Kuek v Victoria Legal Aid [1999] VSC 46

Supreme Court of Victoria|1999-03-05|Before: Smith, J.

Administrative Review - extension of time for application - ostensible bias Legal Aid - referral panel - structure of statutory scheme.

In these proceedings the plaintiff originally sought, by Originating Motion, a variety of relief. At the hearing the following was sought.

The first defendant opposes the application. The second defendant will abide by the outcome of the proceedings.

The plaintiff was and is a member of the referral panel established under the Legal Aid Act 1998 (s.30). In late October 1995, His Honour Judge Kellam (as he then was) criticised the plaintiff, and counsel briefed by the plaintiff, for their conduct of the defence of Meng Kok Te in criminal proceedings. The predecessor of the first named defendant, the Legal Aid Commission of Victoria, received a letter from the plaintiff on 27 October 1995, enclosing a copy of the transcript and raising the question whether he and counsel could continue in the trial in light of His Honour's comments. The Commission wrote to the plaintiff on the same day indicating that it would not disagree if they decided that they could no longer act for the accused. The plaintiff and counsel withdrew and another firm of solicitors was engaged.

The accused, Meng Kok Te, was subsequently found guilty on 3 April 1996 after an eleven day trial on the charge of trafficking in heroin. On 29 May 1996, Judge Kellam, sentenced Meng Kok Te to imprisonment for seven years. In the course of his sentencing remarks he made further criticisms of the competence and efficiency of the plaintiff and counsel engaged by the plaintiff in their earlier conduct of the matter.

On 31 May 1996 the Managing Director of the first defendant (VLA), the successor of the Commission wrote to the plaintiff concerning the comments of His Honour Judge Kellam and seeking a response from the plaintiff. That response was supplied on 19 June 1996. In the mean time, on 12 June 1996, Meng Kok Te had applied to the Court of Appeal for leave to appeal against his conviction.

On 31 October 1996 an officer of VLA wrote to the plaintiff indicating that VLA proposed to consider whether the plaintiff's name should be removed from the referral panel, referring specifically to the conduct of the case of Meng Kok Te.

It seems that the plaintiff was not paid for his services in the Meng Kok Te case and, on 3 April 1997, brought proceedings in the Magistrate's Court to recover monies allegedly owing by VLA to him for that case.

On 16 September 1997 Meng Kok Te's application for leave to appeal was heard. The plaintiff acted as solicitor and the same counsel appeared. On 30 October 1997, the Court of Appeal delivered judgement dismissing the appeal. In the course of his reasons, J. D Phillips J.A. endorsed, at least in part, the comments of Judge Kellam.

On 21 November 1997, the Board of VLA reached the decision, which the plaintiff challenges in these proceedings. The precise terms of that decision are in dispute, but it is clear that the Board determined to give notice to the plaintiff of its intention to remove the plaintiff from the referral panel. The material before the Board of VLA included the transcripts of the observations made by Judge Kellam on 24 October 1995 and 29 May 1996, the observations of Phillip, J.A. on 30 October 1997 and the plaintiff's letter of 19 June 1996. The notice that was given to the plaintiff was contained in a letter written by the Managing Director of VLA, Mr. Cornall, on 11 December 1997.

In a letter dated 24 December 1997 the plaintiff wrote to VLA. challenging the validity of the Board's decision to remove him. He sought further documents from it to assist him in putting further submissions to the Board. He also stated that, should the Board conclude that it had jurisdiction to make the decision it had made, he required the appointment of an independent person to hear and determine the matter. This letter appears to have put in motion the statutory procedure which requires the chair person of the panel of independent reviewers to appoint an independent reviewer to hear and determine "the matter" (Legal Aid Act 1978, s.30 (12). Subsequently, the "Chairman" of the panel of independent reviewers, the second defendant, appointed himself the independent reviewer for the purpose of the hearing of "the matter".

The independent reviewer called a directions hearing for 3 April 1998. At that hearing, counsel appearing for the plaintiff consented to directions that were proposed by VLA but foreshadowed that his client might wish to seek further directions in relation to the calling of the witnesses. The directions that were given required VLA to give to the independent reviewer and the plaintiff, on or before 1 May 1998, a statement of its contentions in support of the proposed removal of the plaintiff from the referral panel and a copy of each document relied upon including any statement of witness, proof of evidence of witness, statutory declaration or affidavit. The directions also required that the plaintiff provide, on or before 29 May 1998, to the independent reviewer and VLA, a statement of the plaintiff's contentions and a copy of each document relied upon. A further direction was given for a statement of contentions in reply (if any) from both parties. A further directions hearing was fixed for 10 June 1998.

VLA forwarded a copy of its contentions and the documents relied upon on 1 May 1998. An amended version of the contentions was delivered subsequently on 3 September 1998.

The plaintiff sent a letter to VLA on 19 May 1998 responding to its letter of 1 May 1998. I am satisfied that Mr Kuek had intended to send a carbon copy of that letter to the reviewer. The letter argued for a stay of the proceedings before the reviewer. This involved a departure from the position taken by the plaintiff at the initial directions hearing. Two reasons were advanced. The first concerned the above mentioned proceeding in the Magistrates' Court between the plaintiff and VLA which had been adjourned to 29 May 1998. It was further adjourned to 14, 15 and 16 July 1998. It concerned the conduct of the matter of Te, something which was also going to be the subject matter at least in part of the proceeding before the reviewer. He expressed his concern that to proceed with the latter proceeding could constitute a contempt of court. He mentioned also the fact that there was an application for leave to appeal to the High Court in the matter of Te and raised concerns about matters of privilege as between solicitor and client which were raised in the contentions of VLA. He concluded submitting that the Magistrates' Court was in fact the appropriate forum for testing the contentions of VLA.

I accept that the plaintiff instructed his secretary to send a copy of the letter to the reviewer for his information. Unfortunately, she re-addressed the same letter to the reviewer and as a result original versions of the letter were sent both to VLA and to the reviewer.

VLA responded in some detail by letter dated 21 May 1998, sending a copy to the reviewer. The reviewer responded to the parties by letter of 22 May 1998 in the following terms:

"The practitioner's submissions made in the letter dated 19 May 1998 from the practitioner to me as Independent Reviewer, are refused."

The plaintiff responded by letter 26 May 1998 objecting to the fact the ruling had been given without an opportunity to be heard and in particular an opportunity to address the reviewer fully. He expressed his reservations about the ability of the reviewer to observe and apply the laws of natural justice, and, after raising other issues, asked that the reviewer list the matter to enable application to be made before him that he stand down from the matter. The plaintiff also requested a statement of reasons for the previous ruling.

On 28 May 1998 the plaintiff received a statement of reasons for the ruling of 22 May 1998. On 28 May 1998 the plaintiff wrote to the reviewer referring to the "reasons for ruling made 22 May 1998" and passages in it on which he relied to support his application that the reviewer withdraw from the matter. He also requested an opportunity to make oral submissions. That opportunity was accorded on 10 June 1998. I will refer in more detail to the statement of reasons and the hearing of 10 June 1998 when considering the ostensible bias allegation.

Finally, it is necessary. to refer to some correspondence that occurred relating to guidelines for allocation of work in indictable criminal matters. On 5 May 1998, Ms. Crundle of VLA wrote to the plaintiff enclosing a copy of the above guidelines. They stated, inter alia, that:

"Indictable criminal matters other than pleas which would be quickly concluded should not be allocated to a particular private practitioner if action is in train to remove that practitioner from VLA's referral panel for any reason."

At about that time a request had been made by a Mr. Sum Khac Du to VLA that the plaintiff act for him in criminal proceedings. On 20 May 1998, Ms. Crundle wrote to the plaintiff indicating that the request had been declined and referring to the proceedings before the independent reviewer as a matter that had been taken into account. Mr. Du sought reconsideration of that decision. On 14 September 1998 Mr John Doyle of VLA wrote to the plaintiff affirming Ms. Crundle's decision. He stated that he had not taken into account the fact that there was the matter before the independent reviewer.

In conclusion it should be noted that the proceeding brought by the plaintiff against VLA for unpaid fees in the matter of Meng Kok Te was successful. The court found in the plaintiff's favour on 23 October 1998 and ordered VLA to pay the amount claimed by him together with interest and costs.

The plaintiff challenges the decision made on 21 November 1997 by the Board of VLA on the ground that in making that decision it was obliged to accord him procedural fairness and that this was not done. He argues that on that date, the Board determined that he should be removed from the referral panel and that that decision so affected his rights, privileges and reputation that an obligation to accord procedural fairness arose. He submits that the statute did not exclude that obligation and that that obligation was not met by the Board. I note that there is no dispute that, if the obligation arose, it was not met in that relevant materials were not provided to the plaintiff by VLA. In the alternative, he argues that if the power of the Board was to do no more than to decide to propose to remove him from the panel and thus trigger a statutory hearing procedure, as argued by VLA, the Board exceeded that power because it resolved not to propose his removal but resolved that he be removed. He also argues that the circumstances in which a solicitor may be removed from the referral panel pursuant to s.30(8) of the Act are confined to those circumstances set out in s.30(9) of the Act and that those circumstances did not arise in this case.

The other major issue is the challenge directed to the second defendant, the reviewer on the basis of ostensible bias. The case is based principally on certain statements made by him in his ruling of 22 May 1998 and his alleged persistence in those statements after the directions hearing on 10 June 1998 when he handed down his reasons on that occasion. VLA disputes the plaintiff's analysis. I will refer to these matters in further detail. It is necessary, however, to refer to a preliminary issue raised by VLA.

The Rules of Court require that proceedings, such as these, brought under Order 56, be commenced "within 60 days after the date when grounds for the grant of the relief or remedy claimed first arose." (Rule 56.02 (1)). Rule 56.02 (2) provides that where the relief or remedy claimed is in respect of a determination or proceeding,

"the date when the grounds for the grant of the relief or remedy first arose shall be taken to be the date of the judgment, order, conviction, determination or proceeding. "

Rule 56.02(3) permits the court to extend the time fixed by Rule 56.02(1) but provides that the court "shall not" do so "except in special circumstances".

As to the meaning of special circumstances I was referred to, inter alia, Denysenko v. Dessau [1996] 2VR 215 and Portelli v. Smith (1996) 10 VAR 275.

In relation to the attack on its decision of 21 November 1997, VLA submits that the proceedings are out of time. The plaintiff accepts that proposition and seeks an extension of time from the court. VLA also submits that the challenge alleging ostensible bias on the part of the reviewer is out of time in that the grounds for the grant of relief or remedy relied upon first arose when the plaintiff received the reasons for ruling dated 22 May 1998 on about 28 May 1998. The originating motion was filed on 7 August 1998. Thus it is said that the 60 day period expired approximately twelve days before the proceedings relating to the reviewer were commenced.

As to the latter argument, it seems to me that the grounds for the grant of relief or remedy based on ostensible bias should not be treated as first arising until the plaintiff's application to the reviewer that he disqualify himself had been heard and determined. That was the proper course to follow. At that moment it may fairly be said that the grounds were completed and thus "first arose". In those circumstances, the proceeding relating to relief on the basis of ostensible bias is not out of time under Rule 56.02. Counsel for VLA subsequently referred me to a statement in Rozenes v Judge Kelly [1996] VicRp 20; [1996] 1 V.R. 320, at 334 which lends support to this analysis. I return, therefore, to the other part of the proceedings - the claim challenging the decision of the VLA made on 21 November 1997.

For the plaintiff it is submitted that a number of matters combined to create special circumstances. They are the following:

(a) the effect of the determination and its impact on the plaintiff were altered after 21 November 1997 by several matters

(i) the adoption of guidelines on 29 April 1998

(ii) the communication by the Board of those guidelines to the plaintiff on 5 May 1998

(iii) the application of those guidelines to the plaintiff on 20 May 1998

(iv) the refusal of the Board to respond until 14 September 1998 to the request of the plaintiff's client, a Mr Du, that the plaintiff act for him;

(b) VLA treated the content of its decision of 21 November 1997 and the grounds of that decision as being subject to future variation - thus the case against the plaintiff was in some doubt;

(c) the nature and ambit of the prejudice to the plaintiff's rights and privileges did not become apparent until the guidelines were adopted by the Board, communicated to him and applied to him and VLA had failed to respond within a reasonable time to his client's request.

Counsel for VLA submits that the plaintiff was plainly, as a lawyer, aware of his rights and the significance of the decision of 21 November 1997, writing a letter challenging that decision on 24 December 1997. Counsel submits that there was then long and inexcusable delay both up to receiving notice of the guidelines and their application and thereafter. The reliance on the guidelines and their effect is said to be a "recent invention". As to the second matter (para (b)) above, VLA denies that there was any attempt to add to the grounds for the purpose of the review and submits that the scheme did not and would not permit it to do so. Counsel also submits that all that the guidelines did was require consideration of whether a practitioner in the plaintiff's position should be allocated indictable offence proceedings other than short matters such as pleas.

Counsel for VLA draws attention to the fact that, despite filing three affidavits in this matter, the first being extremely detailed and lengthy, there is no direct evidence before me sworn by the plaintiff to support the contentions advanced on his behalf by counsel that the above circumstances explain or excuse the delay in the commencement of the proceedings. Plaintiff's counsel concedes, properly, that it is a matter of drawing the requisite inferences from the events that occurred. In the light of those inferences he argues that the proper inference to be drawn is that the matters listed were matters which affected the plaintiffs' decisions on whether or not to challenge the VLA Board's decision and when to challenge that decision.

I find the plaintiff's approach unacceptable. A party seeking an extension of time should be frank with the court and place any relevant direct evidence available to it before the court to explain why he or she delayed in commencing the proceedings and why they were begun when they were. In this case the plaintiff has demonstrated that he is not averse to filing affidavits of great detail He filed a supplementary affidavit describing the relevant events. Yet he has failed to file an affidavit to deal with these critical matters. No explanation has been offered for his failure to do so. In my view the failure to place such evidence before the court is sufficient reason alone to decline to find special circumstances and to deny the extension of time. In addition, however, the other evidence in the case raises grave doubts about the explanations I am invited to infer and whether they affected the decisions of the plaintiff.

Firstly, the correspondence reveals that, as early as 24 December 1997, the plaintiff was alive to his rights and gave very serious consideration to the question whether to challenge the decision of 21 November 1997 but apart from urging VLA to consider his arguments, he chose not to challenge the decision.

In his letter of that date, inter alia, he made the following assertions:

"1. The Board of Victoria Legal Aid did not act within law in requiring me to show cause."

He asserted a denial of natural justice and gave details. He went on to say that he considered:

"the decision of the board to require me to show cause was made in excess of jurisdiction or involved errors of law."

"Should the Board conclude it had jurisdiction to require me to show cause, I require the appointment of an independent person to hear and determine the matters. This person must not be a current member of the panel of reviewers. I also require the provision of proper particulars of the case I am required to address within a reasonable time. In this regard I remind you that it is a fundamental principle of the rule of natural justice that a person whose financial position or reputation is to be affected must . . . be provided with full details of the allegations he is called upon to answer at the outset of the matter."

He then listed a number of questions directed to providing him with further particulars and information to enable him to meet the case against him. Later in the letter he commented:

"I require you to take all necessary steps within a reasonable time after receipt of this letter to ensure that I have a fair hearing."

"Please note that if you take any step inconsistent with, or fail to take all steps consistent with, my right to have a fair hearing and determination of this matter I will make application to the Supreme Court of Victoria for a restraining order and/ or mandatory injunction. I would be pleased if you will provide me with a response to this letter within 14 days of this letter."

Plainly at that point the plaintiff saw the situation created by the decision of 21 November 1997 as one of major concern to him but, having aired his concerns about that decision, was prepared to accept the Board's decision as to jurisdiction, if it went against him, and appeared to be more concerned about securing a fair hearing before the reviewer. No explanation for the failure to challenge the decision by court proceedings at that time, or over the following months, is offered. Instead, he proceeded to take part in the review by the independent reviewer, a step that involved acceptance of the validity of the VLA Board's decision.

The explanation now offered relates, inter alia, to the guidelines. It is unclear however, why the guidelines so worsened the situation created by the decision of 21 November 1997 that the plaintiff decided to challenge it. The problem posed by the guidelines for the plaintiff was that the question of his removal from the panel was made relevant to any decision to allocate him work. In practice, this meant that, after adoption of the guidelines, he could continue to receive work such as pleas but was unlikely to receive serious cases. Adoption of the guidelines, therefore, had less serious implications for the plaintiff than the prospect of removal from the referral panel. His problem was originally, and remained, that the November decision could result in his removal from the panel. The guidelines did not alter that problem. This raises serious doubts about the argument that it should be inferred that the guidelines and their consequences in some way caused the plaintiff to commence proceedings and to do so when he did.

Next, the matters advanced by counsel for the plaintiff as special circumstances in paragraph (a) and (c) above turn initially on the proposition that guidelines were adopted on 29 April 1998, communicated to the plaintiff on 5 May 1998 and applied to the plaintiff on 20 May 1998. If they were matters which caused the plaintiff concern and ultimately prompted the plaintiff to seek to challenge the decision made in November 1997 one might have expected him to take up his challenge to that decision shortly after 20 May 1998. Instead he continued with the proceeding before the reviewer. As to the refusal of the Board to respond until 14 September 1998 to the request of a Mr. Du that the plaintiff act for him, it must be borne in mind that the plaintiff made submissions on the matter on 12 May 1998 and the decision made by Ms. Crundle to allocate the services of an officer of VLA was made on 20 May 1998. It is true that on 9 June 1998 the plaintiff made a further submission on the matter to VLA and it did not respond until 14 September 1998. It is difficult to understand, however, why the failure to respond by 7 August 1998, when these proceedings were issued, as compared to say 7 July 1998, should have added anything significant to his concerns such as would prompt him to commence these proceedings and to do so when he did.

I should add, in relation to the second matter raised in support of the application, namely, the revelation in correspondence in May 1998 of VLA's intention to change its reasons, that I am satisfied that that is not what was communicated. VLA was reserving its position to deal with issues that might be raised by the plaintiff. If this analysis is incorrect, I am not prepared to find in the absence of direct evidence, that the issue was a concern to the plaintiff. Successfully challenging the November decision would have presented VLA with the precise opportunity which the plaintiff asserts concerned him; VLA could reconsider the matter and advance fresh reasons.

Finally, the plaintiff's correspondence supports other reasons. On 27 July 1998, the plaintiff wrote to VLA recording a refusal by the solicitor acting for VLA to provide documents and other materials and call Judge Kellam or any other witnesses whose statements had been provided before the reviewer. It was then alleged that the position being taken by VLA was going to deny the plaintiff "natural justice and/or procedural fairness". The letter asked that the VLA reconsider its decision and notify the plaintiff of any change of heart within two business days. The letter concluded stating that

"If we do not hear from you by then we intend to commence an application to the Supreme Court of Victoria without further notice."

The letter did not state what that application would be but in light of its contents one might have thought that it would relate to the position being taken by VLA as to what it would produce before the independent reviewer. Alternatively, it might be inferred that concern about that position might have prompted a challenge to the decision of 21 November 1997 - a reason not advanced in the letter. On 28 July 1998 Mr Campbell replied to the letter on behalf of VLA. He claimed that the plaintiff had misstated the effect of the telephone conversation. He indicated, in essence, that the request was premature and that the question of the provision of documents and the like is something that would be under the control of the independent reviewer. He suggested that if the plaintiff found VLA's position inconvenient he should apply to the independent reviewer. He commented that in his view there was no denial of natural justice in the course being adopted by VLA. He stated also that VLA had made no final decision about who would be called as witnesses and was reserving its final position until the issues had been identified after delivery of the plaintiff's contentions. On 30 July 1998 the plaintiff replied stating he would treat the matter raised in VLA's letters as "clarification" of earlier comments made and as a statement of the current position of Victoria Legal Aid. He then concluded

"In view of the above, we will now institute legal proceedings in the Supreme Court."

It should be noted that the plaintiff's correspondence did not refer to the matters now relied upon as special circumstances. It was in the context of that correspondence that the plaintiff instituted these proceedings. One might, therefore, be excused for thinking that the catalyst for initiating proceedings was the perceived failing of the VLA in the conduct of the review. This raises further doubts as to the reasons advanced by counsel for the plaintiff to explain why he delayed as long as he did and why he instituted the proceedings when he did.

In light of the above I am not prepared to draw the inferences put by counsel for the plaintiff. The above also raise significant matters calling for explanation by the plaintiff, a party seeking a dispensation from the court. None is proffered.

Having regard to these matters, I am not satisfied that special circumstances have been established. I am therefore not prepared to extend the time for the institution of the proceedings concerning a challenge to the decision made on 21 November 1997.

That conclusion having been reached it is strictly unnecessary to consider and reach a decision on the arguments advanced by the plaintiff and VLA about the attempt to challenge the decision of 21 November 1997. The issues were canvassed before me at some length, however, and it may be of assistance to the parties if I indicate the views I have formed, albeit in summary form.

The challenge to the decision of 21 November 1997.

A statutory scheme is provided in s.30 of the Act which deals with the selection and removal of practitioners from the referral panel. I accept generally the analysis of the scheme by Mandie, J. in Yianoulatos & Ors v. Victoria Legal Aid [1998] VSC 163. The plaintiff's primary position is that, under s.30, VLA is required to make a determination whether or not to remove a practitioner from the referral panel and once that determination is made it will come into effect unless the practitioner concerned wishes to be heard and show cause in which case the independent reviewer process is to be invoked. VLA on the other hand submits that the Act requires it to form a view as to whether it proposes to remove the practitioner and, once that decision has been made, to notify the practitioner of that decision. If the practitioner does nothing, VLA would then be required under the Act to make a determination to remove the practitioner. If the practitioner sought an opportunity to be heard and show cause then the independent reviewer process would be brought into play.

The opportunity to advance these competing interpretations arises from the fact that the drafter of the legislation did not spell out in precise terms the nature of the decision or decisions to be made by VLA. I am satisfied, however, that it is implicit in the provisions (in particular s.30(10)) that the initial decision to be made by the VLA is a decision to propose the exclusion or removal of the practitioner. Further, without deciding whether such a decision could impose a duty to accord natural justice, it seems to me that there is a clear intention spelt out , particularly in s.30(10), that the opportunity to be heard on the question of exclusion or removal is expressly conferred upon the practitioner and is to occur before the independent reviewer and not before VLA.

As to the argument that the power to remove conferred by s.30(8) is limited by the circumstances spelt out in s.30(9), an overwhelming obstacle faces the plaintiff, namely, the opening words of s.30(9). They are:

"without limiting VLA's powers to remove or exclude a name from a referral panel . . . "

Plainly in my view s.30(9) cannot limit the powers set out in s.30(8) to remove or exclude a name from a referral panel.

Finally, the alternative argument is put that, accepting that the power of the VLA on 21 November 1997 was to do no more than decide to propose to remove the plaintiff, VLA had exceeded its power because it resolved to remove and not to propose to remove. As to this issue, the evidence as to the terms of the decision that was made is at best ambiguous from the plaintiff's point of view. In all the circumstances it seems to me that this argument must also fail on the basis that the plaintiff has failed to establish the fact asserted, namely, that the Board resolved to remove a practitioner rather than resolving to propose his removal. I turn then to the question of bias.

It is common ground between the plaintiff and VLA that if ostensible bias was established, that fact would provide a proper basis upon which to grant the plaintiff the relief sought against the reviewer. It is also, ultimately, common ground between the same parties that the test to be applied is:

"whether in all the circumstances the parties or the public might entertain a reasonable apprehension that the judge [in this instance the independent reviewer] might not bring an impartial and unprejudiced mind to the resolution of the matter before him. If so, then the judge ought not to proceed to hear the matter " (Grassby v. The Queen (1989) 168 C.L.R.1 at 20 cited recently with approval in DJC v. Burg and Magistrates' Court of Victoria [1998] VSCA 139 at para 16).

I refer also the discussion in the judgment of Tadgell, J.A. in Gascor v. Ellicott [1997] 1 V.R. 332 (at 342) where his Honour stated that a reasonable apprehension of partiality or prejudice.

". . is to be established to the court's satisfaction: it is a reasonable and not a fanciful or fantastic apprehension that is to be established; and the apprehension is to be attributed to an observer who is "fair minded" - which means "reasonable". . . . It is the court's view of the public's view, not the courts own view, which is determinative [citing Webb v. R [1994] HCA 30; (1994) 181 CLR 41 at 52]. Even so, the court is to be satisfied that the criterion is met not that it might be."

It is common ground between the plaintiff and VLA that one should attribute to the fair minded observer knowledge of the facts referred to in the affidavits filed and the exhibits to those affidavits.

In addressing this issue it is necessary to review the facts in some detail. In doing so, I bear in mind the warnings given in Minister for Immigration and Ethnic Affairs v. Wu Shar Hiang (1996) 185 CLR at 25 and 272.

In dealing above with the background facts I referred to the letter of 19 May 1998, sent by the plaintiff to Victoria Legal Aid. I referred to the fact that an identical letter was sent addressed to the reviewer. The first three paragraphs were in the following terms:

"We refer to your letter dated 1 May 1998. As you know, the question of Mr Kuek's conduct in the matter of Te is presently the subject of proceedings in the Magistrates' Court of Victoria. . . . Those proceedings were initially set down for hearing on 24 & 25 February 1998 but adjourned to 29 May 1998 for the benefit of Victoria Legal Aid. The hearing of the matter is now been further adjourned to 14, 15 & 16 July 1998. In our opinion, the directions made by Mr J.S. Kiddle on 3 April 1998 that we provide him and the Victoria Legal Aid with a statement of Mr Kuek's contentions in opposition and a copy of supporting documentation is not appropriate given that the Magistrates' Court proceedings are still outstanding. The directions have the potential to constitute a contempt of court in that the result of complying with the directions is tantamount to a perversion of the course of justice as dispensed by the Magistrates' Court of Victoria. "

As noted above, the letter stated that it was inappropriate to require Mr. Kuek to provide his contentions in response pursuant to the directions given by the reviewer. It further stated that the Magistrates' Court was the better forum for determining the issues.

On 21 May 1998 Victoria Legal Aid responded, as noted above, sending a copy to the reviewer. Amongst other things it indicated that it would not consent to any alteration of the time table or any postponement. It concluded stating that

"In any event, VLA will submit to the independent reviewer that this matter be listed for hearing without further delay. "

It is to be noted that Mr Kuek's letter did not expressly raise the question of adjournment or postponement although such a suggestion was implicit in the matters raised. It should also be noted that the letter that was sent to the reviewer and addressed to the reviewer was in the same terms and thus referred to him by name rather than by words such as "you" or "your". It also noted at the bottom that a carbon copy had been sent to VLA.

On 22 May 1998 the reviewer made a ruling. The plaintiff received the ruling on a date between 22 and 26 May 1998. As noted above, the ruling was in the following terms:

"Practitioner's submissions made in the letter dated 19 May 1998 from the practitioner to me as Independent Reviewer, are refused."

As also noted above, on 26 May 1998 the plaintiff wrote to the reviewer acknowledging receipt of the ruling but complaining that he had not had an opportunity to address him fully on the matter because the reviewer had not informed him that he intended to make a ruling on the application. The plaintiff expressed concern that the reviewer had breached the rules of natural justice on an important subject and expressed grave reservations about his ability to observe and apply the rules of natural justice in that case. He then referred to an alleged "friendship" between the reviewer and the Managing Director of VLA, the terms of the employment of the latter and the activities of VLA in dealing with clients itself rather than referring them to a person such as the plaintiff. He then submitted that the reviewer would not be able to bring an impartial mind to the task in view of these matters. In the alternative, he submitted that the impression of bias pervaded any decision that he would make and that no decision arrived at by him could be seen by any fair minded bystander to be independent. The plaintiff applied to him to list the matter for an application to be made to him that he stand down.

On 28 May 1998 the plaintiff received a lengthy document entitled "REASONS FOR RULING MADE 22 MAY 1998." In it the reviewer referred to the fact that VLA had sent him a copy of the letter dated 21 May 1998, addressed to the plaintiff "answering I am not sure what but which seems to touch upon issues raised in the practitioner's letter to me". He stated that he would have preferred an application to be made pursuant to the leave reserved to each party but the letter "being in hand, and to avoid delay, I deal with the submissions in the practitioner's letter." After considering the relevant sections in the Act and commenting that the letter was inappropriately addressed to him as "Chairman", because he had exhausted the chairman's authority in appointing himself as independent reviewer, he then stated the following:

I did not write to the practitioner on 1 May 1998; I have never written any letter to the practitioner. I do not know who, if anyone, wrote to the practitioner.

This statement must have been written to mislead or incompetently"

A little later in the letter he referred to the second paragraph of the plaintiff's letter which began

"As you know, the question of Mr Kuek's conduct in the matter of Meng Kok Te is presently subject of proceedings in the Magistrates' Court of Victoria . . . "

"I am unaware of these proceedings. I am unaware of any proceedings in which the practitioner may be concerned other that this matter itself. This bold statement "as you know. . . " is unhelpful to me and wrong. If it is established to me to continue this matter may force the practitioner to make admissions prejudicial to himself in a criminal prosecution of him before a Magistrate, I am prepared to consider a stay of this matter. Otherwise there is no merit in raising the Magistrates' Court proceedings to me."

A little later he said that there was no merit in the other matters raised in the practitioner's letter. He concluded rejecting the submissions made.

On 28 May 1998 the plaintiff wrote to the reviewer. As to the "reasons for ruling", the following comments were made of particular relevance.

" 2. We detect some irritation on your part in paragraph 4 [the reference to the Chairman]. We would like to know why you may be irritated and whether it is due to some perceived view about us. 3. Paragraph 5 asserts the first paragraph of our letter of 18 May 1998 "must have been written to mislead or incompetently" A fair reading in paragraph 5 reveals the letter should have been addressed to VLA instead of to you. A simple enquiry would have made that plain. It was not necessary for you to proceed to the conclusion that you reached. The conclusion set out in your document touched upon two of the issues you are called upon by VLA to determine - i.e. Mr Kuek's integrity and competence. You have demonstrated your willingness to reach conclusions prior to embarking on a proper enquiry and before first hearing from us. 4. Paragraph 7 makes reference to a "criminal prosecution" of Mr Kuek before a Magistrate. Nothing in our letter suggests the proceedings before the Magistrates' Court are criminal in nature. Here is evidence again of your preparedness to draw conclusion of fact when none was open to you. Further, the fact that you concluded the Magistrates' Court proceeding were criminal in nature demonstrates actual prejudice on your part. It reveals you have a view about Mr Kuek which is patently wrong.

We do not believe that you can continue to be involved in this case. We wish to put oral submissions to you."

At the directions hearing on 10 June 1998 application was made by the plaintiff that the reviewer disqualify himself from proceeding with the matter on the basis of a "perception of bias". A transcript was prepared of the proceedings. Counsel for the plaintiff elaborated on the points raised in the above letter.

In dealing with the application, the reviewer first set before the parties the facts as to the limited nature of his acquaintance with the managing director of the VLA. He then said that the application that had been made to him had

"no bearing on my attitude to Mr Kuek at all. If he wishes to raise such a point, he is at liberty to and he has, and it is a fact of life."

In dealing with the specific matters complained of he said first of all as to the letter of 19 May 1998 the following:

"He said he would send a copy, carbon copies to Victoria Legal Aid. I don't know whether he did or not. There has been some suggestion here he wrote a letter to Victoria Legal Aid and sent me a copy. I have not received a copy of the letter from Mr Kuek or his firm to Legal Aid. I have a suspicion he has written the same letter twice, and just altered the heading. I don't know. It is a mere suspicion. In dealing with that letter, I deliberately ignored what Legal Aid put to me in their letter, I . . . in their copy letter to Mr Kuek, because that was a response to a letter Legal Aid - Victoria Legal Aid had received from Mr Kuek - not knowing the contents of the letter, hence the reply to a letter when you don't know what the initiating letter is, might easily mislead. It is unhelpful. It is best ignored. Mr Kuek wrote his letter the 19th May. It appears to be a submission in itself. It appears to be a submission which sets out its grounds for submission. It appears to be a poor submission in itself and it does not ask for a hearing. I accepted as such, . . .. It was a submission and it got a response. Simple as that."

As to the paragraph number 5 of his ruling referred to above he made the following comment:

"That is a ruling that answers a paragraph that says, if you know the question and Mr Kuek's conduct of a matter of Meng Kok Te,..........: I said there I was unaware of the proceedings. That statement as you know, meant nothing and the question of Mr Kuek's conduct in the matter of Meng Kok Te meant nothing to me. I said the statement was unhelpful and wrong which it is. I then said that if he was in the position of facing a criminal prosecution it might lead to self-incriminating himself I would consider a stay. I think that's to the law of the land, and I was merely indicating I would apply it. Otherwise that submission as it was put before me had no merits. What is conduct in Meng Kok Te is, what Mr Meng Kok Te had to do with the matter before me meant nothing in my mind, and so I said there was no merit in raising a magistrate's proceedings before me. It is as simple as that. I gave him leave to apply if he wanted to, if he was facing self incrimination."

"You've spoken of different aspects - a mention of criminal prosecution there. I think that deals with each of the points that you have raised. I hope it does. As I say I was not aware of what was in that Magistrate's Court proceedings. I didn't think it had any concern with me at all, and if it was relevant then making a submission that appeared to be a poor submission, it was up to him to put it to me. If he didn't want to put it, it wouldn't be considered. He asked for a hearing - had there been a hearing it's a different story, but then I have said time and again already, it was or looked to be, and I took it to be, his full submission." He then went on "You made the point it was a reference to "misleading or incompetently", you said a moment ago "an error is an error". And I would agree with that, an error is an error. The statement in the letter was wrong. It was either put there deliberately or it was put there accidentally. Professionals aren't supposed to make accidental mistakes, I accept that occurs. They shouldn't occur and particularly in judicial- quasi judicial proceedings. I merely say to have said he wrote a letter to me when he had never written a letter was just plain wrong. If it was not deliberate, it was put there incompetently. It may be an administrative error, it may be half a dozen other things, but it is still incompetent legal practice in my eyes, and I know that is a high standard to set. I don't believe it is the role of someone sitting where I am to see something like that and start an investigation to occur to define how it occurred, or to start a chain of correspondence that raises "why did this happen why did that happen" and if you like, send out a set of interrogatories. If he wants to make a submission he can make a submission. It is an incomplete submission, an erroneous submission, incomplete or its erroneous and dealt with accordingly."

It is also relevant to note that he went on subsequently to consider the application for the stay. Counsel had referred him to the decision of Hawke v. David Sime & Co [1976] VR 704. In light of that decision he indicated his preparedness to stay the matter pending the determination of the proceedings in the Magistrates' Court and did so.

Counsel for the plaintiff submits that the above conduct of the reviewer needs to be seen in context and in particular the context of the apparent relationship between the "independent reviewer" and VLA. Mr Campbell, the solicitor instructing counsel for VLA and a deponent in these proceedings, was cross examined by the plaintiffs. He confirmed that VLA provided the hearing room on its own premises and clerical assistance for the reviewer from one Katherine Godley, an employee of VLA. The reviewer's typing was carried out by persons engaged by VLA and billed to VLA. Further the tape recording made of the proceedings was made on an instrument operated by Mr Campbell and it was VLA that supplied the plaintiff with a copy tape of the tape recording of the hearing.

The plaintiff submits that the evidence of Mr Campbell showed a degree of dependency on the part of the reviewer on the VLA and its good offices, a dependency apparent to any bystander. I note that it was common ground that the independent reviewer has no budget of his own, he receives a daily attendance fee pursuant to s.18. Mr Campbell noted that The reviewer has been heard to say at the outset of proceedings that "I have no budget, no resources, I have to make do with what I can beg and borrow from the VLA." He said that that comment was not made at the hearing of the proceeding involving the plaintiff.

Counsel for the plaintiff does not submit that that connection and dependence upon VLA would, on its own, support a conclusion of ostensible bias. I have been referred by counsel for VLA to authorities that distinguish between a formal identification between the entity instituting the enquiry and the entity conducting the enquiry. It appears that formal identification without evidence of partisanship would not suffice (see the Queen v. Medical Board of South Australia; ex-parte S(1976) 14 SASR 360 at 366). Thus it is necessary to focus on the issue of ostensible bias.

It must be said, however, that it appears to be an unfortunate reality that no independent funding has been provided for the independent reviewer. Notwithstanding the statutory independence conferred, the connection between the independent reviewer and VLA that is thus forced upon the independent reviewer can only provide fertile ground for argument from any practitioner who is unsuccessful before the reviewer. The amounts involved cannot be great and it is to be hoped that the issue can be addressed to avoid argument in the future. In all the circumstances it is not necessary to consider whether necessity caused by a failure by the executive to fund an operation set up by Parliament is something that can properly be considered where that failure to provide funding gives rise to the appearance of a connection between two persons or bodies that Parliament has directed should be independent of each other. I would be surprised if such a proposition could be accepted (as to necessity, see Laws v. the Australian Broadcasting Tribunal [1990] HCA 31; (1990) 170 CLR 70; Livesey v. New South Wales Bar Association (1983) 288; Builders Registration Board v. Rauben (1983) 57 ALJR 376 at 385 - 386 and 392).

The plaintiff submits that the statements made by the reviewer to which I have referred and in the circumstances in which they were made, raise a reasonable apprehension that he might not bring an impartial mind to the determination of the substantive matter before him. In particular the following points were made -

(1) The assertion made in the reasons for ruling of 22 May 1998 that the statement in the plaintiff's letter "must have been written to mislead or incompetently" was gratuitous and irrelevant to the issues before him.

(2) The assertion was adhered to in the reasons handed down on 10 June 1998 notwithstanding the explanation of the plaintiff which had not been challenged and had been effectively accepted by counsel for VLA.

(3) While it may have been open to the reviewer in making his original ruling and in handing down his reasons on 10 June 1998 to refer to the statement in the letter referring incorrectly to the sending of an earlier letter as an example of incompetence, he was also asserting on both occasions, as a feasible and realistic alternative that there was a deliberate intention to mislead. This, he submits, was not open on any reasonable view and drew attention to the fact that the reviewer had received a letter from the plaintiff on 28 May 1998 which explained that the letter should have been addressed to the VLA instead of him - in other words it was simply at worst incompetence and not a deliberate attempt to mislead.

(4) The reviewer in his ruling of 22 May 1998 plainly inferred that the proceedings in the Magistrates' Court involving Mr Kuek and Victoria Legal Aid was a proceeding of a criminal nature. It is put that there was no basis upon which such a conclusion could have been reached and that this points to the reviewer having a perception that a proceeding in which the plaintiff might be involved in the Magistrates' Court was likely to be a criminal proceeding.

It is further submitted that the issues of integrity and competence were the very issues that were before the reviewer in the substantive proceedings or, at least, were directly relevant to the issues before him.

In response, VLA submits that the document received by the reviewer of 19 May 1998 was a confusing document in that it referred to a letter he had not received and proceedings about which he knew nothing although it was asserted that he did, referred to him by name instead of a more appropriate mode of address and referred to a carbon copy of the document going to Victoria Legal Aid. It did not follow that because the carbon copy had been sent to Mr Campbell that it necessarily followed that the letter to the reviewer was in some way addressed to him in error. On the face of it it appeared not to be. It is submitted further that at the most all that the reviewer did, both in his 22 May ruling and 10 June ruling, was to advert to the only two possible explanations, either done deliberately or incompetently, and that in all the circumstances those two explanations were open at each time. In particular it was emphasised that a finding of incompetence as an alternative was plainly open. It is stressed that the letter was an important letter. On the face of it it was under the solicitor's own signature and yet it was addressed to the wrong person insofar as it was addressed to the reviewer and contained material in it that was inappropriate for a letter to the reviewer.

It is submitted that to describe the letter, as the reviewer did in his ruling of 22 May, as written to mislead or incompetently was to do more than to state the obvious. Those were the alternatives. It was either written deliberately or inadvertently. It is also submitted that the observations of the reviewer did not directly bear upon the matters relied upon by VLA for the proposed removal of the plaintiff - he was not commenting on the substantive issues. The events giving rise to the comments occurred a considerable time after the events giving rise to the application. Counsel further submits that in referring to the possible problems posed by giving evidence in a criminal proceeding, the fair minded observer would merely construe that as stating a hypothetical circumstance in which the reviewer said he would entertain a stay order. He said that a fair reading of the paragraph demonstrated that the reviewer was not contemplating that the proceedings were such in reality.

As to the ruling given on 10 June 1998, counsel for VLA submits that the issue was still left in some uncertainty as to why it was that the letter of 19 May 1998 was written the way it was and made the assertions it did. Counsel stresses that Mr Kuek did not given any evidence about the matter and the reviewer did not have to seek it. It is further submitted for VLA that at the end of the discussion before him on 10 June 1998, the reviewer effectively said that he was saying no more than it showed incompetence. It is put that such a finding was plainly open and that criticism of a party's conduct, even adverse findings on matters of fact or law which might generate an apprehension that a decision maker will decide an issue adversely, did not, without more, amount to pre-judgment of a kind which could provide a basis for an apprehension of bias particularly findings on interlocutory matters. Counsel relies upon Re JRL; ex parte CJL [1986] HCA 39; (1986) 161 CLR 342 at 352; Fitzgerald re Director of Public Prosecutions (1991) 24 NSWLR 45 at 49; R. v. Masters (1992) 26 NSWLR 450 at 472, 473 and Clarke v. Habersberger (unreported 10 June 1994 Supreme Court of Victoria, Coldrey J, at 27 and 29.) It is put that a fair minded observer with access to all the facts would not have formed a reasonable apprehension that the reviewer might have developed a hostile attitude to the plaintiff. Attention is drawn to the fact that in his comments on 10 June 1998 the reviewer expressly disavowed any hostility or aggravation towards the plaintiff. Reliance is also placed upon the fact that the reviewer in fact granted the plaintiff's application for a stay once the argument in support of that application had been developed by counsel for the plaintiff. It is put that to the fair minded observer this would have indicated that the reviewer retained an open mind on the matter before him.

Applying the test cited above, the fair minded observer would consider the document entitled "Reasons for Ruling made 22 May 1998". It discloses a certain degree of annoyance. That in itself was understandable in view of the surrounding circumstances which I have described. In itself, that would be insufficient to support the plaintiff's case. It could properly be thought significant, however, in circumstances where the reviewer did not have an explanation before him as to why he received a letter with inappropriate statements in it, that he did not simply either reserve judgment on the matter or, on reading the contents, appreciate that what had probably occurred was that he had received a letter which had been intended for VLA. That would be the most likely explanation and one that would occur to a fair minded person reading that letter if that person had no preconception as to the integrity of the author. After all, the alternative postulates a person, seeking a decision from the reviewer, deliberately and patently setting out to mislead the reviewer. Thus, the stated reaction that the words were written either to mislead or incompetently would properly raise a question in the mind of the fair minded observer as to what preconceptions the reviewer had about the plaintiff which might have prompted him to seriously consider that the plaintiff would deliberately and obviously attempt to mislead him for little or no benefit. This concern would be reinforced by the reality that the inappropriate references could not in any sensible way mislead the recipient but at most puzzle the recipient. The simple solution for the independent reviewer confronted with that letter was to seek clarification to establish both what was being said and what was being sought and whether he was in fact being asked to make a ruling. The reviewer could have waited until the planned directions hearing on 10 June 1998 or arranged an earlier hearing. The fair minded observer would have noted the apparent haste to judgment in the absence of an express application, another matter raising questions about the possibility of preconceptions on the part of the reviewer.

I do not accept the plaintiff's contention that the reviewer assumed that the Magistrate's Court proceedings were criminal proceedings. The fair minded observer, however, would properly have had some concerns raised also by what appears on the face of it to be an assumption by the reviewer that the plaintiff could be involved in criminal proceedings when at that time the reviewer had no knowledge of the nature of the proceedings. It would be surprising if either the plaintiff or VLA had instituted criminal proceedings against the other and yet on the face of it the letter seems to contemplate that that was a real possibility.

The fair minded observer, having had questions raised, would then have been concerned to observe what happened at the hearing that eventually took place on 10 June 1998.

It will have been noted that prior to that hearing the plaintiff had written to the reviewer indicating, inter alia, that, in substance, the letter should have been addressed to VLA instead of to him. That explained the inappropriate references about which the reviewer had complained and which gave rise to the comment about an intent to mislead or incompetence. It is true that the plaintiff did not give evidence to explain what had occurred but he had briefly explained the circumstances prior to the hearing and counsel for VLA did not challenge that explanation at the hearing. Rather counsel stated the he apprehended that letters in substantially identical terms were sent to each.

The question then arises whether, in the reviewer's response to what was placed before him, he continued to maintain his earlier position. What one finds is that he did so. He stated, as noted above, "it was either put there deliberately or it was put there accidentally... If it was not deliberate, it was put there incompetently". This response would increase the concern of a fair minded person. While the plaintiff and his counsel had not spelt out in detail what had happened, the explanation was before the reviewer in simple terms and yet he was rejecting it insofar as he maintained the alternative that the erroneous parts of the letter had been included deliberately and was not prepared to exclude that explanation.

At one level the point is trivial - why a minor error was made. In the context of the hearing before the reviewer, however, a fair minded observer might have held a reasonable apprehension that the reviewer came to the review holding the strong view that the plaintiff lacked integrity and that this was preventing him accepting the explanation proffered. The situation was not one of a mere adverse finding in an interlocutory matter.

As to the grant of the stay, that event would reassure the fair minded observer that any apprehended bias had not affected that decision. It was, however, an interlocutory decision. The issue is whether a fair minded person might have a reasonable apprehension that the reviewer might not bring an independent and impartial mind to the determination of the question of whether the plaintiff should be removed from the referral panel. The view of the reviewer as to the integrity of the plaintiff would be an important issue in the matter. A fair minded person might have a reasonable apprehension that the reviewer might not approach such an issue with an open, impartial and independent mind in view of the fact that he still adhered to his view that it was a real possibility that the plaintiff had intended to mislead him deliberately and that his view reflected a prejudiced view of the plaintiff that the reviewer had brought to the proceedings and continued to hold.

Views may differ on the matter but it seems to me that the proper conclusion, in all the circumstances, is that the test for ostensible bias is satisfied In those circumstances appropriate orders should be made restraining the third defendant from taking any further part in the proceedings under the Act.

I certify that this and the 28 preceding pages are a true copy of the reasons for judgment of Smith J. the Supreme Court of Victoria delivered on 5 March 1999.

Rather than proceed to challenge the decision of the Board, Mr Kuek proceeded along the path provided under the statute for a determination by an independent reviewer. He accepted the propriety of this course and, in fact, through his counsel consented to the directions that were made on 3 April 1998 and to all intents and purposes appeared to submit to the jurisdiction of the independent reviewer. There then occurred the correspondence to which I have briefly referred which led to the issue being raised of apprehended bias and rulings from the reviewer on that question plus an order staying that hearing before the reviewer made on 10 June 1998, an order sought by the plaintiff, and a result which was apparently accepted by him at the time.

On 10 June 1998 at the further directions hearing the plaintiff applied that the independent reviewer disqualify himself from hearing the application. This application was refused. The reviewer, however, agreed to stay the proceedings before him pending the hearing of the claim in the Magistrates Court. In the following weeks there were some exchanges between the plaintiff and the first defendant about material to be supplied and witnesses to be called. On 7 August 1998 the originating motion in these proceedings was issued.

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Judgment (122 paragraphs)

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