Plaintiff v First Defendant

1 This is an application by the plaintiff for an extension of time to file an originating motion pursuant to O 56 of the Supreme Court (General Civil Procedure) Rules 2005. The application is made by amended summons filed 19 September 2012.

2 The originating motion was filed on 31 August 2012 seeking relief pursuant to O 56, the Administrative Law Act 1978 and by way of declaration, in respect of a decision by the second defendant, an independent reviewer appointed pursuant to the Legal Aid Act 1978 (Vic) ("the Legal Aid Act"). His decision confirmed an earlier decision by the first defendant to remove the plaintiff from the panel of solicitors approved to conduct legally aided indictable criminal matters, but shortened the period of removal from two years to one year.

3 The decision of the independent reviewer was dated 20 June 2012. It was sent to the plaintiff and the first defendant by email dated 29 June 2012. At a hearing before me on 17 September 2012 the plaintiff conceded that the originating motion, in so far as it made application under the Administrative Law Act, was out of time (and subsequently the plaintiff amended the originating motion to delete that relief), but contended that the originating motion, in so far as it sought relief under O 56, was filed within time.

(1) A proceeding under this Order shall be commenced within 60 days after the date when grounds for the grant of the relief or remedy claimed first arose.

(2) Where the relief or remedy claimed is in respect of any judgment, order, conviction, determination or proceeding, the date when the grounds for the grant of the relief or remedy first arose shall be taken to be the date of the judgment, order, conviction, determination or proceeding.

(3) The Court shall not extend the time fixed by paragraph (1) except in special circumstances.

5 At the previous hearing before me on 17 September 2012, I held that the "date when grounds for the grant of the relief or remedy claimed first arose" within subrule 56.02(1) was 29 June 2012, and accordingly the originating motion was filed three days out of time. There was no contention by the first defendant on that date that subrule 2 applied. I gave ex tempore reasons for that decision on that date, the essence of which was distilled in Other Matters in the order of that date. I then adjourned the proceedings to enable the parties to file further material and heard this application on 8 October 2012.

6 For the reasons here set out, I will grant the extension of time sought.

7 The plaintiff relies on three affidavits of Bernard Balmer, the sole director and shareholder of the plaintiff, sworn 31 August 2012, 25 September 2012 and 26 September 2012.

8 The first defendant relies on the affidavit of Meagan Keogh, sworn 3 October 2012.

9 The second defendant filed a notice of appearance on 26 September 2012 but did not participate in this hearing.

10 The first defendant, ("VLA"), has established panels of solicitors' firms pursuant to s 29A of the Legal Aid Act for different categories of legally assisted work, including indictable criminal work and summary criminal work. VLA may assign the conduct of a legally assisted person's case to a firm on the relevant panel pursuant to s 29B of the Legal Aid Act. Mr Balmer is a solicitor, whose firm practises in the area of criminal law. He deposes that the firm has been a member of the indictable and summary panels for about twenty-nine years.

11 On 29 September 2011 the board of VLA resolved to remove the plaintiff from the indictable panel for a period of two years. Ms Keogh, who is the executive director of VLA responsible for, amongst other things, membership of the panels, monitoring the compliance by practitioners assigned legally aided work with practice standards, and the investigation of client complaints, deposes that the resolution followed the investigation by VLA staff of a complaint by a legally assisted person, XY.

12 The plaintiff was notified of the decision by letter dated 30 September 2011 from the Managing Director of VLA. That letter set out reasons for the decision, and referred to the procedure for removal set out in the Section 29A Panel Practitioner Manual August 2010 ("the Manual")[1]. Clause 7.3.1 of the Manual, headed "Notice to Remove" provides for the circumstances in which a practitioner may be removed from a panel. Clause 7.3.2 provides in relation to the Notice to Remove ("NR"):

(a) the basis on which the determination to remove the practitioner has been made;

(b) the duration of removal;

(c) what, if any, legally aided matters the practitioner may continue to conduct notwithstanding the removal;

(d) the date on which the removal will take effect; and

(e) the practitioner's right to Show Cause why the removal should not occur.

13 The letter afforded the plaintiff 14 days to exercise the right to show cause. It stated that if that right was not exercised within that time frame, then the Notice to Remove would take effect from Monday 17 October 2011. It continued "As of that date you will no longer be allocated indictable crime matters. Nothing in this notice prevents you from concluding indictable matters currently allocated to your firm."[2]

14 The show cause procedure is set out in clause 7.4 of the Manual. Clause 7.4.2 provides that VLA must forward show cause documentation to the Chairperson of the panel of Independent Reviewers, and clause 7.4.3 provides that the Chairperson must then appoint an Independent Reviewer. In relation to the decision of the Independent Reviewer, clause 7.4.7 provides:

The Independent Reviewer shall provide a short written statement of reasons and may:

(a) confirm VLA's decision, in which case the removal shall occur immediately;

(b) reverse VLA's decision;

(c) reverse VLA's decision with a recommendation to issue a formal reprimand; or

(d) vary VLA's decision to impose different conditions on the length and scope of the removal.

15 The plaintiff requested review by an Independent Reviewer by letter dated 14 October 2011. There were a number of delays in the review, not relevant for current purposes. The plaintiff was advised by email dated 24 April 2012 to its solicitors that Mr Martin Ravech QC, the Chairperson of the Panel of Independent Reviewers, proposed to delegate the review to Mr Brook Hely.[3] Mr Ravech subsequently confirmed this delegation, expressed to be pursuant to clause 7.4.3 of the Manual, by letter dated 23 May 2012 to Mr Hely.[4]

16 By decision dated 20 June 2012 and provided to the plaintiff and VLA by email dated 29 June 2012, Mr Hely, the second defendant, concluded " I therefore confirm VLA's decision to remove the Firm from the Panel, although vary the period of removal from two years to one year."[5] The plaintiff contends that this decision purports to be made pursuant to clause 7.4.7 (d) of the Manual, but is flawed by the failure to specify the commencement date and the scope of the removal.

17 By email dated 29 June 2012 to the second defendant, copying in the relevant officer at VLA, Ms Service, the solicitors for the plaintiff acknowledged receipt of the decision and asked Mr Hely to clarify when the 12 month removal period "shall commence" and "what becomes of all existing VLA funded matters?". Mr Hely replied, seeking comment from Ms Service, and adding "I would have assumed the removal commences immediately, although I have not looked into this. As to what happens to VLA files currently on hand, this is a question that is best answered by VLA at this stage." Ms Service replied, saying to the solicitor for the plaintiff "I will discuss this with my colleagues and be back in touch shortly."[6]

18 The next communication from VLA to the plaintiff was a letter dated 9 July 2012[7], hand delivered on that date, signed by Ms Keogh, which described the decision of Mr Hely as "confirming" VLA's decision and stated "Pursuant to clause 7.4.7(a) of the Section 29A Practitioner Manual, I advise the removal of your firm shall occur immediately with effect from today and remain in force until 30 June 2013." The letter then set out a series of steps that VLA required the plaintiff to take within indicated time frames, which commenced at 1pm the following day. The steps were said to be required to "facilitate VLA's administration of your firm's removal from the panel and reallocation of your firm's legally assisted indictable and appellate matters". The first three steps required action by COB Thursday 19 July 2012. These steps required reporting in relation to current legally assisted indictable or appellate matters. The final step required action by "COB Friday 31 August". This step was to finalise billing and submit final reports on any legally assisted indictable or appellate matters which were concluded. After the listing of these steps the letter stated:

While I appreciate these time frames will place pressure on your firm, I am concerned to give effect to the decision of the VLA Board, to minimise the uncertainty for legally assisted clients about their representation, and to limit any possible disruption to the courts in which their matters are listed.

19 The letter confirmed that the plaintiff remained a member of the s 29A summary crime panel and the panel for referred matters created pursuant to s 30 of the Legal Aid Act. It stated that the plaintiff could apply, as a member of the referral panel, for allocation of grants of legal assistance to conduct indictable crime or Court of Appeal matters, "usually within the exclusive domain on (sic) the section 29A Indictable Crime panel members".

20 The plaintiff contends that, as evidenced by this letter, VLA treated the decision of the second defendant in error as a decision to confirm VLA's decision, made pursuant to clause 7.4.7(a) of the Manual, when in truth it was a decision to vary VLA's decision, pursuant to clause 7.4.7(d), which decision was flawed by Mr Hely's failure to consider and determine the commencement date of the removal and the application of the decision to existing legally aided matters.

21 Between delivery of the letter on 9 July and a subsequent letter from Ms Keogh to the plaintiff dated 13 July 2012 there were a number of exchanges, both written and by telephone, between solicitors employed by the plaintiff and officers of VLA in relation to implementation of the letter of 9 July 2012. There were further communications after the letter of 13 July 2012. These are detailed in Ms Keogh's affidavit.

22 It is not necessary to refer to each of these communications. Many related to practical matters (such as whether a signed authority from the client was required to transfer files to VLA; reassignment of particular matters; notification to the DPP and courts; the need for urgent action in matters with imminent court dates etc). It is apparent from the content and tone of these communications that the plaintiff firm and VLA did not immediately agree on some of these matters.

23 I consider some of the communications to be relevant for present purposes as follows. In the first communication following the letter of 9 July 2012, an email of 10 July 2012, a representative of the plaintiff sought that the removal take effect in relation to new matters only, and raised a series of detailed enquiries as to the "logistics of the 'hand over'". The next day, 11 July 2012, there was a telephone conversation between Mr Balmer and a representative of VLA in which Mr Balmer said he may seek an ethics ruling and referred to "going to the Supreme Court". That representative told Ms Keogh that he understood this to mean seeking judicial review. On 13 July 2012, after VLA's letter of that date, there were further telephone calls from Mr Balmer to that representative of VLA in which Mr Balmer reiterated the request that he be permitted to keep existing clients and that the removal extend to new work only, and again raised ethical issues in relation to VLA's request for files. From the account of the conversations in Ms Keogh's affidavit, it appears that Mr Balmer was expressing considerable concern in these telephone calls.

24 On 24 July 2012, Mr Balmer attended the County Court for a scheduled plea hearing following a trial verdict of guilty, in a case concerning a sexual offence against a child, of which his firm had previously had the carriage. The plea was adjourned as the file had only been recently collected by VLA and the matter reassigned to another solicitor, who did not as yet have counsel and had not met the client. In addition to Mr Balmer, that new solicitor and a representative of VLA attended the hearing. The transcript of that hearing shows that Mr Balmer expressed considerable concern at the decision of VLA that he would not be permitted to conclude matters the subject of existing grants. He told the judge that "I am still considering my position in respect to this matter" and that "I was seeking advice as late as this morning from Mr Lewenberg in respect to where the matter should or -should go, because he's successfully taken it somewhere else on a number of occasions."[8] The plea was adjourned, the judge expressing concern at the disruption in that case, and the likely disruption to the court in relation to other matters.[9]

25 After setting out in her affidavit the communications between the plaintiff and VLA, and other events in this period, in detail, Ms Keogh states:

I am informed and believe that VLA and the plaintiff firm have remained in communication up until the present date regarding the assessment, handover and management of matters with listing dates up to and including November 2012. These interactions have related to the following issues:

(a) VLA's initial report showing 162 indictable matters and the assessment of that report,

(b) Reallocation of 51 cases, and

(c) 3 requests to retain carriage of matters.

26 Mr Balmer stated in his first affidavit that between 9 July 2012 and 15 August 2012 VLA collected 49 files from the plaintiff that were subject to a grant of legal aid. The number would appear to have increased slightly by the date of Ms Keogh's affidavit, 3 October 2012. A small number of previously legally aided clients in indictable matters have remained with the plaintiff on a paid basis, or the matters have been reassigned to the plaintiff as a member of the referral panel, but, it appears from the extract quoted above, that over a hundred legally aided matters conducted by the plaintiff remained as at that date to be finalised, at least by way of billing.

27 The period of sixty days from communication of the decision of the second defendant on 29 July 2012, which I have previously held was the date from which time commenced to run, expired on 28 August 2012. The originating motion was filed and served on 31 August 2012 i.e. three days out of time. Mr Balmer sets out his explanation for the delay and other matters in support of the application for extension of time principally in his affidavit sworn 25 September 2012, but also as to the loss the decision has occasioned the plaintiff in his first affidavit sworn 31 August 2012. I will consider these matters in detail shortly.

28 The plaintiff relies on the statement of relevant principles given by Habersberger J in Goodman v Victorian Civil and Administrative Tribunal and ors.[10] The first defendant relies on the statement of relevant principle by Kyrou J in Somerville Retail Services Pty Ltd and Petisi V and anor,[11] and an academic exposition of the relevant principles in an article by Emeritus Professor Enid Campbell and Matthew Groves, Time Limitations on Applications for Judicial Review.[12]

29 Both Goodman and Somerville draw in part on Lednar and ors v Magistrates Court and anor[13] ("Lednar"), a decision of Gillard J. Lednar was an application for review in respect of orders made ex parte for the taking of a DNA sample. The orders were not served within the 60 days for seeking judicial review but, by virtue of r 56.02(2), the time for filing commenced to run from the date of the order. In each instance before his Honour, the originating motion was filed out of time. Gillard J held that a failure to serve the order within a reasonable period was in itself a special circumstance and that "it is appropriate to consider the position as if the period of time commenced from the time when the order came to the notice of each plaintiff"[14]. That factor is not applicable here, but I relied on this reasoning in my earlier decision in holding that in this case time commenced to run from the date of notification of the decision of the second defendant.

30 In two of the instances before him, the originating motion was not filed within 60 days from service of the order. Gillard J declined to follow the decision of Beach J in Denysenko v Dessau[15] that the circumstances which are special must relate to the plaintiff's failure to commence the proceeding in time, and could not include the factors relied upon in that case, being that the decision in question was demonstrably wrong or delay in the grant of legal aid. Gillard J held, in the paragraphs quoted with approval by Kyrou J in Sommerville, that r 56.02(3) does not confine special circumstances to the failure to institute the proceeding within time, and that all the circumstances in the particular case must be considered. In particular in paragraph 142, which formed part of the extract quoted by Kyrou J, he stated:

In determining what are special circumstances it is necessary for the court to weigh up the interests of both the plaintiff and the defendant. The rules have prescribed a 60 day period during which a proceeding should be commenced and the rules should be complied with. Further, in the area of public law it is not only the interests of the parties that may be affected but also the public interest. A party that has the benefit of an order in its favour should be able to proceed and enforce or rely upon the order or decision once the period for judicial review has expired. Indeed it is a matter of some weight if a late attack is made upon an order where a party has relied upon it and would suffer detriment or prejudice if time was extended.

31 Gillard J stated in the immediately following paragraph that "what constitutes special circumstances in any particular case will depend upon the circumstances of the case" and that all relevant factors "have to be weighed and the court has to then determine whether in totality they constitute special circumstances" (emphasis added). Applying this approach to the instances before him, Gillard J extended time on the basis that the relevant factors there "collectively" constituted special circumstances.[16]

32 In Somerville, Kyrou J identified the key issues for consideration, on the basis of Lednar, as the reasons for the delay, the prejudice to the other party and the prospects of success of the substantive application.[17] I would add to that the prejudice to the plaintiff if time is not extended, the impact on third parties of allowing the proceeding to be filed out of time (both of which were also identified in Lednar) and the public interest in the determination of the issues in question, which it seems to me is raised by the plaintiff, and I consider to be relevant in this application.

33 In Goodman, Habersberger J cited Lednar amongst other cases in support of the principle that in deciding whether or not "special circumstances" exist, the Court is not confined to the failure to institute the proceeding in time, but can consider all the circumstances of the particular case. He stated that factors to take into account include the length of the delay, the reason for the delay, any prejudice to the defendant(s), whether the plaintiff has an arguable case, and the public interest in the finality of litigation.[18] He drew on the Court of Appeal decision in Mann v Medical Practitioners Board of Victoria and anor[19] as authority for the proposition that the requirement that the circumstances be "special" means that they must be not "general in character" but something exceeding "that which is usual or common". He also cited with approval the following statement from Toohey J in Re Beadle and Director General of Social Security, to the same effect:

An expression such as 'special circumstances' is by ifs very nature incapable of precise or exhaustive definition. The qualifying adjective looks to circumstances that are unusual, uncommon or exceptional. Whether circumstances answer any of these descriptions must depend upon the context in which they occur. For it is the context which allows one to say that the circumstances in one case are markedly different from the usual run of cases. This is not to say that the circumstances must be unique but they must have a particular quality of unusualness that permits them to be described as special.[20]

34 The decision of Beach J in Denysenko, which Gillard J in Lednar declined to adopt, was the subject of specific consideration by the Court of Appeal in Mann. Hansen AJA, with whom Chernov and Nettle JJA agreed, doubted the decision, on the basis that "in a particular case an approach that absolutely excluded error as a factor, no matter what the circumstances and nature of the error, may produce unintended injustice." He did not expressly overrule the decision, however, continuing "I would leave the question open for consideration in an appropriate case".[21]

35 Counsel for the plaintiff notes in his written submissions that "there is conflict in the authorities as to whether the existence of legal error in the decision can amount to special circumstances"[22], but adopts the view of Cavanough J in Kocak v Wingfoot Australia Partners Pty Ltd (relying on Mann) that "the weight of authority now seems to favour the view the such error might at least contribute to a finding of special circumstances."[23] The first defendant does not deny that legal error may be relevant, although it asserts that the case for error is weak.

36 Having regard to these principles, I approach this matter on the basis that an extension of time under r 56.02(3) requires "special circumstances" in the sense of something beyond the usual, but that is to be judged having regard to the totality of the relevant factors. Those factors include the length of delay; the explanation for the delay; the prejudice to the plaintiff if the extension is not granted; the prejudice to the defendant, and any third parties, if it is; the public interest in the certainty of administrative decision making; whether there is an arguable case for error; and any public interest in the determination of the issues in question.

37 I have also had regard to the academic article relied upon by the first defendant. The cases there cited are of limited application in my view, as the article analyses and cites most extensively decisions of the Federal Court in the exercise of the discretionary power to extend time under s 11 of the Administrative Decisions (Judicial Review) Act 1977 (Cth) ("the ADJR Act"). The parties have not addressed me on the relationship, if any, it bears to r 56.02(3).

38 The article does helpfully illuminate some general discretionary principles applicable to r 56.02(3), such as delay, and extensively analyses the principles to be employed in exercising power under s 11 of the ADJR Act as identified by Wilcox J in Hunter Valley Development Pty Ltd v Cohen, Minister for Home Affairs and Environment[24]. One of those principles is said to be "Principle 2: Action taken by the applicant to make the respondent aware of dissatisfaction with the decision". Alleged failure to do so by the plaintiff here is relied upon by the first defendant. In my view, the better way to consider the plaintiff's actions in this regard is by reference to the usual discretionary considerations of delay and prejudice to the defendant. I consider there is a danger in elevating this claimed principle to a distinct obligation, when I do not consider that warranted by the authorities on r 56.02(3). With the exception of principle 6, "Considerations of fairness as between the applicants and other persons in a like position", which is not relied upon here in any event, the other principles identified by Wilcox J. and discussed in the article are embraced within the authorities on r 56.02(3). For the reasons given, I consider reliance on those authorities to be the better way to approach this application.

39 The plaintiff relies on the following particular matters in this case:

The strength of the plaintiff's case.[25]

The approach taken by the first defendant in relation to implementation of the decision, which is described as "sharp practice".[26]

The short delay.[27]

The resources required of the plaintiff to respond to the first defendant's implementation of the decision, which it is said provide adequate explanation for the delay.[28]

The broader implications for the criminal justice system of the decision and its implementation.[29]

The prejudice to the plaintiff occasioned by what is said to be an unlawful decision.[30]

The absence of prejudice to the defendants.[31]

40 The first defendant relies on the following matters:

What it claims to be poor prospects of success for the plaintiff.

The claimed absence of any satisfactory explanation for the delay.

What it asserts is significant prejudice to the first defendant and to third parties.

The failure of the plaintiff to clearly indicate to the first defendant that he proposed to challenge the decision.

41 I will consider the relevant factors first individually, and then collectively for the purpose of determining if special circumstances exist.

42 I approach this factor on the basis that it is sufficient for the plaintiff to establish an arguable case i.e. a case that could not be said to have no real prospect of success. Indeed, as an Associate Judge does not have the jurisdiction, without referral from a judge, to hear and determine an application under O56, it may be inappropriate for me to do more than consider if the case is arguable.

43 The amended originating motion seeks first an order in the nature of certiorari to quash the decision of the second defendant. In the alternative, which is expressed to apply if the "decision of the second defendant is lawful", the plaintiff seeks a declaration that the decision did not vary "that part of the initial decision of the first defendant of 29 September 2011 that entitled the plaintiff to conclude the indictable matters allocated to the plaintiff as at the date the decision to remove the plaintiff took effect" and that the review conducted by the second defendant has not concluded.

44 The first five of the grounds relate to the primary relief sought. They allege that the decision was beyond jurisdiction because the second defendant was not validly appointed (ground 1); that his decision involved a number of specified errors of law (ground 2); that the review was conducted in breach of the requirements of natural justice, due to the failure of the second defendant to require from VLA a copy of an advice from one counsel about the case that had lead to the complaint (ground 3); that the decision was tainted by the failure of the first defendant to disclose to the reviewer that particular advice (ground 5); and that the decision was unreasonable having regard to the opinions of counsel in relation to that case (ground 4).

45 The sixth ground appears intended to relate to the alternative relief sought, although it too contends that the decision of the second defendant was a failure to exercise jurisdiction, because he failed to consider the questions of what legally aided matters the plaintiff could continue to conduct notwithstanding the removal from the panel, and the date on which the removal was to take effect.

46 I will consider this ground first. The plaintiff contends that the second defendant, the independent reviewer, was required to consider and determine these two matters, because they are specified by paragraphs (c) and (d) of clause 7.3.2 of the Manual as matters that must be included in the Notice to Remove, setting out the decision by the VLA to remove a practitioner from a panel. As the review is in respect of the decision of VLA, the argument is that the independent reviewer is required to have regard to the same matters. It is apparent, so the plaintiff says, from the content of the reasons; the emails exchanged between the plaintiff's solicitors and Mr Hely, copied to VLA, on 29 June 2012; and the subsequent letter of 9 July 2012 from VLA to the plaintiff, that Mr Hely, the independent reviewer, did not determine these two matters, and left it to VLA to do so. There follows a subsidiary submission that the independent reviewer was required to seek submissions on these matters before determining them, as he was required to observe procedural fairness.

47 In my view, this ground is clearly arguable. It is expressed in the amended originating motion as relating to the alternative declaratory relief, in respect of which no extension of time is necessary, but it may be that it would also ground the quashing of the decision for failure to exercise the jurisdiction. Even if that is not correct, in my view the fact that the declaratory relief survives in any event is a circumstance tending towards the extension of time in respect of the O56 relief sought in respect of the same events.

48 Counsel for VLA asserts that the declaration would not be made because of lack of utility, as it is not supported by an order to implement it, in the nature of mandamus. This is a somewhat startling submission- one might have thought that VLA and the independent reviewer would not need an order to implement declarations made by the Court, as they would do so in any event. If that is not correct, and an order in the nature of mandamus under O56 is required (by way of further amendment to the originating motion or of the Court's own motion), then that necessity is a further reason in my view to grant an extension of time in respect of O56 applications, to allow them to go forward and accompany the declarations sought.

49 The plaintiff also stresses on this application ground 1, which is expressed to relate to the order sought under O56. The particulars of that ground are that s 19(1)(a) of the Legal Aid Act requires appointment of an independent reviewer by VLA directly, and not by the Chairperson of the Panel, as occurred here.

50 The relevant portions of ss 18 and 19 of the Legal Aid Act provide as follows:

(1) The Attorney-General may appoint a panel of independent reviewers for the purposes of this Act consisting of -

(a) an eligible person appointed as chairperson of the panel; and

(b) as many other eligible persons appointed as members of the panel as are required.

(1) The functions of a member of the panel of independent reviewers are -

(a) to exercise any powers or carry out any functions delegated to him or her by VLA;

(b) when appointed by the chairperson of the panel to do so, to review decisions of VLA or of an officer of VLA or of another independent reviewer with respect to -

(i) refusal to provide legal assistance of the nature or to the extent applied for;

(ii) the conditions on which legal assistance will be provided;

(iii) the variation or termination of legal assistance;

(iv) the allocation of work amongst law practices;

to hear and determine any matter referred to him or her under section 30;

1"> 51 The plaintiff contends that the power of the chairperson of the panel to appoint an independent reviewer is limited by s 19(1)(b) to grant of aid decisions, and does not include a decision to remove a practitioner from a panel. The plaintiff says such a decision does not fall within s 19(1)(c), because s 30 relates to referral panels of solicitors, not the practitioner panel in question here which is created pursuant to s 29A. Accordingly, so the plaintiff says, the powers of the independent reviewer here in question must arise under s 19(1)(a) and must, by virtue of the different wording of s 19(1)(b), be delegated to him or her directly by VLA.

52 VLA says that there is no great public interest in which independent reviewer made the decision, whether the chairperson Mr Ravech or Mr Hely, and that even if the construction advanced by the plaintiff is correct (which is not conceded), the practice in future matters can be corrected without this litigation. That is as may be, but for this plaintiff, correction, if its construction of the section is correct, appears to require litigation. The ground is clearly arguable in my view, and of public importance in relation to the operation of the independent reviewer panel generally. It relates directly to the O56 relief. In my view, it is a circumstance that favours the grant of an extension of time.

53 The claimed errors of law in ground 2 were not the subject of detailed argument before me, save for the assertion by counsel for the plaintiff that the second defendant erred in aggregating grounds specified in clause 7.3.1(e) of the Manual, when the Manual expresses the various grounds in that paragraph disjunctively. Detailed argument may require cross reference between the Legal Aid Act, the Manual, the submissions put to the independent reviewer and his decision. This analysis was not conducted before me. I consider that in these circumstances I am unable to express a view as to whether ground 2 is arguable.

54 VLA says that grounds 3, 4 and 5, which relate to the absence of one particular advice of counsel from the material before the independent reviewer, and assert that the decision to remove was unreasonable given the contents of that and other advices, are weak. VLA says this on the basis of the admissions made by the plaintiff in its own submissions to Mr Hely that there had been unacceptable delay in progressing the case in question and a failure to disclose relevant information to VLA in a timely manner as required. There was also reference to the effect of the advice in question in submissions from both parties, and so its absence in full may have been immaterial. There is force in these submissions, but given the limited elaboration of the arguments, I express no concluded view.

55 I consider that grounds 1 and 6 as elaborated before me are arguable, and that this is a factor that favours the grant of an extension of time. Further, grounds 1 and 6 may have implications for other similar matters (as indeed may 2, but that was not elaborated before me), and that in itself is a special circumstance in my view. VLA correctly makes the point that an arguable case is not in itself sufficient to justify extension of time under r 56.02(3), as is demonstrated in Somerville. I now consider the other relevant factors.

56 Under this heading I will consider the claimed prejudice to VLA which is said to be a contra indication to an extension of time; the claimed "sharp practice" adopted by VLA in implementation; the resources required of the plaintiff to respond to the required implementation, which bear on the explanation for delay; and the claimed failure by the plaintiff to alert VLA to its intention to challenge the decision.

57 The decision of VLA to implement the decision to remove the plaintiff from the panel immediately, and to extend this to existing clients, as well as new work, was taken unilaterally. This is not necessarily a criticism - it is apparent from the letter of 9 July 2012 from VLA to the plaintiff that VLA considered it was required by the Manual to remove the plaintiff from the panel immediately, because it regarded the decision of Mr Hely as falling within clause 7.4.7(a). It is also said in Ms Keogh's affidavit and in submission by counsel for VLA that VLA considered itself under an obligation, in the interests of its legally aided clients, to give effect to a removal decision without delay. The effect was, however, that a very considerable task was required both of the plaintiff and VLA without any forward notice to the plaintiff, and was required immediately after the letter. VLA had had a week to consider its position - so had the plaintiff, but without knowing what stance VLA would take as to commencement date, and scope of the removal. VLA itself acknowledged in the letter that the task was considerable, and would require considerable resources of the plaintiff to implement. Undeniably, it also required considerable resources of VLA.

58 Nevertheless, I reject the contention of the plaintiff that in taking this week to consider its position and then informing the plaintiff that the decision took effect totally, and immediately, VLA was guilty of any "sharp practice". I accept that VLA needed time to consider the scope of the legally aided work conducted by the plaintiff, and to make a decision. It might have been preferable, in hindsight, to afford the plaintiff at least a similar opportunity, if possible, to consider its position once this decision was taken. This would have been possible within the requirements of the Manual, if, as the plaintiff contends, the reliance on clause 7.3.7(a) was an error, and the decision fell within clause 7.3.7(d). It may also have been possible, even if the decision fell within clause 7.3.7(a), to implement it immediately in respect of new work, but allow some time in relation to reallocation of existing work.

59 Further, it is of note that VLA in its own initial decision gave the plaintiff a brief opportunity to consider its position before the decision took effect. Admittedly this was expressed to be an opportunity to consider review, but the same might be said to be appropriate in respect of the decision of the independent reviewer. Clause 7.4.8 of the Manual states that the decision of the independent reviewer is final and binding on both VLA and the practitioner, but VLA has not contended, at least before me, that this excludes O56 judicial review.

60 It is an additional relevant matter that the initial decision by VLA to remove the plaintiff (as set out in the Notice to Remove) only applied to new work. The decision taken after the review was to also remove all existing work from the plaintiff. This is removal that is substantially different in scope. The decision impugned in this action is that of the independent reviewer, not that of VLA, but it is relevant to the extension of time to consider VLA's actions, given that it relies on the work already undertaken as prejudice to it which militates against an extension of time. It may have been preferable to give the plaintiff an opportunity to be heard on whether or not removal was to include existing work before making a decision, once it was under consideration to extend the removal in this way. If that was not necessary or appropriate, it may have been desirable to at least give the plaintiff an opportunity to absorb and consider the changed decision, before requiring, as the letter of 9 July 2012 did, immediate and extensive action.

61 I express no concluded view on these issues, as the actions of VLA in this respect are not directly impugned in these proceedings. I do, however, consider the change of scope of the removal, the lack of consultation in relation to that change or the date of commencement, the immediacy of the required response, and the extent of the required response, all to be relevant to the plaintiff's explanation for the delay in instituting this proceeding, and the claimed prejudice to VLA.

62 There is no evidence of any prejudice to VLA occasioned by the three day delay itself. VLA says, and I accept for the purposes of this application, that any prejudice to it is not to be judged having regard only to the three days out of time. I proceed on the basis that, once leave is required, it is appropriate to consider the whole of the consequences if the decision is overturned and not just what steps were taken in those three days. Nevertheless it remains relevant that it was VLA that determined, and unilaterally, when the removal would commence (even if its interpretation of clause 7.4.7 proves correct) and to what it would extend, and that the consequences of that decision were to impose a very considerable task on both VLA and the plaintiff, to require immediate commencement of that task, and to anticipate that the task would not be concluded for more than sixty days from notification of the decision of the independent reviewer, i.e. after the date for filing an application for judicial review had expired.

63 The portion of Lednar which is quoted in Somerville, and relied upon by VLA, which refers to the public interest in the finality of administrative decision making as a factor tending against extension of time states that:

A party that has the benefit of an order in its favour should be able to proceed and enforce or rely upon the order or decision once the period for judicial review has expired. (emphasis added)[32]

64 Here, VLA did not wait until the period for judicial review had expired. It took immediate action to implement the decision (in fairness in the apparent belief that it was required to do so); changed the scope of the removal from what it had earlier indicated; and required both itself and the plaintiff to undertake extensive work immediately, and for a period anticipated to continue beyond the sixty days.

65 I have considered the argument advanced by VLA that the plaintiff failed to give adequate notice of its intention to challenge the decision. It is said that the plaintiff complied with the implementation of the decision, without indicating objection. It is also said by Ms Keogh that had the plaintiff given notice of its intention to challenge the decision by judicial review or made an application for stay, she would have reassessed "VLA's options and course of action in relation to the assessment and reallocation of the plaintiff firm's indictable matters".[33]

66 I do not consider that there was any obligation on the plaintiff to give explicit notice of its intention to challenge the decision, but I accept that a failure to do so, particularly given that the plaintiff is a firm of solicitors, and so in a position to seek advice from counsel without delay, and in continued relationship with VLA, may be a relevant discretionary consideration. In particular, a failure to identify possible challenge may militate against an extension of time if the defendant has relied on the absence of challenge in determining when to implement the decision.

67 I do not consider that there is any relevant failure to notify VLA of the intention to object here for the following three reasons. First, the material does not show any reliance by VLA on a failure to object. VLA implemented the decision without further discussion with the plaintiff and within ten days of its notification i.e. before any indication of challenge could realistically have been given by the plaintiff. Work was then required to be done by both VLA and the plaintiff immediately. The letter of 9 July 2012 required compliance with its terms- it did not make provision for the expression of objection. The necessity to comply was reinforced by the letter of 13 July 2012.

68 Secondly, although the plaintiff complied, grudgingly, with VLA's requirements, the communications between the parties show that the plaintiff's compliance was not without objection. Most of the expressed objection was to the scope of the removal rather than to removal as such, but there were certainly indications that the plaintiff was considering further legal action.[34]

69 Finally, given the speed of the implementation it is difficult to see that much work could have been avoided by clearer indication by the plaintiff of the intention to seek judicial review. In particular, I have regard to the requirement expressed in the 9 July 2012 letter that the plaintiff provide a report on all remaining legally assisted indictable or appellate matters, i.e. where there is an event after July, by Thursday 19 July, and the requirement in the letter of 13 July 2012 that VLA would attend to collect all remaining files on Monday 16 July 2012. In note that it appears from a subsequent letter dated 24 July 2012 from VLA to the plaintiff[35] that the files were not, in fact, available for collection on this day, but I infer[36] that they were collected shortly thereafter.

70 In summary, I accept that if an extension is granted and the relief sought obtained, there will be work undertaken by VLA that is likely to have been unnecessary, and there may have been prejudice to the clients whose cases have been reassigned, if reassignment proves to have been not required. Much of that work, however, had already been done well within the sixty days and so prejudice would have been suffered even if the originating motion was filed within time. On balance I consider that this prejudice was caused more by the speed and mode of implementation adopted by VLA, than by delay at the hands of the plaintiff, and it is outweighed by the other factors that favour an extension.

71 I have indicated earlier in these reasons that I consider some of the arguments advanced by the plaintiff as to the validity of the independent reviewer's decision to have implications for VLA practice generally, and so for other practitioners on panels. I also accept the submission of the plaintiff that the decision to remove it from the panel had consequences for other third parties, being the legally aided clients, and for the criminal justice system generally. The case the subject of the exhibited transcript demonstrates a prejudicial effect on one client and the operations of the County Court in that regard. It is possible that there were adverse effects in respect of other matters as well.

72 VLA concedes that the interests of third parties are affected, and advances this as a reason against the extension of time. That would be a compelling argument if the plaintiff's case was weak, because prolongation of the case may encourage an unnecessary doubt as to whether the removal of those matters from the plaintiff was necessary. It is not, however, in my view a compelling argument given that the plaintiff's grounds are arguable, and there is a competing public interest in any error in that regard being corrected for the benefit of clients and the criminal justice system in the future.

73 The plaintiff asserts considerable financial loss from the removal of existing legal aid work, in excess of $250,000 in a full year. There may be other financial loss from removal from the panel in respect of new work. Mr Balmer also complains of a loss of reputation arising both from removal of the plaintiff firm from the panel and letters written by VLA to various courts and entities advising them of that removal. He further complains that he has been subjected to a complaint from a legally aided client to the Legal Services Commissioner, being the same legally aided client whose complaint to VLA lead to the initial decision to remove the plaintiff from the panel.

74 Dealing with this last aspect first, I do not accept that the complaint to the Legal Services Commissioner is related to the decision of either VLA or the independent reviewer. It is apparent from the complaint, which is exhibited as amended exhibit BB-21 to Mr Balmer's affidavit of 25 September 2012, that while the client has adopted the findings of VLA and the independent reviewer to support his complaint, he makes his complaint about delay in the progress of his case independently. Indeed, he specifically says that the VLA sanction "helps me not at all, and does not address the wrongs done to me." The complaint arises from the plaintiff's conduct of this client's case, not from the decisions of VLA and the independent reviewer in respect of that conduct. They are separate consequences from the same conduct.

75 In relation to the other two matters, the plaintiff complains that these losses flow from what Mr Balmer describes as a "gross over reaction to any failure to comply with the requirements of (the Manual)"[37]. In my view, in making this assertion the plaintiff impermissibly seeks to traverse the merits of the decisions by VLA and the independent reviewer. Whether the decisions were, or were not, appropriate on the merits is not the concern of judicial review such as that sought by this proceeding. Judicial review is concerned with the proper process in reaching decisions, not the correctness of those decisions. For that reason I consider the relevant prejudice to the plaintiff, and Mr Balmer, to be only that that is causally related to the process adopted by VLA and Mr Hely. I accept that the plaintiff and Mr Balmer have suffered prejudice in that regard, being at least their interest in proper process being followed, and that this is a factor that favours an extension of time being granted.

76 By way of completeness I will also deal with the submission by VLA that the plaintiff has alternative remedies available to it, being its opportunity to seek carriage of particular indictable or appellate matters by referral, as it remains a member of the referral panel established under s30 of the Legal Aid Act, and its right to seek reconsideration and then review by an independent reviewer of reallocation decisions. Ms Keogh also refers in her affidavit to the right of particular clients to seek reconsideration or review of reallocation decisions. I accept the submission of counsel for the plaintiff that these avenues, which are available in particular matters, are not true alternatives to judicial review of the decision as a whole.

77 Mr Balmer has given an explanation of the reasons for delay in filing the originating motion that largely turns on the size of the task of compliance with VLA's letter of 9 July 2012. He says that:

From the date the firm became aware of the decision its energies were committed to responding to the requests of Legal Aid and ensuring minimum disruption occurred in court and that the rights of the assisted persons were not compromised. For this reason it was not until mid August 2012 that I sought advice.[38]

78 He continues that he approached counsel not at the criminal bar on 21 August 2012 to seek advice in relation to defamation, received advice in respect to that on 27 August 2012, that at this time "it was suggested" that the plaintiff may have rights of judicial review, and commenced proceedings on 31 August 2012. VLA says that this account sits uncomfortably with Mr Balmer's earlier reference, at the plea hearing on 24 July 2012, to seeking advice at that time from his current solicitors, Lewenbergs, and the implicit reference in those comments to past proceedings by that firm for judicial review proceedings against VLA.

79 VLA also says that the plaintiff had time to consider its options prior to the decision of the independent reviewer, given the long period of initial investigation, decision by VLA and then the lengthy show cause procedure. I accept this submission only in part. Certainly the plaintiff could not have been caught totally unawares by the decision of the second defendant; but until that decision was given it could not in detail consider it, and the plaintiff was not aware how it would be implemented until VLA's letter of 9 July 2012, which set out a removal that extended to existing work, and so substantially departed from the removal that earlier was in contemplation. Accordingly, I consider that assessment of the plaintiff's explanation for delay should focus on the period from notification of the decision.

80 I consider that the necessity to devote resources to complying with VLA's implementation timetable is a persuasive explanation for the month of July. The account given by Ms Keogh of various interactions between the plaintiff and VLA shows a number interactions up to and including 1 August 2012. Mr Balmer does not, however, give an account of any further interactions or the extent of any required tasks after that date. His account of delay in obtaining relevant advice, and why that was not until late August, is sketchy. I do not consider, however, that a plaintiff in this position need account for every day of the delay, and, on balance, I consider the explanation given is sufficient. I have regard in coming to this conclusion that the VLA letter of 9 July 2012 anticipated that full implementation of the decision would take more than sixty days; that Ms Keogh fairly states in a passage from her affidavit quoted earlier that "VLA and the plaintiff firm have remained in communication up until the present date regarding the assessment, handover and management of matters with listing dates up to and including November 2012" and that as at the date of her affidavit, a large number of matters remained to be concluded.[39]

81 The circumstances that favour an extension of time must be "special". This is to be judged having regard to the totality of the circumstances. In my view, the totality of circumstances here answers this description. The period of delay is very short, the explanation for delay sufficient, at least some of the grounds are arguable and there is no prejudice to the first defendant that has been caused by the delay. These factors would justify extension in the usual case. What takes the matter beyond the usual case of extension, in my view, are the following matters.

82 First, the public importance of the issues, to other practitioners and to the criminal justice system. Next, the fact that it was the first defendant's own adopted manner of implementation that both preoccupied the plaintiff and so contributed to at least some of the delay, and caused the prejudice to the first defendant if the decision is overturned.

83 The final matter is that the decision in relation to removal was in a sense a bifurcated one. The independent reviewer confirmed that the plaintiff should be removed from the panel, and for a time he specified, but did not address in his reasons when the removal was to start or whether or not it applied to existing matters. In its initial decision VLA had determined to remove new work only. I was not directed to any material before me that explained why it was decided after the independent review to extend the removal to existing work. The enquiry made about this by the solicitors for the plaintiff immediately on receipt of the independent reviewer's decision suggests that they were not on notice that this was contemplated. Even if they were, the plaintiff did not know with certainty that this was the scope of the removal until receipt of the letter of 9 July 2012 from VLA.

84 This is not to recanvass the argument before me in relation to when time started to run. My view was, and remains, that time started to run under r56.02(1) from 29 June 2012, because it was on that day that both the decision of the independent reviewer became available for perusal and the independent reviewer referred the questions as to implementation to VLA i.e. confirmed that he had not, and apparently did not intend, at least without further direction, to deal with those matters himself. All the grounds for review arose from these two circumstances. It is to say, however, that in considering whether or not the circumstances are "special", the fact that the true scope of the decision did not become apparent until 9 July 2012, less than sixty days from the date of filing of the originating motion, is a relevant circumstance.

85 For these reasons I will extend the time for filing the originating motion to the date filed. The parties should now prepare a timetable for preparation of the substantive argument having regard to the Judicial Review and Appeals Practice Note No. 4 of 2009. I am conscious that the relief sought may be rendered nugatory if the originating motion is not heard and determined prior to 30 June 2013, as that is the date on which the removal from the panel is to end in any event. If either party seeks an expedited hearing that party should make that application by affidavit, which will be considered by the Associate Judge in charge of listing, and reflect that application in the proposed timetable.

86 VLA has sought that the names of legally assisted persons whose cases are identified in the parties' cases be suppressed. The plaintiff does not oppose this application, and it seems to me appropriate. In discussion at the hearing I suggested that if the exhibits to the affidavits remained confidential to the parties and any clients' names were anonymised in these reasons that may be sufficient. On closer inspection of the file, both the original and amended originating motions and two of Mr Balmer's affidavit's contain client names. Accordingly, I consider the safer course is to order that the file be confidential to the parties only, unless the court grants leave.

87 I will hear the parties as to the costs of this application if required.

[1] Exhibit BB-13 to the affidavit of Bernard Balmer sworn 27 September 2012.

[2] Letter dated 30 September 2011 from VLA to the plaintiff, which is MK-2 to the affidavit of Meagan Keogh sworn 3 October 2012.

[8] BB-18, at page 4, lines 20-21, and page 5, lines 14-18.

[9] Ibid, at page 10 line 14 to page 11, line 22.

[10] [2011] VSC 35 at [28] and [29].

[11] [2008] VSC 196 at [42] - [44].

[13] [2000] VSC 549

[15] [1996] VicRp 65; (1996) 2 VR 221

[17] [2008] VSC 196 at [44].

[18] [2011] VSC 35 at [29].

[19] [2004] VSCA 148, per Hansen AJA, Chernov and Nettle JJA agreeing, at [68]

[20] (1984) 6 ALD 1 at 3, quoted in Goodman at [28].

[22] Submissions of the plaintiff for hearing on 8 October 2012, at [8].

[23] [2011] VSC 285 at [7]. The decision was overturned, but not on this point, by the Court of Appeal at [2012] VSCA 259.

[24] [1984] FCA 176; (1984) 3 FCR 344

[25] Submissions of the plaintiff at [12], [18] [ 21].

[26] Submissions of the plaintiff at [14].

[27] Submissions of the plaintiff at [22].

[28] Submissions of the plaintiff at [15] and [22].

[29] Submissions of the plaintiff at [16].

[30] Submissions of the plaintiff at [17] and [23].

[31] Submissions of the plaintiff at [23].

[32] Lednar, at [142], quoted in Somerville, at [43].

[34] I refer in particular to the comments made by Mr Balmer at the plea hearing and his reference to taking the matter to the Supreme Court in telephone conversations with officers of VLA.

[37] His affidavit sworn 31 August 2012, at [51].

[38] Mr Balmer's affidavit of 25 September 2012, at [21].