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[2009] VSC 288
appellant. The decision refusing the plaintiff’s application was held to be quashed; the question of any further remedy was deferred pending further submissions.
Smith J held that VLA had treated the plaintiff as if it were a new applicant when it had previously been a member of an existing statutory panel. The judgment construed the panel as continuing to exist separately from the changing membership. It also held that VLA could set an application deadline but could not apply it so rigidly that it removed its ability to consider exceptions. In the particular circumstances, VLA's email had conveyed that the late application would be considered with the others, but it was later rejected without consideration on its merits or a further opportunity for the plaintiff to make submissions. The judge stated that the refusal decision should be quashed and deferred other remedies.
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2,740 words · generated 29/09/2026
Lewenberg & Lewenberg was a law firm that had previously been included on Victoria Legal Aid's Indictable Crime Panel. VLA appointed 48 practitioners to the panel in December 2004, and added the plaintiff in August 2005. The appointments were extended, with the panel described in VLA's communications as expiring on 30 November 2007 [3].
4 cited instruments linked from this judgment.
In August 2007, VLA invited expressions of interest for a panel term of three years. The notice said applications had to be submitted electronically by close of business on 31 August, and that late and paper-based applications would not be considered [4]. VLA circulated the notice through email and other channels, including its website and the Law Institute of Victoria's communications [5]. The plaintiff's partners did not become aware of the deadline until 10 September. The firm's explanation was that its central email address had received the messages, but a receptionist had not forwarded them, and its partners had looked for panel information in a different part of VLA's website [6]–[7].
The firm submitted its expression of interest on 10 September 2007. It asked for an extension and explained why it had missed the deadline [7]. During subsequent communications, VLA officers said the matter was being considered, and that counsel's advice was being obtained. On 16 October 2007, an officer emailed that the late expression of interest “will be considered with all other EoI's” and that the firm would be advised of the outcome [9]–[11].
The Board decided on 18 December not to accept the application. In its letter of 14 January 2008, VLA said it had not considered the firm's selection criteria or assessed its merits. The Board's stated reasons included that the lateness resulted from the firm's own office practices and that accepting the late application could disadvantage other firms [12]–[13].
The firm sought judicial review. Its arguments included that it should have been treated as seeking re-inclusion on the existing panel under s 29A(5) of the Legal Aid Act 1978 (Vic), rather than as a new applicant under s 29A(2) and (3). It also challenged VLA's rigid use of the deadline and argued that the October email gave rise to a legitimate expectation of merits consideration [15]–[19]. Smith J held that the refusal decision should be quashed, but reserved the question of other remedies [79]–[80].
The central statutory issue was whether the panel itself continued to exist independently of its members. VLA argued that a panel was no more than a list of names and ceased to exist once all membership terms expired [28]–[32]. Smith J rejected that construction. The judge read s 29A as separating the statutory panel from the practitioners included on it. The panel was created through decisions about its purpose, relevant classes of matters, location and conditions of inclusion; it became an “established panel” when its first members were appointed [34].
The judgment found no provision in s 29A terminating an established panel when the members' terms expired. The statutory limit on how long an individual could be included did not, on the judge's reading, limit the life of the panel itself [35]–[37]. The court also examined VLA's records from 2004. Those records described the panel as being established and practitioners as being appointed to it for a limited period. Smith J considered that evidence consistent with the distinction drawn from the statute [39]–[42].
Applying that construction, the panel had been created in about May 2004 and established on 1 December 2004. In 2007 VLA had not changed the panel's purposes, location or conditions, and had taken no step to terminate it. The plaintiff was still a member at the time the new expressions of interest were invited [43]. Smith J therefore held that s 29A(2), which concerns a proposed new panel, did not apply to the plaintiff. Nor could the process for adding new members be used to treat an existing member's request for re-inclusion as a new application. The use of those provisions was not authorised by the Act [43]–[45].
The deadline issue was distinct. The plaintiff argued that the 14-day response period conflicted with s 29A(3)(a), which required at least 21 days between publication and the establishment of a panel or inclusion of additional names [49]–[51]. The court did not accept that argument. It read the 21-day requirement as governing the interval before establishment or inclusion, not the time allowed for applicants to respond. The Act did not expressly prohibit VLA from setting a response deadline, and VLA could adopt procedures for orderly administration [56]–[57].
That conclusion did not mean VLA could enforce its deadline without regard to individual circumstances. Smith J held that the difficulty was the deadline's inflexible application. VLA had chosen a procedure that removed discretion to make exceptions, although it had power to consider them [69]. The decision process appeared to focus on whether VLA had caused the late filing, rather than whether the policy should be departed from in light of the circumstances and merits [70].
The court also addressed fairness to other applicants. It accepted that fairness had to be considered for all applicants and prospective applicants, but found that fairness did not require an absolute refusal of late applications. The applicants were assessed against common criteria and were not competing for a stated limited number of positions. The judgment noted that other firms had sought extensions and that the procedure did not include a system for dealing with late applications [71]. It concluded that fairness could have been managed through a system that treated applicants consistently, rather than through rigid exclusion [71]–[75].
Finally, the court considered the 16 October email. Its meaning was assessed in context, including earlier conversations about whether VLA would accept the late expression of interest. Smith J accepted evidence that the plaintiff understood the email to mean its application would be considered on its merits [10]–[11]. Although VLA argued that the application had technically been considered along with other late applications, the court found that the email did not explain that limited meaning. It conveyed that the application would be considered with the other expressions of interest, whereas the application was not considered with the 94 timely applications and was not considered on its merits [77].
The court concluded that the email and the events that followed denied the plaintiff an opportunity to address the proposed departure from the apparent expectation. That opportunity could have included arguments about the merits of the application and the prejudice arising from exclusion, as well as the public interest [77]. The judgment accordingly found procedural unfairness and concluded that the refusal should be quashed [77], [79].
The judgment's account of the statutory position begins with s 29A itself. Under subsection (1), VLA could establish different panels and set conditions for inclusion. Subsections (2) and (3) provided for notice when VLA proposed to establish a panel or include additional names. Subsection (5) stated that a practitioner could be re-included after the period of inclusion expired [21].
Before this decision, VLA's 2007 process treated the previous panel as expiring with the membership terms and treated the new expressions of interest as a process for a new panel. The court found that this approach conflated the statutory panel with the group of people appointed to it. The judgment's construction was that the panel persisted despite changes in membership, unless VLA chose to let it become defunct or otherwise ended its use [34]–[37], [42]–[45].
The decision also distinguished between setting a deadline and applying it without discretion. It accepted VLA's authority to establish administrative procedures, including a response date, because s 29A did not expressly prescribe a response period [56]–[57]. But it held that the procedure could not be treated as an inflexible rule that eliminated the possibility of an exception [69]–[71]. In this case, the statutory error concerning the panel and the administrative-law errors concerning the deadline were separate grounds of concern.
The judgment cites authorities on statutory compliance, administrative policies, fairness and legitimate expectation, including Project Blue Sky, Adams v Lambert, Re Drake, Khan, Hughes Aircraft and Lam [54], [58], [67], [77]. It uses those authorities in considering the issues before it; the judgment text supplied here does not establish a broader account of how those cases have since been applied or limited.
No later judicial treatment is set out in the material provided. Accordingly, the “after” position that can be stated on this source alone is the holding in this judgment: for this statutory scheme, the panel was distinct from its members; VLA could use a deadline but could not rigidly fetter its discretion; and the particular communications and process denied the plaintiff procedural fairness. Whether later courts have followed, distinguished or qualified those holdings cannot be determined from the judgment text provided.
At [34], Smith J said that the legislative scheme distinguished “the creation of a statutory panel and its establishment” from “the statutory panel and its members.” In plain English, the judge treated the panel as the statutory structure and the practitioners as people who could join or leave it. The end of an individual's term did not necessarily end the panel.
At [37], the judge stated: “The statutory panel is more than the list of its members.” This is the concise statement of the panel construction. It answers VLA's contention that the panel was simply the current list of appointed practitioners.
At [44], the court said the use of ss 29A(2) and (3) for the plaintiff's application “was not authorised by the Act.” In plain English, those provisions did not supply the correct process for handling this firm's request, because it was an existing member seeking re-inclusion rather than an outsider seeking first inclusion on a new panel.
At [56]–[57], the court distinguished the statutory 21-day requirement from VLA's response deadline. The Act required publication at least 21 days before establishment or the addition of names. It did not itself set how long applicants had to respond. VLA could set procedures, but that did not answer whether it could apply them inflexibly.
At [69], Smith J said VLA had acted “to fetter itself and remove any discretion that it in fact had.” In plain English, the agency had treated its deadline as if it left no room to consider an exception, even though the judge held it had discretion to do so.
At [71], the court considered how fairness could be provided to applicants and potential applicants. The judgment's point was not that fairness favoured only the late applicant. Rather, it found that a fair system could address late applications consistently, instead of making a rigid deadline the sole determinant.
At [77], Smith J concluded that VLA's actions denied the plaintiff natural justice. The court's reasoning depended on the email's context and the opportunity lost: the plaintiff had not been told that VLA intended to exclude the application without assessing its merits, and so had no chance to make further submissions on that issue.
At [79], the court stated that the refusal “should be quashed.” At [80], however, it left other remedies unresolved, pending further submissions. The decision therefore records the conclusion on quashing but not a final determination of every form of relief sought.
The reasoning may be relevant where a statute distinguishes between establishing a panel or scheme and appointing individuals to it, and where the statute separately provides for re-inclusion after an individual's term expires. The key statutory features in this case were ss 29A(1), (2), (3) and (5) [21]. The holding should be read in the context of Smith J's construction of that particular scheme, not as a general rule that every statutory panel continues indefinitely.
The panel analysis is especially connected to facts showing that the panel's purposes, location and conditions remained unchanged, no termination decision was made, and membership was the only feature that had expired or was due to expire [43]. Those were material to the conclusion that this was an existing panel rather than a new one.
The deadline analysis may be relevant where an administrative authority has set an application deadline but the governing statute does not itself prescribe that response period. The court accepted that an authority may set procedures, but found a problem where the process is applied as an absolute bar without consideration of exceptions [56]–[57], [69]–[71]. The existence of a deadline alone was not the basis of the court's decision.
The fairness analysis may be relevant where a decision-maker has communicated that an application will be considered with others, but later excludes it without a merits assessment. Context mattered: the plaintiff had repeatedly asked whether VLA would accept the late application, and the judge found the email could reasonably convey that the application had been accepted for merits consideration [9]–[11], [77].
The judgment also indicates the importance of the applicant's lost opportunity to make further submissions. The possible submissions included matters beyond the reason for lateness, including the application’s merits, the consequences of exclusion, and the public interest [77]. The court rejected the argument that there was no unfairness merely because the firm had already explained why it was late.
The supplied judgment contains no later decisions discussing or applying Lewenberg & Lewenberg v Victoria Legal Aid. It is dated 16 July 2009, and the text ends with Smith J's reasons and the question of further remedies being deferred [79]–[80]. No subsequent history or treatment is included in the provided material.
The judgment itself discusses earlier authorities. It refers to Project Blue Sky and other High Court cases when addressing whether statutory non-compliance makes an act invalid [54]. It cites Re Drake and Khan in relation to the use of policies by administrative decision-makers [58]. It discusses Lam in relation to expectation, procedural fairness and the need to identify a lost opportunity [77]. These are authorities considered in this decision, not evidence of later treatment of this decision.
On the source available, it would be unsafe to say that the case has been followed, distinguished, affirmed or overruled by later courts. Establishing that history would require later judgments or a citator record, neither of which is provided here.
The first unresolved matter in the judgment is remedy. Smith J stated that the refusal decision should be quashed but deferred deciding on other relief until the parties had an opportunity to make further submissions [79]–[80]. The supplied text therefore does not show whether mandamus or any other order was ultimately made.
A second boundary concerns the life and termination of panels. The court held that this panel remained established because the statute did not provide for its termination and VLA had taken no step to terminate it [35]–[45]. The judgment does not decide what formal steps, if any, would be required in a different case to terminate a panel, or how the construction would apply to statutory language expressly providing for a panel's expiry.
A third question concerns the limits of an administrative response deadline. The court accepted that VLA could adopt procedures for the orderly management of applications, while rejecting an inflexible process in these circumstances [56]–[57], [69]–[71]. The judgment does not define a universal test for what makes a deadline or exception policy sufficiently flexible, nor does it specify what procedure would be required in every setting.
A fourth issue is how the reasoning applies where applicants compete for a fixed number of places. Smith J relied in part on the finding that the applicants were not competing for a limited number of positions and were assessed against criteria applicable to all [71]. The decision does not determine whether, or how, fairness would be balanced where accepting a late application would directly displace another applicant.
Finally, the judgment's legitimate-expectation reasoning depends on the actual communications and their context. The court relied on the earlier discussions, the wording of the email, and the plaintiff's response to it [76]–[77]. The decision does not mean that every assurance that an application will be “considered” necessarily promises merits assessment. The meaning of a communication would still depend on its context and what opportunity was lost.
This is general legal information, not legal advice. Zoe can make mistakes. Before acting on this, relying on it, or using any draft, have it checked by a qualified Australian lawyer.
LEGAL AID - application to be appointed to Indictable Crime Panel - applicant previously a member - time for application fixed by VLA - application out of time - application refused - validity of VLA approach to its refusal.
ADMINISTRATIVE LAW - whether discretion and power fettered - legitimate expectation - denial of natural justice.
1 The plaintiff is a firm of solicitors. By amended Originating Motion, the plaintiff challenges the decision of Victoria Legal Aid (VLA) made on 19 December 2007 not to accept the plaintiff's Expression of Interest (EoI) dated 10 September 2007 to be included as a member of the Indictable Crime Practitioners Panel established under s 29A Legal Aid Act 1978 (the Act).
2 The plaintiff seeks the following relief or remedy:
1. An order in the nature of mandamus compelling the Defendant to consider the application made by the Plaintiff by letter dated 10 September 2007 to be included or re-included on the Panel established or to be established by the Defendant under s 29A of the Legal Aid Act.
2. An order in the nature of certiorari quashing the decision of the Defendant made on or about 14 January 2008 to refuse to include the Plaintiff's name on the panels of private practitioners established pursuant to s 29A of the Legal Aid Act.
5. Such further or other orders as to this Honourable Court appear fit.
3 In December 2004, VLA appointed 48 practitioners to an Indictable Crime Panel for a period of 2 years. In August 2005 the plaintiff was added to the Panel. On 21 September 2006 the appointment of practitioners to the Panel was extended by one year to 31 November 2007.
4 On 17 August 2007, VLA published a notice inviting expressions of interest (EoIs) from suitably qualified legal practitioners for appointment to a panel for three years to conduct legally-aided Magistrates' Court committals and County and Supreme Court pleas and trials. The notice stated that EoIs were to be lodged electronically and received by VLA by close of business on Friday 31 August 2007. It also stated "late and paper based applications will not be considered".
5 On 20 August 2007 VLA sent email messages to all practitioners on the VLA General Referral Panel, including the plaintiff, informing of the invitation for EoIs. It also added an item to the "News and Events" page of its website. It caused a similar notice to be published in the Law Institute of Victoria's "Friday Facts Notice" sent to practitioners and published on the LIV website. On 30 August 2007 VLA sent email messages to all practitioners on the VLA General Referral Panel, including the plaintiff, informing them of the invitation for EoIs. By close of business on 31 August 2007, 97 applicants had lodged EoIs electronically to a general mailbox.
6 It appears that notwithstanding the emails and other notice provided by VLA, the partners of the plaintiff firm were not aware of the notice and the expressed time limit for lodging EoIs. It became aware on 10 September 2007 when one of the partners, Mr Furstenberg, was at the Magistrates' Court and enquired of a practitioner when the s 29A panel was up for re-appointment. The practitioner advised him that the current term had expired and the closing date for applications may have already passed. Mr Furstenberg contacted Victoria Legal Aid on his return to his office and spoke with Ms Caroline McSporran who told him that the applications had in fact closed on 31 August 2007. He advised Ms McSporran that he did not see the advertisement in The Age. She advised him of the emailing and further advertisements that had been placed. He advised her that his office had not received the emails and he had regularly checked the VLA websites for updates as to s 29A panels within the s 29A panel tab. He was advised that the details were contained under the "News and Events" tabs of the website. As to the firm's receipt of the emails, the email address employed was that which was the firm's central email address - the receptionist's address. The receptionist was inexperienced and had failed to forward the emails to the partners because she did not appreciate their significance.
7 During his conversation with Ms McSporran on 10 September 2007, Mr Furstenberg requested an extension of time within which to lodge the application and advised her that he would be forwarding an application that afternoon. She said to him that she would need to get advice as to whether the late application would be accepted. On that same day, 10 September 2007, the plaintiff submitted its EoI. In the covering letter, it stated that the firm did not see the advertisement in the newspaper and that when looking under the SGP link on the VLA website, which the firm regularly checked, there was no mention of the indictable panel reopening, only the summary panel. They accepted that it was, however, listed under the News and Events link.
8 Mr Furstenberg has deposed to a telephone conversation on about 17 September 2007 with Mr Thomas Moore, corporate solicitor for VLA, in which he indicated to Mr Moore that he believed that VLA had contravened the Legal Aid Act in only giving 14 days notice of intention to establish a new panel and not 21 days as required by the Act. He also indicated to Mr Moore that he believed that notwithstanding prior litigation between the firm and VLA, they had a good working relationship and that in light of VLA's error, the late application should be accepted. He also informed Mr Moore that the panel not having been yet established, should the application be rejected on the ground of lateness, the plaintiff may seek to issue legal proceedings. He was advised by Mr Moore that all relevant matters would be considered and that counsel's advice was still being sought as to whether to accept the late application. Mr Moore in his affidavit of 30 May 2008, confirmed this conversation but added to it that he told Mr Furstenberg that VLA would contact him with VLA's position soon.
9 Between 10 September 2007 and 16 October 2007, Mr Furstenberg had conversations with both Ms McSporran and Mr Moore. The conversations involved enquiry by him as to whether the application had been accepted and the response was that VLA was still in the process of obtaining counsel's advice as to whether to accept the application and that the advice was expected to be received in the near future. They also undertook to advise of the decision once counsel's advice had been received.
10 On 16 October 2007 Mr Furstenberg received an email message from Ms McSporran in the following terms
"I refer to our recent telephone discussion and advise that the late Expression of Interest (EoI) submitted by Lewenberg & Lewenberg will be considered with all other EoI's and you will be advised of the outcome in due course".
11 Mr Furstenberg has deposed that in the context of the telephone discussions he had had with both McSporran and Moore, namely that VLA would advise as to whether the late application was to be accepted once counsel's advice had been received, he understood the above email to convey that the late application would be considered on its merits with all other EoIs. I accept that evidence.
12 On 14 November 2007, the selection committee met and decided to recommend to the Board of VLA that the plaintiff's application not be accepted. The draft of the recommendation was finalised on about 5 December 2007. On 18 December 2007 the Board decided not to accept the application of the plaintiff.
13 By letter dated 14 January 2008, VLA advised the plaintiff that the application had not been considered on the merits but had been rejected because it was received after the purported closing date for applications. The full text of the letter was as follows:
"Dear Practitioner
VLA's Section 29A Indictable Crime Panel
The Board of VLA considered whether to accept your late expression of interest (EoI) in becoming a member of Victoria Legal Aid's section 29A indictable crime panel (the Panel), which I regret to advise was unsuccessful.
Reasons for decision
In making a decision whether to consider the late EoI submitted by your firm, the Board had regard to:
The Board is satisfied that there is nothing in the conduct of VLA which led to your firm not submitting its EoI before the closing date. Rather, the late submission of the EoI appears to be a failure of your firm and its office practices.
The Board is of the view that if the late EoI is accepted there may be detriment to other firms who may not have applied as the closing date had passed. The Board considers that VLA, as a statutory authority, has an obligation to act transparently and within a clear policy framework, particularly when dealing with issues that affect the rights of individuals and provider firms. For VLA to accept an out of time application such as in the current matter, VLA would be required, as a matter of fairness, to re-open the whole panel for a further period of time and advertise accordingly.
The Board therefore decided not to accept the late EoI and for this reason the firm is not admitted to the Panel.
In the circumstances the Board did not consider whether the firm satisfies the key selection criteria".
The letter mirrored the record of the VLA Board's reasons.
14 In the amended Originating Motion the plaintiff sets out the facts upon which it bases its standing for seeking the relief. I do not understand the defendant to challenge the plaintiff's standing.
15 The plaintiff seeks to challenge the decision by challenging the validity of the notice. The grounds are set out in Ground 8 as follows:
"8. The s 29A notice is invalid and or void in that:
(a) The notice failed to specify performance standards in relation to the provision of services by panel members, requirements with respect to the making of reports to VLA and the keeping of records, and the grounds on which and process by which practitioners or firms may be removed from the panel as required by s 29A(3)(iv), (v) and (vi);
(b) it imposed a time limit of 14 days for the making of expressions of interest which time limit was not authorized by the Act."
16 The plaintiff did not pursue the issue raised in para (a) above, but did press the issue raised in para (b).
It also seeks to challenge the validity of the decision of VLA to refuse to accept the plaintiff's expression of interest.
The grounds are set out in Ground 9 which is as follows:
"9. The decision to refuse to accept the Plaintiff's expressions of interest because it was received after 31 August 2007 was unlawful and not authorized by the Act in that:
(a) Section 29A(2) and (3)(a) required the Defendant to allow expressions of interest to be made for a minimum of 21 days from the date the s 29A notice was published;
(b) the decision involved an application of a rule or policy without regard to the merits of the case; and
(c) the time limit imposed by the Defendant was arbitrary and capricious."
17 The plaintiff also seeks to challenge the decision on the basis of a denial of natural justice. That ground is set out in Ground 10 as follows:
"10. The decision to refuse to accept the Plaintiff's expressions of interest involved a denial of natural justice in that:
(a) By reason of the email sent by the Defendant to the Plaintiff on 16 October 2007 the Plaintiff had a legitimate expectation that its expression of interest would be considered on its merits;
(b) before departing from that expectation, the defendant was required to give the Plaintiff an opportunity to be heard as to the proposed departure;
(c) the Plaintiff was not given such an opportunity resulting in unfairness."
18 It also seeks to allege that the VLA erred by failing to take into account relevant considerations and in its failure to treat the application as one for re-inclusion. The full details are set out in Grounds 11 and 11A as follows:
"11. In refusing to accept the Plaintiff's expression of interest the Defendant failed to take into account relevant considerations namely:
(a) that the plaintiff was an existing member of the s 29A indictable crimes panel established by the Defendant in 2004;
(b) the significant professional and financial detriment that the Plaintiff would suffer if its name were not placed on the s 29A Panel;
(c) the power in s 29(5) to re-include the names of practitioners after the expiry of the period for which they were included.
11A Alternatively, by refusing to consider the Plaintiff's expression of interest and thereby refusing to include or re-include the name of the Plaintiff on the Panel established under s 29A of the Act the Defendant:
(a) erred in not treating the Plaintiff's application as a request under s 29A(5) to be included or re-included on the s 29A Panel established by the Defendant in or around November 2004;
(b) erred in dealing with the Plaintiff as it were a new applicant for inclusion on the s 29A Indictable Crime Panel rather than as a person or firm whose name had already been included on the s 29A indictable crime panel under s 29A(5);
19 Finally, it alleges that in making the decision, the defendant exceeded its jurisdiction, failed to exercise its jurisdiction or committed a jurisdictional error. In the alternative, it is put that the defendant committed errors of law on the face of the record. It relies on the foregoing matters in support of those general allegations (paras.13 and 14 of the amended Originating Motion).
20 The plaintiff, in its submissions, departed from the order of grounds and commenced with its submission in support of Ground 11A above. It is convenient to start with that ground, it involving a consideration of the scheme of the relevant provisions and, in particular, the construction of s 29A, under wich VLA purported to act.
21 Section 29A so far as relevant provides
"(1) VLA may establish different panels for-
(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 private law practice or private legal practitioner may be included on any such panel.
(2) If VLA proposes to establish a panel under subsection (1) or include additional names on an established panel, it must, by notice published in a daily newspaper circulating generally throughout Victoria or in the relevant part of the State (as the case requires), invite expressions of interest from private law practices or private legal practitioners in having their names included on the panel.
(3) A notice under subsection (2)-
(a) must be published not later than 21 days before the panel is established by VLA or any additional name included on it, as the case requires; and
(b) must specify-
(i) the qualifications and experience that a private law practice or private legal 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 5 years) during which a private law practice or private legal practitioner may be included on the panel; and
(iii) the basis on which payment will be made to any private law practice or private legal 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 private law practice or private legal practitioner may be removed from the panel.
(4) The name of a private law practice or private legal practitioner may be included on a panel whether or not their name is also included on a referral panel under section 30 or on another panel established under this section.
22 The Act states the objectives of VLA as follows:
"4. Objectives
The objectives of VLA are-
(a) to provide legal aid in the most effective, economic and efficient manner;
(b) to manage its resources to make legal aid available at a reasonable cost to the community and on an equitable basis throughout the state;
(c) to provide to the community improved access to justice and legal remedies;
(d) to pursue innovative means of providing legal aid directed at minimising the need for individual legal services in the community."
Ground 11A - the failure to treat the application as coming under s 29A(5) of the Act
23 Counsel for the plaintiff submitted that s 29A provides for the establishment by VLA of one or more practitioner panels and for those panels to be populated by the inclusion of the names of practitioners. Counsel submitted that an inclusion on a practitioners' panel constitutes a significant privilege and potential income stream. Counsel argued that in a practical sense, it was essential, if the firm was to act regularly in indictable matters funded by VLA that it be a member of the relevant panel. Counsel then made submissions about particular features of the provisions.
• Two stage process. It was put that the Act spells out a two stage process - the establishment of a panel and the inclusion of names on the panel. Counsel for the plaintiff submitted that the panel exists apart from its members. It is put that that distinction is apparent in s 29A(1) and s 29A(3)(b)(ii). Counsel submitted that what is required to be done in establishing a panel is that the VLA decide to establish a panel, identify the relevant areas of expertise and class of matters, the proposed location of the panel and the conditions subject to which a practitioner may be included on such a panel (s 29A(1)).
• Life of panels/life of membership of panels. Having established a panel there is no express power in VLA to limit the life of the panel to a defined period. The Act does not provide for any express limitation on the duration of a s 29A panel. It provides for its establishment but not its period of operation and there is nothing, it is put, in s 29A that would imply that the life of a panel itself, once established, can or must be limited. Counsel argued that where the VLA sees a need for a panel for a class of matter for the purpose of providing legal assistance, no statutory purpose would be served by limiting the life of the panel. Counsel noted, however, that the section implies a maximum period of time for which any practitioner may be a member of a panel. This arises from s 29A(3)(b)(ii) which required, at the relevant time, that the notice under s 29(2A) must specify the period "(not exceeding three years)" during which
"the private legal practitioner may be included on the panel".
• Removal of name from panel. Counsel noted that a practitioner can apply to have his or her name removed from a panel under s 29(6) and s 29A(3)(b)(vi)requires there to be a process by which VLA itself removes a practitioner's name from the panel. Counsel argued that the limitations on tenure provided a safeguard to ensure practitioners retain the skill and interest to remain on the panel and meet required standards and also made it unlikely that the panel itself was intended to be of limited duration.
• Re-inclusion of panel members. Section 29(A)(5) provides that a practitioner can be "re-included" on a panel after the expiry of the period for which they were included. Counsel submitted that the scheme in s 29A does not contemplate that this would occur by creating a new panel.
• Two powers to include practitioners' names. It is put that two powers are given to include a practitioner's name on a s 29A panel. The first is on the basis of an expression of interest given in answer to an invitation extended by VLA under s 29A(2)
(b) to join as an "additional" member to an established panel.
The second power concerns those practitioners who have been on the s 29A panel, but their time has expired and they wish to be re-included as a name on the panel (s 29(5)).
In the alternative, it is put that the Act differentiates between practitioners who are seeking to be included for the first time (s 29A(2)) and those who are applying to be re-included (s 29A(5)).
Counsel put that any exercise of the power has to accommodate those differences. Counsel submitted that where the situation is one where the practitioner is seeking to be "re-included" on a panel (s 29A(5)), the legislation does not prescribe any process. Counsel argued that it was unlawful for VLA to attempt to circumscribe the exercise of that power as if it were the power conferred by s 29(A(2).
24 Turning to the circumstances of the present case, it is put for the plaintiff that the Indictable Crime Panel was created in November 2004 and an invitation for expressions of interest extended. Counsel submitted that no resolution was passed subsequent to terminate the Indictable Crime Panel and that the resolutions passed in 2007 did not establish or seek to establish a new Indictable Crime Panel. After noting the language of the 2007 advertisement which was expressed in terms of the VLA intending "to appoint a panel of private practitioners ... to conduct legal aided Magistrates' Court committals and County and Supreme Court pleas and trials" counsel submitted that at the time of publication of the advertisement the panel was already established and work was being allocated to its members according to the Act and guidelines.
25 Counsel submitted that the letter from the plaintiff should have been seen, and considered, as a request to be included on the indictable crime panel after the firm's period had expired. That being so, the request fell to be determined under s 29A(5). In the alternative it was put that if the power to re-include the plaintiff's name derived from s 29A(1), the power could only be exercised having regard to the expressed provisions in s 29A(5). It is put that the plaintiff had a right under s 29A(5) to apply to be re-included on the panel and VLA had a duty to consider whether or not to do so in the exercise of its discretion. Thus, it is put that the scheme of s 29A does not contemplate that a practitioner in the position of the plaintiff would have to provide an expression of interest for inclusion in a panel of which the practitioner was already a member. That is only required where the process being undertaken is establishing a new panel or a new practitioner is being added to a panel. Counsel put that while the plaintiff misunderstood what it was doing, VLA had used the wrong statutory power in considering the application. A consequence was that the requirements of sub-ss (2) and (3) did not apply and there was no obligation to give notice in compliance with sub-s (3)(a) or at all.
26 Counsel submitted that VLA was operating under a false premise in the context of the s 29A system. Having established the panel in 2004 there was nothing in the Act that brought the panel to an end. It was also submitted that when the plaintiff wrote to VLA seeking inclusion on the indictable crime panel under s 29A, the firm was already included on the panel although the period for which it was included was due to end on 30 November 2007. Counsel submitted that where a panel was no longer required by the VLA it was not obliged to re-include the names of any practitioners in the panel once their period had expired and the panel could then become defunct. But that was not what happened.
27 In essence, therefore, counsel for the plaintiff submitted that the VLA erred:
(a) in not treating the plaintiff's application as a request under s 29A(5) to be re-included on the panel established in November 2004
(b) in dealing with the plaintiff as if it were a new applicant for inclusion rather than a person or firm whose name was already included in the panel and was applying under s 29A(5)
(c) in applying to the plaintiff the process provided for s 29A(2) where it was not applicable for a practitioner who was already a member of the panel.
28 The defendant seeks to meet the plaintiff's arguments first by challenging the assumption as to the nature of a panel under s 29A. Counsel for the defendant submitted that the plaintiff appears to assume that once a panel has been established, such a panel has an ongoing existence independent of whether it has any members. The defendant submitted that as a matter of law, a s 29A panel is no more than a list of names. It is put that on the proper construction of s 29A, a s 29A a panel does not exist independently of the practitioners appointed to it. Counsel for the defendant submitted that the panel, because of the extension of the terms of members to three years, continued for three years but it was not given ongoing life. While there was no resolution or other act to bring the panel's existence to an end, it ceased when the terms of its members expired.
29 In developing the argument, the defendant submitted that the panel was established by the inclusion or appointment of practitioners to it and it is not established unless and until practitioners are included on it. To resolve to establish a panel did not establish a panel under the legislation. It was also submitted that appointment of practitioners to a panel for fixed terms does not result in an ongoing existence for that panel beyond such fixed terms. Referring to the Shorter Oxford English Dictionary 6th edition, the following definition of panel was noted
"Any persons...; spec a usu. small group of people called on to be participants in a game of quiz, advisers to an inquiry, etc."
As to the Macquarie Dictionary 4th edition, reference is made to its definition as
"any list or group of persons, as one gathered to answer questions, discuss issues, etc."
Counsel submitted that these meanings were consistent with the proposition put that "panel" in the legislation means no more than a list of names. It is put that s 30 also supports this construction. It provides for the selection of practitioners "from the names on a referral panel" and refers to practitioners included on a panel established under s 29A.
30 Counsel also sought to compare the legislation with legislation dealing with permanent bodies which have an existence independent of their membership. Reference was made to the Constitution Act 1975 which establishes the Supreme Court Act of Victoria, and the County Court of Victoria Act 1958 and the Victorian Civil and Administrative Tribunal Act 1998. Each Act set up a body which has an existence independent of its membership and to which persons may be appointed from time to time. Counsel noted that s 29A does not provide for any such permanent panels to be established and that this was not surprising when regard is had to the reality that from time to time there may be a need for different panels for different types of matters and in different parts of States as conditions vary. This best enables VLA to carry out its statutory objectives. Counsel also sought to rely on s 29A(2) where it draws the distinction between two situations - VLA proposing to establish a panel and VLA proposing to include additional names on an established panel. Counsel argued that the phrase "proposes to establish" contemplates that panels are to be established from time to time by the process set out in s 29A. Counsel again submitted that the panel does not have an independent existence and that once the appointments of all members of a panel have expired that panel ceases to exist.
31 Counsel also relied upon s 29A(3)(b)(ii) which provides for a maximum term for members of a panel. It is put that the power to re-include members in s 29A(5) does not extend the life of a panel. Counsel put that that power is properly construed as enabling a practitioner to be included for no more than the maximum period provided by the Act.
32 In any event, it is submitted for the defendant that the question in the case concerns what VLA did. Reliance is placed on the history of the appointment originally of 48 practitioners for two years, the extension of their appointments by one year to 30 November 2007 and the publication of a notice on 17 August 2007 inviting expressions of interest to join a new Indictable Crimes Panel. Counsel referred to the repeated references at that time to the expiry of the panel. It is put that since the legislation was enacted VLA has established two panels. One was established in 2004 and the second in 2007. It is put that VLA is required to create panels which are distinct in time by virtue of s 29A(3).
33 At the heart of the defendant's argument is the proposition that under the legislation the panel, in this case, the Indictable Crime Panel, cannot exist independently of the practitioners appointed to it. In a practical sense that will be true - if it has no members, it cannot function. But the question is whether the proposition advanced is correct when regard is had to the legislative scheme and the way the relevant terms are there used.
34 In my view the legislative scheme draws a distinction between
• The creation of a statutory panel and its establishment and
The legislation envisages the creation of a panel as an entity with the making of decisions on the matters spelt out in s 29A(1). These include the classes of matters, the location and the conditions to be satisfied by firms and practitioners for inclusion on a panel[1]. Under s29A(1) and (2), the panel becomes an "established panel" with the appointment of its first members This is made clear in sub-ss (2) and (3) which relate the stage of proposing to establish the panel to the stage of the giving of notice to practitioners "before the panel is established' inviting expressions of interest in having their names included on the panel. At that point, the panel is not an "established" panel. But, for the purposes of the legislative scheme, the panel has been created, exists and has an identity and people will be appointed to it; for to what are the practitioners otherwise being appointed?
35 The legislation does not provide for the termination of an established panel or for the disestablishment of an established panel It is true that s 29A(3)(b)(ii) provides a maximum period during which a private law practice or practitioner "may be included in the panel". But it does not limit the life of the panel. Similarly, as put by defence counsel, s 29A(5) does not extend the life of the panel. .
36 Once a panel has been established, it remains in that state under the legislation even though the membership may come and go or the original membership is replaced. Under the legislation, the Indictable Crime Panel will continue to function as long as VLA wants it to do so, but its membership will change as time goes by. Even if all members' terms expired at the same time, the panel would still be an "established panel" and continue to exist and, to enable it to function, past members could be invited to re-join or additional members invited to join it. Alternatively, if VLA decided it no longer required a particular panel, the legislation allows the VLA to allow the Panel to become defunct by not obliging it to re-include the names of any practitioners in the panel once their period has expired or to seek additional members.
37 Accepting the foregoing analysis, the legislation distinguishes between the panels that are created and established and the names of people included on them. The individual people appointed to it serve it and enable it to function, but are not the statutory panel. The statutory panel is more than the list of its members.
38 As to the defendant's references to other legislation, it is true that the Parliament has expressly set up specified bodies. But the Parliament can also delegate that task to others. Under the Legal Aid Act, the Parliament may be said to have delegated such a function to VLA. The comparison, therefore, does not assist the resolution of the issues. That conclusion depends, again, on the content and purposes of the legislative scheme that Parliament created.
39 Turning to the defendant's submissions about what VLA did in 2007, it is true that in 2007 VLA referred to the expiry of the panel and appears to have proceeded on the basis of the construction it now advocates. That, however, was not its original approach. An examination of the initial documents produced in 2004 by VLA recording recommendations,[2] decisions and communications to practitioners reveals a distinction being drawn by VLA initially between the creation and existence of the panel on the one hand, without any time limit, and the appointment of members to it for a limited time - two years. The panel was treated as having an independent existence. For example, in the advertisement published on 10 September 2004,[3] it was stated
"Victoria Legal Aid (VLA) invites expressions of interest from practitioners to join its Indictable Crimes Panel."
The proposal put to the board in 2004[4] recommended the appointment of the named practitioners to the exclusive Indictable Crime Panel for a two year period and in stating the background identified that
"In May of 2004 the board authorised the establishment of a s 29A practitioner panel to the area of indictable crime."
"The introduction of a specialised panel for practitioners in this area of law marks a significant step forward for VLA's vision to deliver quality legal services in an effective, efficient and economic manner."
It should be noted that at no time was there any numerical limit imposed on the number of practitioners who could be members of the panel and the proposal and resolution both provided for the practitioners listed to be appointed "to VLA's Indictable Crime Panel for a period of two years commencing 1 December 2004". The period of the existence of the Panel was not addressed.
40 The process that was followed was to appoint a group of firms and practitioners at the same time to the Industrial Crimes Panel (hereinafter referred to as "the Panel"). One can understand that that group was seen as a panel in the ordinary sense. But for the purpose of the legislation, what had happened was that the VLA had appointed a panel to the Panel. I suggest that it was understandable that, having set up the Panel in that way, the two concepts came to merge in the thinking of those administering the Panel.
41 I suggest that the first major indication of the blending of the membership of the Panel with the Panel's existence in the minds of those at VLA appears in the memorandum of 10 June 2006[5] to the board recommending that the board resolve to "extend the current term of the Indictable Crime Panel for a period of twelve months from 1 December 2006". The precise terms of the resolution are not before me but the letter to members of the Panel of 21 September 2006[6] is and it maintained the merging of the concepts in the following passage:
"That VLA has extended the term of VLA's s 29A Indictable Crime Panel (the Panel) for a further twelve months. The Panel will now expire on 30 November 2007. As an existing member of the Panel your membership of the Panel has automatically been extended until this date."
42 Later documents reflect confusion in the minds of those involved in 2007 between the "panel" meaning the group of applicants appointed and the Panel to which they had sought membership. The letter to practitioners in 2007 reveals that confusion, in its opening two paragraphs, which state
"VLA intends to appoint a new panel of private practitioners pursuant to s 29A of the Legal Aid Act 1978 to conduct legally aided Magistrates' Court committals and County and Supreme Court pleas and trials. Membership of the panel will entitle practitioners to submit applications for legal assistance using the simplified grants process.
The introduction of this specialised panel in 2004 has shown significant benefits not only to clients, but practitioners and VLA as well. Not only is it easier for clients to access a better quality of legal services, but it is also less costly and time consuming for panel lawyers and VLA."
Among other things the letter treats the proposed panel both as a new one and the same one as that which was introduced in 2004. At that time, the Panel was still an established Panel. What was happening was that because the memberships of the firms and practitioners of the Panel were going to expire at the same time, VLA was seeking to appoint a group of members to replace them in a batch for a common period of time - they were again appointing a panel to the Panel. But the use of a panel approach was for obvious and sensible administrative convenience. The legislation, however, was silent as to such detail and there was nothing in the legislation to prevent such an approach - or a more flexible one. The failure by VLA to draw a distinction between the Panel and its members can be seen to continue in subsequent documentation within and from the VLA.
43 Applying the above analyses, the Panel had been created in about May 2004, both in fact and in law, and became established for the purposes of the legislation on 1 December 2004 with the appointment of members. No time limit was specified for its existence. The exercise in 2007 did not involve either creating a Panel or establishing a Panel. It did not involve any changing of purposes, location or conditions of appointment. Nothing was done to try to terminate it. In addition, at the time the expressions of interest were sought in 2007, the Panel had people and firms appointed to it as members, including the plaintiff. On any view it was an established panel at that time. The situation, therefore, was that s 29A(2) had no application to the Panel, unless VLA wished to appoint additional people who were not members of the Panel. To the extent that VLA wished to include persons on the established Panel who were not members, it was appropriate for it to use s 29A(3). But the plaintiff was already a member.
44 Accordingly the procedure provided in sub-ss(2) and (3) was not applicable to the plaintiff. Its application and its use, in relation to the plaintiff (and other existing members) cannot be justified under the Act. Accordingly, the purported application by VLA of the powers under sub-ss(2) and (3) to the application of the plaintiff was not authorised by the Act.
45 The defendant, therefore, acted without legal authority in dealing with the request of the plaintiff in the way that it did. Ground 11A is, therefore, made out in that the defendant erred in dealing with the plaintiff's application pursuant to s 29A(2) and not pursuant to s 29A(5).
46 I suggest that the procedure to be followed under the Act in a case like the present was not complex. VLA, if it wanted new members for the Panel, could have advertised for them under s 29(2) and (3) while seeking indications from existing members as to whether they wished to be re-included when their periods as members expired.
Grounds 8(b) and 9(a) - the 14 day time limit was unlawful
47 If the foregoing analysis is not correct it is necessary to consider the other grounds relied upon. I turn, therefore, to the next grounds dealt with by the plaintiff, namely Grounds 8(b) and 9.
48 The plaintiff's argument proceeds on the alternative basis that the process of seeking expressions of interest under s 29A(2) applied to the plaintiff to the exclusion of s 29A(5). It is put, however, that the restrictions in the notice contravened the Act and were therefore unlawful.
49 In support of its argument, the plaintiff first submitted that there is nothing in s 29A or the Act itself authorising VLA to impose a time limit in which expressions of interest are to be lodged in answer to an invitation given under s 29A(2). Section 29A(3)(a) provides the only restriction - that the notice given must be published not later than 21 days before the panel is established. Counsel submitted that the statutory restriction was imposed on VLA not on a practitioner. It was put that the purpose of s 29A(3)(a) was to protect practitioners and ensure they have the benefit of the notice period to inform themselves about the panel and to make a decision as to whether or not to express interest in being included in it and ensuring a reasonable chance to put forward a successful application. Counsel again referred to the importance of being on the panel for securing work from VLA. It is put that the section should be construed in that context and with that purpose in mind.
50 Viewing the fixing of the 14 day limit as an administrative act, counsel acknowledged that an administrative decision maker can promulgate a rule or policy to guide the exercise of powers, but argued that it is imperative that such a rule or policy not conflict with the terms of the Act in question.[7] Counsel argued that here the 14 day time limit was unlawful because it was inconsistent with s 29A(3)(a), one of the purposes of which was to allow practitioners at least 21 days to express interest in joining the panel. The rule adopted in this instance by VLA that all expression of interest had to be lodged by 31 August 2007 frustrated that purpose and was contrary to s 29A(3)(a)'s intent.
51 It should be noted that, as counsel for the plaintiff pointed out, if VLA had applied a 21 day period from the giving of notice to the lodging of expressions of interest, the application was in fact lodged in time. The period specified in the legislation should be read as clear days,[8] from the publication of the advertisement.
52 Counsel for the defendant submitted that the advertised period during which applications would be accepted did not conflict with the requirement in s 29A(3)(a). It required no more than that the notice "be published not later than 21 days before the panel is established by VLA". Counsel submitted the panel was established more than four months after the notice was published.
53 Counsel for the defendant further submitted that the argument that the defendant does not have power to impose any time limits for EoI's is an impractical suggestion in the context of the statutory scheme - in particular the requirement to advertise. Counsel put that an open-ended process would not be efficient and if Parliament had intended the establishment of a panel to be an open-ended process it would not have required advertisements for EoI's or establishment of a panel. Counsel argued that the limitations imposed by the VLA, if not required by the Act, would clearly be allowed.
54 In the alternative it is put that, if the notice did not strictly comply with the Act, Parliament did not intend such non-compliance to lead to invalidity. Counsel relied upon the following proposition from Project Blue Sky Inc v Australian Broadcasting Authority[9] that validity
"... depends upon whether there can be discerned a legislative purpose to invalidate any act that fails to comply with a condition. The existence of the purpose is ascertained by reference to the language of the statute, its subject matter and objects, and the consequences for the parties of holding void every act done in breach of the condition.
... A better test for determining the issue of validity is to ask whether it was a purpose of the legislation that an act done in breach of the provisions should be invalid ... In determining the question of purpose, regard must be had to "the language of the relevant provision and the scope and object of the whole statute"." [footnotes omitted]
Counsel for the defendant also relied upon the decision of the Full Bench of the High Court in Adams v Lambert[10] where it was held that an error or deficiency in a notice, in that instance a bankruptcy notice, was not automatically "a failure to meet a requirement made essential by the act"[11]. The High Court also commented that the fact that the "requirement is expressed by the use of the term 'must' is not conclusive. How otherwise might a requirement as to form be expressed?". The Court noted that in some contexts "must" will sometimes require an imperative interpretation" - citing SAAP v Minister for Immigration and Multicultural and Indigenous Affairs.[12] The Court took the position that it was important to ascertain the legislative purpose and evaluate the significance of the error. It also commented that a relevant question was whether the error was capable of misleading the relevant person to whom it was directed as to what had to be done to comply with the notice[13].
55 Relying on those authorities, counsel for the defendant submitted that the plaintiff cannot point to any failure of legislative purpose flowing from the form of the notice and there was no evidence that any person responding to the advertisement was mislead by the fact that certain materials available to applicants in the notice were not elsewhere.
56 Proceeding on the basis that the notice should be regarded as one published under the s 29A(2) regime, the plaintiff cannot, in my view, demonstrate that it was a notice that contravened the provision or that it was not authorised. What the section requires is that there be a period of at least 21 days that elapses between the publication of the notice in the daily newspaper and the establishment of the Panel or the inclusion of additional names of people as members of the Panel, whichever be the case. Thus, the Act in fact does not address the question of the power of VLA to impose a time limit for a response to the notice and does not expressly forbid it.
57 As to the content of the notice and the imposing of a 14 day response date, VLA would have had the authority in the course of administering the power under s 29A to set up procedures for the orderly management of the establishment of Panels. To that extent I accept the submission made on behalf of the defendant. The problem that arises, however, is whether the VLA had the power to impose procedures which included an inflexible 14 day time limit for responses. That is the next issue to be considered in the context of Grounds 9(b) and (c).
58 The plaintiff argued that, assuming that the imposition of the time limit was lawful and reflected the exercise of the power to adopt a policy and processes in the administration of the Act, its application was not in accordance with law. It was put that the manner of the exercise of the policy was unlawful. Referring to re Drake and Minister for Immigration and Ethnic Affairs[14] and Khan v Minister for Immigration and Ethnic Affairs[15], counsel submitted that in applying such a policy, VLA had to comply with the following further principles.
(a) The policy must not be applied automatically; VLA was obliged to consider whether it was appropriate to depart from the policy.
(b) Proper and genuine consideration is to be given to the merits of the application.
(c) VLA could not disable itself from exercising its discretion [16]
59 Counsel submitted that VLA failed to address the question whether to depart from the policy. Further, it was put that VLA failed to consider the merits of the case in determining whether to apply the time limit to exclude the expression of interest including;
• that the plaintiff was a member of the existing panel and would remain so until 30 November 2007,
• it wished to continue to represent its clients in indictable matters,
• the severe consequences to it arising from refusal.
60 Counsel submitted that an examination of the reasons reveals that the focus of the the Board was enforcement of the time limit and a concern not to allow exceptions to that limit. There is nothing in the reasons about the merits of the plaintiff's application for inclusion. Counsel submitted that if it be accepted that there be good reasons for the existence of a time policy, they could not be the sole justification for insisting on its application independently of the merits of the application.
61 Counsel submitted also that there was no good reason in any event for a 14 day time limit when the whole process took more than five months and the strict application of the limit was arbitrary and capricious. This was particularly so bearing in mind that the expressions of interest were not considered until October 2007 and that the plaintiff was already on the panel. Counsel submitted that the decision to rely on the time limit was invalid because it was irrational - citing re Minister for Immigration and Multicultural Affairs; ex parte Applicant S20 of 2002 [2003] HCA 30; (2003) 77 ALJR 1165 at 1171.
62 Counsel for the defendant submitted that the propositions advanced by the plaintiff apply only to administrative decisions. Counsel submitted that the notice requirement for EoI's was a legislative act not an administrative decision; for it applies to a broad range of persons and involves wide policy considerations and may involve a setting of preconditions such as time limits.[17] Counsel submitted that the VLA notice was effectively the permissible establishment of a rule or policy with respect to the EoI process. Counsel also submitted that it is also relevant that the EoI process had binding legal effect.
63 Counsel for the plaintiff in response submitted that the notice requirements or the adoption of a notice policy is an administrative act - a step in the process of exercising an administrative power to establish the panel. If Parliament had intended that those powers should be exercised as powers to make delegated legislation, it would be expected to be clearly stated. Such a power cannot be implied. In fact, Parliament had spelt out what should be specified, sub-ss (2) and (3), and there was nothing in them about the sort of time limits applied by VLA.
64 I was referred to the decision in R.G. Capital Radio Limited v Australian Broadcasting Authority[18] and the authorities there cited.[19] I suggest that several of the relevant criteria are not satisfied in the present case. It is sufficient, in my view, to note that there is no basis for concluding that the decision taken to impose a time limit was intended to operate as a rule of general application as opposed to operating as an administrative decision in managing the particular administrative task.
65 The defendant also argued that if the notice was not a legislative act, the EoI is akin to a process contract which, on the authorities, is governed by rules of fairness to all potential and actual participants in the contract. It is put that to accept late applications without limit, or for reasons such as the fact that the applicant was a member of previous panel, would breach the requirements because it would be unfair to all other applicants (or potential applicants) who did or were expected to comply with the requirements of the notice. Counsel argued that once the time limit had been established, whether it be a legislative act or a process contract, there was no room to say that VLA was obliged to ignore it in any given case or at all. If it be correct to describe the time limit as arbitrary that did not of itself support the conclusion that there was an obligation to ignore it - time limits are often arbitrary. Once the process was established VLA was obliged to pursue it. Counsel argued that the time taken for the defendant to assess applications is irrelevant.
66 Counsel for the plaintiff submitted that what was involved here was not the type of process which is described in the authorities as a process contract. It was not a competitive process of the kind referred to in such authorities. There was no numerical limit which made obtaining positions a competitive activity as between the applicants. What the applicants had to do was to satisfy the requirements of the statutory authority given the power to set up panels.
67 Proceeding on the basis of the defendant's argument, that the process that was established was in accordance with law, I accept the submissions of the plaintiff that the fixing of a time limit was not done as part of a process contract. What was involved was simply a request for expressions of interest which was no more than an invitation to apply. It gave rise to no contractual obligations, although I accept that it gave rise to obligations to act fairly.[20]
68 As to the merits of the argument raised by the plaintiff that the application of the time limit imposed was arbitrary and capricious as was the decision which had no regard to the merits of the case, the defendants submitted the following.
(a) Disadvantage to others. There was no evidence that any person was disadvantaged by the imposition of a 14 day period in responding. I note that disadvantage to others was not an argument relied upon by the plaintiff in any event but that, on the evidence, it appears likely that a few other applicants were disadvantaged.
(b) Result inevitable. It was also put that the defendant was bound to refuse because:
• the process was established as set out on the notice and empowered by the Act,
• it said applications would not be accepted that were late,
• VLA has an obligation to the public to act fairly,[21]
• it would be unfair to other potential applicants to make an exception for the plaintiff - they might have submitted a late application if they expected exceptions.
It was argued that, as a result, the defendant did not have a discretion to accept late applications and the initial review ground regarding the application of a rule or policy is inapplicable. Generally, it was put that practical considerations compel VLA to set a time limit to progress the establishment of the panel and it is under no obligation to justify any particular time limit so long as the time between notice and decision to set up the panel exceeds 21 days.
69 It is clear that VLA chose to act in such a way as to fetter itself and remove any discretion that it in fact had under the legislation. I am satisfied that it did not have the authority to do that and it was obliged, on the authorities, to consider whether to make exceptions in the policy adopted.
70 Accepting that practical considerations warranted a timetable for the filing of applications and their consideration, the material before me does not justify an inflexible procedure. What appears to have happened is that priority was given to administrative efficiency or convenience. The procedure adopted appears to have left for consideration only one issue - whether VLA was at fault in some way in the giving of notice to practitioners.
71 As to the concern about fairness to other applicants, the authorities cited support the proposition that the obligation to accord fairness should be accorded to all concerned and interested. Providing fairness in this case was a matter of striking a fair balance between all applicants and would-be applicants in circumstances where they were not competing with each other for a limited number of places but being judged against criteria applicable to all. It was not only the plaintiff that sought a dispensation. I note that the documents reveal that a number of firms sought extensions of time from the Compliance Unit but their requests were refused. Three firms sought permission from the Compliant Unit to lodge applications after 31 August 2007 but were advised that they would not be accepted.[22] Fairness to all could have been provided by having a system for dealing with late applications. The issue arises in this case because that was not included by VLA in its procedures. An alternative approach would have been to advertise for additional members under s 29(A)(2) and to tell those who happened to be members of the panel to apply under s 29(A)(5). It was not as if time appears to have been an issue in September 2007.
72 The authorities relied upon by the defendant[23] are also authority for the proposition that a body such as VLA has an obligation to ensure that the powers possessed are exercised for the public good.[24] In my view, the course that was followed also involved a breach of that obligation; for applying the policy rigidly and regardless of the merits meant that it chose to deny itself and the community of the opportunity of obtaining the services through the Panel of possible experts in indictable criminal proceedings including people and firms who could in fact provide a service superior to that provided by those admitted to the Panel.
73 As counsel for the plaintiff submitted, the purpose of the panel[25] is to benefit clients by ensuring that they will be represented by competent and able practitioners with experience in the area. The process is also beneficial to VLA and the community because it enables an efficient use of limited resources through the allocation processes for such panels and ensures that no solicitor can assume that he or she is indispensable in the system.
74 I note that counsel for the plaintiff in the context of the discussion of the ultimate email touched on the obligation of VLA to act in good faith [26] Counsel did not, however, press any argument. That was a proper course because the allegation is a serious one and had not been put to the people concerned in evidence before me.
75 I am satisfied that fairness concerns do not support the defendant's case. They support the plaintiff's case. The grounds are made out.
76 The plaintiff submitted that the content of Ms McSporran's email of 16 October 2009 constituted a clear representation that the expression of interest would be considered on its merits despite it being lodged outside the 14 day time limit. It stated:
"I refer to our recent telephone discussion and advise that the late expression of interest (EoI) submitted by Lewenberg & Lewenberg will be considered with all other EoI's and you will be advised of the outcome in due course."
Counsel submitted it was not consistent with any attempt to apply the time limit that had been applied in the notice published on 17 August 2007. It is put that in departing from that representation, without notice to the plaintiff, VLA had denied the plaintiff procedural fairness, and denied the plaintiff the opportunity to makes submissions as to why the policy of VLA should not be applied and why it should consider the expression of interest on its merits.
77 For the defendant it is put that there was no legitimate expectation raised that the EoI would be considered on its merits. Several points were advanced.
While the latter point is literally correct, I am satisfied that that was not the effect created. In the context of the discussions that had taken place prior to receiving the email, a reasonable person in the position of the plaintiff would have been encouraged by the wording of the email to assume that the application would be accepted and considered on its merits.
The affidavits filed reveal that Mr Furstenberg, a partner of the plaintiff firm, had conversations with officers of the defendant prior to receiving the email message quoted above between 10 September 2007 and 17 September 2007. These conversations are detailed above in the "Background" section of these reasons. As there noted, the focus of the conversations was on the question whether VLA would accept the application.
As mentioned above, on 15 October 2007, an exchange of emails occurred between Caroline McSporran and Anthony Parsons, then Managing Director of VLA. In her email, Ms McSporran stated the following:
"Harvey Furstenberg is calling on a daily basis as to whether VLA is accepting their late application. As I have not been able to discuss the issue with you following receipt of counsel's advice (my leave and you in Qld), I have advised him that at this stage I am unable to provide him with any new information on VLA's position but would seek further instructions.
Therefore I would appreciate your further advice as to whether:
(1) I advise him that it will be put before the selection committee for them to make a recommendation as to whether we accept it; and that should the committee's recommendation be that it not be considered that it go before the board for a final decision; or
(2) any other advice you feel is appropriate.
I am mindful that they have already indicated they are considering court action and that any advice I provide to Harvey may be included in any such action."
"Yes there's no doubt everything you say will be in an affidavit so be very careful."
There is then an unexplained gap in the text and the next passage starts with the first line indented:
" So Caroline you can say that their EoI will be considered in due course along with all the others and Lewenbergs will be advised in due course about the outcome."
On 16 October 2007, Caroline McSporran sent the critical email to Mr Furstenberg stating the following:
"I refer to our recent telephone discussion and advise that the late Expression of Interest (EoI) submitted by Lewenberg & Lewenberg will be considered with all other EoIs and you will be advised on the outcome in due course."
"Thank-you for that advice, it certainly reduces some stress."
It is clear that prior to receiving the email drafted by Mr Parsons, the exchange of emails and conversations had proceeded on the basis that Mr Furstenberg was seeking an assurance from VLA that the EoI was accepted. The ultimate email response from VLA officers did not state that what was going to occur was that VLA would decide whether to accept the application or not. An inference arises that the intent of the email sent by Ms McSporran on 16 October 2007 was to convey to him the impression that in fact his application was accepted and would be considered on its merits; for to avoid litigation before its decision, it was necessary that Mr Furstenberg believe that the EoI had been accepted and would be considered on its merits. Be that as it may, the email had the effect by stating that the application would be considered along with "all the others" and by not articulating the true intention. Mr Furstenberg's response revealed to VLA that he had made the assumption that it would be considered on its merits.
Counsel for the defendant submitted that the expectation was in fact carried out - the plaintiff's application was "considered in due course with all the others" because there were three late applications and they all got similar consideration. But the email did not draw such distinctions and there were another 94 applications with which the plaintiff's application was not considered. The application was not considered "in due course" or "with all the others".
• The alleged expectation could not lawfully arise. It was put that in the context of the statutory scheme, no expectation of different treatment from other applications could lawfully arise. The argument relies on the arguments advanced by the defendant under grounds 11A, 9(b) and (c) and considered above. I refer to my reasons for rejecting the arguments.
In my view, there is nothing in the statute which indicates that there could lawfully be an inflexible approach taken to dealing with expressions of interest or that such an approach was intended to be authorised. Bearing in mind that in exercising the statutory authority, VLA was obliged to act fairly and for the public good, in my judgment, in making the representations that it did, and acting as it did, it failed those obligations.
• Nothing more the plaintiff could have said. If the email could and did give rise to the alleged expectation, counsel for the defendant submitted that there was nothing the plaintiff could have done or said other than what had already been submitted by the plaintiff as to why it was late with its application and there was therefore no real unfairness.[27]
This argument focuses on only one aspect of the submissions that were open. The plaintiff would also have had the opportunity to argue for the merits of its application to be considered which included the matters identified by the plaintiff such as the financial prejudice the plaintiff would otherwise suffer. It would also have been relevant to consider the public good.
"The more fundamental problem facing the applicant, however, relates to the matter of unfairness. A statement of intention, made in the course of decision making, as to a procedural step to be taken is said to give rise to an expectation of such a kind that the decision maker, in fairness, must either take that step or give notice of a change in intention. Yet no attempt is made to show that the applicant held any subjective expectation in consequence of which he did, or omitted to do, anything. Nor is it shown that he lost an opportunity to put any information or argument to the decision maker, or otherwise suffered any detriment."
It was put for the defendant that the remedy provided in legitimate expectation cases takes the form of procedural protection - that is, insisting that the decision maker apply the rules of natural justice.[30] It was also put for the defendant that the plaintiff had not indicated that it would seek a hearing before VLA if it indicated it was not going to consider the application on the merits, but would instead go to the Supreme Court to seek injunctions and orders challenging the validity of what had occurred. Thus, it was put that the claim based on a legitimate expectation was not directed to receiving a fair hearing in front of VLA.
With respect, this is an unrealistic analysis. Accepting that the immediate response of the plaintiff to being accurately informed would have been to commence proceedings in the Supreme Court to challenge the validity of what had occurred up to that point and what was proposed, it would have done so because of the refusal or foreshadowed refusal of VLA to accept the application. The ultimate objective of such proceedings would have been to ensure that it was given the opportunity to have its expression of interest dealt with on its merits. It may fairly be said that VLA, by its actions, denied the plaintiff natural justice in relation to its application.
Counsel for the plaintiff submitted that what Lam required was that the party claiming the legitimate expectation demonstrate that it lost the opportunity to do what it could have done. I agree that the defendant's action denied the plaintiff that opportunity.
78 In light of the foregoing reasons and conclusions, it would follow that these grounds are made out.
79 For the foregoing reasons, the decision of the defendant made on or about 14 January 2008, to reject the plaintiff's application to be included as a member of the Panel should be quashed.
80 The question of other remedies remains. The topic is one in respect of which I should defer my decision until the parties have had an opportunity to read and consider my reasons and then present further submissions on the issue of further remedy should that be necessary.
[1] The conditions will presumably need to deal with the matters that have to be included in the notice under ss (3) (b).
[2] See Exhibit CMS 21, and CMS 22, CMS 23 (Note at one point in the manual (p.5) attached to the letter CMS23, the Panel and its members were treated as identical).
[7] Counsel also submitted that any rule or policy be used to guide and not control the making of the decisions; for a decision maker must be free when the justice of the individual case demanded it to depart from the policy in question - discussed below.
[8] Section 44 Interpretation of Legislation Act (1984).
[9] [1998] HCA 28; (1998) 194 CLR 355 at 390, Gummow, Kirby, McHugh and Hayne JJ at [91], [93], [389]-[391].
[17] It was put that there was no merits review involved, but plainly VLA has to consider the merits of the practitioners who deliver and EoI.
[20] Gullen J in Pratt Contractors Limited v Palmerston North City Council [1995] 1 NZLR 469, 478-9 and compare the discussion in Hughes Aircraft v Air Services Aust (above). In that case, there had been extensive negotiations of the rules to be applied which were signed off by the parties.
[21] Hughes Aircraft Systems International v Air Services Australia (No. 3) [1997] FCA 558; (1997) 76 FCR 151; Jones v Swansea City Council [1990] 1 WLR 54, 71; Olmstead v United States [1928] USSC 133; 277 US 438 at 485 (1928); Joint Committee of Public Accounts, Social Responsibilities of Commonwealth Statutory Authorities and Government Business Enterprises, Report 315, particularly para 2.21FF, (AGPS, Canberra, 1992).
[23] Hughes Aircraft Systems International v Air Services Australia (No. 3) [1997] FCA 558; (1997) 76 FCR 151 and other cases cited, above.
[24] Cf Hughes at 197 and following and the cases there cited.
[26] Lewenberg v VLA and White v VLA [2005] VSC 28
[27] Citing re Minister for Immigration and Multicultural and Indigenous Affairs; ex parte Lam (2003) 214 CLR 1.
[30] Relying upon Lam, p.22 paragraph [67].
Lewenberg & Lewenberg
Victoria Legal Aid [2009] VSC 288
(2003) 77 ALJR 1165
(1998) 194 CLR 355
(2006) 228 CLR 409
(2005) 228 CLR 294
(2001) 113 FCR 185
(1997) 76 FCR 151
(2003) 214 CLR 1
The decision refusing the plaintiff’s application was held to be quashed; the question of any further remedy was deferred pending further submissions.
(c) erred in applying to the Plaintiff's the process provided for s 29A(2) in respect of the Plaintiff in circumstances where the Plaintiff's name had already been included on the s 29A Indictable Crime Panel."
(5) A private law practice or private legal practitioner may be re-included on a panel after the expiry of the period for which they were included.
(6) A private law practice or private legal practitioner may, by writing to VLA, request that their name be removed from a panel and VLA must comply with that request.
(7) If the name of a private law practice is included on a panel, the names of all the private legal practitioners who are partners, directors or employees of the private law practice are deemed to be included on the panel."