No.
9706 of
2004
- Before the Court are two proceedings instituted by originating
motion wherein each plaintiff who is a legal practitioner seeks an
order
pursuant to s.8(4) of the Administrative Law Act 1978 ("ALA") that the
defendant Victoria Legal Aid furnish to him reasons for a decision made on 23
November 2004 not to include the practitioner's
name on a specialist
practitioner's panel established pursuant to s.29A of the Legal Aid Act
1978 ("the Act").
- In the first proceeding Alex Lewenberg ("Mr Lewenberg") is the
plaintiff. He is a barrister and solicitor of this Court and the
senior
partner of the firm Lewenberg and Lewenberg Solicitors.
- The other proceeding is brought by Matthew Leonard White ("Mr
White") who is also a barrister and solicitor of this Court and the
principal
of the firm Matthew White and Associates.
- The defendant in each proceeding is Victoria Legal Aid ("VLA")
which is a body corporate by reason of s.3 of the Act.
- As each proceeding raised the same issues, it was agreed by the
parties that the matters should be heard together and accordingly
I did so.
Basic Facts
- Part V of the Act deals with the provision of legal assistance
by VLA to persons involved in the litigation process. Section 29A provides for
the establishment by VLA of practitioner panels of a specialist nature. VLA is
empowered to establish different panels
for different classes of matters and in
respect of different parts of the State and in so doing, determine the
conditions subject
to which a practitioner may be included on any panel - see
s.29A(1).
- Sub-section (2) deals with the procedure that is to be followed
when the VLA proposes to establish a panel. If VLA proposes to
establish a
panel it is required to publish a notice in a daily newspaper circulating
generally throughout Victoria inviting expressions
of interest from
practitioners and firms who wish to have their names included on the panel.
The notice must be published not later
than 21 days before the panel is
established and must specify a number of matters - see s.29A(3). First, the
notice must specify the qualifications and experience a practitioner must have
in order to be a panel member. A period
not exceeding three years is to be
specified during which a practitioner may be included on the panel. The notice
must also specify
the basis on which payment will be made for services
performed on behalf of an assisted person, the performance standards in
relation
to the provision of services, the requirements with respect to making
reports and keeping records and the grounds upon which, and
the process by
which, a practitioner may be removed from the panel.
- Section 29A was inserted into the Act in 1997 - see Act No.
44/1997, s.19. In addition to specialist practitioner panels, the VLA has for
many years maintained what is called "a referral panel". Section 30(4) - (9)
(inclusive) deal with applications for inclusion on a referral panel. The
legal practitioner on a referral panel may be assigned
the conduct of an
assisted person's case. As at 22 December 2004, VLA had 1,184 private
practitioners on its general referral panel
established under s.30. The
referral panel is not a specialist panel and one of the objects of establishing
a panel under s.29A is to provide specialists in a particular area of the law
to conduct legal aid work on behalf of a client with the objects of efficiency,
expedition and economy.
- By letter dated 8 September 2004, VLA invited legal
practitioners to lodge with it an expression of interest in joining a
specialist
panel. The panel was to be set up pursuant to s.29A of the Act "to
conduct legally aided Magistrates' Court committals and County and Supreme
Court pleas and trials." The panel was to be known
as the Section 29A
Indictable Crime Panel. The panel comprised two divisions, namely, the "blue
panel" (metropolitan) and the "green panel" (rural
and regional).
- Information was sought from the practitioners with particular
reference to their experience and competence in the field of indictable
criminal matters and the closing date for expressions of interest was 24
September 2004. The applications were considered by a committee
appointed by
the VLA which according to the notice "may include" three senior employees of
VLA, and nominees from the Bar Council,
Law Institute of Victoria and the
relevant courts. The three members who were employed by the VLA and who may be
on the committee
were the Managing Director, Tony Parsons, and the managers of
the Grants Division and Criminal Law Division or their nominees. The
members
of the committee have not been identified. The actual decision to appoint or
not appoint was to be made by the Board of
VLA.
- Attached to the VLA letter was an information kit which
included a copy of the advertisement for the panel, the selection criteria
and
an Indictable Crime Practitioner Manual. The latter contained the terms and
conditions, performance standards, reporting and
record keeping requirements,
and removal procedures. It was made clear in the letter that the decision on
appointment was final
and conclusive and the letter went on to provide -
"The Board will not provide reasons for the appointment or
non-appointment of particular practitioners to the panel."
- On 22 September 2004 Mr White forwarded to VLA an application
on behalf of his firm to be included as a member of the Section 29A Indictable
Criminal Panel for the metropolitan area.
- On 24 September 2004 Lewenberg and Lewenberg also made
application for selection to the specialised panel apparently for both
divisions.
By e-mail and facsimile dated 23 November 2004 the firms were
advised that VLA had determined not to place the firms' names
on the Indictable
Crime Panel. It was made clear that the decision was final and "no reasons for
its determinations will be provided."
The Board of VLA made the decision after
considering the recommendations of a Selection Committee. The Board was
established by
s.11 of the Act and comprises five persons nominated by the
Attorney-General. It is authorised to exercise the powers of the VLA - see
s.12(1)(b). Mr Parsons, as Managing Director, is a member of the Board - see
s.11(b).
- Mr Lewenberg and Mr White on 25 and 30 November 2004
respectively sought reasons from VLA for their non-inclusion on the panel.
Both requests were refused.
- In both proceedings, the plaintiff seeks an order pursuant to
s.8(4) of the ALA seeking reasons.
- Section 8(1) provides:
"(1) A tribunal shall, if requested to do so by any person
affected by a decision made or to be made by it, furnish him with a statement
of its reasons for the decision."
- It can be seen that the obligation under the Act, is imposed
on "a tribunal" in respect of "a decision".
- Both these terms are defined by s.2 of the ALA. Section 8(4)
of the ALA gives jurisdiction to this Court to order a tribunal to furnish a
statement of reasons. However, the Court is not bound
to make such an order
and s.8(5) expressly provides that a court "shall not be bound to order ...
where to furnish the reasons would, in the opinion of the Court,
be against
public policy". VLA has relied upon s.8(5). Before considering the
definitions, the obligation under s.8(1) and the exemption under s.8(5), it is
necessary to briefly summarise the facts in relation to each of the plaintiffs.
Facts
A. Alex Lewenberg
- Mr Lewenberg has been a barrister and solicitor for more than
30 years. He has had considerable experience in the criminal law
during that
period, including many indictable criminal cases. He has been a member of the
referral panel established under s.30 of the Act for many years. His firm has
performed Legal Aid work for many, many years in the area of crime. During the
period January 2003
to December 2004 his firm was paid in excess of $86,501 by
Legal Aid for the conduct of legally aided indictable criminal matters.
In
2003, VLA established a Section 29 Summary Crime Panel and the managing
director of VLA wrote a letter to his firm care of Mr Lewenberg, inviting
the firm to apply
to be a member of the panel and endorsed across the bottom in
the handwriting of Mr Parsons were the words:
"Alex,
Would be great to have you on board. It really is a better process.
Cheers,
Tony."
- The evidence establishes that Mr Lewenberg is an extremely
experienced practitioner in the field of criminal law. Bearing in mind
the
work that had been carried out by his firm over the years as a member of the
referral panel in the area of crime, one might expect
Mr Lewenberg would
have little difficulty satisfying the experience and performance criteria
necessary for inclusion on the
panel. One of the immediate effects of
non-inclusion is that his firm would be deprived of income it would be paid for
the conduct
of legally aided indictable criminal matters. Although VLA states
that it would be open to VLA to assign an indictable criminal
case to a firm on
the general referral panel, I conclude that the probabilities are indeed high
that most, if not all cases would
be handled by either VLA through in-house
counsel or by assignment to a practitioner on that specialist panel. This is
confirmed
by reference to the letter inviting interest dated 8 September 2004
which contained the following:
"Only those practitioners that meet the selection criteria will be
included on the indictable crimes Section 29A panel and it is expected that
most legally aided indictable criminal cases will be conducted by firms on this
panel or by VLA's inhouse
legal practice."
- The firm of Lewenberg and Lewenberg conducts a general legal
practice. Approximately 40% of its work is in the area of criminal
law, with
some of the work being legally aided. There will be a deprivation of income as
a result of non-inclusion on the panel.
Further, Mr Lewenberg is concerned,
and I think with good reason, that he may lose longstanding clients who will be
referred to
other practitioners. I think I can take judicial notice of the
fact that a client satisfied with a solicitor's work has a tendency
to place
other work with that solicitor. This would not be confined to criminal work.
- In the application lodged on 24 September 2004, Lewenberg and
Lewenberg set out their and Mr Lewenberg's experience and competence
in the
conduct of serious indictable criminal matters, which showed that Mr Lewenberg
had considerable experience in the area, including
as an advocate, that the
firm had had a longstanding history of conducting legally aided serious
indictable matters, that it had
a demonstrated ability to work productively
with VLA in an effective, efficient and economic manner, noted that there had
been no
finding of misconduct over the last 15 years and that the bulk of the
firm's work was in the Melbourne area. No other correspondence
occurred, no
request was made for information and the next thing that happened was the
receipt of the advice on 23 November 2004
that the application had been
unsuccessful. As I have earlier stated, Mr Lewenberg requested reasons, he
followed up the request
on 26 November with a further request and was told on 2
December 2004 that no reasons would be provided. Further correspondence
took
place between the parties in which notice was given that application would be
made to the Court with reference to the ALA which
prompted VLA to correspond on
17 December 2004 stating that the ALA did not apply.
- On 20 December 2004, Mr Lewenberg issued the originating motion.
B. Matthew Leonard White
- Mr White is younger than Mr Lewenberg and his experience as a
practitioner in criminal matters is less but nevertheless substantial.
- Mr White served articles with the Commonwealth Director of
Public Prosecutions in 1993 and was admitted to practice on 7 March 1994.
He
remained with the Commonwealth DPP until October 1994 when he moved to the
Australian Government Solicitor's Office in Darwin
for two months. In December
1994 he returned to the Melbourne office of the Commonwealth DPP and remained
there until 1998. During
the whole of his time with the Commonwealth, he was
engaged in criminal work. He obtained a particular speciality concerning the
Commonwealth Crimes Act and the complex area of Commonwealth sentencing.
In late 1998 he was employed as a solicitor in the Criminal Law Division of VLA
and remained there until 2001. During this period he was involved in many
indictable matters. In 2001 he commenced employment with
a firm as a solicitor
advocate and in March 2002 he and another person acquired the practice and
renamed it "Grubissa White". The
partners practised together until August 2004
when Ms Grubissa was appointed a magistrate. Since then Mr White has conducted
the
practice under the firm name of Matthew White and Associates, and at
present he employs two solicitors and an office manager. Since
2001, after
leaving VLA, Mr White has instructed in a number of County Court and Supreme
Court trials and appeared as an advocate
in a number of indictable matters. On
12 October 2004 he became an accredited specialist in criminal law.
- His firm's practice comprises exclusively criminal law work.
Since March 2002 approximately 20% of the firm's practice has been
indictable
criminal work of which approximately 85% was legally aided. The assignment of
legal aid to the firm by VLA in the past
in indictable matters resulted in fees
of approximately $80,000 - $100,000 net per annum. The balance of the firm's
work is summary
criminal matters.
- The firm has been a member of the Section 30 Referral Panel
and in the past applications on behalf of the client by the firm for legal aid
in indictable matters have in the main
been approved. It was rare for any
matter to be assigned to an inhouse VLA practitioner.
- Mr White was surprised and disappointed on learning of VLA's
decision and was concerned that the decision would impact upon his
firm's
practice and its clients. On 24 November 2004 Mr White sent a letter to
Mr Parsons requesting an opportunity to meet
to clarify the selection process.
On the morning of 26 November 2004, Mr White was interviewed on ABC Radio 774,
and later that morning
Mr Parsons appeared on the programme to explain some
aspects of the decision. On 1 December 2004, Mr White sent an e-mail to
VLA seeking a statement of reasons for the decision pursuant to s.8(1) of the
ALA. The response on the same day stated: "As previously advised, the Board's
decision is final and no reasons for its determinations
will be provided."
- Mr White has deposed that the decision will have a dramatic
effect on his practice, that without new legally aided indictable matters
it is
likely that staff will have to be dismissed and that there will be a
substantial financial loss to the firm.
Obligation to provide reasons
- In Public Service Board of New South Wales v Osmond[1], the High Court held that there was no general
rule of common law or natural justice which required reasons to be given for
administrative
decisions. This is so, even when the decision is made in the
exercise of a discretion pursuant to statute and which may impact adversely
upon the interests of those affected by the decision or defeats the legitimate
or reasonable expectations of the person affected.
- The ALA was passed in 1978 and s.8 gives the right to a person
affected by an administrative decision to make application to this Court for an
order that the decision-maker
provide a statement of reasons for the decision.
- I have already set out s.8(1) above.[2] The obligation to give reasons rests upon a tribunal in
respect to a decision made. The right is given to a person affected by
the
decision made or to be made. It follows that the applicant must prove
-
(i) that he is a person affected by the decision made or to be
made;
(ii) that the decision is a decision within the meaning of the
Administrative Law Act; and
(iii) that the decision-maker is a tribunal within the meaning of that Act.
- There is no doubt that Messrs Lewenberg and White are persons
affected by the decisions. The next question is, are they decisions
within the
meaning of the ALA?
- Section 2 is the definitions section.
- For the sake of clarity, the definition of the word "decision"
may be paraphrased as follows -
"means a decision
operating in law
to determine a question
affecting the rights of any person
OR
to grant
deny
terminate
suspend
OR
alter
a privilege or licence
and includes
the refusal or failure to perform the duty or to exercise the power to make a
decision."
- Section 29A(1) of the Act provides:
"(1) VLA may establish different panels for -
(a) different classes of matters in relation to which legal
assistance may be provided under this Act; or
(b) different parts of the State -
and may determine the conditions subject to which a practitioner may be
included on any such panel."
- Once a practitioner becomes a member of the specialist panel,
under s.29B VLA may assign the conduct of an assisted person's case to a member
of that panel. The reality is that in most cases indictable
criminal work will
be assigned to those practitioners who are members of the s.29A Indictable
Criminal Panel or kept inhouse. Whilst VLA could assign the work to a member
of the Referral Panel it would be a rare
event.
- The Act does not give a right to a legal practitioner to be a
member of the panel. The Board of VLA makes that decision. Hence, the
decision
does not affect any right. But what is being sought by an applicant
is at the least a privilege. The privilege is to be a member
of the panel.
Once a member of the panel, indictable criminal work may be assigned to the
member.
- The word "decision" is widely defined and what Messrs
Lewenberg and White sought was a privilege to be a member of the panel. That
privilege of course did not give them any right to have work assigned to them
but nevertheless their inclusion on the panel gave
them every expectation that
they would receive work.
- The decision to include a practitioner on the panel does not
result in the grant of a licence
- In Banks v Transport Regulation Board (Vic)[3], Barwick CJ stated what was "a licence".
His Honour said:[4]
"From this passage has stemmed the repeated notion that a mere
licence does not create any estate or interest in the property to which
it
relates: it only makes an act lawful which without it would be
unlawful."
(Emphasis added).
- The decision determining inclusion does not result in the
grant of a licence. "Privilege" is concerned with a different concept.
- The word "privilege" is defined by the Shorter Oxford English
Dictionary as, inter alia, meaning "a right advantage or immunity
granted to or
enjoyed by a person or class of persons beyond the common advantage of others"
and also defined as "a privileged position;
the possession of an advantage over
others or another." In Le Strange v Pettefar[5], Luxmoore LJ said:[6]
"A `privilege' describes some advantage to an individual or group
of individuals, a right enjoyed by a few as opposed to a right enjoyed
by
all."
- In my opinion, the decision made by VLA concerning inclusion
or non-inclusion on the panel was a decision relating to a privilege
and the
decision denying the privilege was a decision within the meaning in s.2 of the
ALA. I did not understand counsel for VLA
to contend otherwise.
- That brings me now to the question whether it was a decision
made by "a tribunal".
- The word "tribunal" is also defined by s.2 and can be
relevantly paraphrased as follows -
"Tribunal means ... a body of persons (not being a court of law or
a tribunal constituted or presided over by a Judge of the Supreme
Court)
who, in arriving at the decision in question
are by law required
whether by express direction or not,
to act in a judicial
manner to the extent of observing one or more of the
rules of natural justice."
- The phrase "natural justice" has a particular meaning in
modern administrative law. At its least, it consists of two common law
rules
requiring that fair procedure is followed in the decision making process
affecting rights or interests of an individual. The
two rules are -
(i) The hearing rule (audi alteram partem) which
requires the decision-maker to give an opportunity to the person adversely
affected by the decision to be heard in respect
to matters relevant to the
decision.
(ii) the rule that the decision-maker shall not be a judge in his own cause
namely that the decision-maker is free from bias.
- The rules are concerned with the decision making process and
not the merits of the decision itself. See Chief Constable of North Wales
Police v Evans[7]. The better view appears
to be that there is no third rule that the decision maker must act fairly. In
Footscray Football Club Limited v Commissioner of Payroll Tax[8], Lush J said:
"I find myself unable to accept the proposition that a duty
formulated merely as a duty to act fairly is a duty to comply with the
rules of
natural justice. In one sense it can be said that any person exercising public
power is under a duty to act fairly.
The
rules of natural justice are usually crystallised into two categories; the
first rule, as sometimes formulated, was in the form that
no person shall act
as judge in his own cause, and perhaps may be formulated in the form that the
deciding body must be free of bias;
and the second rule stated the requirement
that the person whose rights may be affected is entitled to be heard. Within
each of
those rights there may again be a requirement of fair
acting."
- Barwick CJ in Salemi v MacKellar (No. 2)[9] made it clear that the duty to act fairly
flowed from the obligation to accord natural justice. His Honour said:[10]
"It is in this connexion that the concept of fairness is relevant:
that is, once it is concluded that the power of decision or action
is dependent
on the observance of natural justice, fairness in the particular circumstances
will determine what must needs be done
to satisfy natural justice. The
fairness is what is required of a repository of power when on the proper
construction of the statute
that power is qualified by the need to accord
natural justice. But the basic question is whether the statutory power is so
qualified.
Whether it is to be so qualified is a matter for the Parliament.
It is for the courts to decide in point of construction what the
Parliament has
relevantly enacted, both expressly and implicitly. The courts by construction
of the statute educe and make express
the qualification of the granted power
inherent in the statute. Having decided that the statute makes the exercise of
the power
contingent on the observance of natural justice, the courts then
decide what is required in the particular circumstances to satisfy
the statute
so construed. But it is fundamental that what the courts do in qualifying the
powers is no more than to construe the
statute. Failure to meet the
qualification of the power, that is to accord natural justice in the manner in
which the courts decide
is required in the circumstances, results in an
invalidity of the decision or act, because neither is authorized by the statute
as
construed by the courts."
- More recently Deane J has identified what he described as
another requirement of natural justice and that is that decisions
must be based
upon logically probative and relevant material. See Australian Broadcasting
Tribunal v Bond[11]. However, the High
Court has not come that far as yet.
- For present purposes, in my opinion, the phrase "observing one
or more of the rules of natural justice" appearing in the definition
of
"tribunal" in s.2 refers to either of the well established rules.
- The question therefore arises whether the Board of VLA in
making the final decision concerning inclusion or non-inclusion in the
panel
was bound to observe one or more of the rules of natural justice. Was it
required to give a hearing before making the decision?
Was it a body required
to make its decision free from bias?
- Counsel for the applicants submitted that both rules applied.
That is, that the Board was obliged to give a hearing and secondly,
that the
Board was obliged to make its decision free from bias.
- Whether or not the Board was bound to accord natural justice
depends upon the proper construction of the Act and the application of the
common law rules concerning an obligation to accord natural justice.
- It is well established that the application of the rules of
natural justice and their content depends upon a proper construction
of the
statutory provisions relating to the decision making process. There is nothing
expressly provided in the Act concerning the obligation to hear or not hear an
applicant. There is nothing expressly stated in the Act requiring the Board to
be a disinterested decision maker. However, that is not the end of the debate.
The question is whether there
is an implied obligation on the Board to give a
hearing and/or to be a disinterested decision maker?
The Bias Rule
- Does it apply? The first question for consideration and
determination is - what is the bias rule? And in answering that question
it is
necessary to consider its application and how it may be infringed. The rule is
succinctly stated in the Latin maxim nemo debet esse judex in propria
causa - no one can be a judge in his own cause.
- The rule requires a decision maker to be impartial and
disinterested. Not only must the decision maker not have any interest in
the
outcome of the decision making process, but he or she must not have any direct
financial interest in the decision. The decision
maker is also bound to
perform the decision making process free of any pre-judgment or prejudice and
to ensure that the task is carried
out in a fair and bona fide consideration of
all relevant matters. The rule may be infringed in a myriad of ways. By way
of example,
having a direct financial interest in the outcome, having a
personal association with a person having an interest in the outcome
and
pre-judgment. In the same way as the hearing rule may vary in its content, the
actual obligation under the bias rule may vary
according to the circumstances.
A familiar example is where the decision making process is established by
statute, regulation or
some contractual term which has the effect of modifying
the rule. A classic example is where the rules concerning a disciplinary
tribunal provide that the decision maker not only investigates the complaint,
but lays the complaint and also hears it.[12]
In such circumstances the bias rule is modified and what would normally be a
disqualifying factor is no longer so. Nevertheless
the content of the rule may
not be exhausted. In other words, the provisions establishing the decision
making process may modify
the bias rule as in the example given above, but
nevertheless leave intact the balance of the bias rule. This would mean that
if
the decision maker had prejudged the decision and had a closed mind when
making the decision or had a financial interest in the outcome,
the bias rule
would still disqualify the decision maker.
- The rule has developed and been applied in the past, more in
relation to the conduct of judicial officers than other decision makers.
Further, the courts have been as much concerned with the appearance of justice
as the actual performance of justice. Whilst the
rule in the past has been
mainly applied to courts, or a court-like body such as a disciplinary tribunal,
it is well accepted that
the rule applies to administrative decisions.
- The next question for consideration is does the bias rule
apply to VLA's decision making process concerning the inclusion of a
practitioner
on a specialist panel established pursuant to s.29A of the Act?
In order to answer that question it is necessary to consider the obligation
resting upon VLA in its decision making process under
the Act. In Kioa v
West[13], Mason J said:[14]
"Where the decision in question is one for which provision is made
by statute, the application and content of the doctrine of natural justice
or the duty to act fairly depends to a large extent on the construction of
the statute. In Mobil Oil Australia Pty Ltd v Federal Commissioner of
Taxation, Kitto J pointed out that the obligation to give a fair
opportunity to parties in controversy to correct or contradict statements
prejudicial to their views depends on `the particular statutory framework'.
What is appropriate in terms of natural justice depends
on the circumstances of
the case and they will include, inter alia, the nature of the inquiry, the
subject matter, and the rules
under which the decision-maker is acting."
(Emphasis added).
- His Honour added:[15]
"The statutory power must be exercised fairly, that is, in
accordance with procedures that are fair to the individual considered in
the
light of the statutory requirements, the interests of the individual and the
interests and purposes, whether public or private,
which the statute seeks to
advance or protect or permits to be taken into account as legitimate
considerations."
- It is noted that his Honour emphasised that both the
application of the rules of natural justice and their content depends to a
large extent on the statute. It is therefore necessary to consider s.29A in
the context of the Act. I have set out sub-s.(1) above.[16]
- Section 29A(2) requires the VLA to publish a notice in a daily
newspaper circulating throughout Victoria or the relevant part of the State as
the
case requires, inviting expressions of interest from practitioners.
Sub-section (3) in paragraph (b) specifies matters that must
be included in the
notice. These identify factors that VLA must take into account in making its
decision as to whether or not a
practitioner may be included on a panel.
Sub-section (3)(b) provides -
"(3) A notice under sub-section (2) -
(a) ...
(b) must specify -
(i) the qualifications and experience that a practitioner included on the
panel must have or the part of the State within which their
principal place of
practice must be located; and
(ii) the period (not exceeding 3 years) during which a practitioner may be
included on the panel; and
(iii) the basis on which payment will be made to any practitioner included on
the panel for services performed as a panel member
on behalf of an assisted
person; and
(iv) performance standards in relation to the provision of services by panel
members; and
(v) requirements with respect to the making of reports to VLA and the
keeping of records that must be complied with by panel members in
respect of
the performance of services on behalf of assisted persons; and
(vi) the grounds on which, and process by which, a practitioner may be removed
from the panel."
(Emphases added).
- In my opinion, VLA in determining whether or not a
practitioner be included on a specialist panel must carefully consider all
matters
relevant to the application, including the qualifications and
experience of the practitioner. In appointing a person to a panel,
VLA is
exercising a statutory power. It is obliged to perform its function in
accordance with the law. In Buck v Bavone[17], Gibbs J said:
"In all such cases (where a body is exercising statutory power) the
authority must act in good faith; it cannot act merely arbitrarily
or
capriciously. Moreover, a person affected will obtain relief from the courts
if he can show that the authority has misdirected
itself in law or that it has
failed to consider matters that it was required to consider or has taken
irrelevant matters into account.
Even if none of these things can be
established, the courts will interfere if the decision reached by the authority
appears so unreasonable
that no reasonable authority could properly have
arrived at it."[18]
- It is important to note the important obligation resting upon
the decision maker exercising statutory power, namely, to act in good
faith. A
decision maker would not be acting in good faith if the issue was determined
with a closed mind and prejudice. A decision
maker who made a decision in
those circumstances would not be acting in good faith and would infringe the
bias rule. The principles
of natural justice would be breached. The decision
maker's decision would not be the product of a genuine and impartial exercise
of the statutory power. In my opinion, it is clear that VLA in reaching its
decision under s.29A was obliged to comply with the bias rule of natural
justice. The bias rule is part and parcel of VLA's performance of its
statutory
power, namely, to act in good faith considering all matters relevant
to the decision. To prejudge the decision prior to fully considering
all
relevant matters would be to infringe the rule. I emphasise that there is no
evidence that the Board of VLA did infringe the
rule. But that is not the
issue in this application. The issue is whether the bias rule applied to the
Board's exercise of its
statutory power? In my opinion it did.
- Further, the application of the principles of the common law
which imply the obligation of natural justice in respect to administrative
decisions supports my conclusion. In Kioa v West, supra, Mason J
carefully and in detail considered the principles and their application. He
expressed the principles at p.582.
His Honour's statement of principle was
referred to in Annetts v McCann [19]
where he, Deane and McHugh JJ said:
"It can now be taken as settled that, when a statute confers power
upon a public official to destroy, defeat or prejudice a person's
rights,
interests or legitimate expectations, the rules of natural justice regulate the
exercise of that power unless they are excluded
by plain words of necessary
intendment: (authorities quoted) ... In Tanos Dixon CJ and Webb J said
that an intention on the part of the legislature to exclude the rules of
natural justice was not to be assumed
nor spelled out from `indirect
references, uncertain inferences or equivocal considerations'.
Nor is such an intention to be inferred
from the presence in the statute of
rights which are commensurate with some of the rules of natural justice ... In
Kioa v West Mason J said that the law in relation to administrative
decisions `has now developed to a point where it may be accepted that there
is
a common law duty to act fairly, in the sense of according procedural fairness,
in the making of administrative decisions which
affect rights, interests and
legitimate expectations, subject only to the clear manifestation of a contrary
statutory intention'.
In Haoucher Deane J said that the law seemed to him `to be moving
towards a conceptually more satisfying position where common law requirements
of procedural fairness will, in the absence of a clear contrary legislative
intent, be recognised as applying generally to governmental
executive decision
making'."
- In my opinion, their Honours' comments apply to the bias rule
and to a body exercising statutory power resulting in the granting
a privilege
to a person to be appointed to a panel. For a court to come to the view that
the hearing rule applies in my view is
very strong evidence that the bias rule
would also apply. It is hard to see on what basis it can be said that a
decision making
body would be acting fairly in giving the party affected by the
decision an opportunity to be heard if it was biased in any way.
- The question is whether or not the statute confers power upon
VLA to "defeat ... a person's interests"? It is clear that a business
or
commercial reputation is an interest as well as personal reputation. See
Ainsworth v Criminal Justice Commission[20]. The learned author of Judicial Review of
Administrative Action in Laws of Australia[21] discusses the interests which have been afforded
protection in the past and they include decisions which "adversely affect
persons
in their occupation or livelihood, or affect business interests".
- Both applicants in the proceedings have in the past performed
legal aid work for VLA in respect of indictable criminal matters.
Each has
derived substantial income from performing the work. One might have expected
given the circumstances, in particular that
they had in the past performed
criminal work and were on the referral panel, that they would be included on
the new specialist panel.
In my opinion, a refusal in those circumstances
would not only have an adverse affect on their business interests, but would
also
reflect on their reputations as legal practitioners practising in the
criminal field. Their interests would be affected by the refusal
to include
them on the specialist panel. In my view, the bias rule would apply in those
circumstances.
- Whether or not each would be entitled to a hearing before the
decision was made is a matter that I do not need to consider.
- I am satisfied that in the circumstances the bias rule applied
to the decision making process and accordingly the decision is made
by a
tribunal within the meaning of the ALA.
- Counsel for VLA submitted that the rules of natural justice
had been excluded by the Parliament because of some provisions in the
Act which
provided for appeals or reviews. Reference was made to the objectives and
duties of VLA set out in ss.4 and 7 of the Act and emphasis was given to the
obligation of VLA to provide an effective, efficient and economic system of
legal aid. Counsel specifically
referred to s.30 which deals with a situation
where a person whose name is on the referral panel is removed from the panel
and certain procedures
must be followed including a right to be heard.
Further, there is the provision in s.33 which requires that in certain
circumstances reasons have to be given for decisions made. In addition, Part
VI of the Act sets out procedures concerning reconsideration of decisions by
VLA and an independent reviewer who has certain functions to perform
under
certain provisions in the Act. I note these specific references but in my view
they do not exclude the application of the bias rule when VLA makes its
decision
under s.29A. Those provisions deal with specific matters, and as the
Court said in Annett's case, supra, an intention to exclude the rules
should not be inferred "from the presence in the statute of rights which are
commensurate
with some of the rules of natural justice." In other words, one
must proceed with considerable caution in inferring that the legislature
intended to exclude the rules of natural justice because in other parts of the
Act specific reference may be made to the rules applying in certain
circumstances. The principle of construction embodied in the maxim
expressio unius est exclusio ulterius must always be applied with
caution. It does not follow that because the statute expressly deals in one
part with the rules of natural
justice, that the omission to refer to them in
another context means they do not apply. I am not persuaded that there is
anything
in the Act which excludes the application of the bias rule to the
decision made by the Board under s.29A.
Exclusion because of public
policy
- Counsel for VLA submitted that if I was of the view that the
decision was made by a tribunal within the meaning of the ALA, nevertheless
the
Court must not order the provision of reasons if it was against public policy.
They submitted it was. Section 8(5) provides:
"(5) Notwithstanding anything in this section a tribunal shall
not be bound to furnish a statement of reasons, and the Court shall
not be
bound to order it to do so, where to furnish the reasons would, in the opinion
of the Court, be against public policy, or
the person making the request is not
a person primarily concerned with the decision ... "
- Counsel for VLA submitted that it would be against public
policy to furnish reasons. In support of the contention, VLA relied upon
the
affidavit evidence of Ian Campbell, the Operations Co-ordinator of VLA's Grants
Division. The reason advanced, which it is said
is against public policy, is
that it will take time and cost money to provide reasons, which will compromise
the efficiency of VLA
providing services to assisted persons and reduce scarce
legal aid funds for legal services. Mr Campbell stated in his affidavit,
sworn 22 December 2004, that the panels under s.29A were relatively new and
were intended to provide legal assistance at a reduced administrative cost. He
said that VLA made a policy
decision not to provide reasons for exclusion of
practitioners from s.29A panels and each applicant was informed prior to
applying for selection. He noted that in the past VLA had established
specialist
panels in the areas of family law, summary crime, child
representatives and indictable crime. By way of example, he noted that there
were 90 applicants for appointment to the Child Representative Panel; 60 were
appointed, and 32 were refused. He stated that if
VLA was obliged to provide
reasons it would be necessary to provide reasons to all 32 unsuccessful
applicants. Although he did not
state how many applied for inclusion on the
indictable criminal panel, or the numbers appointed, he said that similar
ratios would
apply to other s.29A panels. Whilst stating that VLA had not had
the opportunity at that point to fully determine the administrative cost of
providing
reasons, he opined that it would take a Level 3 VLA employee
approximately one day to collate the material and draft the reasons.
A Level 3
VLA employee costs about $450 per day. He stated one day's work would cost
about $800 including the additional costs
of review by superiors and possible
legal opinion. He emphasised the limited amount of funding provided for legal
aid. I must confess
that I am surprised by what Mr Campbell has stated.
Applicants for inclusion on the s.29A Indictable Crime Panel were required to
submit their application which was to be considered by a special committee set
up to recommend
to the Board of VLA the fate of each application. It seems to
me that in carrying out that process the committee would be obliged
in some way
to make clear why it was recommending that a particular practitioner should not
be included. One would expect that the
Board would require a statement of the
reasons by the committee why a particular application should be refused. The
reasons would
not have to be detailed. They could be succinct and to the
point. For example, the application be refused because (a) the applicant
lacks
experience, (b) the applicant has in past dealings provided inefficient
service, and indulged in unnecessarily prolonging proceedings
and (c) has
failed to respond expeditiously and properly to requests from VLA. The factual
matters could be briefly identified and
summarised. This would be part and
parcel of the deliberative process carried out by the committee leading to the
recommendation.
Given that that is the most obvious procedure to follow one
would expect when the Board made the decision it would state that it
had
resolved not to include X on the panel, and set out in summary form the
reasons. This would not involve added expense of any
substance. More
importantly it would not involve an employee of VLA collating the material and
writing the reasons. The reasons
would be apparent from the committee's
recommendation and the Board's decision. It is the Board's reasons which would
be provided,
not an employee's interpretation of the decision.
- Further, it is clear that the provision of reasons pursuant to
an order of the Court under s.8 will always involve some time and some expense.
In other words, the Legislature in giving the power to this Court to order the
provision
of reasons must have contemplated and expected that there would be an
expense. I am not persuaded that the expense stated by Mr Campbell
is a correct
estimate of the likely cost but in any event the statute contemplates that
there will be a cost. Unless the cost was
so prohibitive that it could not
have been in the contemplation of Parliament, the usual cost flowing from
satisfying the obligation
could not result in the furnishing of reasons being
against public policy. I am not persuaded the cost would be prohibitive.
Further,
I accept what Mr Tracey QC said on behalf of Mr Lewenberg, that
in any event the provision of reasons may in the end result
involve less
expense than a situation where no reasons are given, causing the disappointed
applicant to bring a judicial review proceeding
in this Court. If reasons are
given which make clear that the statutory power was properly exercised, no
error of law is demonstrated,
and a disappointed applicant, properly advised,
would not bring a proceeding. But if left in doubt, a disappointed applicant
may
bring a proceeding and in the long run the cost of the proceeding would far
outweigh any cost of providing reasons.
- I am not persuaded that the furnishing of reasons for
non-inclusion on the s.29A Indictable Crime Panel would be against public
policy.
Conclusion
- In my opinion, the decision made not to include either
applicant on the s.29A Indictable Crime Panel was a decision made by a tribunal
within the meaning of the Administrative Law Act 1978, and there is no
reason for refusing an order to provide reasons. Further, the furnishing of
reasons would not be contrary to public
policy under s.8(5) of the ALA.
- Subject to any submissions by counsel I propose to make the
follow order in each application:
That Victoria Legal Aid furnish to the plaintiff pursuant to s.8(4)
of the Administrative Law Act 1978, within 14 days a statement of its
reasons for its decision made on 23 November 2004 to refuse the application of
the firm Lewenberg
and Lewenberg (Matthew White and Associates) for inclusion
on the s.29A Indictable Crime Panel established under s.29A of the Legal Aid
Act 1978.
- I will hear the parties on the question of costs.
---
[1] [1986] HCA 7; (1986) 159 CLR 656.
[2] See para 16.
[3] [1968] HCA 23; (1968) 119 CLR 222.
[4] At p.230.
[5] (1939) 161 LT 300.
[6] At p.301.
[7] [1982] UKHL 10; [1982] 1 WLR 1155 at 1174-5.
[8] [1983] 1 VR 505 at p.510.
[9] [1977] HCA 26; (1977) 137 CLR 396.
[10] At p.400.
[11] [1990] HCA 33; (1990) 170 CLR 321 at 368.
[12] See R v Brewer, ex parte
Renzella [1973] VR 375.
[13] [1985] HCA 81; (1985) 159 CLR 550.
[14] At 584.
[15] At 585.
[16] See para 36.
[17] [1976] HCA 24; (1975) 135 CLR 110 at 118.
[18] Approved by four members of the High
Court in Minister for Immigration v Wu Shan Liang 1996) [1996] HCA 6; 185 CLR 259 at
275-6.
[19] [1990] HCA 57; (1990) 170 CLR 596 at 598.
[20] [1992] HCA 10; (1991) 175 CLR 564 at 577-8.
[21] Volume 2.5 at para 7, p.16.
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