Samandi v Legal Aid New South Wales

NCAT Administrative and Equal Opportunity|2020-04-28

Reasons for decision

The applicant Mr Ali Samandi applied to this tribunal on 20 January 2020 for review of a decision to decline to investigate his claims that the legal representatives he was assigned by Legal Aid were incompetent, negligent and failed to follow his instructions. The application stated that the decision of which he sought review was communicated to him in a letter from Legal Aid's director of grants, Ms Jocelyn Flanagan, dated 28 November 2019.
The respondent objected to the application, applied for it to be dismissed for want of jurisdiction and filed certain written submissions in support of that motion. The tribunal on 24 March 2020 directed the applicant to serve on the tribunal and the respondent any material in response to the application for dismissal by 21 April 2020.
As the applicant in the substantive application is the respondent to the motion, and the respondent in the application is the applicant in the motion, these reasons will refer to the parties as Mr Samandi and Legal Aid, for the sake of clarity and to avoid confusion.
Legal Aid agreed that the motion be determined on the papers, that is, without an oral hearing. Mr Samandi was asked to include, in his submissions in response, any submission as to whether a hearing could be dispensed with and the matter determined on the basis of the documents provided. No submissions or other communications were received from him by the due date of 21 April 2020. The motion is thus to be determined on the papers and effectively ex parte.

Applicable legislation

The nature of the tribunal's jurisdiction emerges from the Civil and Administrative Tribunal Act 2013 (CAT Act) and the Administrative Decisions Review Act 1997 (ADR Act). Section 30 of the CAT Act relevantly provides: 30 Administrative review jurisdiction (1) The Administrative Decisions Review Act 1997 provides for the circumstances in which the Tribunal has administrative review jurisdiction over a decision of an administrator. Note. See section 9 of the Administrative Decisions Review Act 1997. (2) The Tribunal also has the following jurisdiction in proceedings for the exercise of its administrative review jurisdiction - (a) the jurisdiction to make ancillary and interlocutory decisions of the Tribunal in the proceedings, (b) the jurisdiction to exercise such other functions as are conferred or imposed on the Tribunal by or under this Act, the Administrative Decisions Review Act 1997 or enabling legislation in connection with the conduct or resolution of such proceedings. (3) An administratively reviewable decision is a decision of an administrator over which the Tribunal has administrative review jurisdiction. Note. See section 7 of the Administrative Decisions Review Act 1997. (4) An administrator, in relation to an administratively reviewable decision, is the person or body that makes (or is taken to have made) the decision under enabling legislation.
Section 9 of the ADR Act is the provision that sets out the circumstances in which the tribunal has administrative review jurisdiction: 9 When administrative review jurisdiction is conferred (1) The Tribunal has administrative review jurisdiction over a decision (or class of decisions) of an administrator if enabling legislation provides that applications may be made to the Tribunal for an administrative review under this Act of any such decision (or class Jurisdiction of decisions) made by the administrator: (a) in the exercise of functions conferred or imposed by or under the legislation, or (b) in the exercise of any other functions of the administrator identified by the legislation.
The issue in this interlocutory motion is thus whether any enabling legislation confers on this tribunal the power to conduct an administrative review of the decision or conclusion of Legal Aid to which M Samandi objects.

Jurisdiction

Neither the CAT Act nor the ADR Act in itself confers any review jurisdiction on the tribunal, nor does the tribunal have a general authority to review all administrative decisions.
The specific nature of the tribunal's administrative review jurisdiction appears from s 30 of the CAT Act, which relevantly provides: (1) The Administrative Decisions Review Act 1997 provides for the circumstances in which the Tribunal has administrative review jurisdiction over a decision of an administrator. (2) The Tribunal also has the following jurisdiction in proceedings for the exercise of its administrative review jurisdiction - (a) the jurisdiction to make ancillary and interlocutory decisions of the Tribunal in the proceedings, (b) the jurisdiction to exercise such other functions as are conferred or imposed on the Tribunal by or under this Act, the Administrative Decisions Review Act 1997 or enabling legislation in connection with the conduct or resolution of such proceedings. (3) An administratively reviewable decision is a decision of an administrator over which the Tribunal has administrative review jurisdiction. (4) An administrator, in relation to an administratively reviewable decision, is the person or body that makes (or is taken to have made) the decision under enabling legislation.
Section 9 of the ADR Act is the provision that sets out the circumstances in which the tribunal has administrative review jurisdiction. In pertinent part it is in the following terms: (1) The Tribunal has administrative review jurisdiction over a decision (or class of decisions) of an administrator if enabling legislation provides that applications may be made to the Tribunal for an administrative review under this Act of any such decision (or class of decisions) made by the administrator: (a) in the exercise of functions conferred or imposed by or under the legislation, or (b) in the exercise of any other functions of the administrator identified by the legislation.
The meaning of an "administratively reviewable decisions" for the purposes of s 9 and other provisions of the ADR Act appears in s 7 of that Act, that is, "a decision of an administrator over which the Tribunal has administrative review jurisdiction". An "administrator" is defined in s 8 of the ADR Act: (1) An administrator, in relation to an administratively reviewable decision, is the person or body that makes (or is taken to have made) the decision under enabling legislation. (2) The person or body specified by enabling legislation as a person or body whose decisions are administratively reviewable decisions is taken to be the only administrator in relation to the making of an administratively reviewable decision even if some other person or body also had a role in the making of the decision.
The combined effect of s 30 of the CAT Act and s 9 of the ADR Act is thus that jurisdiction is conferred on NCAT only by "enabling legislation". The tribunal has no jurisdiction to deal with an application for review if enabling legislation does not permit the application to be made. To put it another way, the tribunal "cannot review something that the legislation does not authorise it to review, whoever might think such a review ought to be available": Clean Ocean Foundation Inc v Environment Protection Authority [2003] VCAT 320, [12].
If administrative review of a decision is to be sought in the tribunal, it is therefore essential to identify the enabling legislation that permits such an application to be made and empowers the tribunal to review the decision.
The usual place to find a provision conferring review jurisdiction on the tribunal is the enactment that gives the power to make the decision that may be subject to review. In this case is that legislation would be the Legal Aid Commission Act 1979.
On behalf of Legal Aid, Ms Ibrahim submitted that Mr Samandi in his application had not identified any enabling legislation permitting the application to be made and empowering the tribunal to review a decision of Legal Aid or the Legal Aid Review Committee. The Legal Aid Commission Act did not provide for such a review.
That contention appears to be correct. The grounds on which Mr Samandi relies are to be found in a letter dated 16 January 2020 attached to his original application. It states that the New South Wales Ombudsman had denied him procedural fairness in relation to his application and the decision to decline to investigate his complaint was "contrary to the established rules". The process had lacked transparency and there had been unequal treatment caused by the absence of procedural fairness, because he was currently in custody [at Lithgow Correctional Centre].
He believed he was susceptible to stereotypical judgment by the investigating officer. "I also believe", he continued, "I have a right to be heard, a person who is affected by a decision made by the legal system has a 'Right' to present their views and facts that support that view for the decision-maker before the decision is made".
Legal Aid's letter of 28 November 2019, which Mr Samandi identified as the decision in respect of which he was seeking review, stated that while Legal Aid would investigate practitioners' compliance with the terms of the conditions of the grant of legal aid and adherence to the various practice standards, the legal advice that a practitioner provided, and the manner in which a legal practitioner conducts court proceedings, are matters of forensic professional judgment. Legal Aid did not prescribe to legal practitioners how they are to exercise their forensic professional judgment in the conduct of proceedings. Those matters were properly within the responsibility of the Office of the Legal Services Commissioner.
Nothing in Legal Aid's letter or in the application for review refers to any legislative grant of administrative review jurisdiction to this tribunal in relation to decisions made by Legal Aid. The Legal Aid Commission Act does establish a Legal Aid Review Committee, but does not provide for review by this tribunal.
No reviewable decision has therefore been identified. I therefore find that this tribunal has no jurisdiction to review the decision that is the subject of the application.

Dismissal

The substantive application must accordingly be dismissed for lack of jurisdiction. The provision of the CAT Act regulating dismissal of applications is s 55: 55 Dismissal of proceedings (1) The Tribunal may dismiss at any stage any proceedings before it in any of the following circumstances - (a) if the applicant or appellant (or, if there is more than one applicant or appellant, each applicant or appellant) withdraws the application or appeal to which the proceedings relate, (b) if the Tribunal considers that the proceedings are frivolous or vexatious or otherwise misconceived or lacking in substance, (c) if the applicant or appellant (or, if there is more than one applicant or appellant, each applicant or appellant) has failed to appear in the proceedings, (d) if the Tribunal considers that there has been a want of prosecution of the proceedings. (2) The Tribunal may reinstate proceedings that have been dismissed under subsection (1) (c) if the Tribunal considers that there is a reasonable explanation for that failure.
Although s 55 does not expressly provide for dismissal for want of jurisdiction, nor does the CAT Act contemplate jurisdictional hearings as such, the tribunal has a duty to satisfy itself that it has jurisdiction to hear and determine the proceeding. Consequently, it has an implied power to dismiss an application on that ground: Karmez v Commissioner of Police, New South Wales Police Force [2019] NSWCATAD 149, [15]; DYH v Public Guardian [2019] NSWCATAD 211, [20].
A jurisdictional objection must be determined as a preliminary question: Re Boulton; ex parte Construction Forestry Mining and Engineering Union (1998) 73 ALJR 129, 133.
The application is therefore dismissed.

Order 1. Application dismissed for lack of jurisdiction

I hereby certify that this is a true and accurate record of the reasons for decision of the Civil and Administrative Tribunal of New South Wales. Registrar DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 28 April 2020

Civil and Administrative Review Act 2013(NSW)

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