1 Ming Fai Kwan faced drug charges in the County Court. The first respondent, a solicitor acting for Mr Kwan, applied for legal aid on his behalf. The appellant ('VLA') granted the application but determined that the legal assistance would be provided by 'allocating the matter to VLA's Criminal Law Division or a firm on VLA's Indictable Crime Panel'. The first respondent did not answer that description.

2 The determination was made pursuant to the provisions of s 28 of the Legal Aid Act 1978 ('the Act'), which conferred power upon VLA to provide legal aid and also decide 'whether 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'.

3 This appeal is concerned with the reconsideration and review of that decision and subsequent like decisions pursuant to the provisions of the Act and judicial review pursuant to the provisions of O 56 of the Supreme Court Civil Procedure Rules Victoria 1987 (the Rules').

4 The provisions of the Act concerning reconsideration and review of decisions relating to legal aid by VLA are ss 34 and 35. They provide, so far as is presently relevant:

34(1) A person affected by a decision of VLA or officer of VLA or an independent reviewer or a delegate of VLA with respect to the provision of legal assistance may ... request reconsideration of the decision.

...

(2) Upon receipt of a request under sub-section (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.

35(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 ... for the review of the matter by an independent reviewer.

...

(2) Upon receipt of an application under sub-section (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 ...

5 Meredith Zantuck, an employee of VLA, reconsidered the original decision of VLA and confirmed it. It was then discovered that a number of documents said to be relevant had not been provided to VLA. When the documents were provided, a fresh decision was made in the same terms as the earlier decision. Both decisions were made by Ms Zantuck.

6 Mr Kwan brought proceedings to review VLA's decision pursuant to the provisions of O 56 of the Rules. A judge in the trial division held that the fresh decision was tainted with apparent bias because it was made by the person who performed the first reconsideration. The judge, however, refused relief to Mr Kwan because he held that there was an alternative remedy pursuant to the provisions of s 35 of the Act.

7 On 1 May 2007 VLA advised the first respondent that there had been a fresh decision concerning the allocation of Mr Kwan's matter, which confirmed the decision to refuse the respondent the carriage of the matter.

8 On 30 April 2007, the first respondent advised a judge in the County Court that he had instructions from Mr Kwan to plead guilty, subject to resolving certain factual matters with the Crown. On 14 May 2007, Mr Kwan was arraigned in the County Court and pleaded guilty.

9 On 1 May 2007, the first respondent requested an independent review of the most recent decision denying him carriage of Mr Kwan's matter. On 21 May, the second respondent ('Mr Beazley') wrote to the first respondent advising him that he had been appointed as an independent reviewer pursuant to s 35(2) of the Act to review the decision of VLA made on 1 May 2007. Mr Beazley added:

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

10 On 13 June 2007, the first respondent was advised by VLA that the second reconsideration had been confirmed by Mr Beazley. Mr Beazley published reasons for his decision that include the following statement:

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 know at an earlier time, it may have been matter for relevant consideration. One can always be wise after the event.

11 The first respondent sought judicial review of Mr Beazley's decision pursuant to the provisions of O 56. The trial judge held that the first respondent had established error on the face of the record. The error was constituted by Mr Beazley's refusal to consider facts which had come into existence since the date of VLA's decision, namely Mr Kwan's plea of guilty, the hearing of the plea, the sentence imposed on Mr Kwan and the steps taken by the first respondent to secure Mr Kwan's repatriation to Hong Kong. It was ordered that Mr Beazley's decision be quashed and the matter be re-determined by an independent reviewer other than Mr Beazley.

12 In this appeal VLA contends that the trial judge erred in three respects: first in holding that the first respondent had standing to review Mr Beazley's decision; secondly in holding that there was error on the face of the record; and thirdly in failing to deny relief in the exercise of his Honour's discretion.

13 The trial judge held that the first respondent was a person with a relevant legal interest in accordance with ordinary common law principles. The first respondent was aggrieved by Mr Beazley's decision in that he suffered damage greater than that suffered by an ordinary member of the public, for he sought and was denied payment for the work he had done on Mr Kwan's behalf and was interested in continuing to perform work for Mr Kwan.

14 Counsel for VLA submitted that the first respondent did not have a sufficient interest to enable him to seek judicial review of Mr Beazley's decision, relying upon the decisions in Alphapharm Pty Ltd v Smith Kline Beecham (Australia) Pty Ltd[1] and Allan v Transurban City Link Ltd.[2]

15 In Alphapharm the Court held a pharmaceutical company was not a person whose interests were affected by a decision to extend the time for a patent to another pharmaceutical company and so could not require reconsideration of the decision pursuant to the provisions of the Therapeutic Goods Act 1989 (Cth). The Court construed the Act as narrowing the class of persons eligible to request reconsideration to those with concerns congruent with the Act's objects.[3]

16 In Allan v Transurban City Link Ltd, the question was whether an owner of property near a proposed toll road was a person 'affected by a reviewable decision' within the meaning of the Development Allowance Authority Act 1992 (Cth) and thus able to obtain a reconsideration of a decision by the Authority to issue a certificate to a person in relation to a proposed infrastructure borrowing which entitled the certificate holder to qualify for concessional tax treatment.

17 In each of the cases invoked by VLA the Courts emphasised that the question of standing depended upon the legal and factual context, and that required an examination of the legislation conferring the right of review or reconsideration. Accordingly, so it was said, in the present case his Honour erred in failing to have regard to the fact that the objects of the Act set out in s 4 were not concerned with the interests of solicitors, but only with the interests of litigants.

18 It does not appear to have been an issue in the present case that the first respondent was entitled to obtain a review of VLA's decision by Mr Beazley. It was not contended that Mr Beazley's decision was invalid on that account. The question agitated before the trial judge, which he decided, was whether the first respondent had standing to obtain relief pursuant to the provisions of O 56. Standing to invoke administrative review under a statute is not to be equated with standing to obtain judicial review in the nature of prerogative relief. In the former case the provisions of the statute and the objects of the statute may often be decisive. In the latter case the test is more general. As Mason J said, in Australian Conservation Foundation v The Commonwealth of Australia:[4]

a plaintiff will in general have a locus standi when he can show actual or apprehended injury or damage to his property or proprietary rights, to his business or economic interest ... and perhaps to his social or political interests.[5]

19 In the present case I am of the opinion that the first respondent did have a sufficient interest. Whether he was paid for the work he performed for Mr Kwan was directly affected by the decision made by Mr Beazley. In any event, one of the objects of the Act was 'to provide legal aid in the most effective, economic and efficient manner'.[6] The Act was not confined to the interests of applicants for legal aid.

20 Counsel for VLA submitted that the trial judge fell into error because review of a decision pursuant to s 35 was limited to a consideration of the facts in existence at the date of the decision being reviewed. Counsel drew a distinction between 'reconsideration' under s 34 and 'review' under s 35. It was submitted that the injunction in sub-s (2) to 'review only the actual decision referred ... for review' required a review of the case before the original decision maker, limited to the facts before that decision maker. Finally, it was submitted that if the reviewer could take new facts into account, instead of an applicant being required to seek a new decision by VLA based on the new facts, an applicant would be deprived of one level of review.

21 With respect, I agree with the trial judge. The word 'review', like the word 'appeal', is general and, on that account, somewhat elastic. It takes colour from its context.

22 Parliament has not expressly provided an answer to the question whether the independent reviewer is to have regard to the facts and circumstances at the time the decision of VLA was made or the facts in existence at the time of the review.

23 The independent reviewer was not assigned to review decisions according to the principles applicable to judicial review.[7] The independent reviewer is an instrument of government administration and presumably is to act when decisions appear not to be acceptable when tested against the requirement of good government. When making decisions, administrative decision makers are generally required to have regard to the best and most current information available. That surely applies to the VLA. It would be surprising if the substituted decision did not have to conform to that standard.[8] In Minister for Aboriginal Affairs v Peko-Wallsend Ltd,[9] Mason J said:

It would be a strange result indeed to hold that the Minister is entitled to ignore material of which he had actual constructive knowledge and which may have direct bearing on the justice of making the land grant, and to proceed instead on the basis of material that may be incomplete, inaccurate or misleading. In one sense this conclusion may be seen as an application of the general principle that an administrative decision maker is required to make his decision on the basis of material available to him at the time the decision was made. That that principle is itself a reflection of the fact that it may be found in the subject matter, scope and purpose of nearly every statute conferring power to make an administrative decision an implication that the decision is to be made on the basis of the most current material available to the decision maker.[10]

24 In Shi v Migration Agents Registration Authority,[11] Kirby J observed that the general approach deriving from the statutory function of substituting one administrative decision for another was to take account of events that have occurred up to the date of the substitution.[12] That general approach might yield to the nature of a particular decision. Kirby J gave the example of a pension payable pursuant to Federal legislation at fortnightly rests, by reference to particular qualifications that might themselves alter over time.[13] He said that a review of an administrative decision to grant or refuse such a pension, by reference to statutory qualifications, might necessarily be limited to the facts at the particular time of the decision.[14]

25 In the present case, the nature of the decision to be made by the independent reviewer does not indicate that his attention is to be confined to the state of evidence as at a particular time. The decision contains no temporal element. In my opinion, the review will be more valuable and efficient if it is made on the basis of the most up-to-date information available to the independent reviewer.

26 As to the arguments advanced by counsel for VLA, in my view, the words 'reconsideration' and 'review' were not intended to require different enquiries, one more limited than the other. 'Reconsideration' is appropriate to refer to the same body looking again at its own decision. 'Review', on the other hand, is appropriate to denote another body undertaking an enquiry as to whether the original decision maker came to the correct conclusion. Section 35(2A) does not in terms rule out consideration of new facts, but appears to be concerned with confining the reviewer to the question or issue that was before VLA. If independent reviewers cannot take into account all the facts in existence at the date of the review, the applicants for review will be thrown back to seeking fresh decisions by VLA. In my opinion, the interests of efficiency are best served by cutting out another round of decision making. I do not think that the review is likely to be improved because the reviewer has the advantage of an anterior consideration of new facts by VLA.

27 In submitting that the discretion to refuse relief was enlivened, counsel for VLA concentrated upon the position of Mr Kwan to the exclusion of that of the respondent. It was submitted that there was little or no utility in granting relief because the County Court proceeding had been concluded, Mr Kwan had been released from prison and had left Australia and there was no indication that Mr Kwan had any interest in a review of VLA's decision.

28 On the other hand, s 35 of the Act provides that a 'person who has made a request under section 34(1)' may apply for review. The trial judge held that the first respondent answered this description, notwithstanding that his request could be construed as one made on behalf of Mr Kwan. His Honour held that, in any event, the first respondent was affected by VLA's decision. An independent reviewer may come to a different conclusion based upon the matters which Mr Beazley refused to take into account, and in that event the first respondent would be able to claim

remuneration for the work performed by him for Mr Kwan at least from the date upon which it was determined that Mr Kwan would be granted legal aid. Such a conclusion is at least open to the new independent reviewer, and in that event the review would not lack utility.

29 For the foregoing reasons, I would dismiss the appeal.

30 I agree for the reasons given by Buchanan JA that this appeal should be dismissed. I would note only the following additional matters.

31 First, his Honour's analysis of the distinction between the terms 'reconsideration' and 'review' at [26] accords generally with typical legislative usage. For example, s 43(1) of the Administrative Appeals Tribunal Act 1975 (Cth) speaks of the jurisdiction conferred on the Administrative Appeals Tribunal ('the Tribunal') to 'review' a decision. It then sets out the options available to the Tribunal, one of which is to remit the matter for 'reconsideration' in accordance with any directions or recommendations of the Tribunal.

32 Secondly, there is a substantial body of authority to support his Honour's statement at [23] that 'when making decisions, administrative decision-makers are generally required to have regard to the best and most current information available'. In addition to the cases cited by his Honour, it is well established, in relation to the Tribunal, that save for those matters involving accrued rights,[15] it is the law in force when the Tribunal comes to review the decision that must be applied, and not the law as it stood at the time that decision was made.[16] The same

is true in relation to facts. The Tribunal is obliged to take into account all relevant facts of which it is aware, even though they might not have been known to the original decision-maker.[17]

33 I can see no reason why the independent reviewer, whose powers are akin to those of a body like the Tribunal, should be limited to a consideration of the material before the original decision-maker, as though he or she were acting as a court engaged in judicial review.

34 I agree for the reasons given by Buchanan JA that this appeal should be dismissed. I would only add that his Honour's observation at [26] that 'reconsideration' is appropriate to refer to the same body looking at its own decision, is also supported by s 19(2) of the Act.

[1] (1994) 19 FCR 250.

[2] (2001) 208 CLR 167.

[3] See also Bateman's Bay Local Aboriginal Land Council v Aboriginal Community Benefit Fund Pty Ltd [1998] HCA 49; (1998) 194 CLR 247, 266 (Gaudron, Gummow and Kirby JJ), 283 (McHugh J).

[5] See also Onus v Alcoa of Australia Ltd [1981] HCA 50; (1981) 149 CLR 27; Shop Distributive and Allied Employees' Association v Minister for Industrial Affairs (SA) (1995) 183 CLR 552; Bateman's Bay Local Aboriginal Land Council v Aboriginal Community Benefit Fund Pty Ltd [1998] HCA 49; 1998) 194 CLR 247.

[6] Section 4(a).

[7] See _Collector of Customs (NSW) v Brian Lawlor Automotive Pty Lt_d [1979] FCA 21; (1979) 24 ALR 307, 335 (Davies J).

[8] Shi v Migration Agents Registration Authority [2008] HCA 31; (2008) 235 CLR 286, 299-300, [41] (Kirby J).

[9] [1986] HCA 40; (1996) 162 CLR 24.

[10] Ibid 45. See also Drake v Minister for Immigration and Ethnic Affairs (1979) 24 ALR 577, 589 (Bowen CJ and Deane J).

[11] [2008] HCA 31; (2008) 235 CLR 286.

[12] See also Jebb v Repatriation Commission [1988] FCA 105; (1988) 80 ALR 329, 333-4 (Davies J).

[13] See, for example, Freeman v Secretary, Department of Social Security [1988] FCA 294; (1988) 19 FCR 342.

[14] See also Shi v Migration Agents Registration Authority, above, [143] (Kiefel J), [99] (Hayne and Heydon JJ).

[15] Acts Interpretation Act 1901 (Cth), s 8.

[16] Re Smith and Defence Force Retirement and Death Benefits Authority (1978) 1 ALD 374; Re Waterford and AG's Department (No 2) (1986) 9 ALD 482; Re FantaSea Cruises Pty Ltd and Great Barrier Reef Marine Park Authority (1999) 55 ALD 767; and Repatriation Commission v Gorton [2001] FCA 1194; (2001) 110 FCR 321. This approach distinguishes the AAT from a court. A court applies the law as in force when the events with which it is concerned occurred. By contrast, the AAT, as an administrative reviewer must usually apply the law as it exists at the date when it makes its decision.

[17] Re Repatriation Commission and McCartney (1986) 9 ALD 441, 449; Haoucher v Minister for Immigration, Local Government and Ethnic Affairs [1993] FCA 215; (1993) 42 FCR 287, 296; Comptroller-General of Customs v Members of AAT (1994) 123 ALR 140, 151; Re Elston and Australian Community Pharmacy Authority (1996) 44 ALD 126; and X v Minister for Immigration and Multicultural Affairs (2002) 116 FCR 319.