Ugur v Legal Aid Commission of New South Wales

The Reasons for Decision of the Tribunal

1. The proceedings were heard by the Tribunal on 11 July 2023, at the conclusion of which, the Appellant's application was dismissed. The Tribunal identified, accurately, the administrative review application which was made by the Appellant on 19 April 2023 in purported reliance upon the provisions of the Administrative Decisions Review Act 1997 (NSW) (ADR Act). The present Respondent was the Respondent to that application.
2. The "decision" sought to be reviewed was received by the Appellant on 10 February 2023, which conveyed a letter to him from the Respondent dated 6 February 2023 advising the Appellant [1] that his letter to the Respondent of 21 December 2022 "did not provide sufficient detail or information which would allow the Director, Civil Law to identify the nature of [the Appellant's] complaint concerning Legal Aid NSW or any other issue".
3. The Tribunal identified [2] the documents upon which the Appellant relied, which included "attachments dating back to 2006". The documents identified a letter from the Appellant to the Respondent of 2 March 2023 stating that he sought internal review under the ADR Act of the Respondent's decision of 6 February 2023.
4. The Tribunal identified [3], accurately, that the grounds for the review application to the Tribunal of 19 April 2023 asserted that the Respondent had not responded to his internal review application within the time allowed. The Tribunal referred to s 53(6) of the ADR Act, which provides that an internal review application must be decided within 21 days, failing which, pursuant to s 53(9) of the ADR Act an internal review is deemed to have been finalised. Section 55 of the ADR Act, upon which the Appellant relied, permits an application for administrative review to be made to the Tribunal where an internal review application is taken to be finalised.
5. The Tribunal referred [4] to a letter from the Respondent to the Appellant of 13 April 2023. The Tribunal found that the letter referred to "each of the matters raised" by the Appellant in his internal review application and concluded that "without specified further information in relation to the 14 matters raised, Legal Aid NSW was unable to investigate his complaints any further". The Tribunal recorded that the letter also referred to relevant provisions of the ADR Act and noted that it was "unclear" what decision had been made by it which was an administratively reviewable decision. The Respondent did not respond to that letter, or otherwise identify the "decision" which he alleged that the Respondent had made. He still has not.
6. The Tribunal identified [5] that the Respondent sought dismissal of the Appellant's review application under s 55(1)(b) of the CAT Act, on the basis that the Appellant had not identified an administratively reviewable decision pursuant to s 6 or s 7 of the ADR Act. On that basis, the Respondent submitted that the Tribunal lacked jurisdiction to deal with the review application.
7. Section 6(1) of the ADR Act defines "decision" to include: 6 Meaning of "decision" (1) General meaning A decision includes any of the following: (a) making, suspending, revoking or refusing to make an order or determination, (b) giving, suspending, revoking or refusing to give a certificate, direction, approval, consent or permission, (c) issuing, suspending, revoking or refusing to issue a licence, authority or other instrument, (d) imposing a condition or restriction, (e) making a declaration, demand or requirement, (f) retaining, or refusing to deliver up, an article, (g) doing or refusing to do any other act or thing.
8. The Appellant did not attend the hearing on 11 July 2023. The Tribunal recorded why, over the Appellant's opposition, it had proceeded to hear and determine the review application in the absence of any appearance by the Appellant. The Tribunal recorded [7] that at the Directions Hearing in the Tribunal on 23 May 2023, the Appellant was advised that it was not clear whether the Appellant's application identified a reviewable decision, or how the Tribunal had jurisdiction to deal with it. The Appellant provided submissions to the Tribunal on 6 June 2023.
9. The Tribunal referred [8] to the dismissal application filed by the Respondent on 16 June 2023, and to the directions made on the same day listing that application for determination on 27 June 2023. Directions were also then made for further submissions. The Tribunal noted that the Appellant had again been advised that he would need to identify the decision to be reviewed pursuant to the ADR Act and the legislation which allowed for review of that decision by the Tribunal.
10. The Tribunal recorded [9] that, on the Appellant's application, the hearing of the proceedings on 27 June 2023 was adjourned to 11 July 2023 for medical reasons. The parties were permitted to appear by AVL on that date. The Tribunal recorded that on 5 July 2023 the Appellant sought a further adjournment stating that he "had had shoulder surgery on 22 June 2023 (which formed the basis of the previous adjournment) and provided a Certificate which stated he was unfit for "work/school/usual activities" from 23 June 2023 to 7 August 2023". In the application, which the Appellant said was "completed with the help of a third party", the Appellant stated that he was unable to use a computer or laptop due to his surgery and did not have a "quiet, private location, telephone and video link". Why that was so was not explained.
11. The Tribunal refused the adjournment, and provided written reasons for the refusal which set out the basis upon which the decision was made [10]. The Appellant was advised that he could "have someone assist him to appear by AVL or could appear in person". The Tribunal's reasons [11] included that it was satisfied that the Appellant was "on notice that the hearing would proceed and no further adjournment had been sought", the Tribunal's satisfaction that "alternate means were available" for the Appellant to participate in the proceedings, which he had been advised of, and that "the issue for determination was relatively straightforward and could be determined on the basis of the material already filed with the Tribunal by both parties". The Tribunal acknowledged the "gravity" for the Appellant of summary dismissal of the proceedings but, consistent with the obligation of the Tribunal to proceed in a manner which was just, quick and cheap, the Tribunal had proceeded to determine the application.
12. Under the heading "Did the Tribunal have jurisdiction to decide the application?" the Tribunal identified [12] the jurisdiction to conduct an administrative review of a broad range of decisions made by administrators which was conferred on the Tribunal by the ADR Act pursuant to s 30 of the CAT Act. The Tribunal recorded that s 55 of the ADR Act makes clear that the Tribunal only has jurisdiction to review "an administratively reviewable decision". An "administratively reviewable decision" is defined in s 7 of the ADR Act to be "a decision of an administrator over which the Tribunal has administrative review jurisdiction". Section 9 of the ADR Act provides that the Tribunal has administrative review jurisdiction over a decision 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". The Tribunal recorded, correctly, that it was "necessary to firstly identify the decision sought to be reviewed and then identify a provision in enabling legislation which states that a decision of an administrator of the kind sought to be reviewed is a decision about which an application can be made to the Tribunal". The Appellant does not appear to suggest that the Tribunal's statement was erroneous. If he does, no basis for so finding has been advanced by the Appellant.
13. The Tribunal then set out [13] as background, the decision of the Tribunal in Ugur v Public Guardian [2022] NSWCATAD 279. The Tribunal referred [14] to proceedings in the then Guardianship Tribunal in 2007, and, [15] to the Public Guardian consenting in November 2007 to the Respondent's predecessor "processing an application for legal services" which the Appellant had made.
14. The Tribunal recorded [16] the matters raised by the Appellant in his internal review application to the Respondent, but found that the Appellant did not in that material "identify any particular decision made by Legal Aid NSW as being a decision he seeks to have reviewed. His concerns appear to stem from the decision made by the Public Guardian in exercising functions with respect to legal services under the appointment", in 2007.
15. The Tribunal referred [17] to submissions filed by the Appellant on 6 June 2023. The Tribunal recorded the orders which the Appellant was then seeking. They were: "(a) that the applicant is asking for an order to overturn (revoke) the Public Guardian's decision from 8 November 2007 to appoint Legal Aid NSW (the former Separate Representative) as a power of attorney (authorising them to make financial and legal decisions) and to provide unrestricted legal services to the applicant; (b) the applicant is requesting a ruling to have the Public Guardian's consent to appoint Legal Aid NSW "regarding the appointment of legal services and to liaise with these services where this will benefit Mr Ugur" set aside (revoked); (c) an order setting a timetable for the affidavit and submission, as well as directing the respondent to make the documents under s58 of the ADR Act available in this proceeding; (d) an order that the respondent to arrange a written consent order enabling the applicant to seek a legal advice; (e) an order the respondent to be made publicly available to health professionals who were involved or had allowed to treat the applicant, including their names and reports on regarding to the applicant; (f) that the applicant is requesting a Tribunal order to make clear the Attorney General of NSW's direction under s338(b) of the Crime Act (which limits prosecutions for perjury) to allow State employees or attorneys who make false statements or improper assertions about the applicant's cases to process; (g) that the applicant is requesting a Tribunal order to the respondent to stop implemented psychiatric abuse and coercive treatment."
16. The Tribunal recorded [18] that the Appellant had also stated that the Tribunal had power to review decisions made by the Office of the Public Guardian, which was not a party to the proceedings, and Legal Aid NSW, in support of which the Appellant listed a number of Acts. The Tribunal recorded that "At no point in his submissions does [the Appellant] clearly identify what decision has been made under any of the Acts cited which could form the basis of his administrative review application". The Tribunal referred to its 2022 decision in the Appellant's case against the Public Guardian, and recorded that the Appellant's appeal against that decision was dismissed by the Appeal Panel (Ugur v Public Guardian [2023] NSWCATAP 16).
17. The Tribunal referred [20] to the basis of the Respondent's application for dismissal of the Appellant's application in reliance upon s 55(1)(b) of the CAT Act, which refers, inter alia, to proceedings being "misconceived", which the Tribunal recorded had been construed as "including a misunderstanding of legal principle" and "lacking in substance" as "encompassing an untenable proposition of fact or law" (Long v Metromix Pty Limited [2019] NSWCATAP 198).
18. The Tribunal referred [21] to the principles governing an application for dismissal under s 55(1)(b) of the CAT Act which were reiterated in Zonnevylle v Information Commissioner [2021] NSWCATAD 355. The Tribunal said that "To establish that proceedings are misconceived it must be demonstrated that the claim does not disclose a reviewable decision (no cause of action or obviously untenable) or the applicant has no arguable case, in fact or law, which should be allowed to be resolved at a full hearing thus justifying a dismissal order". We observe that, if no administratively reviewable decision is identified, it necessarily follows that each other basis for finding that proceedings were "misconceived" would also be established.
19. The Tribunal identified the substance of the Appellant's complaint [22] as being "primarily" to "reagitate the proceedings which were formerly brought against the Public Guardian and dismissed". The Tribunal found that the Appellant did not identify an administratively reviewable decision and did not establish an arguable case which should be allowed to go to hearing. There being no administratively reviewable decision, the Tribunal lacked jurisdiction to entertain the Appellant's application and it was accordingly dismissed.

Principles governing the application for leave to appeal

1. It is not in doubt, and the Appellant appears to accept, that, the decision of the Tribunal of 11 July 2023 being "interlocutory", he needs leave to appeal pursuant to s 80(2)(a) of the CAT Act. Ultimately, for the reasons which follow, whether the Appellant does or does not require leave to appeal could assume no practical significance - no basis for allowing an appeal as of right, or granting leave to appeal has been demonstrated. The Appeal Panel is satisfied that the decision of the Tribunal at first instance was interlocutory or ancillary and that, as such, leave to appeal is required.
2. In Collins v Urban [2014] NSWCATAP 17 at [84], the Appeal Panel recorded the circumstances in which it was ordinarily appropriate to grant leave to appeal. That was said to be only in matters that involve: "(a) issues of principle; (b) questions of public importance or matters of administration and policy which have general application; (c) an injustice which is reasonably clear, in the sense that it goes beyond merely what is arguable, or an error that is plain and readily apparent which is central to the Tribunal's decision and not merely peripheral, so that it would be unjust to allow the finding to stand; (d) a factual error that was unreasonably arrived at and clearly mistaken; or (e) the Tribunal may have gone about the fact finding process in such an unorthodox manner or in such a way that it was likely to produce an unfair result so that it would be in the interests of justice for it to be reviewed."
3. In support of his application for leave to appeal, the Appellant asserted that the decision of the Tribunal was not fair and equitable as it involved issues of "clear injustice; principle; questions of public importance" which the Appellant said he would "provide detailed information" of "later". As will be seen, other than making clear that he does not agree with it, the Appellant has advanced nothing which causes the Appeal Panel to doubt that the Tribunal made the correct and preferable decision by dismissing his application.
4. The Appellant has represented himself throughout these proceedings. He does not profess to have legal qualifications. Consistent with authority, the Appeal Panel has considered whether, howsoever articulated, the Appellant has made submissions which provide a basis for granting him leave to appeal on grounds not involving error on a question of law (Ros v Commissioner of Police [2020] NSWCATAP 70).

The grounds of appeal

1. For reasons which will become apparent, it is unnecessary to deal seriatim with each of the Appellant's 40 grounds of appeal. Permeating the Appellant's grounds is an allegation that, by declining to adjourn the proceedings on 11 July 2023, the Tribunal denied the Appellant procedural fairness. The Appellant set out the basis of his denial of natural justice complaints (grounds of appeal 9(d), 9(e), 10, 13, 14, 16, 19, 22 and, in greater specific detail 23). Ancillary to those complaints, the Appellant complained (24) that the Tribunal had failed to provide adequate reasons for its refusal of his application for an adjournment.
2. The Respondent disputed that the Appellant had been denied natural justice or procedural fairness on 11 July 2023, and set out the basis upon which it disputed that any of the grounds relied upon by the Appellant in that context had merit.

Adequacy of the Tribunal's reasons for refusing to adjourn the proceedings on 11 July 2023

1. Nothing to which the Appellant has referred establishes that the Tribunal failed to give adequate reasons for its refusal of the Appellant's adjournment application on 11 July 2023. Although the Appellant disagrees with those reasons, they adequately explain why the Tribunal decided as it did. Although the Appellant suggests that greater weight should have been given to his circumstances, the Appellant has not identified any erroneous recording of his circumstances or other material fact. The reasons of the Tribunal explain clearly, and in our view adequately, why the adjournment application was refused (New South Wales Land and Housing Corporation v Orr [2019] NSWCA 231). The Tribunal's reasons revealed an "intelligible justification" (Minister for Immigration and Border Protection v Singh (2014) 231 FCR 457; [2014] FCAFC 1) for its decision. Even if we are wrong, for the reasons which follow, any inadequacy in the Tribunal's reasons for refusing the adjournment would not enliven appellate intervention.

Whether the Appellant was denied natural justice or procedural fairness on 11 July 2023

1. The Appeal Panel is not persuaded that the Appellant was denied natural justice or procedural fairness on 11 July 2023. If we are wrong, and the Appellant was denied natural justice or procedural fairness on 11 July 2023, for the reasons which follow, appellate intervention would not be enlivened. However, nothing to which the Appellant has referred establishes that the Tribunal's refusal of an adjournment on 11 July 2023 denied him the opportunity to present his case or for it to be considered on its merits. It is relevant in that regard that the Appellant filed submissions on 9 June 2023 which set out, in 14 pages, the relief which the Appellant sought, and the asserted basis of it. The Tribunal undoubtedly had regard to those submissions. What more he might have said if he had attended the hearing has not been suggested by the Appellant.
2. Significantly, as the Tribunal recorded, although identifying a number of statutory provisions which the Appellant submitted satisfied the requirement of an administratively reviewable decision, nowhere in his submissions did the Appellant identify what he asserted had been the administratively reviewable decision. To the extent that he may have, no decision by the Respondent was identified. As the Tribunal recorded, and as the list of statutes referred to by the Appellant (4) confirmed, they did not identify a reviewable decision, merely statutes which potentially invested the Tribunal with jurisdiction to review administrative decisions made pursuant to those statutes.
3. Nothing to which the Appeal Panel has been referred establishes that the Appellant was unable to participate in the hearing of his application on 11 July 2023. As the Tribunal's reasons recorded, the Appellant had been on notice well prior to 11 July 2023 of the need to identify an administratively reviewable decision, and of his apparent failure to do so up to that time. Objectively, and particularly having regard to the material filed by the Appellant in the present proceedings, there is no basis for inferring that, had he made oral submissions on 11 July 2023 the Appellant would have identified such decision. Similarly, nothing prevented the Appellant from making further written submissions to the Tribunal, or thereby adducing any further evidence that he wished to rely upon. The Appeal Panel is not persuaded that the Appellant was denied natural justice or procedural fairness on 11 July 2023.

Whether leave to appeal should be granted

1. The Respondent's reply to each of the Appellant's grounds of appeal identified, correctly in our view, how the Appellant's 40 grounds of appeal could be "grouped" into a limited number of categories, noting that some grounds overlapped and involved more than one category. We have dealt with the Appellant's complaints with respect to procedural fairness. The remaining categories comprised asserted errors of law, unreasonableness of the decision and miscellaneous complaints about the Respondent and/or the Tribunal.
2. Ground 30 of the Appellant's Notice of Appeal encapsulated his contentions with respect to the critical issue before the Tribunal, and before the Appeal Panel- whether the Appellant identified an administratively reviewable decision. The Appellant submitted that the Tribunal erred in law by failing to take account of relevant considerations, and that the Respondent had a "duty to lodge with the Tribunal the relevant documents relating to the decision under review" pursuant to s 58 of the ADR Act. As is not in doubt, before that obligation arose, there needed to be an identified administratively reviewable decision, absent which, there can be no occasion for the lodging of documents.
3. The Appellant submitted (30(a)) that he had identified a reviewable decision of the Public Guardian, which the Tribunal had jurisdiction to consider. The applicant referred to s 30 of the CAT Act and the ADR Act, and to s 80A of the Guardianship Act 1987 (NSW), and relied upon the reference to "administrative review by Civil and Administrative Tribunal of guardianship decisions of Public Guardian". The Tribunal "has administrative review jurisdiction were [sic] enabling the s80A of the Guardianship Act 1987 expressly permits".
4. In response to that contention, the Respondent submitted that s 80A of the Guardianship Act was not relevant to it, as the Respondent was not the Public Guardian, and has not exercised any decisions on behalf of the Guardian. The Appeal Panel agrees that nothing submitted by the Appellant in reliance upon the Guardianship Act advances his contentions with respect to the identification of an administratively reviewable decision by the present Respondent in reliance upon any provision of the Guardianship Act.
5. The Appellant further submitted (30(b)) that "administratively reviewable decision" was defined in s 7 of the ADR Act to mean a decision of an administrator over which the Tribunal has administrative review jurisdiction, as it undoubtedly has. The Appellant reiterated the terms of s 9 of the ADR Act whereby the Tribunal has administrative review jurisdiction if invested with it by enabling legislation. Although the Appellant does not appear to appreciate it, legislation enabling the Tribunal to review certain administrative decisions can only be enlivened if there has been a reviewable administrative decision, in this case, within s 6 of the ADR Act. The Tribunal is not invested with undefined supervisory jurisdiction over entities such as the present Respondent.
6. The Appellant submitted that the Respondent "made decisions adversely affect [sic] the interests of the applicant. The decisions (or actions) of the Legal Aid NSW impact of the applicant's current circumstances that the applicant being held in conditions in which the powers attaching to the right of ownership are exercised constituted slavery" which was asserted to include "legal rights of the applicant exercised by the Legal Aid NSW". The Respondent disputed that the Appellant had identified any administratively reviewable decision, by it or any other administrator.
7. As is not in doubt, the Respondent does not exercise the legal rights of any individual or entity. Without in any way demeaning the important work it does, the Respondent purely provides legal assistance to enable such individual or entity to assert legal rights. In deciding whether or not to grant such assistance, the Respondent may make decisions which are reviewable by the Tribunal under the ADR Act. Unless the Appellant identified an administratively reviewable decision of the Respondent, there is nothing for the Tribunal to review.
8. The Appellant further submitted (30(c)), without identifying such decision, that the Respondent having made an administratively reviewable decision "refused to take reasonable steps to give the applicant a notice in writing of its decision" pursuant to s 48 of the ADR Act. The Tribunal was submitted to have erred by not considering s 48 of the ADR Act. As with other complaints made by the Appellant, the asserted administratively reviewable decision of the Respondent was not identified. As submitted by the Respondent, in the absence of identifying an administratively reviewable decision, no question of giving notice of its decision and/or rights of the Appellant needed to be given by the Respondent.
9. The Appellant further submitted (30(d)) that the Respondent "snubbed to give the applicant a Notice of Decision and review rights, because the respondent was acting in excess of power and with the intention to cause harm to the applicant". As the Respondent submitted, in the absence of the Appellant identifying, which he has not, an administratively reviewable decision, there was no occasion for the Respondent to give notice to him pursuant to s 48 of the ADR Act. Unless the Tribunal erred in finding that the Appellant had not identified an administratively reviewable decision, it could not have erred in failing to have regard to s 48 of the ADR Act.
10. The Appellant further submitted (30(e)) that the Respondent also refused to comply with its duty to lodge with the Tribunal the relevant documents relating to the decision under review pursuant to s 58 of the ADR Act. As we have earlier recorded, unless the Appellant identified an administratively reviewable decision, the Respondent had no duty or obligation to lodge documents with the Tribunal pursuant to s 58. Only by knowing the terms of any reviewable administrative decision could the Respondent know what documents were relevant and thus required to be lodged with the Tribunal.
11. With no disrespect to the Appellant, it is unnecessary to deal sequentially or otherwise with each and every other ground of appeal articulated by him. As the Respondent submitted, they fall within a number of overlapping categories, some of which have no relevance for present purposes.
12. The crux of the decision of the Tribunal at first instance, and the fate of the present proceedings turns on whether the Tribunal erred in finding that the Appellant had not identified an administratively reviewable decision by the present Respondent. Nothing to which the Appellant has referred the Appeal Panel persuades us that the Tribunal erred in finding as it did. Nowhere in his very extensive submissions at first instance or in his extensive submissions in the appeal has the Appellant done more than reiterate the statutory provisions with respect to administratively reviewable decisions. As the Tribunal accurately recorded, unless and until the Appellant identified an administratively reviewable decision no question of any failure of the Respondent to discharge its statutory obligations could arise. As the Respondent submitted, this impediment to the success of his review application was made clear to the Appellant multiple times, from as early as 13 April 2023.
13. Nothing to which the Appellant has referred the Tribunal in any of his grounds of appeal or extensive written submissions establishes legal or other error on the part of the Tribunal at first instance. In those circumstances the Notice of Appeal should be dismissed and leave to appeal refused.
14. As indicated earlier, that has relevance in terms of the asserted denial of natural justice or procedural fairness on 11 July 2023. With respect to the Appellant, even if he was denied natural justice or procedural fairness on that date, the result of these proceedings would have been no different.
15. In Stead v State Government Insurance Commission (1986) 161 CLR 141; HCA 54, the High Court accepted that "an appellate court will not order a new trial if it would inevitably result in the making of the same order as that made by the primary judge at the first trial. An order for a new trial in such a case would be a futility". The Court added that "For this reason not every departure from the rules of natural justice at a trial will entitle the aggrieved party to a new trial. By way of illustration, if all that happened at a trial was that a party was denied the opportunity of making submissions on a question of law, when, in the opinion of the appellate court, the question of law must clearly be answered unfavourably to the aggrieved party, it would be futile to order a new trial".
16. The High Court's observations in Stead resonate in these proceedings. Nothing to which the Appellant has referred the Appeal Panel establishes that, had he appeared, in person or by AVL or telephone, and made submissions on 11 July 2023 the result of the proceedings at first instance would have been, or should have been any different. The absence of any identification of the assertedly administratively reviewable decision in any of the very extensive material filed by the Appellant since the decision of the Tribunal under appeal provides further support for that inference.

Order 1. The appeal is dismissed. 2. Leave to appeal is refused.

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 March 2024