Lewenberg v Victoria Legal Aid [2005] VSC 226

2 On 24 September 2004, Messrs Lewenberg & Lewenberg, Solicitors, made application for inclusion on both components of the panel. The firm provided what it believed was all the required information in support of its application and believed that it met all the relevant selection criteria as published by VLA. By email and fax of 23 November 2004, Lewenberg & Lewenberg were advised that VLA had determined not to place its name on either component of the panel. No reasons were given, and none would be provided, said VLA.

3 After exchanges of letters with VLA, Mr Alex Lewenberg issued this proceeding, which originally sought judicial review of the VLA decision to exclude it from the s.29A Indictable Crime Panel. The proceeding was heard by Gillard J who ruled on 21 February that in making appointments to the panel the board of VLA had a duty to observe one or more of the rules of natural justice and was accordingly a tribunal for the purposes of the Administrative Law Act 1978. The court ordered, pursuant to s.8 of that Act, that reasons for excluding Lewenberg & Lewenberg from the panel must be given by the VLA board. Although His Honour permitted 14 days for VLA to comply with this order, at its request, Lewenberg & Lewenberg extended the time for compliance by a further seven days. It was accordingly with some surprise that they read VLA's response of 15 March to the court's order which was in the following terms:

"The reason why the board decided not to include Lewenberg & Lewenberg on the panel is that the board considered and followed a recommendation from its selection committee."

The same letter informed the plaintiff that in light of Gillard J's judgment, the VLA board proposed to consider Lewenberg & Lewenberg's expression of interest afresh and set out the procedure it proposed to follow. It invited Lewenberg & Lewenberg to inform VLA whether it wished to rely on the expression of interest submitted by it originally, or whether it wished to provide a further expression of interest.

4 Further correspondence was exchanged between Lewenberg & Lewenberg and VLA of which two letters written by VLA are relevant. In the first, dated 16 March 2005, VLA confirmed that the statement quoted above represented the totality of the reasons for the board's decision to exclude Lewenberg & Lewenberg from the panel. It also invited the plaintiff to point out deficiencies in those reasons for its further consideration. In the second, a letter of 18 March, VLA explained the selection process which had led to Lewenberg & Lewenberg's exclusion.

5 Its explanation was that it involved all expressions of interest being distributed to each member of a selection committee which assessed each application according to the published selection criteria and recommended a number of applicants for appointment. It then provided the board of VLA with a list of practitioners it recommended for inclusion, and a list of those not recommended for inclusion on the panel. Significantly the letter also stated that the board of VLA acted only on the recommendation of the selection committee.

6 Not satisfied with VLA's response, Mr Lewenberg filed a summons in the proceeding in which Gillard J had already given judgment, seeking further orders pursuant to the Administrative Law Act 1978. Those orders are that VLA's original decision refusing Lewenberg & Lewenberg's application for inclusion on the panel be set aside, and that VLA be ordered to include the plaintiff on the panel. In the alternative, he sought further relief by way of an order under s.8(4) of the Administrative Law Act, compelling VLA to provide further reasons for its original decision.

7 Mr Richard Tracey QC for the plaintiff argued his case in respect of the first order by reference to the High Court decision in Commissioner of State Revenue v. Royal Insurance Australia Ltd[1]. This case concerned the recovery by a taxpayer of overpayments of stamp duty made in ignorance of certain amendments to the legislation imposing the duty. The Taxing Authority was obliged to repay the duty overpaid upon general restitutionary principles notwithstanding that a statute of limitations had run against the taxpayer. In the course of determining the matter, the High Court had to consider the application of a section of the taxing statute which appeared to confer a power on the Taxing Authority to refuse repayment of an overpayment. The question was whether the power was expressed in permissive or discretionary terms, it had to be exercised in favour of the taxpayer, once the authority determined that there had been an overpayment. Brennan J, with whom Toohey and McHugh JJ expressly agreed, considered that where a power existed and the circumstances called for the fulfilment of a purpose for which it was conferred, mandamus would be an appropriate remedy to compel the exercise of the power even if in other circumstances the repository of the power may have an unfettered discretion to exercise or refrain from so exercising it. His Honour considered that once the Taxing Authority decided that there had been an overpayment, there was no residual discretion for it to refrain from making a refund.

8 Mr Tracey sought to apply this principle to this case by submitting that as VLA had not suggested any disqualifying features of Lewenberg & Lewenberg's expression of interest, and had relied solely upon the recommendation of a selection committee that it not be appointed to the panel, mandamus should go against it to compel it to include Lewenberg & Lewenberg on the panel. In effect, so Mr Tracey submitted, there was no residual discretion to refrain from making a decision in Lewenberg & Lewenberg's favour.

9 I disagree. As there was nothing before the court as to why the selection committee took the position it did, it is impossible to examine the exercise of the power of appointment to the panel by VLA itself. Whilst this may lead to a finding on judicial review of an error of law which would vitiate the decision, it does not establish that the exercise of the discretion to appoint is exhausted, leading only to the result that requires the appointment to be made.

10 The Royal Insurance case does not stand for such a wide proposition. Its principle applies only where the exercise of the discretion contrary to the person disadvantaged by it would be, ipso facto, erroneous in the circumstances prevailing. It is then correctable by mandamus. Any grounds for refusing to exercise the discretion in a particular way must be not maintainable as a matter of law for mandamus to be available.

11 Here a proper examination of the material upon which the selection committee made its recommendation, which perhaps VLA itself should have undertaken, may reveal many reasons why the power to appoint could be exercised legally but adversely to Lewenberg & Lewenberg. Thus mandamus will not lie. The plaintiff's application in paragraph 1 of his summons of 22 March will be refused.

12 In the alternative, the plaintiff seeks an order pursuant to s.8(4) of the Administrative Law Act that VLA be required to furnish a further statement of its reasons for excluding Lewenberg & Lewenberg from the s.29A Indictable Crimes Panel.

13 In the letter of 15 March in which it gave its reason for refusing Lewenberg & Lewenberg's request for inclusion in the panel, VLA also informed the firm that it intended, in light of Gillard J's order, to reconsider its expression of interest afresh, and to this end to convene a new selection committee and provide Lewenberg & Lewenberg with an opportunity to comment on any adverse information that may come before that committee.

14 Mr Borenstein QC for VLA submitted that this decision of VLA meant that it had at least impliedly rescinded its earlier decision to exclude Lewenberg & Lewenberg from the panel, so that since 15 March, there has been no decision in effect in respect of which any order under s.8(4) of the Administrative Law Act requiring it to give further reasons could operate. He submitted further that in any event, because of VLA's letter of 16 March which made it clear that the reasons set out in its 15 March letter represented "the totality of the reasons for the board's decision", VLA had provided all the reasons it could in respect of the decision which it made.

15 Mr Tracey argued that, notwithstanding the contents of the VLA letters, and the expressed inability of VLA to provide any further information as to its reasons for its decision, the Court should nevertheless make an order under s.8(4). He submitted that Lewenberg & Lewenberg's exclusion was a public and unjustified slur on the firm's professional reputation. Whether this is true or not, it is difficult to see how an order which must, on the available evidence, result in nothing further coming from VLA, would reverse whatever effect Lewenberg & Lewenberg's exclusion from the panel might have had. The process now offered by VLA has more chance of providing Lewenberg & Lewenberg with the relief it seeks than any order for further reasons under the Administrative Law Act will, at least at this stage. I do not accept that such an order as the plaintiff seeks would enable it the better to consider and pursue its administrative law options, either under Order 56 of the Supreme Court Rules, or under the Administrative Law Act as Mr Tracey argued. If the reason now given by VLA is not expanded upon as a result of an order made by this Court, which I am satisfied it would not be, the plaintiff would no doubt be able to demonstrate error of law on the face of the record by reference to the material already before the Court. This would lead to a quashing of the original decision, if it still exists, and an order that VLA consider Lewenberg & Lewenberg's expression of interest again. Thus Lewenberg & Lewenberg would be in exactly the same position as it is currently in, having regard to the offer which VLA made in its letter of 15 March.

16 It is not necessary for the Court to determine whether VLA's letter of 15 March effectively rescinded its decision to exclude Lewenberg & Lewenberg from the s.29A Indictable Crime Panel. If it did, the plaintiff's application for further reasons fails for want of an existing decision affecting his rights in respect of which reasons could be given. If it did not, the fact that VLA intends in any event to reconsider its decision in accordance with its legal obligations, as Gillard J declared them, constitutes a powerful discretionary consideration against granting the relief sought by the plaintiff in paragraph 2 of his summons. In the exercise of that discretion I would not grant the relief sought. The plaintiff's application for further reasons for VLA's decision, pursuant to s.8(4) of the Administrative Law Act, is refused.

17 The plaintiff also seeks an order that the time for bringing any proceeding pursuant to Order 56 of the Supreme Court rules be extended to 4.30 p.m. on 2 May. In the circumstances, such an order would avail the plaintiff nothing. If VLA has revoked its original order excluding Lewenberg & Lewenberg from the s.29A panel, there is nothing upon which judicial review can operate. If it did not, judicial review of the exclusion may well lead to an order in the nature of certiorari, quashing that decision. The inevitable result of such an order would be a further order that VLA re-consider its decision. However, an order in the nature of certiorari would be subject to the same discretionary considerations by reason of which I have refused to order further reasons pursuant to s.8(4) of the Administrative Law Act. VLA's stated intention of its preparedness to re-consider Lewenberg & Lewenberg's application would inevitably lead to a refusal of an order in the nature of certiorari on the same discretionary ground.

18 The plaintiff's application for an order that time be extended to bring a proceeding under Order 56 of the Supreme Court Rules is accordingly refused. There being no other relief sought in the summons other than that relating to costs, the plaintiff's summons of 22 March 2005 will be dismissed.

1. [1] [1994] HCA 61; (1994) 182 CLR 51.