e DISTRICT REGISTRY v he a cs wat 1

Federal Court of Australia|1983-04-07|Before: Keely JJ, Woodward J, Woodunard J, Blackburn J

ON APPEAL FROM A SINGLE JUDGE OF THE FEDERAL COURT OF AUSTRALIA

BETWEEN: DANILO SORDINI Appellant AND: STUART FRANCIS WILCOX,

ALAN ANTHONY HARDIMAN, STANEORD BRUCE JUDDERY , and LEGAL AID COMMISSION fA.C.T.)-

The appellant, who had been committed for trial ona charge of murder, asked the Legal Aid Commission pursuant to the Legal Aid Ordinance 1977 (''the Ordinance") to assign his case to the solicitor and junior counsel who had appeared for him at the unquest and the committal proceedings, and to leading counsel of his choice. The Director of the Legal Aid Commission decided to refuse this request and to assign the case to the Public Defender, and when the Director, upon reconsideration, refused to change thzs decision, the decision was, upon the appellant's request, referred to the Review Committec under s.56(3) of the Ordinance for review. The Committee affirmed the Director's decision, and the appellant then sought review by this Court under the Administrative Decisions (Judicial Review) Act 1977. The learnea judge of first instance dismissed the application for review with costs, and the appellant appeals.

The facts are fully set out in the judgment of Woodunard J.

The problem posed before the Review Committee was whether the appellant's case should be assigned to private practitioners or to officers of the Legal Aid Commission. Section 11 of the Ordinance requires that the Commission should determine "guide- lines" (what used to be called principles) for the solution of this kind of problem. Guidelines so determined were in evidence before us. The relevant guideline was No. 4, which reads, as

"In any event where a person qualifies for legal assistance then the legal staff of the Commission, only, shall if available be assigned to act for him/her:-

(a) where the matter involves a charge triable upon undictment, and the costs of the matter ancluding costs of committal proceedings are estimated by the Director or a Committee to excced $2,000 unless in all the circumstances the Director is of the opinion that it is reasonable to assign the legally assisted person to a private legal practitioner;"

There are later paragraphs dealing with other classes of case. It was agreed that the case before us came within paragraph (a). Tf, therefore, the guideline is to be taken in its literal sense, the question before the Review Committee was whether it was reasonible to assign the appellant's case to a private legal practitioner.

But the meaning of the guideline is, for me, a matter of

concein. JJereafter, I refer to the 1.ords from "unless in all the circumstances" to the end of paragiaph (a) as "the exception".

Woodward J. in his reasons for judgment accepts the words as they

stand and points out that the Director "should be more easily satisfied that 1t would be reasonable to assign a private practitioner than that it would be unreasonable not to." For myself, with respect for the opinion of Woodward J., I fand 1t impossible to construe the words of the exception as meaning

what at first they appear to say. In the vast majority of cases

it must be "reasonable to assign the legally assisted person to

a private legal practitioner". In what circumstances could it not be so? The only such circumstances that I can imagine are that the

trial is in the very near future and that the applicant has been

represented at the committal proccedings and up to the time when the decision is made, by officers of the Commission. The guideline therefore appears to say that a case of the kind described shall be assigned to the officers of the Commission except in circumstances which, in fact, will almost always exist.

I cannot accept this as its proper construction. Obviously the purpose of guideline no.4 is to provide for certain classes of cases which are to be assigned only to the staff of the Commission. The first of such classes (the one in question) may be described as the class of expensive criminal cases. Inexpensive criminal cases are not within the guideline at all. The rationale of bringing cxpensive criminal cases under the rule can be understood. The drafsman then wanted to provide an exception for some special capensive criminal cases. I do not think he should be taken to have provided an exception which will apply far more often than the rule, and to have produced a guideline which means that expensive criminal cases shall be assigned to the staff of the Commission only in the rare instance where it cannot be said that it would be reasonable to assign them to private practitioners. If that was meant, it is difficult to imagine why any special rule was made for expensive criminal cases.

In my opinion the meaning which must be given to the exception in order to preserve the guideline from absurdity is

"unless in all the circumstances the Director is of the opinion that it is unreasonable not to assign the

legally assisted person to a private legal practitioner".

This is what I think the draftsman intended. Perhaps his thoughts first ran on some such wording as "more reasonable to assign the legally assisted person to a private legal practitioner than to the staff of the Commission" and then in a laudable attempt at verbal economy, and remembering that reasonableness is in principle relative rather than absolute, he framed the words of the exception as they stand.

The question of applying guideline no.4 (which is one of those made under s.ll - "for the allocation of work

between officers of the Commission and private legal practitioners")

only arises after it has been decided to grant legal aid, in some

form, to the applicant. If, therefore, it is unreasonable not to assign the legally assisted person to a private practitioner, it follows that at must be unreasonable to assign him to the staff of the Commission. It follows, in my opinion, that the test which the Review Committee ought to have applied was whether it was unreasonable to assign the appellant's case to the Public Defender.

It might be said that the members of the Review Committce can be excused for not venturing to construe the guideline other- wise than in its literal sense. Such a venture is easier for this Court than for the Review Committee. But the guidelines, notwith- standing that they are "determined" by the Commission, are legislation which is binding on it and thus on the Review Committee. It is unfortunate that the drafisman of the guidelines has imposed this dafficult problem of the construction of guideline no.4 as a burden upon the Director and the Review Committee.

I turn to what the Review Committee decided. As I have

said, its task was to decide whether the exception to guideline

4(a) applied - in other words, whether the appellant's case should be assigned to officers of the Commission or to private practitioners; not to decide whether it should be assigned to

some particular private practitioners rather than to others. There was no doubt that the case was one to which, prima facie,

paragraph (a) of guideline no. 4 applied. The learned judge at first instance gave an account of the proceedings of the Review Committee, and I do not repeat 1t. The solicitor for the

appellant was allowed, during a period of retirement of the Committee from the room where the hearing was conducted, to telephone to the practitioners of the appellant's choice to see whether they would accept the assignment for the fees prescribed

by the Commission. When the Committee returned from its retii1ement, the chairman announced that the decision under review would be confirmed "so the 'phone calls won't be necessary". In fact the solicitor had been unable to reach the practitioners concerned. Although no request for reasons for the decision had been made,

Had nothing more occurred, the Committce would have appeared to have faced the correct problem, namely whether the case came under the primary words of guideline no. 4, and should therefore be assigned to the staff of the Commission, or whether it was removed by the cpe1ation of the exception, and should therc- fore be assigned to pravate practitioners. The Committce (on this supposition) not having given reasons for ats decision, it would be necessary for the Court to hold that the decision was correct, unless it appeared on 11s face to be otherwise, i.e. unless

instructed as to the relevant law could have come to the determination under appeal": Edwards v. Baarstow [1956] A.C. 14 per Lord Radcliffe at p.35-6.

But the Review Committee did publish reasons for its decision. The fact that, not having been requested to do so under s.40(4)} of the Ordinance, it was not bound to do so, makes no difference: if a body having power to make decisions gives reasons for a decision, the reasons may be scrutinized. The cases which have repeatedly affirmed this principle (e.g.

Padfieldv. Minister of Agriculture [1968] A.C. 997) are mostly

prerogative writ cases, but in my opinion the same principle applies to review under the Administrative Decisions (Judicial Review) Act 1977, and it can make no difference that the Act provides means (s.13) whereby a person dissatisfied by a decision may require reasons to be furnished.

The Review Committee's published reasons show that the test it applied was whether it was reasonable to assign the case to private practitioners, and its conclusion was that it was not. In my opinion, as I have said, this was not the correct test.

What the Committee had to decide was whether it was unreasonable

to assign the case to officers of the Commission. With due

respect to the members of the Review Committee, I think they were

in error, though given the draftsmanship of guideline no. 4, their mistake was understandable. The learned judge held that the Committee decided the review in accordance with the guidelines determined by the Commission in pursuance of s.11 of the Ordinance. Again with due respect, and because of the construction which I must put on the exception to guideline no. 4(a), I am unable to agree.

I wish to say no more about the matters canvassed in argument before us, save one. I express my emphatic agreement

with the rejection by Woodward J. of the argument that the

appellant had so little confidence in the Public Defender that it would have been wrong for that officer to appear for him. The argument was based on nothing more than the instructions

of the appellant, repeated by his solicitor in letters and at the hearing before the Committee, and by his counsel before this Court, that the appellant did not wish the Public Defender to appear for him. In my opinion the question whether in circumstances of that kind the Public Defender can properly appear for an applicant for legal aid can only be answered after an examination of the reasons for the applicant's attitude. In this case none were given.

I wish also to endorse the warning of Woodward J. that applicants for legal aid should not try to force the hand of the Commission by instructing private practitioners in the first place and making a late application for legal aid. It is not suggested that this appellant did so.

I would also suggest a reconsideration of the drafting of some of the guidelines, in particular paragraph (b) of guideline no.2 and paragraph (a) of guideline no.4.

It is not easy to decide what the order of the Court should be. Being of opinion that the learned judge should have set aside the decision of the Review Committee as having been made on a wrong principle, I would allow the appeal and set aside the Committee's decision, but it would be strange to remit the matter for further consideration without saying more, since the situation for which the Committee's decision was required has long ceased to exist. The Court has power to give directions

upon such remission [s.16(1)(b)] and to make declarations of

right [s.16(1}(c)]. In my opinion it is within the purpose of the Act that in the appropriate case the Court should make the discretionary decision which the body whose decision is under appeal did not make. Such cases may be exceptional, but it seems to me that this is one of them.

foodward J. in his reasons for judgment has explained the ways in which in his opinion the Review Committee was in error. As I have said, I think that the Committee's basic error was in applying the wrong test; but I agree with Woodward J. that the Committee was wrong to give no weight or very little weight to some other factors of importance. Foremost among these I would put the unfamiliarity of the Public Defender and his staf{ with the appellant's case, at a time when the trial was only seven working days in the future. This factor hardly applied when the Director first made his decision, which was before 22 December, and was not of great significance when he reconsidered his decision, which was before 12 January. But the Review Committce's decision was made on 26 January; the trial was by that time listed for 8 February. To this I add (as Woodward J. does) the fact that the charge was murder and the penalty on conviction was imprisonment for life. I believe that thas Court can say that had the Committee applied the proper test it must have come to the conclusion that it was unreasonable on 26 January to assign the appellant's case to the staff of the Commission. I would there- fore make a declaration that the appellant was entitled to have his case assigned to the private practitioners who in fact

represented him at his trial. I would order that the matter be

referred to the Review Committce for further consideration, and add a direction that the Committce should determine it in accordance with this declaration.

costs of the appeal and of the application at first instance.

I certify that this and the Etgar preceding pages are a true copy of the

Reasons for Judgment herein of his Honour Mr. Justice @Glac KbouRnw

BETWEEN: DANILO SORDINI and ' STUART FRANCIS WILCOX, ALAN ANTEONY HARDIMAN, . STANFORD BRUCK JUDDFRY, and LEGAL AID COMMISSTON (ACT) CORA": Blackburn, Woodward, Keely JJ. DATE: ¢

- 7 APR 1983 WOODWARD J. -REASONS FOR JUDGMENT

rejecting an application under the Administrative Decisions

the first, second and third-named respondents who constituted

a Review Committee established under the Leaal Aid Ordinance

The fourth-named respondent, the Legal Aid Commission (ACT), had considered an application for legal aid on behalf of the first-named applicant, who had been charged

The Commission granted the application, but only on the basis that the defence would be conducted by the Public

Defender, assisted by an officer from the Commission's staff.

after further representations by the applicant's solicitors,

the Commission purported to act pursuant to the Legal Aid

Ordinance and guidelines established under that Ordinance.

The accused had been represented by private solicitors and counsel at the coroner's inquest. He had been offered legal aid to engage the private practitioners of his choice for those proceedings, but had declined that offer because he wished to engage two counsel, and this would have taken the costs beyond those which the Legal Aid Commission (ACT) would allow for committal proceedings. For his trial he wished to retain the same solicitors and junior counsel but, acting on his solicitors' advice, he wished to engage Queen's Counsel in place of the experienced barrister who had led for him at the committal hearings. He therefore appealed

to the Review Committee provided for by the Ordinance for

reconsideration of the assignment of the Public Defender to conduct his defence. When that appeal was rejected, he went

to trial with the practitioners of his own choice, including Queen's Counsel, representing him, but without legal aid. His parents, the second and third-named applicants, had to mortgage their home as security for the costs of their son's defence. (Because of their doubtful standing in this matter

In the event, the jury was divided at his first trial, and again on a second trial. We were not informed as to the appellant's present position. Since this appeal concerns legal aid for the first trial only, later events are

The purpose of the application to Northrop J. was to review the decision of the Review Committee and obtain an appropriate order which would have the effect that the Legal Aid Commission (ACT) would pay the costs of the defence at

In dealing with the merits of the application it is

convenient first to set out the sub-section of the Ordinance which confers a discretion on the Commission as to what practitioners should be made available to a litigant to whom

"Where ... an officer of the Commission decides to grant an application for legal assistance, the ... officer shall also decide, in accordance with guidelines determined by the Commission in pursuance of sections 11...-

(a) whether the legal assistance should be provided by making available the services of a private legal practitioner or whether the legal assistance should be provided by making available the services of an officer of the Commission;

(b) the nature and extent of the legal assistance to be provided; ..."

guidelines for the allocation of work between officers of the Commission and private

legal practitioners having regard to the following considerations:

available and easily accessible to disadvantaged persons;

(b) the need to make the most efficient use of the moneys available to the commission;

(d) the desirability of maintaining the independence of the private legal profession; and

{e) the desirability of enabling officers of the Commission to utilize and develop their expertise and maintain their professional standards by conducting litigation and doing other kinds of professional legal work."

The guidelines determined by the Commission, so far

as they are relevant for present purposes, are in the

i. "Where a person has not chosen a legal practitioner to act for him, he will subject

to 2(c) hereof, be offered the choice of a private legal practitioner on the list maintained by the Commission or the services of a legal practitioner who is an officer or member of staff of the Commission.

Subject to these Guidelines, a person who applies for' legal assistance through a private legal practitioner shall be referred by the Commission to that practitioner upon a grant ef legal assistance. Provided that such referral shall not occur where:-~

(b) where (sic) such referral is not contrary to the Commission's duty and the importance of ensuring that the commitment and actual financial commitments of the Commission do not exceed the amount of commitment and/or

{c) there is some other good reason in the opinion of the Commission not to do so.

A legaliy assisted person has the right to change solicitors provided that:-

-(a) he first gives notice in writing to the Director of his intention to do so and gives reasons;

(b) the Director or his delegate or a Committee approves; and

In any event where a person qualifies for legal assistance then the legal staff of the Commission, only, shall if available be assigned to act for him/her:-

(a) where the matter involves a charge triable upon indictment, and the costs of the matter including costs of committal proceedings are estimated by the Director or a Committee to exceed $2,000 unless in all the circumstances the Director is of the opinion that it is reasonable to

assign the legally assisted person to a private legal practitioner; '

(b) in all applications for the dissolution of marriage where the Guidelines permit the granting of assistance;

(d) in matters under Clause 8 of the Further Guidelines where a discretion is

(e) in preparing simple wills in appropriate cases."

Sub-paragraph 2(b) is virtually unintelligible. It was suggested in argument that it might make sense if the

word "not" in the first line were deleted, but even such drastic re-writing would still leave problems both of grammar

and of meaning. In particular, it is not clear what duty of

the Commassion is being referred to, and the phrase "the commitment and actual financial commitments" is very confusing. I find it remarkable that such a 'guideline' could have been thought to satisfy the requirements of the Ordinance when it was determined in February 1980 and could have escaped attention when the guidelines were later

Paragraph 4 of the guidelines is also strangely _ worded, although its tendency is clear enough. The wording chosen is difficult to apply because, having set out the intended rule quite' clearly (to the effect that the legal staff of the Commission, only, shall be assigned to certain specified cases) the guideline goes on to state the exception in the following terms, ".,.. unless in all the circumstances the

Director is of the opinion that it is reasonable to assign fa private practitioner]

unless in all the circumstances the Director is of the opinion that it would be unreasonable not to assign ..."; the result of the words chosen must be to make the test which the Director must apply somewhat less onerous. He should be

more easily satisfied that it would be reasonable to assign a

private practitioner than that it would be unreasonable not

to. -The difference may not be very great, but it must at least have the result that borderline cases should be

All the many cases involving charges triable upon indictment, where the costs (including those of committal proceedings) are estimated to exceed $2000, must logically fall into one of three categories -

great majority of cases, because I believe the premise must be implied that it is generally unreasonable to expect the taxpayer to bear

{b) those where it would be reasonable to assign the matter either to a _ private practitioner or to the legal staff of the

(c) those where ut would be reasonable to assign the matter to a private practitioner, but unreasonable to assign it to the legal

the Review Committee) is to determine whether, having regard

' to the general principles of the guidelines, the particular

case falls within either group (b) or group (c). If it does,

by the guidelines; but in my view it is the result produced.

Having considered the effect of these two difficult

segments of the guidelines it 1s convenient now to return to

the main principles of those guidelines relevant to this

These are that, (1) a person who applies for legal assistance through a practitioner of his choice will, if

(2) this will not apply in the case of even moderately expensive criminal trials, if members of the legal staff of the Commission are available, unless the Director exercises the discretion already described in favour of assigning the matter to a private

It may reasonably be assumed, and was assumed in argument, that the policy considerations underlying this second principle are, first, that the legal staff of the Commission, and particularly the officer designated Public Defender, should be kept substantially employed; and secondly, costs of legal aid in criminal trials should be

kept within reason and, more particularly, within budget.

These being the guidelines which, whatever may be said of them, the Review Committee was clearly bound to apply, the question next arises astohowthe Review Committee went about its task of reconsidering the 'reasonabieness' of assigning the private practitioners of his choice to conduct

the procedures of the Review Committee are as follows

"39A. A Review Committee that reviews a decision referred to it under sub-section 36(3) shall not make a decision on the review unless it has afforded to the person who requested the review a reasonable opportunity:

(b) to address the Review Committee in relation to the review; and

(1) A Review Committee that reviews a decision of an officer of the Commission or of a Legal Aid Committee referred to it under sub-section 36(3) (in this section referred to

as a 'primary decision') shall give a décision in writing -

(a) confirming the primary decision; {b) varying the primary decision; or {c) setting aside the primary decision and

making a decision in substitution for the primary decision.

(3) A Review Committee shall cause a copy of its decision to be sent to the person who requested the review and to the Commission.

(4) A Review Committee shall, if requested to do so by the person who requested the review, cause a short statement in writing of the reasons for the decision to be sent to the person.

{5) The decision of a Review Committee shall be final and conclusive."

So far as the proceedings before the Committee are concerned, I cannot do better than to adopt Northrop J.'s

"A Review Committee constituted by the first three named respondents reviewed the decision of the Director at a meeting held on 26 January 1982. The first named applicant and his solicitor each attended that meeting. A transcript was taken of what they said at that meeting. Many matters were raised by members of the Committee, the first named applicant and his solicitor and the last two named persons were given every opportunity to address the Committee in relation to the review and to place before the Committee any documents relevant to the review. The documents placed before the Committee included correspondence between the first named applicant and his solicitors, between those solicitors and the parents, a letter of advice from the parents' solicitors to the parents, and a letter from the first named applicant's solicitors to Queen's Counsel confirming the brief of counsel and the fees to be charged and that the parents were paying the legal expenses. In

addition, the earlier correspondence between the Director and

the first named applicant's solicitors was before the Committee. As a preliminary matter the Committee ruled that it had jurisdiction to review the decision of the Director. The substance of the ciaim for review was that the first named applicant was satisfied with his representation in

relation to the committal proceedings and that he thought

Administrative Law - Administrative Decisions (Judicial Review) Act 1977 - decision of Review Committee under Legal

Aid Ordinance 1977 (A.C.T.) - principles to be applied.

DANILO SORDINI v. STUART FRANCIS WIT.COX AND OTHERS

ON APPEAL FROM A SINGLE JUDGE OF THE FEDERAL COURT OF AUSTRALIA

AND: | STUART FRANCIS WILCOX, ALAN ANTHONY HARDIMAN, STANFORD BRUCE JUDDERY and LEGAL AID COMMISSION (A.C.T.)

A declaration that the appellant was cntatled to have his case assigned to the legal practitioners who in fact :epresented him at his trial.

The matter be referred to the Review Committce for further consideration, with a direction that it be determined in accordance with the above declaration. The respondent pay the taxed costs of the appeal and

that his legal representatives would do a good job on the trial and that he did not want the Public Defender to defend him because he thought that that representation may not be adequate and felt that there would be a greater likelihood of a mistake being made. He was affected also by what he had heard at the remand centre concerning trials conducted by the Public Defender. As I have said, thereafter the discussions ranged far and wide including discussions concerning the fees to be charged by the Queen's Counsel and the fees to be determined by the Commission and set out in the scale published by the Commission. During the course of submissions the chairman of the Committee asked the question, if the matter be assigned to the first named applicant's solicitors, whether the private practitioners, including Queen's Counsel, would do the case for the fees that had been determined by the Commission. The solicitor answered that he would have to speak to counsel about that. The chairman aiso put to the solicitor:

fixed by the Commission." in reply the solicitor said:

chairman asked the solicitor whether there was anything

further he wanted to put, to which the solicitor replied:

"I don't think there is anything else I can put Mr. Chairman."

Thereafter further discussions took place concerning the question of fees and the "right" of a legally assisted person to have legal practitioners of their choice. During these discussions it was put to the solicitor that it would be necessary to know whether the private legal practitioners, including the Queen's Counsel, would accept an offer of legal assistance by arranging for the services of private legal practitioners since, if accepted, the fees to be charged by them would be much less than those that had been negotiated and the difference could not be paid to the private legal practitioners, since otherwise there would be no merit in assigning the matter to them. The question was of some urgency since the trial was due to commence on 8 February 1982 and time was needed for the preparation for trial by the person who was to appear. To enable the solicitor to attempt to telephone counsel, the Committee proposed to retire to consider the matter. As one member said, "I think we must try and decide whether or not it is a matter we would assign even if they would accept it". The chairman then arranged for the solicitor to have the use of the telephone in the room in which the Committee was meeting and then said that the solicitor could use that telephone "and we can discuss 1t in the meantime". The members of the Committee then retired

to another room. The solicitor attempted, unsuccessfully, to

contact counsel. He then informed the members of the Committee that he had been unable to contact either counsei, but that he thought he could contact them that afternoon. The Committee informed him that that was unnecessary as a

"We have come to a decision about this and the decision is to affirm the decision that's under review and we will publish our reasons

as we are required to do, so the phone calls won't be necessary. I might add that that's a

unanimous decision not that it makes any difference one way or the other but it is wnanimous. And that concludes that. But we will publish the reasons and we'll have them out to you tomorrow."

The decision of the Committee was conveyed in writing to the appellant's solicitors. This letter repeated the Committee's undertaking that its reasons for decision

would be delivered shortly, thus forestalling any request for

those reasons pursuant to s.40(4) of the Ordinance.

in fact the reasons were published some two weeks later, on 11 February, the fourth day of the appellant's

APPLICATION BY DANTLO SORDINI TO REVIEW THE DIRECTOR'S DECISTON

The applicant and his solicitor appeared on the hearing of an application to review the

decision of the Director, subsequently reconsidered and confirmed in substance, to assign this case to the Public Defender and staff. The original grant of aid was for solicitors in respect of an inquest into the death of Alan Brennan on the lith August 1981. Although aid was granted for that representation the account, when it was subsequently rendered by the applicant's sOlicitors, was paid by the applicant or his parents. The present application in reality relates to the representation of the applicant at the trial which is fixed for the 8th February 1982.

The Committee decided that it had jurisdiction to review this particular decision though that decision on jurasdiction was not unanimous (Mr. Hardiman dissenting).

The Committee is of the view that it is bound by the guide lines determined by the Commission pursuant to Section 11 of the Legal Aid Ordinance though it recognises that it has a duty to hear the applicant and his solicitor in full as indeed the Committee has done. The proposition that the Committee is bound by the guide lines of the Commission was not challenged by the applicant and the members of the Committee having read the decision of the court of Appeal in New South Wales in Legal Services Commission of New South Wales -v- G.J. Stephens believes that that decision re-enforces the view that the guide lines are poth valid and bind this Committee.

On page 4 of the guide lines in paragraph 4 it is provided that where the fees are likely to exceed $2,000.00 then officers of the Commission will be assigned to the case 'unless in all the circumstances the Director

is of the opinion that it is reasonable to assign the legally assisted person to a private legal practitioner'. Obviously the

present case is one where the fees will substantially exceed the sum of $2,000.00, and the question for the Committee is one of reasonableness.

It transpired at the hearing that the applicant's solicitor had advised his client to obtain independent legal advice concerning representation at the hearing. That advice was to the effect that it was the sort of case where Queen's Counsel is necessary. It also appeared that Mr. Toomey of Queen's Counsel had alreaGy been engaged and the fees with him had been agreed. It further appeared that the applicant was not going to be required to pay any legal fees to his advisers immediately but that his parents would provide security for costs in the form of a mortgage over the parents' home for a maximum sum of $25,0N0.00 or such lesser sum as will be involved depending upon the amount of the account at the conclusion of the matter. The size of the account will obviously vary with the iength of the trial and other factors that may occur auring the trial. It appeared also that that arrangement with Counsel was a definite arrangement and that a brief either had been delivered or would be delivered upon the basis agreed. The applicant was unable to indicate that his advisers would accept an assignment from the Commission upon the prescribed fees laid down by the Commission. The applicant's solicitor attempted to ascertain the views of Mr. Higgins and Mr. Toomey on that matter but neither was available and accordingly the Committee was left in the position of not knowing whether, if the case were assigned to Mr. Gillespie-Jones and Counsel, that assignment could be accepted. It is obviously unpractical [sic] and unreasonable to refer the case to the private practitioner when the private practitioner is not able to indicate that he and his Counsel will accept the assignment on the basis of the fees prescribed by the Commission.

'It also appeared that the Public Defender was available and was willing to undertake this trial. No convincing reason was advanced why the Public Defender would perform any less well in the conduct of the matter and with the

assistance of the staff of the Commission than would Mr. Toomey of Counsel with Mr. Higgins

instructing solicitor. In the view of the Committee there was nothing to choose between the competence, on the evidence presented to the Committee, between the competing potential representatives of the applicant. The Committee was aware that there are nearly one thousand pages of transcript of the evidence at the inquest to read but it is obvious that that task has to be undertaken either by Mr. Toomey, who did not represent the applicant at the inquest, or by the Public Defender who did

not represent him either. Although the applicant's independent advice was to the

effect that Queen's Counsel was necessary it was also evident that an opinion had been expressed by .... Counsel who led Mr. Higgins at the inquest for the applicant that it was

not essential for Oueen's Counsel to represent the applicant.

In all these circumstances the Committee was of the view that it was not reasonable to assign this case to the private profession and

accordingly the Committee confirmed the decision of the Director."

The applicants then instituted these proceedings pursuant to s.5 of the Judicial Review Act and the matter

Counsel for the applicants limited his submissions to two grounds. The first was that there had been a breach of the rules of natural justice within the meaning of

His Honour did not find it necessary to decide whether the rules of natural justice are imported by law into

the conduct of meetings by the Review Committee. He was

prepared to accept, for the sake of argument, that s.39A of

the Ordinance required the Committee to give the applicants' solicitor a chance to contact counsel concerning the amount of their fees, if that matter had been relevant to the Committee's decision. A failure to do so, in such circumstances, would have constituted a failure to observe required procedures, within the meaning of s.5(1)(b) of the Judicial Review Act.

~ However his Honour held that in fact, whatever may have been said in the reasons for decision, the Committee had decided that it would not be reasonable to assign the case to private practitioners even if they were prepared to accept the Commission's approved scale of fees. I agree, with

respect, with his Honour's analysis of the relevant events.

It is clear from the transcript of the Committee's hearing that, when the Committee adjourned to consider the application, it was understood that the applicants' solicitor

would try to contact counsel to consult them about their

the Committee, after deliberating, to come back and say that,

regardless of the willingness of counsel to work for reduced

reasonable to assign the case to private practitioners.

is what the Committee seemed to do. After deliberating,

At a glance

Court

Decision date

Before

Source

Judgment (386 paragraphs)

Parties

Cases Cited (2)