Plaintiff v First Defendant Second Defendant

Supreme Court of Victoria|2009-02-18|Before: BEACH J

ADMINISTRATIVE LAW - Judicial review - Legal Aid decisions - Jurisdictional error - Error of law on the face of the record - Standing - Meaning of "person affected" - Privative clause - Legal Aid Act 1978, ss 4, 7, 8, 28, 34 and 35 - , , , and - and (b).

1 The plaintiff, Mr Gabriel Kuek, was the solicitor for Mr Ming Fai Kwan. Mr Kwan was to face serious drug charges in the County Court when Mr Kuek lodged an application for Legal Aid on his behalf. This application was granted by Victoria Legal Aid, the first defendant. However, VLA determined that the legal assistance to be provided to Mr Kwan would be provided by "allocating the matter to VLA's Criminal Law Division or a firm on VLA's Indictable Crime Panel". After a number of decisions reconsidering and reviewing this decision (including a previous application for judicial review - about which I will say more below), the decision to allocate Mr Kwan's matter to a solicitor other than Mr Kuek was reviewed by the second defendant, Mr Ronald Beazley, pursuant to s 35 of the Legal Aid Act 1978. Mr Beazley's decision was unfavourable to Mr Kuek in that he confirmed a previous decision allocating Mr Kwan's matter to a different solicitor. In this proceeding, Mr Kuek seeks judicial review of Mr Beazley's decision. He alleges that jurisdictional errors and errors of law on the face of the record have been committed and he makes complaint about the adequacy of Mr Beazley's reasons. Mr Kuek's application is resisted by VLA. In summary, VLA contends:

(a) Mr Kuek does not have standing to bring this proceeding.

(b) Mr Beazley's decision is not affected by any error (jurisdictional or on the face of the record).

(c) If (contrary to its submissions) there was error, then the decision is protected from review by ss 35(3) and 49B of the Legal Aid Act.

(d) In any event, relief ought not be granted in the exercise of the Court's discretion.

Mr Beazley filed a submitting appearance and took no further part in the proceeding. For the reasons given below, there will be judgment for the plaintiff and the decision of Mr Beazley will be quashed.

2 On 26 September 2004, Mr Kwan was arrested. He was charged with serious drug offences. He was represented by the firm Access Law, Lawyers, from 30 September 2004. Mr Kuek is the principal of that firm and had the conduct of the matter on Mr Kwan's behalf. On 19 December 2006, Mr Kuek lodged an application for Legal Aid for Mr Kwan. On 24 January 2007, Ms Yvonne Lipianin of VLA informed Mr Kuek that VLA intended to provide legal assistance to Mr Kwan by allocating the matter to VLA's Criminal Law Division or a firm on VLA's Indictable Crime Panel ("the first decision"). In communicating the first decision to Mr Kuek, Ms Lipianin advised:

(a) the decision was made under s 28(a) of the Legal Aid Act "and in accordance with the guidelines determined by VLA under s 8(2) ...";

(b) "It was considered that the circumstances of the applicant's case did not justify departure from the guidelines"; and

(c) "Regard was given to whether there was any compelling reason why the matter should not be allocated to VLA's Criminal Law Division or a firm on VLA's Indictable Crime Panel.

• A pre-existing long-term professional relationship between the client and practitioner and that practitioner has acted in relevant legally aided criminal proceedings; or

• Special circumstances such as a psychiatric disability;

Please note that the circumstances must be such that the client is incapable of providing instructions to another practitioner."

3 The reference to "any compelling reason" was almost certainly a reference to section 5.2.1B(a) of the guidelines referred to. Section 5.2.1B(a) provides:

"In the absence of compelling reasons, where an application is lodged by a non-panel firm, that firm will not be allocated carriage of the matter. ..."

Whilst "compelling reasons" are not defined in section 5.2.1B, there is a reference to them in section 5.7 which deals with changing practitioners. In the second sub-paragraph of section 5.7.1 of the guidelines, compelling reasons are said to possibly include:

"(a) a pre-existing long-term professional relationship between an assisted person and a practitioner and that practitioner has acted for the assisted person in relevant criminal proceedings; or

(b) objective and demonstrable breaches in practice by the original practitioner; or

(c) other special circumstances, such as a psychiatric disability."

4 On 25 January, Mr Kuek wrote to VLA requesting a reconsideration of the first decision. On 23 February, Ms Meredith Zantuck, a senior legal and policy officer of VLA's Legal and Policy Unit, Grants Division, wrote to Mr Kuek advising that the first decision had been reconsidered and confirmed ("the first reconsideration"). On 26 February, Mr Kuek wrote to VLA requesting that the matter be referred to an independent reviewer for review. Subsequently, it was discovered that a number of documents which were said to be relevant had, by error, not been provided to VLA. On 15 March, Ms Zantuck wrote to Mr Kuek asking for copies of these documents, stating that a fresh decision would be made in respect of Mr Kwan's application upon their receipt. The documents were provided to VLA and, on 22 March 2007, Mr Kuek was advised again that assistance would be provided to Mr Kwan "by allocating the matter to either VLA's Criminal Law Division or a firm on VLA's s 29A indictable crime panel".[1] This decision ("the fresh decision") was made by Ms Zantuck, the officer who decided the first reconsideration. The fresh decision was made pursuant to s 28 of the Legal Aid Act. I will say more about the relevant provisions of this Act below.

5 On 2 April 2007, unbeknown to Mr Kwan and Mr Kuek, the fresh decision was reconsidered pursuant to s 34 of the Legal Aid Act.[2] The decision to refuse Access Law (Mr Kuek) carriage of Mr Kwan's matter was confirmed ("the second reconsideration"). Judicial review proceedings were taken by Mr Kwan in April 2007. They were heard before Bell J and judgment was given on 26 April 2007.[3] During the course of those proceedings,[4] Mr Kwan was told of the second reconsideration and the fact that it had failed. Bell J upheld Mr Kwan's submission that the fresh decision was tainted with apparent bias because it was made by the person who performed the first reconsideration.[5] However, his Honour refused relief to Mr Kwan because he held there was an adequate alternative remedy under s 36 of the Legal Aid Act.[6] His Honour said[7] (footnotes in original):

"Turning now to the present case, the Legal Aid Act makes provision for first instance decisions (s 28), reconsiderations (s 34) and independent reviews (s 36). Decisions concerning applications for legal aid, including the terms on which aid will be granted and the lawyers by whom the aid will be provided, come within this mechanism. On reconsideration, the decision-maker must "reconsider the decision and may confirm vary or review the decision."[8] The independent reviewer has the same power.[9] This is a complete power of review - a power to make the "correct or preferable" decision on the merits, on additional materials if the applicant wishes, unconstrained by decisions made lower down in the hierarchy.[10] Thus there are no limitations on the internal review mechanism created by the Legal Aid Act. Reviews can be carried out as cheaply, quickly and thoroughly as possible. This being so, the internal review mechanism is plainly an adequate alternative remedy in respect of decisions concerning the provision of legal aid. Parliament has enacted that mechanism in the expectation it will be followed."

A little further on, his Honour said:[11]

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

6 On 1 May 2007, Mr William Trumble of VLA advised Mr Kuek that the second reconsideration had occurred which confirmed the fresh decision concerning the allocation of Mr Kwan's matter. In the interim, there had been a mention in the County Court in relation to Mr Kwan's matter. This occurred on 2 April and Mr Kwan was represented by Mr Kuek and also by Mr Balmer, to whom the matter had been allocated by VLA. There was a further mention on 30 April, during which Mr Kuek advised the County Court that he now had instructions from Mr Kwan to plead guilty subject to a contest about certain factual matters. The essence of what Mr Kuek conveyed to the Court was that, because the matter was now a short one, he would be prepared to act pro bono if an independent reviewer could not be persuaded that Mr Kwan should be represented by him.

7 On 1 May, Mr Kuek requested the independent review he foreshadowed on 30 April. His letter commenced:

"We refer to Mr Bill Trumble's letter dated 1 May 2007 wherein he confirmed VLA's decision to allocate the matter to a firm on VLA's Indictable Crime Panel and not Access Law.

We request that this decision be reviewed by an independent reviewer. Submissions follows: ..."[12]

8 On 9 May 2007, VLA terminated Mr Kwan's grant of assistance.[13] On 14 May, Mr Kwan pleaded guilty. On 21 May, Mr Beazley wrote to Mr Kuek and advised that he had been appointed "as an independent reviewer pursuant to s 35(2) of the Legal Aid Act (Vic) 1978 ... to review a decision of ... VLA ... dated 1 May 2007 to reconsider the allocation of Mr Kwan's representation in an indictable crime proceeding." Mr Beazley said further:

"It is my function to review and reconsider the matter afresh as at the date of the reconsideration decision of 1 May 2007[14] (the reconsideration decision). Certainly, events have occurred since that date but I will not take those matters into account in my review of the reconsideration decision."

9 On 31 May, Mr Kuek provided submissions to Mr Beazley.[15] These submissions contained the following passages:

"On 14 May 2007, the applicant pleaded guilty after the Crown amended the Presentment to allege trafficking over a shorter period of time and for a lesser number of occasions than originally alleged and agreed that the applicant's culpability was no more than that for a co-accused, Alan He. The plea of guilty was achieved after much negotiation between our firm and the OPP and because the applicant realized if he received a sentence that is no more than that imposed on Alan He, he would be eligible for release on parole within weeks if not immediately by reason of accumulated remissions for lock-downs, etc.

The plea hearing occurred immediately after the applicant was arraigned and had pleaded guilty. After hearing the plea in mitigation, the Court reserved judgment on sentence.

This morning, Mr Kwan was sentenced to four years and nine months imprisonment with a minimum of two years and nine months before being eligible for parole. In summary, his sentence which was three months less than Alan He's was the shortest imposed on all of the prisoners who have pleaded guilty thus far.

We are now in discussions with Corrections Victoria and the Immigration Department with a view to securing Mr Kwan's repatriation to Hong Kong in the earliest possible time."

10 On 13 June 2007, Mr Kuek was advised by VLA that the second reconsideration had been confirmed by Mr Beazley. After some correspondence, reasons for Mr Beazley's decision were eventually provided.[16] Mr Kwan was released from prison on 21 June 2007 and left Australia that afternoon.

11 VLA is a body established pursuant to s 3 of the Legal Aid Act. The objectives of VLA are set out in s 4. They include "to provide legal aid in the most effective, economic and efficient manner". By s 8 of the Act, VLA is permitted to provide legal aid by making available the services of officers of VLA, by arranging for the services of private legal practitioners to be made available or by making available and arranging a combination of these two options. Further, by s 8(2), VLA is required to "determine guidelines in relation to the allocation of work between officers of VLA and private legal practitioners" having regard to six specified matters. This is the section pursuant to which the guidelines referred to in paragraph 3 above were created.

12 Section 18 of the Legal Aid Act contemplates the appointment of a panel of independent reviewers for the purposes of the Act. The functions of those independent reviewers are specified in s 19. Power is given in s 19(2) to an independent reviewer to "in the interest of justice, reconsider any decision that he or she has made and vary or reverse that decision if he or she considers it necessary". Section 23 provides for applications for legal aid and the requirement for an applicant to furnish VLA with specified material. Section 24 covers the circumstances in which VLA may provide assistance. Matters including the income of the person in need of assistance and the cost of obtaining legal services are relevant.

13 Section 28 (the section under which the first decision and the fresh decision was made) provides:

"Where a decision is made to provide legal assistance under this Act, VLA or the independent reviewer (as the case may be) shall also decide in accordance with guidelines determined by VLA in pursuance of sections 8 and 9-

(a) whether the legal assistance should be provided by making available the services of a private legal practitioner, whether the legal assistance should be provided by making available the services of an officer of VLA or whether both such services should be provided;

(b) the nature and extent of the legal assistance to be provided; and

(c) whether the legal assistance is to be provided without charge or subject to all or any of the conditions referred to in section 27(1)."

Section 29 provides for variations of decisions. Section 29A provides for the establishment of practitioner panels for different classes of matters and different parts of the State. Section 29B provides for the assignment of particular cases to panel members. Section 30 contains further provisions relating to the selection of practitioners and the inclusion in panels (see in particular sub-ss.(4), (10), (11), (14) - (16B) and (18) - (18A)).

14 Section 34 of the Legal Aid Act (under which the first reconsideration and second reconsideration were made) provides:

"(1) A person affected by a decision of VLA or an officer of VLA or an independent reviewer or a delegate of VLA with respect to the provision of legal assistance may within the time fixed by VLA (being not less than 7 days after the date of the decision) request reconsideration of the decision.

(1A) VLA may waive or extend the time fixed by it in a particular case except where the request for reconsideration relates to a criminal trial or criminal appeal in the Supreme Court or the County Court.

(2) Upon receipt of a request under subsection (1), VLA or an officer of VLA or the independent reviewer (as the case may be) shall reconsider the decision and may confirm vary or reverse the decision."

15 Section 35 (under which Mr Beazley's review was conducted) provides:

"(1) A person who has made a request under section 34(1) in respect of a decision of VLA or an officer or delegate of VLA and who is dissatisfied with the result of the reconsideration may apply in writing to VLA within the time fixed by VLA (being not less than 7 days after the date of the decision) for the review of the matter by an independent reviewer.

(1A) VLA may waive or extend the time fixed by it in a particular case except where the request for review relates to a criminal trial or criminal appeal in the Supreme Court or the County Court.

(2) Upon receipt of an application under subsection (1), the panel chairperson must appoint an independent reviewer to review the matter and that reviewer may confirm vary or reverse any decision.

(2A) An independent reviewer-

(a) must review only the actual decision referred to him or her for review; and

(b) in reviewing a decision must comply with and give effect to this Act, any legal aid arrangement and the determinations of VLA.

(3) The decision of an independent reviewer under this section is final and conclusive."

16 Sections 34 and 35 of the Legal Aid Act have been amended on a number of occasions since they were first enacted in the Legal Aid Commission Act 1978. In their original form, they provided as follows:

"34. (1) A person affected by a decision of the Commission or the Director or an officer of the Commission or a legal aid committee with respect to the provision of legal assistance may request reconsideration of the decision.

(2) Upon receipt of a request under sub-section (1), the Commission or the Director or an officer of the Commission or the legal aid committee (as the case may be) shall reconsider the decision and may confirm vary or reverse the decision.

35. (1) A person who has made a request under section 34(1) in respect of a decision of the Commission, the Director or an officer of the Commission and who is dissatisfied with the result of the reconsideration may apply in writing to the Commission for the review of the matter by a legal aid committee.

(2) Upon receipt of an application under sub-section (1), the Commission shall nominate a legal aid committee to review the matter and that committee may confirm vary or reverse any decision.

(3) The decision of a legal aid committee under this section is final and conclusive."

17 In his reasons, the second defendant set out some of the background facts. He made reference to some of the matters considered by Mr Trumble in the second reconsideration. He made reference to ss 7, 8(2) and 29A of the Legal Aid Act. He also made reference to ss 5.2.1B and 5.7.1 of the VLA guidelines issued in accordance with s 8(2). The heart of the second defendant's reasons are as follows:

"Mr Kuek is not a member of the S29A panel for indictable criminal matters. Thus, the applicant had the burden of showing there were compelling reasons for his appointment as the applicant's representative. Under cover of a letter dated 25th January 2007, Mr Kuek set out his qualifications and background as a criminal lawyer. The letter further noted the relationship between the applicant and Mr Kuek since September 2004, that the trial was set out for hearing on the 7th May 2007 and it referred to what were described as novel legal issues for determination. It further noted that Mr N Papas of counsel had stated he would accept a brief only if he was instructed by Mr Kuek. In response to the letter of Mr Trumble dated 1st May confirming the decision to allocate to a panel firm Mr Kuek by letter dated 1st May 2007 elaborated on the 'compelling reasons' referred to above and noted in addition the matter was proceeding as a plea of guilty on contestable facts and the history of the matter within VLA including what he describes as 'erroneous decisions'. I have considered all those matters set out in the letter from Access Law ('Mr Kuek') to myself dated 31st May 2007 that is annexed as Attachment 2 herewith.

Those matters include the cultural and lingual ties between the applicant and Mr Kuek, the conference with members of the applicant's family and Mr Kuek's note in the decision to plead guilty on contested facts. From my perusal of the file Mr Trumble's decision was made on 2nd April 2007.

At that time the matter was a fully contested matter.

In my opinion, as at that date, the reasons advanced on behalf of the applicant and referred to above did not constitute compelling reasons for the appointment of a non panel representative. Whilst the history of the relationship and the cultural ties between the applicant and Mr Kuek are relevant matters for consideration I do not accept that they constitute 'compelling reasons' within the meaning of the guideline.

I think it is significant that the decision of the applicant to plead guilty to contested facts was first advised to VLA after the decision of (sic) I am reviewing.

In deciding what constitutes compelling reasons I cannot have regard to subsequent events that, had they been known at an earlier time, may have been matter for relevant consideration. One can always be wise after the event.

In my opinion, the matters raised on behalf of the applicant as at the 2nd April 2007, whilst they support the view that the applicant had been at all times properly represented nevertheless they did not constitute compelling reasons for VLA to appoint a non panel solicitor to represent the applicant.

In my opinion there is no evidence the applicants' (sic) interests would have been prejudiced or were likely to have been prejudiced by the appointment of a practitioner other than Mr Kuek. It seems to me that should be the relevant test as at the relevant date.

Accordingly, I determine that the grant of assistance to the applicant by a panel practitioner was correct and should be confirmed."

Does the plaintiff have standing to bring this proceeding?

18 VLA contends that the plaintiff does not have standing to bring this proceeding. Section 35 of the Legal Aid Act permits a person who has made a request under s 34(1) and who is dissatisfied with the result of the reconsideration to apply for review under s 35. The second reconsideration was brought about by VLA construing a letter dated 23 March 2007 from Access Law to Mr Tony Parsons[17] as a request for a reconsideration under s 34. The sentence relied upon by VLA in Mr Kuek's letter was as follows:

"We advise that our client intends to exercise all of his review rights to keep us involved in this case. Accordingly, we request that you give this matter urgent attention."

Whether or not this letter should have been treated as a request under s 34 may be a matter capable of debate. However, no issue was taken by Mr Kuek with VLA's construction.

19 Sections 34 and 35 of the Legal Aid Act are remedial provisions. They should not be construed narrowly. Rather, they should be construed beneficially.[18] Construing ss 34 and 35 in the context of their surrounding provisions mandates against any narrow construction being given to the phrase "[a] person who has made a request under section 34(1)" in s 35. The question of whether Mr Kuek can be regarded as a "party" to the second defendant's decision (or at least not a stranger to it) is properly to be determined by reference to whether Mr Kuek was a person affected by the original decision (or, more precisely, the fresh decision). If he was a person affected by a decision of VLA within the meaning of s 34(1), then he was also a person who made a request under s 34(1) within the meaning of s 35. The fact that the "request" construed by VLA out of Mr Kuek's letter of 23 March 2007 might also be construed as a request on behalf of Mr Kwan does not matter in the context of this case. Whilst there is a certain ambiguity in the documents as to whether certain things communicated were being communicated to or by Mr Kuek in his own capacity on the one hand, or on behalf of Mr Kwan on the other hand, these ambiguities should not be allowed to cloud the real nature of the dispute between the parties. Put simply, the dispute was whether or not Mr Kuek was a person affected by a decision of VLA.

20 Clearly, a person aggrieved by a decision has standing as of right to seek certiorari.[19] That is, a person who has suffered damage greater than that suffered by an ordinary member of the public has standing. In recent years, standing requirements have become less onerous. Whilst emotional or intellectual interests may not suffice, decisions affecting a person's ability to perform work or earn income have generally been regarded as decisions of a kind conferring standing on the person affected. Even if Mr Kuek could not properly be regarded as a party to the second defendant's decision, he has an interest over and above the rest of the general public in being paid for the work he has done on Mr Kwan's behalf. Further, he had a relevant interest in continuing to perform that work from the time he lodged the application for legal aid for Mr Kwan.[20]

21 It is true that the legislative scheme disclosed in the Legal Aid Act reveals that the role of the private legal profession in the scheme is to assist in the delivery of legal assistance for the benefit of those assisted and not in order to provide a source of, let alone legal entitlement to, income for the private profession.[21] One might also accept that "the only legitimate purpose of reviewing the selection of a practitioner under this legislative scheme is to ensure that the purposes and objects of the Legal Aid Act - as set out in s 4 of the Act - are achieved".[22] However, the fact that none of these purposes involve "ensuring that private practitioners are remunerated simply because they assert they should have been able to represent a legally assisted person",[23] does not deny Mr Kuek's standing if he is a person with a relevant interest as disclosed by the application of ordinary common law principles. VLA's argument conflates the question of standing and the question of whether or not the decision being reviewed should be overturned. It follows from what I have said above that Mr Kuek has standing to maintain this proceeding.

22 Mr Kuek's principal complaint of error is that the second defendant failed to take into account relevant matters that occurred after 2 April 2007. The relevant matters which Mr Kuek asserts the second defendant should have taken into account are set out in the amended originating motion as follows:

"(a) On 14 May 2007, Mr Kwan pleaded guilty after the Crown amended the Presentment to allege trafficking over a shorter period of time and for a lesser number of occasions than originally alleged and agreed that Mr Kwan's culpability was no more than that for a co-accused, Alan He. The plea of guilty was achieved after much negotiation between Access Law and the OPP and because Mr Kwan realized if he received a sentence that is no more than that imposed on Alan He, he would be eligible for release on parole within weeks if not immediately by reason of accumulated remissions for lock-downs, etc.

(b) The plea hearing occurred immediately after Mr Kwan was arraigned and had pleaded guilty. After hearing the plea in mitigation, the Court reserved judgment on sentence.

(c) On 31 May 2007, Mr Kwan was sentenced to four years and nine months imprisonment with a minimum of two years and nine months before being eligible for parole. The sentence, which was three months less than Alan He's was the shortest imposed on all of the prisoners who have pleaded guilty up to 31 May 2007.

(d) As of 31 May 2007, Access Law was in discussions with Corrections Victoria and the Immigration Department with a view to securing Mr Kwan's repatriation to Hong Kong in the earliest possible time."

23 Mr Kuek contends that these events changed the character of the application substantially so that a different decision should have been reached. In essence, the argument was that the case now being a much shorter and simpler case and one in respect of which Mr Kuek had largely done all the work, the correct decision should have been to assign Mr Kwan's matter to him. This was no longer a case which involved the prospect of a lengthy trial concerning complex issues. On the other hand, VLA submits that the fact that the matter became less complex after Mr Kwan decided to plead guilty makes it less likely that its decision would have been reversed: the matter was now easier and even more suitable for another practitioner. VLA builds on this submission by saying that, even if matters after 2 April 2007 should have been taken into account, they would not have altered the decision and therefore relief should be denied. I do not accept this submission. The events that occurred after 2 April 2007 had the capacity (if taken into account) to impact on the issue of the identity of the solicitor to whom the matter should be assigned. Indeed, on one reading of the second defendant's reasons, so much is arguably conceded in the statement, "I cannot have regard to subsequent events that ... may have been matter for relevant consideration. One can always be wise after the event". The events after 2 April 2007 fell not to be considered by reference to any interest of Mr Kuek's, but rather by reference to the objective of VLA as set out in s 4 of the Legal Aid Act. A question that had to be asked was whether or not the events that occurred after 2 April 2007 resulted in legal aid being provided to Mr Kwan in the "most effective, economic and efficient manner" by leaving him in the hands of Mr Kuek or assigning him a different solicitor.

24 The question is whether the second defendant, in conducting the review, should have taken into account the events that occurred after 2 April 2007. More precisely, the issue is whether, in conducting the review, the second defendant was bound to conduct it on facts that occurred prior to 2 April 2007 and bound to ignore subsequent facts. The first point that can be made is that there is nothing in the Legal Aid Act that expressly prevents the reviewer, taking into account facts that occur after the date upon which the relevant reconsideration was performed. Further, VLA concedes that a reconsideration under s 34 is performed on facts up to the date of the reconsideration. However, it asserts that a review (under s 35) is different and falls to be performed only on facts that existed at the time of the reconsideration.

25 In advancing its argument, VLA contends there is a difference between the concept of "reconsideration" (s 34) and "review" (s 35). However, an analysis of ss 34 and 35 from the time they were first enacted in the Legal Aid Commission Act does not support this contention. When first enacted, the dichotomy between a reconsideration and a review was no more than one which involved an entity reconsidering its own decision on the one hand and a different entity reviewing the decision of another entity on the other hand. An historical analysis of the sections shows there is nothing in the argument that, in using the word "review" in s 35, the legislature intended some more limited concept (either by reference to date or otherwise) than that envisaged in a reconsideration.[24]

26 In support of its argument that the review was limited to facts occurring before 2 April 2007, VLA also placed reliance upon the existence of s 35(2A)(a). This section provides that the independent reviewer "must review only the actual decision referred to him or her for review". Precisely why it was thought necessary to enact this section is a matter capable of debate. It may be that there had been occasions prior to the enacting of this section where independent reviewers had gone outside their brief and considered other aspects of a particular file. The extrinsic materials in relation to this section are of no assistance.[25]

27 Section 35 of the Legal Aid Act is, as I have said above, a remedial provision, falling to be construed beneficially. When construed in its context, there is no warrant for a construction that limits a review required to be performed by it to a review on facts as they existed at the time of an earlier reconsideration.[26] Neither the language nor the purpose of the section supports such a construction. The review to be performed by the independent reviewer is a "full and proper review on the merits".[27] It is a complete power of review - a power to make the "correct or preferable" decision on the merits and on additional materials to those provided at an earlier stage in the decision-making process.[28] It follows from what I have said above that, in excluding matters after 2 April 2007, the second defendant committed an error of law on the face of the record.[29]

28 The plaintiff makes other complaints concerning the reasons and the way in which the second defendant undertook his task. Having regard to the conclusion I have reached concerning the error in limiting the review to facts as at 2 April 2007, it is not necessary for me to consider these further complaints. However, I should say for the sake of completeness that the complaint that the second defendant "erroneously took irrelevant matters into consideration when arriving at his decision, namely his opinion that there was no evidence the applicant's interests would have been prejudiced or likely to have been prejudiced by [the] appointment of a practitioner other than Mr Kuek" cannot be made out. There is no reason why a reviewer should not (as part of the review) take into account as one of a number of relevant matters the question of whether an applicant would be prejudiced by the appointment of a different solicitor. Clearly, if a reviewer was to find that an applicant for legal aid would be prejudiced by the appointment of a different solicitor, this would tell heavily in favour of not appointing that different solicitor.

29 Further, I am not persuaded by the plaintiff's argument that the second defendant applied the legal aid guideline referred to in paragraph 3 above "slavishly". The guideline fell to be considered and applied by the second defendant as a result of the provisions of the Legal Aid Act.[30] At one time during the course of the hearing, counsel for the plaintiff commenced an attack on the guideline by reference to the Charter of Human Rights and Responsibilities. An impediment to this attack was the fact that the plaintiff did not give any notice (as he was required to do) under s 35 of the Charter.[31] Had I been required to determine the issue of whether or not the second defendant applied the VLA guideline "slavishly", I would have determined that this ground was not made out by the plaintiff.

30 Complaint was also made by the plaintiff that the second defendant failed to provide adequate reasons. Whether a mere inadequacy of reasons can support the granting of judicial review was discussed recently by Kyrou J in Sherlock v Lloyd & Ors.[32] In that case, his Honour held that the inadequacy of reasons given by a medical panel for its opinion pursuant to a request under s 8 of the Administrative Law Act is not, in and of itself, an error of law on the face of the record which entitles the Court to quash the opinion in proceedings under that Act.[33] I agree with the analysis of Kyrou J and would, if necessary, have held that a mere inadequacy of reasons would not have entitled the plaintiff to the relief he seeks. However, consistent with my conclusion that matters post 2 April 2007 should have been taken into account, the second defendant's reasons are inadequate because they do not deal with the post 2 April 2007 matters raised by Mr Kuek in his submissions to the second defendant. These matters should have been dealt with in order to see whether the decision under review was correct and legal aid was being provided to Mr Kwan in accordance with the objectives in s 4 of the Legal Aid Act. Accordingly, and to the extent necessary, this ground is also made out by Mr Kuek.

31 Error having been established, it is now necessary to determine whether the decision is protected from review. Section 35(3) provides that the decision of an independent reviewer under s 35 "is final and conclusive". VLA submits that this section, together with s 49B of the Legal Aid Act, protects the second defendant's decision from review. Section 49B(2) relevantly provides:

"It is the intention of s 35(3), as amended by s 17(11) of the Law and Justice Legislation Amendment Act 1997, to alter or vary s 85 of the Constitution Act 1975."

32 In Darling Casino Limited v New South Wales Casino Control Authority & Ors,[34] the High Court restated the proposition that the operation of a State privative clause is purely a matter of its proper meaning ascertained in its legislative context. Such a clause is to be construed by reference to a presumption that the legislature does not intend to deprive the citizen of access to the Courts other than to the extent expressly stated or necessarily to be implied. Gaudron and Gummow JJ said:[35]

"[P]rivative clauses, whether in State or Commonwealth legislation, are construed 'by reference to a presumption that the legislature does not intend to deprive the citizen of access to the courts, other than to the extent expressly stated or necessarily to be implied' (Public Service Association (SA) v Federated Clerks' Union [1991] HCA 33; (1991) 173 CLR 132 at 160, per Dawson and Gaudron JJ). Thus, a clause which merely provides that a decision is to be final and conclusive is construed as not excluding certiorari for error of law on the face of the record (see Hockey v Yelland [1984] HCA 72; (1984) 157 CLR 124 at 130, per Gibbs CJ. See also Public Service Association (SA) v Federated Clerks' Union [1991] HCA 33; (1991) 173 CLR 132 at 141, per Brennan J). ..."

33 Looked at in isolation, s 35(3) does not preclude this Court from granting judicial review. The question then becomes whether, when s 35(3) is construed in its context with s 49B(2), the operation of s 35(3) is changed so as to exclude judicial review. If one looks merely at the text of s 49B(2), one would conclude that it is one of a large number of sections of this type that are enacted when the Parliament considers that there might be some risk of s 85 of the Constitution Act operating. Section 49B(2) does not, on its face, expand the operation of s 35(3): it merely ensures compliance with s 85. However, during the course of argument I was referred to the s 85 statement made at the time when the Bill to enact the Law and Justice Legislation Amendment Act 1997 was being debated. The Bill inserted s 49B into the Legal Aid Act and, in the s 85 statement, s 35(3) was referred to as follows:[36]

"The remaining two provisions are found in subsections 35(3) and 36(3). These state that decisions made by independent reviewers are final and conclusive. Again these provisions replicate existing provisions in the principal act. The decisions of legal aid review committees and legal aid appeal committees have always been final and conclusive and no further review or appeal has ever been contemplated by the Legal Aid Act. This limitation on appeal rights is essential because this is a field of administrative decision making for which courts and their procedures are ill-suited. VLA receives more than 45,000 applications annually. If only a small percentage of dissatisfied applicants decided to try their hand at having VLA's decisions overturned by the courts, VLA's decision-making process would slow down, the courts would become clogged and VLA would carry the burden of running and paying for the cases. The limitation on appeal rights allows VLA to get on with the job of providing legal assistance."

34 Section 35(3) was enacted in the original form of the Legal Aid Commission Act 1978. However, instead of the words "an independent reviewer" (which appear in the current version), the section originally contained the words "a legal aid committee". In 1986, the words "legal aid committee" were repealed and replaced with "legal aid review committee". In 1997, the words "legal aid review committee" were changed to "an independent reviewer". Thus, in substance, although s 35(3) has been amended twice since it was originally enacted, the amendments have not been for the purpose of changing the meaning of the section but, rather, simply to replace the name of the relevant body referred to in the section. Notwithstanding the s 85 statement made in reference to the amendments to the Legal Aid Act made in 1997, there is nothing in the material to suggest that Parliament intended to change the meaning of the words "final and conclusive" which have appeared in all versions of s 35(3).[37] Even if one thought that the s 85 statement made in respect of the 1997 amendment had the capacity to change the meaning of the words "final and conclusive", it is to be remembered that the s 85 statement talks about appeals, rather than judicial review.

35 There is an antecedent question as to whether the Court should, in any event, look at the Hansard for the purpose of determining the proper construction of s 35(3). Section 35(b) of the Interpretation of Legislation Act 1984 permits the Court to have regard to this material. Section 35(b) is not, by its terms, limited to cases of ambiguity. However, in the Second Reading Speech of the Interpretation of Legislation Bill, the Attorney-General said:[38]

"It must be emphasised that in including this provision [s 35(b)], it is intended that the ordinary, accepted course of courts resorting to extrinsic aids for assistance in interpretation should be followed. That is, recourse to extrinsic materials is to be had only where it is considered, by a court or a judge, that a particular provision, Act or subordinate instrument is ambiguous. The general rule is that Acts are read against the appropriate common law background. In the past, extrinsic aids have been looked to only in those cases where ambiguity has been perceived to exist. This provision ensures that this pattern can be followed consistently by the courts; it does not provide that extrinsic aids should be looked to in all cases of statutory interpretation, but that, in cases of ambiguity, where a judge or court considers it may be of assistance, that judge or court has a discretion to use extrinsic aids to assist in construction."

36 If one followed the Second Reading Speech in relation to the Interpretation of Legislation Act, one would not look at the s 85 statement in relation to the 1997 amendments to the Legal Aid Act. However, paradoxically, perhaps one should not look at the Second Reading Speech in relation to s 35(b) of the Interpretation of Legislation Act because there is no ambiguity in s 35(b). In any event, even if one looks at the s 85 statement and construes it as in some way mandating an approach that judicial review is excluded by the operation of s 35(3), the answer would be that the words in the s 85 statement simply do not reflect the law.[39] In short, s 35(3) is a section of a kind that has a well understood meaning. Had the Parliament intended to exclude or limit judicial review to cases of the kind contemplated by Dixon J's judgment in R v Hickman & Ors,[40] then it could and would have used different and appropriate language to achieve its purpose. It follows from what I have said above that ss 35(3) and 49B do not protect the second defendant's decision from review.

37 Having regard to the conclusion I have reached concerning the proper construction and application of s 35(3), it is not necessary for me to consider in any detail the operation of s 12 of the Administrative Law Act.[41] However, I note that s 35(3) was passed[42] in its original form prior to the commencement of the Administrative Law Act.[43] Notwithstanding the amendments to s 35(3) of the Legal Aid Act (to which I have referred above), there are cogent reasons for concluding that s 12 of the Administrative Law Act has application so as to deny s 35(3) of any operation that might prevent the removal of the second defendant's decision into this Court or the quashing of the second defendant's decision.

38 VLA has raised a number of matters which it says should result in the Court not exercising its discretion in favour of Mr Kuek.[44] I have considered these matters. They do not persuade me that the Court's discretion should be exercised against the granting of relief. VLA, in advancing these matters, appears to have overlooked the fact that ss 34 and 35 are remedial. VLA's arguments are predicated upon constructions of ss 34 and 35 that are not beneficial. As to those parts of VLA's argument that are predicated upon Mr Kuek not being a party to relevant decisions, I repeat what I have said above on the question of standing. Further, the fact that Mr Kuek was prepared to take the laudable step of acting pro bono in the event that a decision made in accordance with law by the independent reviewer was unfavourable to him should not weigh against him in the exercise of the Court's discretion.

39 Whilst one could not cavil with the statement that "legal practitioners should not interfere with grants of legal assistance not allocated to that practitioner, but to another legal practitioner, in the hope of ultimately receiving payment from VLA"[45] as a general proposition, that is not what Mr Kuek has done here. He lodged an application on behalf of his client, Mr Kwan. When the application was granted - but on terms that Mr Kwan's matter would be allocated to another practitioner - Mr Kuek immediately sought to have that part of the decision overturned. In doing so, he put forward reasons which were capable of being accepted and had nothing to do with any desire for remuneration. An error of law on the face of the record has been established. The fresh decision was not quashed by Bell J because there was a review which was to be "a full and proper review on the merits" "on additional materials" if applicable.[46] In the circumstances, the plaintiff is entitled to a favourable exercise of discretion.

40 For the reasons given above, the second defendant's decision will be quashed. I will hear the parties on the precise form of the orders and on the question of costs.

[1] Whilst the letter is in fact addressed to Access Law, for present purposes Mr Kuek can be regarded as Access Law, as communications addressed to it were effectively communications to him.

[2] See Exhibit GK-B of the affidavit of Mr Kuek affirmed on 13 September 2007, and in particular at T16.30 (being the transcript of the hearing of the judicial review proceeding heard before Bell J on 18 April 2007 - about which I will say more below) and T28.31 herein.

[3] Ming Fai Kwan v Victoria Legal Aid [2007] VSC 122.

[5] Ming Fai Kwan, supra at paragraph [12].

[6] Whilst nothing turned on it before his Honour, in fact the remedy available to Mr Kwan was a remedy in identical terms under s 35.

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

[12] Exhibit GK-F to the affidavit of Mr Kuek affirmed on 13 September 2007.

[13] Exhibit TM23 of the affidavit of Mr Thomas Moore sworn 2 July 2008.

[14] In fact the reconsideration decision was made on 2 April 2007, but was not notified to Mr Kuek until the letter of 1 May 2007 referred to above.

[15] Exhibit GK-I to the affidavit of Mr Kuek affirmed on 13 September 2007.

[16] Handwritten reasons were provided on 17 August 2007 and typed reasons on 14 September 2007.

[17] Exhibit TM17 to the affidavit of Mr Thomas Moore sworn 2 July 2008.

[18] Cf Australian Institute of Marine and Power Engineers v Secretary, Department of Transport [1986] FCA 443; (1986) 71 ALR 73 per Gummow J at p.79.

[19] In this case nothing turns on whether one considers the case by reference to the expression "person affected" or "person aggrieved". Whilst there was dispute between the parties as to whether this proceeding could properly be regarded as a proceeding pursuant to s 3 of the Administrative Law Act and thus whether Mr Kuek's position on standing was enhanced by the definition of "person affected" in s 2 of that Act, there is no material difference in this case between the common law position and the Administrative Law Act position (see generally the Second Reading Speech in relation to the Administrative Law Act of the then Attorney-General at p.5092 of Volume 340 of the Hansard for the Legislative Council).

[20] See also paragraph 7 of Mr Kuek's affidavit affirmed on 23 July 2008 and referred to in paragraph 36 of his reply to VLA's submissions.

[21] Cf paragraph 90 of VLA's submissions dated 25 August 2008.

[22] Cf paragraph 92 of the submissions of VLA.

[24] The fact that there has been a blurring of this dichotomy caused by subsequent amendments to s 34(1) does not lead to some change to the meaning being given to the word "review".

[25] The explanatory memorandum of the Legal Aid Commission (Amendment) Bill which led to the enacting of this section merely provides that the relevant clause (clause 18) "amends appeal procedures in the Principal Act". Clause 18, which became s 18 in the Legal Aid Commission (Amendment) Act 1986 made a number of amendments to ss 34, 35, 36 and 50 of the Legal Aid Commission Act.

The Second Reading Speech in relation to the Legal Aid Commission (Amendment) Bill does not deal with the matter specifically. The only relevant passage is on p 35 of volume 381 of the Hansard for the Legislative Council:

"Other amendments contained in the Bill pick up technical problems in the Act and matters affecting the internal operation of the commission. The amendments will change the smooth administration of the commission by clarifying internal appeal structures and membership of committees, allowing alternate members for Legal Aid Commissioners and enabling a staff representative to be appointed to the commission."

[26] See generally provisions such as s 77 of the Transport Accident Act 1986 which provides for a review of the Transport Accident Commission's decisions by the Victorian Civil and Administrative Tribunal. Such reviews have long been held to be reviews conducted on the facts as found up to the time of the review.

[27] Per Bell J in Kwan v Victoria Legal Aid supra at paragraph [28].

[28] Per Bell J in Kwan v Victoria Legal Aid supra at paragraph [26].

[29] The reasons of the second defendant are part of the record pursuant to s 10 of the Administrative Law Act 1978.

[31] VLA had in fact given notices under s 35 in relation to the construction of s 35(3) of the Legal Aid Act having regard to ss 8(1) and 24(1) of the Charter. Notwithstanding those notices, neither the Attorney-General nor the Victorian Equal Opportunity and Human Rights Commission sought to appear in this proceeding. Ultimately, both the plaintiff and VLA proceeded on the basis that this proceeding did not raise any Charter issues.

[33] Sherlock supra at paragraphs [25] and [32].

[36] See Legislative Assembly Hansard Volume 434 at p.840.

[37] If Parliament had wanted to change the meaning of s 35(3), then it could have repealed and replaced the words "final and conclusive" (see for example s 77 of the County Court Act 1958).

[38] Legislative Council Hansard 28 February 1984 p.1605.

[39] As to which, see Transport Accident Commission v Clarke [1994] VicRp 7; [1994] 1 VR 117 at 121; Stingel v Clark [2006] HCA 37; (2006) 226 CLR 442 per Gleeson CJ, Callinan, Heydon and Crennan JJ at paragraph [26] and Nominal Defendant v GLG Australia Pty Limited [2006] HCA 11; (2006) 228 CLR 529 per Gleeson CJ, Gummow, Hayne and Heydon JJ at paragraph [22].

"Provisions excluding jurisdiction by Court not to prevail

Any provision in an Act passed before the commencement of this Act that any proceedings shall not be removed, or that any decision of a tribunal or inferior court shall be final or shall not be quashed or shall not be called in question, and any provision in any such Act which by any similar words excludes any of the powers of the Supreme Court, shall not, as from the commencement of this Act, prevent the removal of proceedings of a tribunal or inferior court into the Supreme Court, nor the quashing of a decision of a tribunal or inferior court by that Court, whether for error of law on the face of the record or otherwise, in proceedings for relief or remedy in the nature of certiorari, nor prejudice the powers of that Court to grant relief or remedy in the nature of mandamus or prohibition or by way of declaration of invalidity or injunction in relation to a decision of a tribunal or inferior court or to make any order for review or other order provided for in this Act."

[43] Section 35(3) was passed in its original form when the Legal Aid Act received assent on 19 December 1978. Whereas the Administrative Law Act did not commence until 1 May 1979 (even though it was also assented to on 19 December 1978).

[44] See in particular paragraphs 152 to 159 of VLA's submissions dated 25 August 2008.

[45] Paragraph 159 of VLA's submissions dated 25 August 2008.

[46] Per Bell J in Kwan supra at paragraphs [26] and [28].

Aid Commission Act 1978

Justice Legislation Amendment Act 1997

Legislation Act 1984

At a glance

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Judgment (119 paragraphs)

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Legislation Cited (4)

Cases Cited (7)