Gillies v Legal Aid Commission of New South Wales

Factual background

1. On 31 July 2006 the plaintiff was charged on indictment with five sex offences under the Crimes Act 1900 (NSW). On 24 August 2006, following a trial by jury, the plaintiff was convicted of count 5, acquitted of counts 2 and 3. The jury was hung on counts 1 and 4. On 1 December 2006 the plaintiff was sentenced to a term of 6 years and 8 months, with a non-parole period of five years, commencing on 17 July 2006.
2. The plaintiff appealed against his conviction on count 5 and sought leave to appeal against his sentence. The Court of Criminal Appeal granted leave to appeal but dismissed his appeal on 23 December 2008: Gillies v Director of Public Prosecutions (NSW) [2008] NSWCCA 339.
3. In 2009, the plaintiff was retried on count 1 and acquitted.
4. On 19 July 2019 the plaintiff applied to the Commission for legal aid for a review of his conviction and sentence under Part 7 of the Crimes (Appeal and Review) Act 2001 (NSW). In support of his application, he provided a draft petition to the Attorney-General for New South Wales and an expert report from Dr Watts, an expert in metadata. The plaintiff alleged that the transcript of his trial had been corrupted and that, accordingly, the jury's verdict and the Court of Criminal Appeal's decision had been arrived at on a false basis. On 17 December 2019, the Chief Executive Officer of the Commission (the CEO) refused the application for legal aid (the decision).
5. On 18 December 2019, the plaintiff requested that the Commission reconsider his application. The Commission refused to reconsider the application.
6. Following his application under the Government Information (Public Access) Act 2009 (NSW), the plaintiff received a copy of the memorandum to the CEO dated 26 November 2019 which he relied on as constituting the reasons of the Commission.

The relevant legislative framework

1. As referred to above, this Court's jurisdiction derives from s 69 of the Supreme Court Act. It is limited to the granting of relief with respect to errors of law on the face of the record and jurisdictional error. If the Commission can be regarded as a "court or tribunal", the reasons for a decision form part of the record: s 69(3).
2. Section 10 of the Act relevantly provides: "10 Functions of the Commission (1) The principal function of the Commission is to provide legal aid and other legal services in accordance with this Act. (2) The Commission in the exercise of its principal function may - (a) determine - (i) the persons or classes of persons in respect of whom legal aid may be granted, and (ii) the matters or classes of matters in respect of which legal aid may be granted, (b) determine priorities in the provision of legal aid as between - (i) different persons or different classes of persons, and (ii) different matters or different classes of matters, … (d) specify principles, including the imposition of means tests, to be applied in determining applications for legal aid, …"
3. Section 12 of the Act provides in part: "12 Duties to be observed in the provision of legal aid In respect of the provision of legal aid, the Commission shall - (a) ensure that legal aid is provided in the most effective, efficient and economical manner, (b) have regard to the need for legal aid to be readily available and easily accessible to disadvantaged persons throughout New South Wales, (c) ascertain and keep under review community needs in relation to legal aid, …."
4. The Commission has a CEO: s 16.
5. Section 17 provides for the functions of the CEO as follows: "17 Functions of Chief Executive Officer (1) The Chief Executive Officer - (a) is responsible for the day-to-day management of the affairs of the Commission (including managing financial and human resources and the provision of legal aid and other legal services) subject to, and in accordance with, the broad policies and strategic plans established by the Board and any general directions the Board may issue in connection with those policies and plans, and (b) has and may exercise such other functions as are conferred or imposed on the Chief Executive Officer by or under this or any other Act or law. (2) Any act, matter or thing done in the name of, or on behalf of, the Commission by or with the authority of the Chief Executive Officer is taken to have been done by the Commission."
6. Section 30(1) of the Act provides that legal aid shall be provided by the Commission in accordance with Part 3. Section 31(1) provides that a person may apply to the Commission for legal aid.
7. Section 33, which sets out the powers of the Commission, relevantly provides: "(1) On receipt of an application, the Commission may-- (a) make such inquiries as it thinks fit as to the means and circumstances of the applicant and of each person who is associated with the applicant for the purposes of any means test under section 35, (b) require the applicant to furnish such information, in addition to the information furnished in the application, and produce such books or documents as the Commission specifies, (c) require the applicant to attend personally, (d) refer the application or any matter relating to or arising from the application to a person (including a barrister or solicitor) nominated by the Commission for investigation, report or advice, and (e) take such steps as may be necessary to conserve the interests of the applicant pending the determination of the application."
8. The Commission's power to determine an application is contained in s 34(1), which provides: "The Commission shall determine an application by granting the application unconditionally or subject to conditions or by refusing the application. The Commission may at any time redetermine an application that has been refused."
9. Section 35(1) provides that the Commission: "shall not, unless it is of the opinion that there are special circumstances relating to the property or means of the applicant or otherwise, grant an application unless the applicant, and each person who is associated with the applicant, satisfies such means test or other test as is determined by the Commission in respect of applicants generally or the class or description of applicants to which the applicant belongs and is applicable as at the date on which the application was made."
10. The Commission is required to give notice of the determination of the application as soon as practicable (and in any case not later than 14 days) after the determination is made: s 34(2). Relevantly, the notice must be in writing: s 34(3). If there is a right of appeal to a Legal Aid Review Committee against a determination of an application, the notice is required to inform the applicant for legal aid of that right and the reasons for the determination are to be recorded: s 34(4).
11. An applicant dissatisfied with a determination by, relevantly, a person acting in pursuance of a delegation or authorisation under s 69, of an application under s 34(1) may appeal to the Legal Aid Review Committee: s 56(1)(a). If an applicant has a right of appeal, the Commission must inform the person of that right: s 34(4). The CEO does not fall within s 69 and therefore there is no right of appeal against a determination made by the CEO to refuse legal aid. The CEO is not a member of staff and occupies a statutory office: Sch 3A, cl 5.

Consideration

1. The plaintiff claims an order to set aside the decision. He also claims orders directing the Commission to approve his application for legal aid. The first prayer for relief potentially falls within this Court's jurisdiction; the second does not. This Court does not stand in the shoes of the decision-maker: Minister for Immigration and Ethnic Affairs v Guo (1997) 191 CLR 559 at 578-579 (Brennan CJ, Dawson, Toohey, Gaudron, McHugh and Gummow JJ); [1997] HCA 22. All this Court can do is to decide whether its jurisdiction extends to the decision under review and whether the plaintiff has made out any of the grounds on which he relies.
2. The Commission, for whom Ms Withana appeared, contended that this Court could not grant the relief sought by the plaintiff to set aside the decision because it did not affect his legal rights or constitute a condition precedent to a decision which does affect his legal rights: Hot Holdings Pty Ltd v Creasy (1996) 185 CLR 149 at 161 (Brennan CJ, Gaudron and Gummow JJ); [1996] HCA 44.
3. The plaintiff has no right to legal aid per se: Dietrich v The Queen (1992) 177 CLR 292 at 311 (Mason CJ and McHugh J); [1992] HCA 57. His only relevant right is to make an application for legal aid. He has exercised his right. If one assumes that a right gives rise to a correlative duty, the plaintiff's right to apply for legal aid gave rise to a duty on the part of the Commission to consider his application. Thus if the Commission had refused to consider his application, it would appear that this Court could order the Commission to consider it. However, the Commission did consider his application and refused it.
4. It is evident from a reading of the Act, that the Commission is the body which is to administer the fund and to decide to whom and in what amount legal aid is to be granted. It can do so as it sees fit. The Commission would not, however, be entitled to take into account any matter that is extraneous to the purpose for which the power was conferred. The Commission would also be obliged to act reasonably as that expression is understood in Minister for Immigration and Citizenship v Li (2013) 249 CLR 332; [2013] HCA 18 at [23] (French CJ); [63] (Hayne, Kiefel and Bell JJ); and [90] (Gageler J). However, the Commission is otherwise entitled to allocate legal aid in its discretion, taking into account such matters as the size of the fund, the other demands on the fund and policies whereby it might choose to give priority to those in custody or to those who are yet to be tried or who are yet to have their appeals against conviction determined by the Court of Criminal Appeal. None of these matters have statutory force and are therefore not a basis for an application for judicial review even if the decision were otherwise amenable to judicial review: see generally, Minister for Aboriginal Affairs v Peko-Wallsend Limited (1986) 162 CLR 24 at 38-41 (Mason J); [1986] HCA 40.
5. In this context, an application for legal aid may not relevantly be distinguishable from an application for a visa, which, depending on the statutory terms, amounts to permission or dispensation from the executive to an applicant rather than something to which an applicant necessarily has a right. A decision to refuse to grant a visa which could be granted "as the Minister sees fit" would be amenable to judicial review if, for example, the decision-maker was biased, arbitrary or denied procedural fairness since these matters would affect the validity of the statutory decision-making process: Hossain v Minister for Immigration and Border Protection (2018) 264 CLR 123; [2018] HCA 34 at [24].
6. However, even if the decision to refuse legal aid were amenable to judicial review, the plaintiff has not raised an arguable ground. In these circumstances, it is not necessary to determine the question raised by the Commission in reliance on Hot Holdings. It is one which I would prefer not to determine in the absence of legal argument from a contradictor. The plaintiff did not address this question in his submissions, preferring to conduct the proceedings as if it were a review of the merits of his application.
7. The plaintiff sought to argue his claim for legal aid on the basis of the alleged force of his application. I accept that the plaintiff believes that the transcript of the trial was corrupted in some way by reason of a conspiracy between the prosecutor, the trial judge and the Department of Justice. He also believes that the metadata of the transcript file proves this to be the case. The plaintiff relied on the report of Dr Watt, notwithstanding its apparent inconsistency with the plaintiff's belief. Dr Watt concluded: "1.6 I have reviewed and extracted the metadata for the document and there is nothing to suggest on the face of it that it is not genuine nor is there anything in the metadata that reflects that it is not genuine."
8. The Commission, in applying its merit test, considered that the plaintiff's application did not meet the test because it did not consider that the plaintiff's proposed application would be likely to succeed. The plaintiff has not raised any basis falling within this Court's jurisdiction under s 69 of the Supreme Court Act to question the legality of this decision.
9. For the reasons given above, the summons must be dismissed.

Costs

1. The general rule is that costs ought follow the event: UCPR, r 42.1. Ms Withana accepted that the general rule ought apply and sought costs if the Commission were successful. The plaintiff argued that he ought not be ordered to pay costs if he were unsuccessful because he did not have the money to pay the Commission's costs. His arguments are relevant to whether the costs order can be complied with but do not determine whether it ought be made. I am not persuaded that there is any reason to depart from the general rule.

Orders

1. For the reasons given above, I make the following orders: 1. Dismiss the amended summons filed on 2 April 2020. 2. Order the plaintiff to pay the defendant's costs of the proceedings.

DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 30 June 2020