Plaintiff v Defendant

1 Ming Fai Kwan is to face trial on serious drug charges in the County Court of Victoria on 7 May 2007. He wishes to be legally represented by the solicitor and counsel of his choice, and has applied for legal aid on this basis.

2 The applicant referred to and attached eight important documents about his trial, and the reasons why he wanted representation of his choice. Victoria Legal Aid granted him legal aid, but on the basis that his solicitor had to be a VLA solicitor or a private solicitor on the VLA's Indictable Crime Panel. Access Law is not on that panel; it is on a general panel.

3 Mr Kwan applied for a reconsideration of that decision, which failed. He then applied for independent review of the reconsideration decision. Before the review was carried out, VLA told Access Law it did not have the documents referred to in the original application, and asked that they be provided. Access Law did so.

4 Rather than allow the review to proceed, VLA decided to restart the process of consideration from the beginning. Rather than give the application to a new officer, it was given to the officer who refused the reconsideration request. Acting as a first-instance decision-maker, she made the same decision again that legal aid would be granted to Mr Kwan only for a VLA solicitor or a solicitor on the Indictable Crime Panel.

5 Access Law complained about that procedure. The complaint was treated by VLA as a request for reconsideration of the fresh decision to grant legal aid on the disputed basis. This reconsideration was carried out by a new officer and, as Mr Kwan was informed during the hearing before me, it too failed.

6 VLA has a statutory mechanism for reviewing decisions. There can be reconsideration of decisions made at first instance, then there can be independent review, as I have stated. Mr Kwan does not wish to exercise these rights of review. He has come instead to this Court seeking judicial review.

7 Mr Kwan contends that VLA, in the way it has dealt with his application, has demonstrated apparent bias. It is on this basis that he seeks judicial review of VLA's decisions. More particularly, he seeks a declaration that the final decision on reconsideration is void, an order in the nature of certiorari quashing that decision and an order in the nature of mandamus that VLA reconsider the decision in accordance with law.

8 VLA contends the consideration of Mr Kwan's application was not attended by apparent bias. Even if it was, VLA contends that the court should exercise its discretion to refuse relief because Mr Kwan has an adequate alternative remedy.

Apparent bias

9 Under s 23(1) of the Legal Aid Act 1978, Mr Kwan has a right to make an application for legal aid. That application must be dealt with by VLA in accordance with the rules of natural justice, one aspect of which is the rule against bias. In deciding the application, ss 28(a) and 29B allow VLA to allocate the case to a solicitor on a special panel under s 29A, such as the Indictable Crime Panel. A decision of that kind must also be made in accordance with the rules of natural justice, including the rule against bias. Where a decision to refuse legal aid, or a decision to impose a condition that legal aid be provided in a particular manner, is made in breach of the rules of natural justice, the court may conduct judicial review of the decision. If the ground is established, the decision will be in excess of the jurisdiction that the Act supplies and relief in the nature of a declaration, certiorari, mandamus or prohibition may be granted (see Order 56 of the Supreme Court (General Civil Procedure) Rules 2005), subject of course to the discretion to refuse any such relief.

10 The content of the rule against bias is not in dispute in this case. This is the test to be applied:

[W]hether in all the circumstances the parties or the public might entertain a reasonable apprehension that the judge might not bring an impartial and unprejudiced mind to the resolution of the matter before him.[1]

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". As Mason CJ and McHugh J pointed out in Webb v R[2]..."it is the court's view of the public's view, not the court's own view which is determinative." Even so, the court is to be satisfied that the criterion is met, not that it might be.[3]

It is also necessary to take into account that the decision-maker is an administrator, not a court.[4]

11 The facts of the present case are established by the two affidavits filed on behalf of the applicant and the statement of agreed facts. There is no answering affidavit from VLA. What emerges is that Mr Kwan's application for legal aid was sent with the eight important documents attached. For whatever reason, the documents were not before the original decision-maker or the officer who carried out the reconsideration. It was very plain from Access Law's letter and its careful description of the documents that Mr Kwan wanted them to be taken into account. Accepting that the documents were not before these decision-makers, neither of them requested that the documents be supplied. They just went ahead and made the decisions anyway.

12 When VLA realised the documents had not been taken into account, it decided that Mr Kwan's application had to be considered all over again. That was an appropriate decision to make.[5] The options for doing so were these: consideration by the first decision-maker; consideration by the second decision-maker; or consideration by a fresh decision-maker. VLA adopted the second option. It should have adopted the third. The first and second decision-makers were tainted by the fact that they made their decisions in the absence of the documents.

13 A fair-minded observer, one who was informed, might reasonably consider that the second decision-maker would not properly consider the documents, but rather would try to make a decision that showed that the documents would never have made any difference. In the circumstances, only referral to a fresh decision-maker could have avoided this appearance of bias.

14 Mr Kwan has established apparent bias, which is a form of jurisdictional error and a ground for judicial review. The question remains whether relief should be refused in the exercise of the court's discretion.

Adequate alternative remedy

15 It is clearly established that relief in the nature of judicial review is not available as of right. The court retains a discretion to grant or refuse relief of this kind on a number of bases. One accepted basis for refusing relief is that the applicant has an adequate alternative remedy. The scope of the discretion in this respect has been specified many times over the years, with varying degrees of emphasis on its component parts. Of the statements made by many judges, I think that of Dixon CJ in Tooth & Company Ltd v The Council of the City of Parramatta[6] is the most accurate, the most authoritative and the most enduring:

No doubt it would not be right to treat the provisions creating [the alternative remedy] as excluding as a matter of legislative intention an application for mandamus where there has been a clear failure on the part of a counsel to perform a public duty imposed upon it. But, where the legislature has provided for the very description of case a remedy designed as appropriate and adequate, a court should be careful that mandamus is not used to avoid recourse to the remedy or as a substitute for it. The general rule is that the court exercises its discretion against granting a writ of mandamus where a remedy is provided by way of appeal or the like which is equally convenient, beneficial and effective. If the writ of mandamus does not provide the party with a more convenient and better remedy, the court, in such a case, leaves the party with that which has been provided.[7]

16 This principle has been applied many times in this Court in a variety of contexts.[8]

17 A party seeking to persuade the court to decline relief bears the onus of establishing that it is appropriate to exercise the discretion to do so.[9]

18 Where prohibition is sought, the principle still applies, but the discretion is less readily exercised against the applicant.[10]

19 To determine whether an alternative remedy is adequate, it is necessary to consider a number of matters. These have been collected by Professor Enid Campbell in a seminal article which, on this point, I endorse:

[W]hether or not remedy by way of appeal is considered to be an adequate alternative to the judicial remedy or remedies sought seems to depend on a wide variety of factors, among them: the nature of and the time at which judicial remedy is sought; the ground or grounds on which remedy is sought; the status and powers of the appellate body; the nature and scope of review on appeal; the relative costs of appeal and judicial review; the relative speed with which the matter in dispute is likely to be resolved depending on which remedy is pursued, and the importance of a speedy resolution; whether or not an appeal is pending; and whether or not an appeal has been lodged and already determined.[11]

20 The scope of the alternative remedy available is a fundamental consideration. This comes through in both the federal and the Victorian cases.

21 In the federal sphere, what constitutes an adequate alternative remedy has been frequently considered in cases arising in the Federal Court of Australia under the Administrative Decisions (Judicial Review) Act 1977. This statutory jurisdiction is analogous to the common law jurisdiction of this Court for present purposes. The cases show the discretion to refuse relief is most often exercised where applicants have declined to exercise their rights under a statutory merits-review mechanism in which the decision-maker, on reconsideration or review, has full capacity to make a fresh decision about what is "correct or preferable" in a given case.[12]

22 In Victoria, the same approach has been adopted. Mechanisms allowing only a limited form of review of the decision have not been regarded as adequate, so the discretion to refuse relief has not been exercised against the applicant.[13]

23 It is necessary to bear in mind that, under the Supreme Court Rules, people have a fundamental right to apply for judicial review. They do not first have to obtain leave. When that right is invoked, this Court is prima facie obliged to exercise its jurisdiction:

The right to invoke the jurisdiction of the courts and other public tribunals of the land carries with it a prima facia right to insist upon the exercise of the jurisdiction. That prima facie right to insist upon the exercise of the jurisdiction is a concomitant of a basic element of the rule of law, namely, that every person and organisation, regardless of rank, condition or official standing, is "amenable to the jurisdiction" of the courts and other public tribunals.[14]

In appropriate cases, the court can exercise that jurisdiction by declining relief. Where there is an adequate alternative remedy, the exercise of that power is discretionary not obligatory. Circumstances may justify granting the relief sought. For various reasons, the applicant's choice of the judicial forum may be an appropriate one.

24 Perhaps the most important example of that kind of case is where the decision complained of is an administrative one and the applicant raises a significant question of law or jurisdiction, one not involving issues of disputed fact and of a kind that can only be finally determined by a court of law. In such a case, it may be appropriate, despite the existence of an adequate alternative remedy, for the question to be determined and, if appropriate, for relief to be granted.[15]

25 This is not because the alternative review body may lack the jurisdiction to consider legal and jurisdictional questions, for the statutory authority of review tribunals may extend that far, even if the questions go to their own jurisdiction, although their decisions on such matters cannot be final.[16] Rather it is because it might be cheaper, faster and more convenient, and also save the costs of what might be an inevitable appeal, for the court to hear and determine the question.

26 Turning now to the present case, the Legal Aid Act makes provision for first instance decisions (s 28), reconsiderations (s 34) and independent reviews (s 36). Decisions concerning applications for legal aid, including the terms on which aid will be granted and the lawyers by whom the aid will be provided, come within this mechanism. On reconsideration, the decision-maker must "reconsider the decision and may confirm vary or review the decision."[17] The independent reviewer has the same power.[18] This is a complete power of review - a power to make the "correct or preferable" decision on the merits, on additional materials if the applicant wishes, unconstrained by decisions made lower down in the hierarchy.[19] Thus there are no limitations on the internal review mechanism created by the Legal Aid Act. Reviews can be carried out as cheaply, quickly and thoroughly as possible. This being so, the internal review mechanism is plainly an adequate alternative remedy in respect of decisions concerning the provision of legal aid. Parliament has enacted that mechanism in the expectation it will be followed.

27 Therefore an applicant who complains about a decision made under the Legal Aid Act must normally exhaust their internal review rights before coming to court. Where this is not done, unless there is something in the nature or circumstances of the case to justify granting relief by way of judicial review, and even if a ground of judicial review is clearly established, I think the discretion to refuse relief should be exercised against the applicant. If the applicant does not first exhaust their internal review rights, the court may refuse to grant relief at the final hearing. If the existence of such a right is established, the court also may stop the proceeding at an early stage,[20] although, because refusing relief is an exercise and not a denial of the court's jurisdiction, and because of the nature of the discretionary and other issues typically raised in such cases, the specification of a preliminary question will often if not usually be the more appropriate method.[21]

28 In the present case, Mr Kwan's claim is that VLA demonstrated apparent bias in the circumstances I have explained, and I have upheld that claim. But there is no reason to think the VLA's internal review process will operate improperly hereafter. He should get a full and proper review on the merits under that process. There would have to be some other reason for keeping the applicant's judicial review application alive rather than leaving him to his rights of internal review under the Legal Aid Act.

29 There is one consideration that might count in the balance against exercising the discretion to refuse to grant relief. The decision-making structure in the Legal Aid Act consists of three potential stages: first instance, reconsideration and independent review. The expectation of the Act is that applicants will be treated fairly and on the merits at each stage. If they are denied natural justice at the first, for example, and the court denies relief because they can access the second, they effectively lose their right to a proper decision at the first. As an English judge once put it in a case about union rules: "If the rules and the law combine to give the member the right to a fair trial and the right of appeal, why should he be told that he ought to be satisfied with an unjust trial and a fair appeal?"[22]

30 This is not a weighty consideration in the present case nor, perhaps, in many others. The discretion may be exercised where there is an adequate alternative remedy; that is its very basis. To refuse relief to an applicant who has such a remedy would necessarily deny them the right to challenge the lower decision and to claim relief restoring them to their former position in the decision-making hierarchy. In most cases, therefore, I would think the nature of the discretion itself supplies an answer to the judge's question.

31 I do not reject the possibility that in some extreme cases this consideration may have more significance. For example, the courts occasionally see flagrant and serious breaches of the rules of natural justice and errors of law or jurisdiction associated with contumelious administrative conduct, such as bad faith. In cases of that kind, it can be said that the decision-making process has fundamentally miscarried. The discretion to refuse relief is based on the expectations of Parliament. But Parliament expects both the decision-making to be proper and the internal review mechanism to be taken up. Where the former has been absolutely thwarted, it may be totally insufficient to point to the latter. This is a consideration that might - I say no more than that - lead the court to decline to exercise the discretion to refuse relief, depending on the other circumstances. That would leave the court free to grant relief restoring an applicant to the position they were in before the defective decision was made.

32 In the present case there is no significant question of law or jurisdiction that the court should determine. The error committed was apparent, not actual, bias and there is nothing in the decision-making process that deserves the Court's reproach. The issues in and circumstances of the case do not suggest that the court is the proper forum for determining the issues that have arisen. The applicant has simply elected not to exercise his internal review rights. Against that, I think the court should set its face. The applicant should be left with the rights of internal review that the Legal Aid Act has provided. In the exercise of the court's discretion, I therefore refuse to grant the relief sought.

[1] Grassby v The Queen [1989] HCA 45; (1989) 168 CLR 1, 20; applied DJC v Burg [1998] VSCA 139, [16].

[2] [1994] HCA 30; (1994) 181 CLR 41, 52.

[3] Gascor v Ellicott [1997] 1 VR 332, 342.

[4] See generally Minister for Immigration & Multicultural Affairs v Jia Legeng (2001) 205 CLR 507.

[5] Minister for Immigration and Multicultural Affairs v Bhardwaj (2002) 209 CLR 597, 616.

[6] [1955] HCA 21; (1955) 97 CLR 492.

[7] Ibid 498.

[8] For example, Little v Cornall [1989] VicRp 71; [1989] VR 811, 817; Prime Minister John Piss the Family Court and Legal Aid v Electoral Registrar [2000] VSC 512, [100]-[101]; Kuek v Victoria Legal Aid [2001] VSCA 80; (2001) 3 VR 289, 293; D'Souza v Royal Australian and New Zealand College of Psychiatrists [2005] VSC 161; (2005) 12 VR 42, 64-66; Robb v Nixon [2005] VSC 310, [132]; and Perkins v Victoria Bar Inc and Legal Profession Tribunal [2007] VSC 70, [6].

[9] Kelly v Coats [1981] FCA 58; (1981) 51 FLR 69, 72_; Queensland Newsagents Federation Limited v Trade Practices Commission_ (1993) 46 FCR 38, 50.

[10] Re Refugee Review Tribunal; Ex parte Aala [2000] HCA 57; (2000) 204 CLR 82, 101-110, especially 106, 108.

[11] Enid Campbell_, "_Judicial Reviews and Appeals as Alternative Remedies" [1982] MonashULawRw 8; (1982) 9 Monash University Law Review 14, 29-30.

[12] See, eg, Bragg v Secretary, Department of Employment, Education & Training (1995) 59 FCR 31, 33-34; McGowan v Migration Agents Registration Authority [2003] FCA 482; (2003) 129 FCR 118, 131-132; Saitta Pty Ltd v Commonwealth [2000] FCA 1546; (2000) 106 FCR 554,[104].

[13] See, eg, Robb v Nixon [2005] VSC 310, [132]-[134].

[14] Re Queensland Electricity Commission; Ex parte Electrical Trades Union of Australia [1987] HCA 27; (1987) 61 ALJR 393, 399 (I have omitted a footnote); Re Australian Bank Employees Union; Ex parte Citicorp Australia Ltd [1989] HCA 41; (1989) 167 CLR 513, 517.

[15] Kelly v Coats [1981] FCA 58; (1981) 35 ALR 93, 94; Gudgeon v Black (1994) 14 WAR 158, 177-178; R v Hallstrom; Ex parte Waldron [1986] QB 824, 852; Boral Gas (NSW) Pty Ltd v Magill (1993) 32 NSWLR 501, 508-509; Director of Public Prosecutions v Verigos [2004] VSC 97, [40]; Hunter v Magistrates' Court [2002] VSC 362, [56]. Compare Kuek v Victoria Legal Aid [2001] VSCA 80; (2001) 3 VR 289, 293; North Burnside Pty Ltd v Melton Shire Council [2006] VSC 35, [68]-[71], where the alternative remedy is appeal to a court on a question of law.

[16] See generally Re Adams and Tax Agents' (1976) 12 ALR 239; Brian Lawlor Automotive Pty Ltd and Collector of Customs (NSW) (1978) 1 ALD 167_; Collector of Customs (NSW) v Brian Lawlor Automotive Pty Ltd_ [1979] FCA 21; (1979) 41 FLR 338.

[17] Section 34(2).

[18] Section 36(2).

[19] Drake v Minister for Immigration and Ethnic Affairs ( 1979) 46 FLR 406, 419, 429-430_; McDonald v Guardianship and Administration Board_ [1993] VicRp 36; [1993] 1 VR 521, 528.

[20] See, eg, Perkins v Victorian Bar Inc and Legal Profession Tribunal [2007[ VSC 70, [17]-[18].

[21] See Duncan v Fayle [2004] FCA 723; (2004) 138 FCR 510, 519.

[22] Leary v National Union of Vehicle Builders [1971] 1 Ch 34, 49 (Megarry J).