Lewenberg v Victoria Legal Aid; White v Victoria Legal Aid [2005] VSC 28

2. Before the Court are two proceedings instituted by originating motion wherein each plaintiff who is a legal practitioner seeks an order pursuant to s.8(4) of the Administrative Law Act 1978 ("ALA") that the defendant Victoria Legal Aid furnish to him reasons for a decision made on 23 November 2004 not to include the practitioner's name on a specialist practitioner's panel established pursuant to s.29A of the Legal Aid Act 1978 ("the Act").

5. In the first proceeding Alex Lewenberg ("Mr Lewenberg") is the plaintiff. He is a barrister and solicitor of this Court and the senior partner of the firm Lewenberg and Lewenberg Solicitors.

8. The other proceeding is brought by Matthew Leonard White ("Mr White") who is also a barrister and solicitor of this Court and the principal of the firm Matthew White and Associates.

11. The defendant in each proceeding is Victoria Legal Aid ("VLA") which is a body corporate by reason of s.3 of the Act.

14. As each proceeding raised the same issues, it was agreed by the parties that the matters should be heard together and accordingly I did so.

18. Part V of the Act deals with the provision of legal assistance by VLA to persons involved in the litigation process. Section 29A provides for the establishment by VLA of practitioner panels of a specialist nature. VLA is empowered to establish different panels for different classes of matters and in respect of different parts of the State and in so doing, determine the conditions subject to which a practitioner may be included on any panel - see s.29A(1).

21. Sub-section (2) deals with the procedure that is to be followed when the VLA proposes to establish a panel. If VLA proposes to establish a panel it is required to publish a notice in a daily newspaper circulating generally throughout Victoria inviting expressions of interest from practitioners and firms who wish to have their names included on the panel. The notice must be published not later than 21 days before the panel is established and must specify a number of matters - see s.29A(3). First, the notice must specify the qualifications and experience a practitioner must have in order to be a panel member. A period not exceeding three years is to be specified during which a practitioner may be included on the panel. The notice must also specify the basis on which payment will be made for services performed on behalf of an assisted person, the performance standards in relation to the provision of services, the requirements with respect to making reports and keeping records and the grounds upon which, and the process by which, a practitioner may be removed from the panel.

24. Section 29A was inserted into the Act in 1997 - see Act No. 44/1997, s.19. In addition to specialist practitioner panels, the VLA has for many years maintained what is called "a referral panel". Section 30(4) - (9) (inclusive) deal with applications for inclusion on a referral panel. The legal practitioner on a referral panel may be assigned the conduct of an assisted person's case. As at 22 December 2004, VLA had 1,184 private practitioners on its general referral panel established under s.30. The referral panel is not a specialist panel and one of the objects of establishing a panel under s.29A is to provide specialists in a particular area of the law to conduct legal aid work on behalf of a client with the objects of efficiency, expedition and economy.

27. By letter dated 8 September 2004, VLA invited legal practitioners to lodge with it an expression of interest in joining a specialist panel. The panel was to be set up pursuant to s.29A of the Act "to conduct legally aided Magistrates' Court committals and County and Supreme Court pleas and trials." The panel was to be known as the Section 29A Indictable Crime Panel. The panel comprised two divisions, namely, the "blue panel" (metropolitan) and the "green panel" (rural and regional).

30. Information was sought from the practitioners with particular reference to their experience and competence in the field of indictable criminal matters and the closing date for expressions of interest was 24 September 2004. The applications were considered by a committee appointed by the VLA which according to the notice "may include" three senior employees of VLA, and nominees from the Bar Council, Law Institute of Victoria and the relevant courts. The three members who were employed by the VLA and who may be on the committee were the Managing Director, Tony Parsons, and the managers of the Grants Division and Criminal Law Division or their nominees. The members of the committee have not been identified. The actual decision to appoint or not appoint was to be made by the Board of VLA.

33. Attached to the VLA letter was an information kit which included a copy of the advertisement for the panel, the selection criteria and an Indictable Crime Practitioner Manual. The latter contained the terms and conditions, performance standards, reporting and record keeping requirements, and removal procedures. It was made clear in the letter that the decision on appointment was final and conclusive and the letter went on to provide -

"The Board will not provide reasons for the appointment or non-appointment of particular practitioners to the panel."

37. On 22 September 2004 Mr White forwarded to VLA an application on behalf of his firm to be included as a member of the Section 29A Indictable Criminal Panel for the metropolitan area.

40. On 24 September 2004 Lewenberg and Lewenberg also made application for selection to the specialised panel apparently for both divisions. By e-mail and facsimile dated 23 November 2004 the firms were advised that VLA had determined not to place the firms' names on the Indictable Crime Panel. It was made clear that the decision was final and "no reasons for its determinations will be provided." The Board of VLA made the decision after considering the recommendations of a Selection Committee. The Board was established by s.11 of the Act and comprises five persons nominated by the Attorney-General. It is authorised to exercise the powers of the VLA - see s.12(1)(b). Mr Parsons, as Managing Director, is a member of the Board - see s.11(b).

43. Mr Lewenberg and Mr White on 25 and 30 November 2004 respectively sought reasons from VLA for their non-inclusion on the panel. Both requests were refused.

46. In both proceedings, the plaintiff seeks an order pursuant to s.8(4) of the ALA seeking reasons.

49. Section 8(1) provides:

"(1) A tribunal shall, if requested to do so by any person affected by a decision made or to be made by it, furnish him with a statement of its reasons for the decision."

53. It can be seen that the obligation under the Act, is imposed on "a tribunal" in respect of "a decision".

56. Both these terms are defined by s.2 of the ALA. Section 8(4) of the ALA gives jurisdiction to this Court to order a tribunal to furnish a statement of reasons. However, the Court is not bound to make such an order and s.8(5) expressly provides that a court "shall not be bound to order ... where to furnish the reasons would, in the opinion of the Court, be against public policy". VLA has relied upon s.8(5). Before considering the definitions, the obligation under s.8(1) and the exemption under s.8(5), it is necessary to briefly summarise the facts in relation to each of the plaintiffs.

61. Mr Lewenberg has been a barrister and solicitor for more than 30 years. He has had considerable experience in the criminal law during that period, including many indictable criminal cases. He has been a member of the referral panel established under s.30 of the Act for many years. His firm has performed Legal Aid work for many, many years in the area of crime. During the period January 2003 to December 2004 his firm was paid in excess of $86,501 by Legal Aid for the conduct of legally aided indictable criminal matters. In 2003, VLA established a Section 29 Summary Crime Panel and the managing director of VLA wrote a letter to his firm care of Mr Lewenberg, inviting the firm to apply to be a member of the panel and endorsed across the bottom in the handwriting of Mr Parsons were the words:

"Alex, Would be great to have you on board. It really is a better process. Cheers, Tony."

65. The evidence establishes that Mr Lewenberg is an extremely experienced practitioner in the field of criminal law. Bearing in mind the work that had been carried out by his firm over the years as a member of the referral panel in the area of crime, one might expect Mr Lewenberg would have little difficulty satisfying the experience and performance criteria necessary for inclusion on the panel. One of the immediate effects of non-inclusion is that his firm would be deprived of income it would be paid for the conduct of legally aided indictable criminal matters. Although VLA states that it would be open to VLA to assign an indictable criminal case to a firm on the general referral panel, I conclude that the probabilities are indeed high that most, if not all cases would be handled by either VLA through in-house counsel or by assignment to a practitioner on that specialist panel. This is confirmed by reference to the letter inviting interest dated 8 September 2004 which contained the following:

"Only those practitioners that meet the selection criteria will be included on the indictable crimes Section 29A panel and it is expected that most legally aided indictable criminal cases will be conducted by firms on this panel or by VLA's inhouse legal practice."

69. The firm of Lewenberg and Lewenberg conducts a general legal practice. Approximately 40% of its work is in the area of criminal law, with some of the work being legally aided. There will be a deprivation of income as a result of non-inclusion on the panel. Further, Mr Lewenberg is concerned, and I think with good reason, that he may lose longstanding clients who will be referred to other practitioners. I think I can take judicial notice of the fact that a client satisfied with a solicitor's work has a tendency to place other work with that solicitor. This would not be confined to criminal work.

72. In the application lodged on 24 September 2004, Lewenberg and Lewenberg set out their and Mr Lewenberg's experience and competence in the conduct of serious indictable criminal matters, which showed that Mr Lewenberg had considerable experience in the area, including as an advocate, that the firm had had a longstanding history of conducting legally aided serious indictable matters, that it had a demonstrated ability to work productively with VLA in an effective, efficient and economic manner, noted that there had been no finding of misconduct over the last 15 years and that the bulk of the firm's work was in the Melbourne area. No other correspondence occurred, no request was made for information and the next thing that happened was the receipt of the advice on 23 November 2004 that the application had been unsuccessful. As I have earlier stated, Mr Lewenberg requested reasons, he followed up the request on 26 November with a further request and was told on 2 December 2004 that no reasons would be provided. Further correspondence took place between the parties in which notice was given that application would be made to the Court with reference to the ALA which prompted VLA to correspond on 17 December 2004 stating that the ALA did not apply.

75. On 20 December 2004, Mr Lewenberg issued the originating motion.

79. Mr White is younger than Mr Lewenberg and his experience as a practitioner in criminal matters is less but nevertheless substantial.

82. Mr White served articles with the Commonwealth Director of Public Prosecutions in 1993 and was admitted to practice on 7 March 1994. He remained with the Commonwealth DPP until October 1994 when he moved to the Australian Government Solicitor's Office in Darwin for two months. In December 1994 he returned to the Melbourne office of the Commonwealth DPP and remained there until 1998. During the whole of his time with the Commonwealth, he was engaged in criminal work. He obtained a particular speciality concerning the Commonwealth Crimes Act and the complex area of Commonwealth sentencing. In late 1998 he was employed as a solicitor in the Criminal Law Division of VLA and remained there until 2001. During this period he was involved in many indictable matters. In 2001 he commenced employment with a firm as a solicitor advocate and in March 2002 he and another person acquired the practice and renamed it "Grubissa White". The partners practised together until August 2004 when Ms Grubissa was appointed a magistrate. Since then Mr White has conducted the practice under the firm name of Matthew White and Associates, and at present he employs two solicitors and an office manager. Since 2001, after leaving VLA, Mr White has instructed in a number of County Court and Supreme Court trials and appeared as an advocate in a number of indictable matters. On 12 October 2004 he became an accredited specialist in criminal law.

85. His firm's practice comprises exclusively criminal law work. Since March 2002 approximately 20% of the firm's practice has been indictable criminal work of which approximately 85% was legally aided. The assignment of legal aid to the firm by VLA in the past in indictable matters resulted in fees of approximately $80,000 - $100,000 net per annum. The balance of the firm's work is summary criminal matters.

88. The firm has been a member of the Section 30 Referral Panel and in the past applications on behalf of the client by the firm for legal aid in indictable matters have in the main been approved. It was rare for any matter to be assigned to an inhouse VLA practitioner.

91. Mr White was surprised and disappointed on learning of VLA's decision and was concerned that the decision would impact upon his firm's practice and its clients. On 24 November 2004 Mr White sent a letter to Mr Parsons requesting an opportunity to meet to clarify the selection process. On the morning of 26 November 2004, Mr White was interviewed on ABC Radio 774, and later that morning Mr Parsons appeared on the programme to explain some aspects of the decision. On 1 December 2004, Mr White sent an e-mail to VLA seeking a statement of reasons for the decision pursuant to s.8(1) of the ALA. The response on the same day stated: "As previously advised, the Board's decision is final and no reasons for its determinations will be provided."

94. Mr White has deposed that the decision will have a dramatic effect on his practice, that without new legally aided indictable matters it is likely that staff will have to be dismissed and that there will be a substantial financial loss to the firm.

98. In Public Service Board of New South Wales v Osmond[1], the High Court held that there was no general rule of common law or natural justice which required reasons to be given for administrative decisions. This is so, even when the decision is made in the exercise of a discretion pursuant to statute and which may impact adversely upon the interests of those affected by the decision or defeats the legitimate or reasonable expectations of the person affected.

101. The ALA was passed in 1978 and s.8 gives the right to a person affected by an administrative decision to make application to this Court for an order that the decision-maker provide a statement of reasons for the decision.

104. I have already set out s.8(1) above.[2] The obligation to give reasons rests upon a tribunal in respect to a decision made. The right is given to a person affected by the decision made or to be made. It follows that the applicant must prove -

(i) that he is a person affected by the decision made or to be made;

(ii) that the decision is a decision within the meaning of the Administrative Law Act; and

(iii) that the decision-maker is a tribunal within the meaning of that Act.

110. There is no doubt that Messrs Lewenberg and White are persons affected by the decisions. The next question is, are they decisions within the meaning of the ALA?

113. Section 2 is the definitions section.

116. For the sake of clarity, the definition of the word "decision" may be paraphrased as follows -

"means a decision operating in law to determine a question affecting the rights of any person OR to grant deny terminate suspend OR alter a privilege or licence and includes the refusal or failure to perform the duty or to exercise the power to make a decision."

120. Section 29A(1) of the Act provides:

(a) different classes of matters in relation to which legal assistance may be provided under this Act; or

(b) different parts of the State -

and may determine the conditions subject to which a practitioner may be included on any such panel."

127. Once a practitioner becomes a member of the specialist panel, under s.29B VLA may assign the conduct of an assisted person's case to a member of that panel. The reality is that in most cases indictable criminal work will be assigned to those practitioners who are members of the s.29A Indictable Criminal Panel or kept inhouse. Whilst VLA could assign the work to a member of the Referral Panel it would be a rare event.

130. The Act does not give a right to a legal practitioner to be a member of the panel. The Board of VLA makes that decision. Hence, the decision does not affect any right. But what is being sought by an applicant is at the least a privilege. The privilege is to be a member of the panel. Once a member of the panel, indictable criminal work may be assigned to the member.

133. The word "decision" is widely defined and what Messrs Lewenberg and White sought was a privilege to be a member of the panel. That privilege of course did not give them any right to have work assigned to them but nevertheless their inclusion on the panel gave them every expectation that they would receive work.

136. The decision to include a practitioner on the panel does not result in the grant of a licence

139. In Banks v Transport Regulation Board (Vic)[3], Barwick CJ stated what was "a licence". His Honour said:[4]

"From this passage has stemmed the repeated notion that a mere licence does not create any estate or interest in the property to which it relates: it only makes an act lawful which without it would be unlawful."

146. The decision determining inclusion does not result in the grant of a licence. "Privilege" is concerned with a different concept.

149. The word "privilege" is defined by the Shorter Oxford English Dictionary as, inter alia, meaning "a right advantage or immunity granted to or enjoyed by a person or class of persons beyond the common advantage of others" and also defined as "a privileged position; the possession of an advantage over others or another." In Le Strange v Pettefar[5], Luxmoore LJ said:[6]

"A `privilege' describes some advantage to an individual or group of individuals, a right enjoyed by a few as opposed to a right enjoyed by all."

153. In my opinion, the decision made by VLA concerning inclusion or non-inclusion on the panel was a decision relating to a privilege and the decision denying the privilege was a decision within the meaning in s.2 of the ALA. I did not understand counsel for VLA to contend otherwise.

156. That brings me now to the question whether it was a decision made by "a tribunal".

159. The word "tribunal" is also defined by s.2 and can be relevantly paraphrased as follows -

"Tribunal means ... a body of persons (not being a court of law or a tribunal constituted or presided over by a Judge of the Supreme Court) who, in arriving at the decision in question are by law required whether by express direction or not, to act in a judicial manner to the extent of observing one or more of the rules of natural justice."

163. The phrase "natural justice" has a particular meaning in modern administrative law. At its least, it consists of two common law rules requiring that fair procedure is followed in the decision making process affecting rights or interests of an individual. The two rules are -

(i) The hearing rule (audi alteram partem) which requires the decision-maker to give an opportunity to the person adversely affected by the decision to be heard in respect to matters relevant to the decision.

(ii) the rule that the decision-maker shall not be a judge in his own cause namely that the decision-maker is free from bias.

169. The rules are concerned with the decision making process and not the merits of the decision itself. See Chief Constable of North Wales Police v Evans[7]. The better view appears to be that there is no third rule that the decision maker must act fairly. In Footscray Football Club Limited v Commissioner of Payroll Tax[8], Lush J said:

"I find myself unable to accept the proposition that a duty formulated merely as a duty to act fairly is a duty to comply with the rules of natural justice. In one sense it can be said that any person exercising public power is under a duty to act fairly. The rules of natural justice are usually crystallised into two categories; the first rule, as sometimes formulated, was in the form that no person shall act as judge in his own cause, and perhaps may be formulated in the form that the deciding body must be free of bias; and the second rule stated the requirement that the person whose rights may be affected is entitled to be heard. Within each of those rights there may again be a requirement of fair acting."

173. Barwick CJ in Salemi v MacKellar (No. 2)[9] made it clear that the duty to act fairly flowed from the obligation to accord natural justice. His Honour said:[10]

"It is in this connexion that the concept of fairness is relevant: that is, once it is concluded that the power of decision or action is dependent on the observance of natural justice, fairness in the particular circumstances will determine what must needs be done to satisfy natural justice. The fairness is what is required of a repository of power when on the proper construction of the statute that power is qualified by the need to accord natural justice. But the basic question is whether the statutory power is so qualified. Whether it is to be so qualified is a matter for the Parliament. It is for the courts to decide in point of construction what the Parliament has relevantly enacted, both expressly and implicitly. The courts by construction of the statute educe and make express the qualification of the granted power inherent in the statute. Having decided that the statute makes the exercise of the power contingent on the observance of natural justice, the courts then decide what is required in the particular circumstances to satisfy the statute so construed. But it is fundamental that what the courts do in qualifying the powers is no more than to construe the statute. Failure to meet the qualification of the power, that is to accord natural justice in the manner in which the courts decide is required in the circumstances, results in an invalidity of the decision or act, because neither is authorized by the statute as construed by the courts."

177. More recently Deane J has identified what he described as another requirement of natural justice and that is that decisions must be based upon logically probative and relevant material. See Australian Broadcasting Tribunal v Bond[11]. However, the High Court has not come that far as yet.

180. For present purposes, in my opinion, the phrase "observing one or more of the rules of natural justice" appearing in the definition of "tribunal" in s.2 refers to either of the well established rules.

183. The question therefore arises whether the Board of VLA in making the final decision concerning inclusion or non-inclusion in the panel was bound to observe one or more of the rules of natural justice. Was it required to give a hearing before making the decision? Was it a body required to make its decision free from bias?

186. Counsel for the applicants submitted that both rules applied. That is, that the Board was obliged to give a hearing and secondly, that the Board was obliged to make its decision free from bias.

189. Whether or not the Board was bound to accord natural justice depends upon the proper construction of the Act and the application of the common law rules concerning an obligation to accord natural justice.

192. It is well established that the application of the rules of natural justice and their content depends upon a proper construction of the statutory provisions relating to the decision making process. There is nothing expressly provided in the Act concerning the obligation to hear or not hear an applicant. There is nothing expressly stated in the Act requiring the Board to be a disinterested decision maker. However, that is not the end of the debate. The question is whether there is an implied obligation on the Board to give a hearing and/or to be a disinterested decision maker?

196. Does it apply? The first question for consideration and determination is - what is the bias rule? And in answering that question it is necessary to consider its application and how it may be infringed. The rule is succinctly stated in the Latin maxim nemo debet esse judex in propria causa - no one can be a judge in his own cause.

199. The rule requires a decision maker to be impartial and disinterested. Not only must the decision maker not have any interest in the outcome of the decision making process, but he or she must not have any direct financial interest in the decision. The decision maker is also bound to perform the decision making process free of any pre-judgment or prejudice and to ensure that the task is carried out in a fair and bona fide consideration of all relevant matters. The rule may be infringed in a myriad of ways. By way of example, having a direct financial interest in the outcome, having a personal association with a person having an interest in the outcome and pre-judgment. In the same way as the hearing rule may vary in its content, the actual obligation under the bias rule may vary according to the circumstances. A familiar example is where the decision making process is established by statute, regulation or some contractual term which has the effect of modifying the rule. A classic example is where the rules concerning a disciplinary tribunal provide that the decision maker not only investigates the complaint, but lays the complaint and also hears it.[12] In such circumstances the bias rule is modified and what would normally be a disqualifying factor is no longer so. Nevertheless the content of the rule may not be exhausted. In other words, the provisions establishing the decision making process may modify the bias rule as in the example given above, but nevertheless leave intact the balance of the bias rule. This would mean that if the decision maker had prejudged the decision and had a closed mind when making the decision or had a financial interest in the outcome, the bias rule would still disqualify the decision maker.

202. The rule has developed and been applied in the past, more in relation to the conduct of judicial officers than other decision makers. Further, the courts have been as much concerned with the appearance of justice as the actual performance of justice. Whilst the rule in the past has been mainly applied to courts, or a court-like body such as a disciplinary tribunal, it is well accepted that the rule applies to administrative decisions.

205. The next question for consideration is does the bias rule apply to VLA's decision making process concerning the inclusion of a practitioner on a specialist panel established pursuant to s.29A of the Act? In order to answer that question it is necessary to consider the obligation resting upon VLA in its decision making process under the Act. In Kioa v West[13], Mason J said:[14]

"Where the decision in question is one for which provision is made by statute, the application and content of the doctrine of natural justice or the duty to act fairly depends to a large extent on the construction of the statute. In Mobil Oil Australia Pty Ltd v Federal Commissioner of Taxation, Kitto J pointed out that the obligation to give a fair opportunity to parties in controversy to correct or contradict statements prejudicial to their views depends on `the particular statutory framework'. What is appropriate in terms of natural justice depends on the circumstances of the case and they will include, inter alia, the nature of the inquiry, the subject matter, and the rules under which the decision-maker is acting." (Emphasis added).

"The statutory power must be exercised fairly, that is, in accordance with procedures that are fair to the individual considered in the light of the statutory requirements, the interests of the individual and the interests and purposes, whether public or private, which the statute seeks to advance or protect or permits to be taken into account as legitimate considerations."

213. It is noted that his Honour emphasised that both the application of the rules of natural justice and their content depends to a large extent on the statute. It is therefore necessary to consider s.29A in the context of the Act. I have set out sub-s.(1) above.[16]

216. Section 29A(2) requires the VLA to publish a notice in a daily newspaper circulating throughout Victoria or the relevant part of the State as the case requires, inviting expressions of interest from practitioners. Sub-section (3) in paragraph (b) specifies matters that must be included in the notice. These identify factors that VLA must take into account in making its decision as to whether or not a practitioner may be included on a panel. Sub-section (3)(b) provides -

(i) the qualifications and experience that a practitioner included on the panel must have or the part of the State within which their principal place of practice must be located; and

(ii) the period (not exceeding 3 years) during which a practitioner may be included on the panel; and

(iii) the basis on which payment will be made to any practitioner included on the panel for services performed as a panel member on behalf of an assisted person; and

(iv) performance standards in relation to the provision of services by panel members; and

(v) requirements with respect to the making of reports to VLA and the keeping of records that must be complied with by panel members in respect of the performance of services on behalf of assisted persons; and

(vi) the grounds on which, and process by which, a practitioner may be removed from the panel."

229. In my opinion, VLA in determining whether or not a practitioner be included on a specialist panel must carefully consider all matters relevant to the application, including the qualifications and experience of the practitioner. In appointing a person to a panel, VLA is exercising a statutory power. It is obliged to perform its function in accordance with the law. In Buck v Bavone[17], Gibbs J said:

"In all such cases (where a body is exercising statutory power) the authority must act in good faith; it cannot act merely arbitrarily or capriciously. Moreover, a person affected will obtain relief from the courts if he can show that the authority has misdirected itself in law or that it has failed to consider matters that it was required to consider or has taken irrelevant matters into account. Even if none of these things can be established, the courts will interfere if the decision reached by the authority appears so unreasonable that no reasonable authority could properly have arrived at it."[18]

233. It is important to note the important obligation resting upon the decision maker exercising statutory power, namely, to act in good faith. A decision maker would not be acting in good faith if the issue was determined with a closed mind and prejudice. A decision maker who made a decision in those circumstances would not be acting in good faith and would infringe the bias rule. The principles of natural justice would be breached. The decision maker's decision would not be the product of a genuine and impartial exercise of the statutory power. In my opinion, it is clear that VLA in reaching its decision under s.29A was obliged to comply with the bias rule of natural justice. The bias rule is part and parcel of VLA's performance of its statutory power, namely, to act in good faith considering all matters relevant to the decision. To prejudge the decision prior to fully considering all relevant matters would be to infringe the rule. I emphasise that there is no evidence that the Board of VLA did infringe the rule. But that is not the issue in this application. The issue is whether the bias rule applied to the Board's exercise of its statutory power? In my opinion it did.

236. Further, the application of the principles of the common law which imply the obligation of natural justice in respect to administrative decisions supports my conclusion. In Kioa v West, supra, Mason J carefully and in detail considered the principles and their application. He expressed the principles at p.582. His Honour's statement of principle was referred to in Annetts v McCann [19] where he, Deane and McHugh JJ said:

"It can now be taken as settled that, when a statute confers power upon a public official to destroy, defeat or prejudice a person's rights, interests or legitimate expectations, the rules of natural justice regulate the exercise of that power unless they are excluded by plain words of necessary intendment: (authorities quoted) ... In Tanos Dixon CJ and Webb J said that an intention on the part of the legislature to exclude the rules of natural justice was not to be assumed nor spelled out from `indirect references, uncertain inferences or equivocal considerations'. Nor is such an intention to be inferred from the presence in the statute of rights which are commensurate with some of the rules of natural justice ... In Kioa v West Mason J said that the law in relation to administrative decisions `has now developed to a point where it may be accepted that there is a common law duty to act fairly, in the sense of according procedural fairness, in the making of administrative decisions which affect rights, interests and legitimate expectations, subject only to the clear manifestation of a contrary statutory intention'. In Haoucher Deane J said that the law seemed to him `to be moving towards a conceptually more satisfying position where common law requirements of procedural fairness will, in the absence of a clear contrary legislative intent, be recognised as applying generally to governmental executive decision making'."

240. In my opinion, their Honours' comments apply to the bias rule and to a body exercising statutory power resulting in the granting a privilege to a person to be appointed to a panel. For a court to come to the view that the hearing rule applies in my view is very strong evidence that the bias rule would also apply. It is hard to see on what basis it can be said that a decision making body would be acting fairly in giving the party affected by the decision an opportunity to be heard if it was biased in any way.

243. The question is whether or not the statute confers power upon VLA to "defeat ... a person's interests"? It is clear that a business or commercial reputation is an interest as well as personal reputation. See Ainsworth v Criminal Justice Commission[20]. The learned author of Judicial Review of Administrative Action in Laws of Australia[21] discusses the interests which have been afforded protection in the past and they include decisions which "adversely affect persons in their occupation or livelihood, or affect business interests".

246. Both applicants in the proceedings have in the past performed legal aid work for VLA in respect of indictable criminal matters. Each has derived substantial income from performing the work. One might have expected given the circumstances, in particular that they had in the past performed criminal work and were on the referral panel, that they would be included on the new specialist panel. In my opinion, a refusal in those circumstances would not only have an adverse affect on their business interests, but would also reflect on their reputations as legal practitioners practising in the criminal field. Their interests would be affected by the refusal to include them on the specialist panel. In my view, the bias rule would apply in those circumstances.

249. Whether or not each would be entitled to a hearing before the decision was made is a matter that I do not need to consider.

252. I am satisfied that in the circumstances the bias rule applied to the decision making process and accordingly the decision is made by a tribunal within the meaning of the ALA.

255. Counsel for VLA submitted that the rules of natural justice had been excluded by the Parliament because of some provisions in the Act which provided for appeals or reviews. Reference was made to the objectives and duties of VLA set out in ss.4 and 7 of the Act and emphasis was given to the obligation of VLA to provide an effective, efficient and economic system of legal aid. Counsel specifically referred to s.30 which deals with a situation where a person whose name is on the referral panel is removed from the panel and certain procedures must be followed including a right to be heard. Further, there is the provision in s.33 which requires that in certain circumstances reasons have to be given for decisions made. In addition, Part VI of the Act sets out procedures concerning reconsideration of decisions by VLA and an independent reviewer who has certain functions to perform under certain provisions in the Act. I note these specific references but in my view they do not exclude the application of the bias rule when VLA makes its decision under s.29A. Those provisions deal with specific matters, and as the Court said in Annett's case, supra, an intention to exclude the rules should not be inferred "from the presence in the statute of rights which are commensurate with some of the rules of natural justice." In other words, one must proceed with considerable caution in inferring that the legislature intended to exclude the rules of natural justice because in other parts of the Act specific reference may be made to the rules applying in certain circumstances. The principle of construction embodied in the maxim expressio unius est exclusio ulterius must always be applied with caution. It does not follow that because the statute expressly deals in one part with the rules of natural justice, that the omission to refer to them in another context means they do not apply. I am not persuaded that there is anything in the Act which excludes the application of the bias rule to the decision made by the Board under s.29A.

259. Counsel for VLA submitted that if I was of the view that the decision was made by a tribunal within the meaning of the ALA, nevertheless the Court must not order the provision of reasons if it was against public policy. They submitted it was. Section 8(5) provides:

"(5) Notwithstanding anything in this section a tribunal shall not be bound to furnish a statement of reasons, and the Court shall not be bound to order it to do so, where to furnish the reasons would, in the opinion of the Court, be against public policy, or the person making the request is not a person primarily concerned with the decision ... "

263. Counsel for VLA submitted that it would be against public policy to furnish reasons. In support of the contention, VLA relied upon the affidavit evidence of Ian Campbell, the Operations Co-ordinator of VLA's Grants Division. The reason advanced, which it is said is against public policy, is that it will take time and cost money to provide reasons, which will compromise the efficiency of VLA providing services to assisted persons and reduce scarce legal aid funds for legal services. Mr Campbell stated in his affidavit, sworn 22 December 2004, that the panels under s.29A were relatively new and were intended to provide legal assistance at a reduced administrative cost. He said that VLA made a policy decision not to provide reasons for exclusion of practitioners from s.29A panels and each applicant was informed prior to applying for selection. He noted that in the past VLA had established specialist panels in the areas of family law, summary crime, child representatives and indictable crime. By way of example, he noted that there were 90 applicants for appointment to the Child Representative Panel; 60 were appointed, and 32 were refused. He stated that if VLA was obliged to provide reasons it would be necessary to provide reasons to all 32 unsuccessful applicants. Although he did not state how many applied for inclusion on the indictable criminal panel, or the numbers appointed, he said that similar ratios would apply to other s.29A panels. Whilst stating that VLA had not had the opportunity at that point to fully determine the administrative cost of providing reasons, he opined that it would take a Level 3 VLA employee approximately one day to collate the material and draft the reasons. A Level 3 VLA employee costs about $450 per day. He stated one day's work would cost about $800 including the additional costs of review by superiors and possible legal opinion. He emphasised the limited amount of funding provided for legal aid. I must confess that I am surprised by what Mr Campbell has stated. Applicants for inclusion on the s.29A Indictable Crime Panel were required to submit their application which was to be considered by a special committee set up to recommend to the Board of VLA the fate of each application. It seems to me that in carrying out that process the committee would be obliged in some way to make clear why it was recommending that a particular practitioner should not be included. One would expect that the Board would require a statement of the reasons by the committee why a particular application should be refused. The reasons would not have to be detailed. They could be succinct and to the point. For example, the application be refused because (a) the applicant lacks experience, (b) the applicant has in past dealings provided inefficient service, and indulged in unnecessarily prolonging proceedings and (c) has failed to respond expeditiously and properly to requests from VLA. The factual matters could be briefly identified and summarised. This would be part and parcel of the deliberative process carried out by the committee leading to the recommendation. Given that that is the most obvious procedure to follow one would expect when the Board made the decision it would state that it had resolved not to include X on the panel, and set out in summary form the reasons. This would not involve added expense of any substance. More importantly it would not involve an employee of VLA collating the material and writing the reasons. The reasons would be apparent from the committee's recommendation and the Board's decision. It is the Board's reasons which would be provided, not an employee's interpretation of the decision.

266. Further, it is clear that the provision of reasons pursuant to an order of the Court under s.8 will always involve some time and some expense. In other words, the Legislature in giving the power to this Court to order the provision of reasons must have contemplated and expected that there would be an expense. I am not persuaded that the expense stated by Mr Campbell is a correct estimate of the likely cost but in any event the statute contemplates that there will be a cost. Unless the cost was so prohibitive that it could not have been in the contemplation of Parliament, the usual cost flowing from satisfying the obligation could not result in the furnishing of reasons being against public policy. I am not persuaded the cost would be prohibitive. Further, I accept what Mr Tracey QC said on behalf of Mr Lewenberg, that in any event the provision of reasons may in the end result involve less expense than a situation where no reasons are given, causing the disappointed applicant to bring a judicial review proceeding in this Court. If reasons are given which make clear that the statutory power was properly exercised, no error of law is demonstrated, and a disappointed applicant, properly advised, would not bring a proceeding. But if left in doubt, a disappointed applicant may bring a proceeding and in the long run the cost of the proceeding would far outweigh any cost of providing reasons.

269. I am not persuaded that the furnishing of reasons for non-inclusion on the s.29A Indictable Crime Panel would be against public policy.

273. In my opinion, the decision made not to include either applicant on the s.29A Indictable Crime Panel was a decision made by a tribunal within the meaning of the Administrative Law Act 1978, and there is no reason for refusing an order to provide reasons. Further, the furnishing of reasons would not be contrary to public policy under s.8(5) of the ALA.

276. Subject to any submissions by counsel I propose to make the follow order in each application:

That Victoria Legal Aid furnish to the plaintiff pursuant to s.8(4) of the Administrative Law Act 1978, within 14 days a statement of its reasons for its decision made on 23 November 2004 to refuse the application of the firm Lewenberg and Lewenberg (Matthew White and Associates) for inclusion on the s.29A Indictable Crime Panel established under s.29A of the Legal Aid Act 1978.

280. I will hear the parties on the question of costs.

[1] (1986) 159 CLR 656.

[3] [1968] HCA 23; (1968) 119 CLR 222.

[5] (1939) 161 LT 300.

[7] [1982] UKHL 10; [1982] 1 WLR 1155 at 1174-5.

[8] [1983] VicRp 47; [1983] 1 VR 505 at p.510.

[9] [1977] HCA 26; (1977) 137 CLR 396.

[11] [1990] HCA 33; (1990) 170 CLR 321 at 368.

[12] See R v Brewer, ex parte Renzella [1973] VicRp 36; [1973] VR 375.

[13] [1985] HCA 81; (1985) 159 CLR 550.

[17] [1976] HCA 24; (1975) 135 CLR 110 at 118.

[18] Approved by four members of the High Court in Minister for Immigration v Wu Shan Liang [1996] HCA 6; 1996) 185 CLR 259 at 275-6.

[19] [1990] HCA 57; (1990) 170 CLR 596 at 598.

[20] [1992] HCA 10; (1991) 175 CLR 564 at 577-8.