "serious distraction" ahead of the 2016 election.

The Stella Maris inquiry investigated Labor's offer of a lengthy rent-free lease to Unions NT of the heritage-listed Stella Maris site in central Darwin.

The conduct of former lands minister Gerry McCarthy and Ms Lawrie was criticised in the inquiry's final report for its lack of transparency and accountability, but Commissioner Lawler found no evidence of "corrupt" conduct.

The disciplinary tribunal noted that Commissioner Lawler found Ms Lawrie "may have genuinely believed that granting the site exclusively to Unions NT was in the public interest".

An appeal against Justice Southwood's decision to reject Ms Lawrie's procedural fairness arguments — heard by three interstate judges — failed in 2016, but the judgment noted findings about Mr Wyvill and Ms Lawrie's honesty had been unnecessary.

In a statement, Mr Wyvill's lawyers told the ABC their client welcomed the tribunal's decision dismissing the misconduct allegations.

"The decision speaks for itself," the statement said.

To avoid any conflicts of interest, former Tasmanian Supreme Court Judge Peter Evans chaired the tribunal.

The NT Law Society has been contacted for a response.

Posted 16 DecDecember 2020, updated 16 DecDecember 2020

Former Industrial Crt Chairman Saufee Affandi's handling of evidence against Gamuda, Litrak & EPF requires investigation-coverup by a judicial officer a serious matter that goes to the reputation of the Industrial Crt

 by Ganesh Sahathevan 

The conduct of the former Industrial Court Chairman Saufee Affandi in the matter of Ganesh Sahathevan v Sun Media (which he chose to name Sun Media v Ganesh Sahathevan) has been previously reported on this blog.  

In the matter the Industrial Court was also presented with evidence of this writer's investigation into the EPF's controversial financing of the LITRAK Highway project. Saufee ignored it, and indeed implied that the story and investigation was false. However, the matter was later raised by YB Ronnie Liu on his website:

 

The Sun reporters sacked for exposing Litrak in 1999

And of course, Gamuda, which controls Litrak, which it formed to hold the LITRAK Highway toll road concession, remains a controversial company: 

It's taken 20 years, but Gamuda is finally being made to account for its sins:Ganesh Sahathevan investigations into Gamuda go back to 1996

In addition, the conduct of the EPF, and its management of contributors money, remains a matter of concern, as it has in the past. 

Saufee and thus the Industrial Court chose to involve themselves in the issue of Litrak, its EPF financing, and the award of the LITRAK Highway concession to Gamuda. It is now for The Industrial Court to explain its conduct.

END 

TO BE READ WITH 

The Sun reporters sacked for exposing Litrak in 1999

I am reproducing this message sent to me today for readers of Colour-blind.

Both Ganesh Sahathevan and Alan Yeoh were sacked after writing several articles concerning Litrak, See Hoy Chan and EPF. Gamuda’s executive director Dato’ Lin Yun Ling happens to be the brother of Dr Lin See Yan, the former deputy Governor of Bank Negara. Tan Sri Ramon has responded to say that he only owns 1,000 shares and he bought the shares after retirement from civil service. We were not sure how much shares were owned by AAB and Napsiah Omar.

———- Forwarded message ———-
Date: Sun, 29 Aug 1999 08:31:35 PDT
From: ganesh sahathevan <g_sahathevan@hotmail.com>
Subject: LDP Highway:A highway to Government indulgence

The owners of the privatised Lebuhraya Damansara Puchong(LDP), Lingkaran
Trans Kota Holdings Bhd (Litrak),have just announced that their revenue
is , and will continue to be higher then expected.

It’s executive director and substantial shareholder,Dato Lin Yun Ling,
has even announced that the company has a surplus of about RM 200 m in
cash.

All this after the Government agreed to pay Litark RM 85 million,at the
height of the recession, in “compensation”, for revenues lost when the
company agreed not to raise toll rates by RM0.50, as provided in the
concession agreement with the Government.

This “compensation” may sound fair, but one must consider the assistance
that the Government has ALREADY provided the company.

First, there was a RM535 million fixed rate loan from the Employees
Provident Fund (EPF), for a term of 13 years which even Lin Yun Ling
described as “uncommon”; EPF normally lends for only 5-8 years.

Then,there was a RM98 million loan at concessional rates.  The rates
have yet to be disclosed by the Finance Ministry.

On top of all this there is also a RM 100 million grant to pay for land
acquisition.

Some analysts say that the RM 85 million the Government has given Litrak
is actually in excess of the revenue that the company might have lost by
it’s own estimates.

The main beneficiary of the Government’s kindness has been Lin Yun Ling,
whose Gamuda Bhd,constructed the LDP in a joint venture with Yusof Daud,
for a cost of RM 600 million, or RM 40 million per km. In comparison,the
NKVE only cost RM 10 million per km.Lin and Raja Elena of Perak are
Gamuda’s two largest shareholders.

NSW AG Speakerman' and his LPAB confirm that ministers of religion cannot be witnesses-Speakman & Berejiklian seem unaware that Muslims also have ministers of religion

 by Ganesh Sahathevan 

 

THURSDAY, FEBRUARY 21, 2019

NSW AG Speakerman' and his LPAB confirm that ministers of religion cannot be witnesses-Speakman & Berejiklian  seem unaware that Muslims also have ministers of religion 

by Ganesh Sahathevan



In a letter dated 19 February 2019 the Legal Profession Admission Board (LPAB) informed this writer that his interpretation of The Oaths Act NSW is incorrect, confirming that ministers of religion are not , in NSW,accepted as witnesses of sworn documents.


The LPAB is chaired by the Chief Justice NSW and administered by the Department Of Justice, whose minister in charge is the Member for Cronulla, the Attorney General Mark Speakman.


The AG and the premier, Gladys Berjelikian have been queried repeatedly about the matter and cannot claim ignorance, or that the exclusion is the work of departmental mandarins.

It is hard to see this exclusion is not going to cost them votes, now that it is very much in the public domain. The exclusion is likely to be of particular concern to Muslim voters, who are not likely to have been aware that the imams are not acceptable as witnesses.

END







It is hard to see that

OCT

11

NSW AG Speakerman's religious exclusions an election issue ;his Dept Of Justice Secretary Cappie-Wood must not interfere in the coming election to defend or promote Speakerman.

by Ganesh Sahathevan

MARK SPEAKMAN

As First Law Officer of the state, Mark oversees
the administration of almost 200 Acts of Parliament,
the most of any minister in the NSW Government.



Andrew Cappie-Wood 

The article below published in June this year appears to have angered the Attorney  General, Mark Speakerman SC ,and spurred the Secretary of his Department Of Justice & Attorney General, Andrew Cappie-Wood, into action.

This writer has been informed in writing by the Legal Profession  Admission Board which is administered by the Department that he has defamed the AG, who is also Member for Cronulla.

In making that finding the LPAB said:

It came to the attention of the Department of Justice communications team that Mr Sahathevan made comments on his personal blog in regards to Chief Justice and the NSW Attorney General.

Metadata analysis confirms that the  LPAB document in which the above is contained is a document of the Department Of Justice & Attorney General.

This would not be the first time that Mr Cappie-Wood and his Department have intervened in public debate and a public vote.
At the height of the same sex marriage vote last year, the Department's  Registrar Of Birth And Marriages approached the Lord Mayor Of Sydney, Clover Moore, with an offer to have a mass wedding at the Town Hall if the same-sex marriage vote was positive

Ms Moore was happy to accept the offer, but it is unclear if Cappie-Wood's mass wedding has come to pass.Be that all as it may, his department and he must not be allowed to interfere in any way in public debate.

His Minister ,the Member For Cronulla, must face the electorate on his own, without departmental support, and explain his religious exclusions.

END

(Disclosure :This writer has been found by the Board, the LPAB,chaired by the Chief Justice NSW,to be NOT fit and proper for admission to practice in NSW for reasons including the one stated above. The LPAB has not provided  details of  the defamation of the CJ that it has relied on)

JUN

16

NSW AG Speakerman has already broken the seal of the confessional; as with the ministers of religion and the Oaths Act ,done in stealth, praying that no one notices. 

by Ganesh Sahathevan

While the ABC has reported in stories featuring the Attorney General Mark Speakman SC that the NSW Government has avoided the Child Abuse Royal Commission's recommendation to break the seal of the confessional, the NSW Government's offical response seems to say otherwise:

There is no exemption in the Children and Young Persons (Care and Protection) Act 1998 (NSW)  for persons in religious ministry from reporting knowledge or suspicions formed, in whole or in part, on the information disclosed or in connection with a religious confession. 
Some persons in religious ministry are already captured by the NSW mandatory reporting scheme if they work with children in another capacity. For example, a priest who is also a teacher at a school would be mandatorily required to make a report if they had reasonable grounds to suspect that a child is at risk of significant harm and those grounds arose during the course of their work as a teacher.

This is a complex issue that the NSW Government will consider further along with its response to recommendation 35 of the Criminal Justice report which relates to the new failure to report offence applying to members of the clergy. 

In simple terms, and in language that can be easily manipulated by NSW civil servants, the seal of the confessional has already been broken. Speakman can as he has done in the case of the Oaths Act(see below), allow NSW civil servants to apply the law as they so wish, while pretending to maintain a SC like aloofness from the reality , even when the application of the law is incorrect, or the law is breached.As this writer says, the AG is better returned to the backbench, if not the Bar, where he can ply his trade away from the public gaze. 
END 

MARK SPEAKMAN

As First Law Officer of the state, Mark oversees
the administration of almost 200 Acts of Parliament,
the most of any minister in the NSW Government. 


This writer has recently been told that a minister of religion, even if the person is a marriage celebrant , is not an acceptable witness for the purposes of statutory declarations of good character  submitted to the Legal Profession Admission Board. The Board is chaired by the Chief Justice,the and the LPAB is a division of the Department Of Justice ,which is under the purview of the Attorney General NSW, Mark Speakman SC.

Mr Speakman has been queried about the exclusion of ministers of religion, but has chosen to remain silent.The law on the matter is clear;ministers of religion are  by virtue of State and Commonwealth law able to witness statutory declarations  ,unless the legislation requires the declaration be witnessed by a judicial officer. 

Having said that,this writer has sympathy for the AG;he does "oversees the administration of almost 200 Acts of Parliament, the most of any minister in the NSW Government.

END 

References 




Form 3A Statutory Declarations;which are declarations that a person is fit and proper for admission to practice in NSW.




( (For ease of reference ,located at linkhttp://www.lpab.justice.nsw.gov.au/Documents/Form%203A_31%20July%202015.pdf)


The questions that arise in the matter are these:

a) are legal practitioners and JPs the only persons who may witness a Form 3A ;and if not

b) who else can.

Form 3A is listed in the Eight Schedule of the Oaths Act 1900.


These are dealt with in Section 21 of the Act which states:

21 (1) The Registrar-General, a Deputy Registrar-General or any justice of the peace, notary , commissioner of the court for taking affidavits, Australian legal practitioner authorised by section 27 (1) to take and receive any affidavit, or other person by law authorised to administer an oath, may take and receive the declaration of any person voluntarily making the same before him or her, in the form or to the effect of the form in either the Eighth or the Ninth Schedule.

The phrase " or other person by law authorised to administer an oath" is not defined anywhere in the Act.

Neither is the terms "authorised witness", which is , the primary question in this matter.

However, Section 21 does provide us an answer in the negative to the question:
are legal practitioners and JPs the only persons who may witness a Form 3A .


However, Section 34 provides :

34 IDENTIFICATION OF PERSON MAKING STATUTORY DECLARATION OR AFFIDAVIT

(1) A person who takes and receives a statutory declaration or affidavit in this State (an

"authorised witness " )

(a) must see the face of the person making the declaration or affidavit, and


(b) must know the person who makes the declaration or affidavit or confirm the person's identity in accordance with the regulations, and

(c) must certify on the declaration or affidavit in accordance with the regulations that this section has been complied with.

Reading Sections 21 and 34 together it does appear that Form 3A and other Eight Schedule declarations may be witnessed by " other person(s) by law authorised to administer an oath".

The Act and the related regulations do not define or provide any guidance as to who the other persons by law authorised to administer an oath might be. However a literal interpretation of "by law" would not exclude any person authorised under any law of the state. There is nothing in the Act that excludes Commonwealth law,and hence "by law" must also mean a law of the Commonwealth.


The Act and the related regulations do not define nor provide any guidance as to who the other persons by law authorised to administer an oath might be. However a literal interpretation of "by law" would not exclude any person authorised under any law of the state. There is nothing in the Act that excludes Commonwealth law,and hence "by law" must also mean a law of the Commonwealth.


In fact, with regards marriage the Commonwealth recognizies ministers of religion registered pursuant to the laws of the states and territories:

The Commonwealth Attorney General's chambers says on its website:


Under Australian law, only an authorised celebrant can legally solemnise marriages within Australia. The department maintains a list of all authorised marriage celebrantsin Australia; this is referred to as the Register of Marriage Celebrants. The Register of Marriage celebrants can be used to search for authorised celebrants in your state or territory and can be broken down by type of authorisation.

Ministers of religion

These celebrants are regulated by state and territory registries of births, deaths and marriages and their respective religious organisation as listed in the Marriage (Recognised Denominations) Proclamation 2007.

The department maintains a list of all Ministers of religion of recognised denominations who perform religious ceremonies.

Posted 16th June by Anonymous

Posted 11th October 2018 by Anonymous

Chief Justice Tom Bathurst says BLM "exposed that our criminal justice system remains a tool of injustice for Indigenous Australians" : Can the CJ be trusted to uphold the law, did the CJ's personal views expose the people of Sydney to COVID infection?

 by Ganesh Sahathevan 

 Chief Justice Tom Bathurst says Black Lives Matter and #MeToo will challenge the legal profession.

NSW Chief Justice has been reported to have said at an admission ceremony in August 2020:

The Black Lives Matter movement has exposed the criminal justice system as "a tool of injustice for Indigenous Australians", NSW's most senior judge says.

Chief Justice Tom Bathurst said the movement "has brought the racism, inequality and abuses of power that have haunted our nation for so long to the forefront of public consciousness".

"This year marks 250 years since Captain Cook first landed in Australia," he said on Tuesday at a welcoming ceremony for lawyers freshly admitted to the profession.

"Despite this significant passage of time, the Black Lives Matter movement has exposed that our criminal justice system remains a tool of injustice for Indigenous Australians, who are one of the most incarcerated people in the world."

This is a shocking thing to say for as Chief Justice Tom Bathurst is entrusted by the people of NSW to uphold the law, not publicly undermine its authority. 

Worse, he has by his own words called into question his own decision in a BLM matter that came before him for decision. 

In June 2020 Bathurst led a three man panel of the  Court Of Appeal NSW in overturning a decision of the Supreme Court NSW that quashed a decision by NSW Police to ban a Sydney Black Lives Matter protest. That decision was made at the height of the COVID lockdown. As reported previously by this writer, in reaching his decision Bathurst ignored the advice of the NSW Health Officer which the NSW Government and NSW Police relied on to enforce lockdowns. 

In light of the above, it does seem as Sydney residents in particular were exposed to COVID19 infection by a Chief Justice driven not by the law but his personal sentiments.

TO BE READ WITH 

Tuesday, June 9, 2020

The Court Of Appeal has ignored NSW Chief Health Officer Kerry Chant's COVID19 contagion evidence, so can we: Brad Hazzard wrong to say that COA approved Sydney BLM "in a set of specific circumstances"

by Ganesh Sahathevan

The SMH has reported:

NSW Health Minister Brad Hazzard says the Black Lives Matter protest was an isolated event and pleaded with the community to continue following the state's public health rules.

Mr Hazzard said the protest was "approved by the Court of Appeal (COA) in a set of specific circumstances" but warned health officials remained very concerned that COVID-19 was "still amongst us".

"For that reason, the NSW government implores the community to stay with us on the journey to keep all of us safe from the virus that is still wreaking havoc on communities overseas," he said.

Contrary to what Hazzard has had to say, the COA made it clear that it was not concerned with the evidence of COVID19 contagion, including the affidavit of the NSW chief health officer, Kerry Chant.

As the COA put it:

Where we differed from the primary judge was in the view that we took of the circumstances in which the Notice of Intention was modified in the course of the week leading up to the proposed assembly, and the legal significance of that modification.

It follows from what has already been said that identification of the statutory context in which public assemblies and rallies may be held in New South Wales is of first importance in understanding both the decision at first instance and our subsequent decision on appeal.

In lay terms this was the equivalent of saying COVID19 contagion and its consequences, including death, were not not relevant; what mattered was whether the proper form had been adhered to. 

The COA's decision had nothing to do with the right to protest or anything like that.Again in the words of the COA:

Competing public interests of great importance were thus potentially engaged but, as we shall explain, the issues before this Court were very narrow. Our decision did not ultimately turn on a difficult weighing exercise that resolution of that competition would necessarily have required.

The COA has ignored the advice of NSW chief health officer, Kerry Chant.So can we, the rest of NSW.

END 

TO BE READ WITH 

Monday, June 8, 2020

Sydney Black Lives Matter protest appeal: Court Of Appeal did not consider COVID19 contagion and its consequences; COVID19 contagion considered irrelevant despite Fagan J clearly citing COVID 19 restrictions

by Ganesh Sahathevan

Police clashing with protesters inside Central Station. Source: AAP

In the reasons for their decision in the  Sydney Black Lives Matter protest appeal  Bathurst CJ, Bell P, Leeming JA sitting as the Court Of Appeal NSW said: 

The proceedings before the primary judge (Fagan J)  related to a proposed public assembly set to commence in Sydney at 3.00 pm on Saturday, 6 June 2020.

The assembly had been organised by the appellant (Mr Bassi) in response to the tragic death of Mr George Floyd in Minneapolis in the United States of America on 25 May 2020, in furtherance of the Black Lives Matter cause in general and in particular memory of an indigenous Australian, Mr David Dungay.

Mr Floyd's death and the circumstances in which it occurred have sparked public protests throughout the United States and indeed throughout the world. These protests have been occurring, however, at a time when the world including Australia, has been dealing with the COVID-19 pandemic. One of the public health measures deployed in response to the pandemic has been "social distancing" with related restrictions being placed upon public gatherings. These measures have been designed to minimise the scope for community transmission of the coronavirus.

Competing public interests of great importance were thus potentially engaged but, as we shall explain, the issues before this Court were very narrow. Our decision did not ultimately turn on a difficult weighing exercise that resolution of that competition would necessarily have required; rather, the appeal was allowed by reason of the operation of the provisions of the Summary Offences Act in the context of a notice of intention to hold a public assembly (the Notice of Intention) which had been given pursuant to that Act by Mr Bassi to the Commissioner on 29 May 2020.

Where we differed from the primary judge was in the view that we took of the circumstances in which the Notice of Intention was modified in the course of the week leading up to the proposed assembly, and the legal significance of that modification.

It follows from what has already been said that identification of the statutory context in which public assemblies and rallies may be held in New South Wales is of first importance in understanding both the decision at first instance and our subsequent decision on appeal.

Fagan J the primary judge was reported to have said in his oral judgement: 

“No one denies  (the protest organisers their grievances about Aboriginal treatment at the hands of police) but we’re talking about a situation of a health crisis ... Everyone has given up a lot in order to defeat the disease on the basis that this is best advice health officials have given us (including an affidavit from the NSW chief health officer, Kerry Chant).

“I cannot accept that these proposals ... should take the place of the public health order which applies to all citizens.....” 

Given the grounds of Fagan J's judgement it is difficult to see how the Court Of Appeal decided that  their overturning Fagan J's decision did not ultimately turn on a difficult weighing exercise that resolution of that competition (between the right to protest and the COVID 19 restrictions)  would necessarily have required.

Meanwhile, as a result of their decision, a virus seeding even was permitted. It was serious enough for the President Of Australian Medical Association to issue this warning

“Mass gatherings are certainly the last gatherings on the list (of restrictions) and it was clearly against the advice of all the health authorities.”

He said anyone who attended the protests should “consider their position”, adding the “only safe way … of minimising any risk of it (coronavirus) spreading over the next 14 days is to ensure that we keep our distance from the rest of the community”.

Police men and women who were at the frontline of controlling the protests permitted by the Court Of Appeal are probably among the most likely to be infected (see photo above).

END 

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