Baltas v Victoria Legal Aid & Crundall; Sum Khac Du v Victoria Legal Aid
[1998] VSC 39
•21 August 1998
SUPREME COURT OF VICTORIA
CAUSES JURISDICTION
Not Restricted
No.6476 of 1998
| PAUL BALTAS | Plaintiff |
| v | |
| VIC. LEGAL AID | Defendant |
| AND JUDY CRUNDALL |
No.6614/1998
| SUM KHAC DU | Plaintiff |
| v | |
| VIC. LEGAL AID | Defendant |
---
| JUDGE: | Smith, J. |
| WHERE HELD: | Melbourne |
| DATE OF HEARING: | 6 August 1998 |
| DATE OF JUDGMENT: | 21 August 1998 |
| MEDIA NEUTRAL CITATION: | [1998] VSC 39 |
---
Catchwords Legal Aid - decision to allocate VLA lawyers to accused - obligation of VLA to reconsider decisions - oligation of VLA to review decisions -.
Legal Aid Act 1978, ss 27 - 29, 34 - 36
---
| APPEARANCES: | Counsel | Solicitors |
| For Baltas | Mr. A. Mueller | Slades & Parson |
| For Sum Khac Du | Mr. C. Smale | Kuek & Associates |
| For Vic. Legal Aid | M. P. Hanks | Vic. Legal Aid |
HIS HONOUR:
The proceedings - the Baltas application
By originating motion filed 13 July 1998 Paul Baltas seeks an order in the nature of Mandamus (alternatively an injunction) requiring Victoria Legal Aid (VLA) by its properly appointed officer to reconsider a decision of VLA conveyed in their letter of 15 May 1998 to assign the conduct of Mr. Baltas’ matter to the Criminal Law Division of the VLA and declining to assign it to Wallington - Brand solicitors (the decision). In the alternative, similar orders are sought requiring the defendant to refer the plaintiff’s application, as requested by letter dated 19 May 1998 from Wallington - Brand Solicitors, “for review of the decision by an independent reviewer to the chairperson of the panel of independent reviewers (the panel chairperson) for appointment of an independent reviewer.”
A number of grounds have been set out in the originating motion. The plaintiff has abandoned grounds 3 and 4 and relies solely on grounds 1 and 2 which are as follows:
“1. The defendant failed and refused to carry out its legal duty under S.
34(2) of the Legal Aid Act 1978 to reconsider the decision.2.
The defendant failed and refused to carry out its legal duty under S. 35 (2) of the Legal Aid Act 1978 to refer the application for review by an independent reviewer.”
The proceedings - the Du application
By originating motion filed 24 July 1998, Sum Khac Du brought proceedings against VLA and Judy Crundall, an officer of VLA, seeking relief in the nature of certiorari quashing the decision of the defendants which was conveyed by letter dated 20 May 1998, to assign the conduct of Du’s County Court trial to the Criminal Law Division of VLA and declining to assign it to Kuek & Associate Solicitors (the decision). In the alternative, a declaration is sought that that decision is invalid, void and of no effect. In addition, Du seeks an order in the nature of Mandamus (or alternatively an injunction) requiring VLA by itself or by its duly appointed officer or delegate, to consider and determine the plaintiffs application for legal assistance with respect to his pending Country Court Trial in accordance with law and to do so within 24 hours of the making of the court’s order or within such other period as the court may specify. In the alternative, an order is sought in the nature of Mandamus (or alternatively an injunction) requiring VLA by its proper appointed officer, to reconsider the decision pursuant to sub s. 34 (2) of the Legal Aid Act 1978 “and to do so within 24 hours of the making of the courts order or within such other period as the court may specify. In the originating motion several grounds are set out. The grounds in paragraph one have been abandoned. The remaining ground is as follows
“2. The defendants have failed and refused to carry out their legal duty under S.
34 (2) of the Legal Aid Act 1978 to reconsider their decisions.”
Background facts
It is not necessary to go into the facts in any great detail.
(a) The Baltas application. The critical facts are that on 16 March 1998 Baltas applied to VLA for legal assistance in respect of a trial for armed robbery. VLA wrote to Baltas’ solicitors advising that legal assistance would be approved but it would be provided by VLA ’s Criminal Law Division. There then followed an exchange of correspondence and VLA agreed to re-open that decision. On about 15 May 1998 an officer of VLA made a decision that legal assistance be provided through the Criminal Law Division of the VLA and not by funding Baltas’ solicitor of choice. On 19 May 1998 his solicitors asked VLA that that decision be reconsidered. On 22 May 1998 VLA wrote to Baltas’ solicitors declining to reconsider the Baltas decision asserting that it was not open to re- consideration under the act.
(b) The Du application. A somewhat similar fact situation emerges in relation to the application by Du. On about 5 February 1998, VLA decided to grant legal assistance to Du for his trial by assigning his case to its Criminal Law Division. This decision was challenged in the Supreme Court and an order was made by consent declaring that decision to be void on 30 April 1998. That order directed VLA to consider and determine Du’s application according to law. On 20 May 1998, an officer of VLA decided that legal assistance should be provided to Du by making available the services of an officer from the Criminal Law Division of VLA . On 25 May, 1998 the solicitors acting for Du requested that that decision be reconsidered. A further letter was written on 9 June 1998 by Du’s solicitors raising a variety of matters and repeating the request for reconsideration. On 11 June 1998 VLA responded confirming that VLA took the position that the decision that had been made was not one that could be reconsidered under the Act.
The central issue
The applications turn on the question whether VLA is correct in its position that the decisions that were made to provide legal assistance through the Criminal Law Division of VLA, and not by funding the solicitor chosen by the accused are decisions that can be reconsidered under the Act.
This question has already been considered by a judge of this court, Hansen, J. in the matter of Serban v. Victoria Legal Aid (unreported, 1.10.97). So far as is relevant in this proceeding, His Honour concluded that the decision in that case that legal assistance be provided by the Criminal Law Division and not the solicitor chosen by the applicant was one that could be reconsidered under the relevant provisions of the Legal Aid Act 1978.
It appears that VLA filed documents to appeal from that decision. The appeal was abandoned, however, when it came to the attention of those handling the matter that VLA was also acting for a co-accused and, therefore, would have to engage legal representatives for the accused who were not employed at VLA .
The statutory provisions
The relevant statutory provisions on the following:
The Relevant Legislation
The parts of the Act that are as follows:
“27. Conditions
(1)
The granting under this Act of an application by a person for legal assistance... may be on the basis that the assistance will be provided ... subject to all or any of the following conditions:
(a)
A condition that the person pays to VLA ... a contribution ...towards the costs to VLA of providing the assistance...;
(b)
A condition that the person makes a payment ... in respect of any out-of-pocket expenses incurred ...by VLA;
(c)
A condition that the cost or part of the cost ... to VLA of providing assistance be secured - (I) by a charge under s. 47A(1) over any land ...; or (ii) in any other manner...
28. Decisions relating to the provisions of legal services
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 s. 8 and 9 -
(a) whether the legal assistance should be provided by making available the services of a private 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 s. 27 (1).
29. Variation of a decision to provide legal assistance
A decision to provide legal assistance to a person under this Act may be varied at any time so as to -
(a) terminate the provision of legal assistance;
(b) alter the nature or extent of the legal assistance (including the variation of a decision relating to the person or persons who will provide legal services);
(c) make the provision of the legal assistance subject to conditions;
(d) alter a condition to which the provision of the legal assistance is subject
PART VI - RECONSIDERATION AND REVIEW OF DECISIONS:
COMPLAINTS
34. Reconsideration of decisions of VLA and legal independent reviewer
(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 prescribed time (if any) request reconsideration of the decision.
(1A) ... (2)
Upon receipt of a request under sub-s. (1), VLA or an officer of VLA or the independent reviewer or the delegate (as the case may be) shall reconsider the decision and may confirm vary or reverse the decision.
35. Review of decision of VLA
(1)
A person who has made a request under s. 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 prescribed time (if any) for the review of the matter by an independent reviewer.
(1A)... (2)
Upon receipt of an application under sub-s. (1), the panel chairperson must appoint an independent reviewer to review the matter and that committee 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 and the determinations of VLA.
(3) The decision of an independent reviewer under this section is final and
conclusive36. Review of decisions of legal aid review committees.
(1)
A person who has made a request under s. 34 (1) in respect of a decision of an independent reviewer and who is dissatisfied with the result of the reconsideration may apply in writing to VLA within the time fixed by law (being not less than 7 days after the date of the decision) for the review of the matter by another independent reviewer.
(1A) (2)
Upon receipt of an application under sub-s. (1), the panel chairperson shall appoint another independent reviewer to review the matter and that reviewer may confirm vary or reverse any decision.
(2A) A legal aid appeal committee -
(a) must review only the actual decision referred to it for review; and (b)
in reviewing a decision must comply with and give effect to this Act and the determinations of VLA.
(3) The decision of an independent reviewer under this section is final and
conclusive.(4) ... (5) In this section and sections 34 and 35 “decision” means - (a) a decision refusing to provide legal assistance under this Act; (b)
a decision refusing to provide legal assistance under this Act of the nature or to the extent applied for other than a decision giving effect to a determination under section 32 (2) or 32 (2BA),
(c)
a decision imposing a condition on the provision of legal assistance under this Act or varying adversely to an assisted person a condition so imposed; or
(d) a decision to terminate or vary the provision of legal assistance; or (e) a decision of VLA under section 48.” S. 48 deals with costs and is not relevant for present purposes.
Counsel for VLA in these proceedings explained the decision making system as one where there is in fact a three stage process under ss 34, 35 and 36. The first stage is the primary decision which will be made by VLA or by a person who is an independent reviewer who receives a delegation for that purpose from VLA. Subject to the point at issue in these proceedings, a person affected by that primary decision with respect to the provision of legal assistance may request reconsideration of the decision by the primary decision maker. At this point the review process separates. If the original decision was made by the VLA or a delegate, other than an independent reviewer of VLA , any reconsideration of it may be reviewed under s. 35 of the act. Alternatively, if the original decision was made by an independent reviewer, the person dissatisfied with that decision and with the reconsideration of it may apply under s. 36A for a review by another independent reviewer.
The arguments
The applications require a revisiting of the issues raised before Hansen, J. in the above matter. In that matter, the applicant submitted that the determination about who will provide legal assistance should be regarded as falling within the expression “nature or extent “of” the legal assistance” (s.36 (5)(b)). The respondent, VLA, relied on the proposition that significance is to be attached to the fact that s.28 separates in its sub paragraphs decisions about “whether the legal assistance should be provided by making available the service of a private practitioner” from the decision as to “the nature and extent of the legal assistance”. Counsel for VLA also sought to argue that s.29 reveals that the drafter of the provisions saw it necessary to expressly include a reference to “variation of a decision relating to the person or persons who will provide legal services” immediately after the reference in 29(b) to varying a decision to provide legal assistance in the form of altering “the nature and extent of the legal assistance.” Counsel for VLA then argued that, when the phrase “legal assistance under this Act of the nature or the extent applied for ...” appears in s.36 (5), it should be read to exclude decisions of the kind referred to in s.28 (a) so as to exclude decisions as to the choice of legal practitioner from the ambit of s.26(5).
Hansen, J. in Serban (above),. In dealing with these arguments commented
“ There are two difficulties with this interpretation of the Legal Aid Act. First, if it was intended in s. 29 to maintain the distinction between the decision as to the “nature and extent of the legal assistance” and the decision as to the “making available the services of a private practitioner” it is curious to say the least that s. 29 did not like s. 28, refer to those two decisions in separate sub- paragraphs. Why incorporate the latter decision within s. 29 by way of a bracketed inclusion to the phrase “nature or extent of the legal assistance” rather than by way of a separate sub-paragraph? The answer may be that in s. 29 and thereafter the phrase “nature or extent of the legal assistance” (or a slight variation thereof) was intended to incorporate the decision as to the allocation of the applicant’s matter. In my opinion, this competing interpretation is fairly open.”
His Honour then referred to a second difficulty with the submission of VLA which he thought was more substantial.
“That difficulty arises from the fact that s. 28 specifically gives to a legal aid review committee [now the independent reviewer] the power to decide “whether the legal assistance should be provided by making available the services of a private practitioner”. I do not recall the respondent’s counsel offering an explanation of s. 28. How was it intended that the review committee exercise this power if not by way of reviewing a decision as to the allocation of work by VLA? One answer may be that it was intended to give the review committee the power to allocate work only where the committee had decided to reverse a decision originally made by VLA not to provide any assistance at all. Some support for that proposition might be said to exist in the opening words of s. 28 which give the power to decide certain matters “Where a decision is made to provide legal assistance ...”. That might be thought to mean “where a decision is first made to provide legal assistance”. But if this was the only situation in which it was intended that the review committee exercise the power to allocate work, and it was not intended to give the review committee the power to re-decide the question in any other situation (the patently obvious example being where a request had been made for the review of that decision alone), it would have been very easy for the legislature to say so.”
His Honour went on to conclude that by reason of the above quoted matters he was persuaded to accept the applicant’s submissions.
In submissions presented to me, VLA revisits these issues. It again submits that a decision made in exercise of the power under s. 28 (a) of the Act to provide legal assistance by officers of VLA is not a decision which falls within any of the paragraphs of sub s.36(5) and therefore is not a decision for the purposes of reconsideration under s. 34 or review under s. 35. Counsel submits that a reading of s. 28 makes it clear that legislation intended to draw the distinction between those types of decision. He argues that the proper construction of s. 28 requires that one impliedly reads down what appears in paragraph (b) to exclude what appears in paragraph (a) and paragraph (c). It is put that they are separate categories of decisions. While conceding that there may be a degree of circularity in the argument, counsel submits that it is necessary to look at the provisions as they appear in their context and consider the relationship between each of the provisions. He draws attention to the fact, that in s. 36 (5) one finds a clear reference to the type of decision covered by paragraph 28 (c) but no reference to the kind of decision covered by paragraph (a).
In addressing the reasons of Hansen J. above, counsel points to another situation not put to his Honour, in which the independent reviewer might need the power contemplated by paragraph 28 (a) when conducting an initial review. He refers to the fact that the independent reviewer may be the primary decision maker acting as a delegate of VLA under paragraph 10 (d) of the Act. He also submits that sub s.34 (1) and 36 (1) of the Act recognise that an independent reviewer may be a primary decision maker. Thus it is put that conferral of the power upon the independent reviewer may be explained on the basis that the independent reviewer can be involved at the initial stage and not solely at a later stage in reviewing a decision. This example, weakens the force of the argument that the conferral of the power in s. 28 (a) on the independent reviewer was required for the independent review phase. Clearly it appears to be correct to say that the conferral was needed for occasions when the reviewer makes the original decision. Nonetheless, on the face of it, the power appears to be conferred upon the independent reviewer whenever called upon to make decisions whatever hat the independent reviewer may be wearing. It seems to me that it is for VLA to demonstrate why it should be that the power conferred was only to be exercised in making original decisions when there is no express direct provision to that effect..
The argument advanced by VLA ultimately turns upon the following propositions:
(a) that Parliament intended the reference in paragraph 28 (b) to “the nature and extent of the legal assistance” to be confined and not to apply to the matters referred to in paragraph (a) and (c) of that section and sought to do so by implication and not by express provision;
(b) that the expression “the nature and extent of the legal assistance” having been so limited, it should then be regarded as so limited where it appears in the legislation and, in particular, where it appears (albeit in slightly altered form) in s. 36 (5)
In dealing with the matter in Serban, Hansen, J. accepted that Parliament had intended that the three paragraphs of s. 28 operate separately and that, as a result, there was no overlap between them. In the course of argument before me, it emerged that that is an issue warranting further scrutiny. While the way the section is drafted is not what you would expect if the content of para. (b) was intended to be of general scope and the contents of para. (a) and para (c) were intended to be examples of what was covered by (b), that does not mean that Parliament did not intend each of the provisions to have the full effect that would be given to their natural and ordinary meaning. Thus, it might be said that, while not as elegantly put as it might be, s 28 conferred power to make decisions about the nature and extent of the legal assistance to be provided and that to avoid argument about the scope of that provision, Parliament included what is stated in paras. (a) and (c).
It would be surprising in my view, that the provision dealing with the power to make decisions to provide legal assistance would not confer a full and broad power to make decisions about the nature and extent of the assistance to be provided. One might also comment that it is a curious situation where a statutory authority, VLA, finds itself seeking to argue that the powers conferred upon it are to be read down. It does so of course in an attempt to avoid a decision being reviewed.
I pressed counsel for VLA as to what could be the policy justification or explanation for such a construction . His response was that it was intended to provide the basis upon which the provision in question in s. 36 (5) (b) was to be construed in the way he advocates. He could not suggest any other reason. The argument is a “boot straps” argument.
Like Hansen, J., I am troubled that the argument advanced for VLA involves the conclusion that the Parliament chose an indirect and obscure way of going about doing something which could have been done simply by express reference. If the policy of Parliament was to exclude from reconsideration and review the decisions that legal aid be provided by an officer of the VLA it was a very simple matter to list such a decision in s 36 (5). Alternatively, with suitable wording references could have been made to s. 28 (a) - as has been done in relation to 32 (2) and (32) (2) (b)(a) of the Act and s. 48 of the Act under s. 36 (5), the very section to be construed.
It should also be noted that s. 28 spells out the power to make decisions. It is in that context that “the nature and the extent of the legal assistance” to be provided is mentioned. S 36 (5) requires a consideration of the legal assistance applied for and whether the decision refuses to provide legal assistance of “the nature or to the extent applied for.” Thus while there is plainly a connection between an application, the power to make a decision and a decision, nonetheless the test posed by s.36 (5)(b) is different from the test posed by s. 28 (b). In my view the words in s 36 (5) should be given their natural ordinary meaning. They require an examination of the nature and extent of the legal aid assistance applied for and whether the decision fell short of that.
There are also unsatisfactory consequence that flows from the interpretation proffered by VLA . Firstly, a decision to vary a decision to provide legal assistance by substituting an officer of VLA for a private practitioner originally appointed by VLA would be open to reconsideration and review under s.34 and 35 because s. 36 (5) (d) includes amongst decisions for the purposes of those sections “a decision to terminate or vary the provision of legal assistance”. If the construction of VLA is correct, however, a decision made when originally granting legal assistance, that an officer of VLA provide that assistance, would not be subject to review. One again asks why should this distinction be made? Counsel for VLA suggested that perhaps there was a concern that to change legal assistance after the private practitioner has commenced and work has been done would be disruptive, whereas a decision made at the outset would not. As pointed out by counsel for the plaintiffs, however, the situation is not that simple. In the case of Du, for example, he applied for legal aid for the committal. This was granted and his solicitors asked for his at the committal. He then applied for legal aid for the trial and the application to engage his solicitors was refused and VLA appointed. It may fairly be said that this is a disruptive decision. One can also postulate other situations - for example, a solicitor might act for the accused in the early stages of the proceedings. His client might run out of money between the committal and the trial. In that situation, again it would be disruptive for an officer of VLA to be appointed to conduct the trial when the private practitioner had conducted the committal and was familiar with the matter. I remain of the view that the construction sought to be placed by VLA upon s.28 (b) produces an unsatisfactory result in this area. Another unsatisfactory consequence is that permitting para 28 (b) to be read down by implication introduces uncertainty into the definition of VLA’s powers.
I am inclined to agree with Hansen J. about the significance of s. 29 although it must be conceded that under that provision a variety of possible arguments arise. It might be said, for example, that s. 29(b) acknowledges that the variation of a decision relating to the person or persons who will provide legal services is a decision which alters the nature or extent of the legal assistance.. The drafter might well have used the device of including the reference in brackets in 29 (b) as a short hand way of dealing with the topic rather than having to set out a longer description as to the subject matter of the variation to comply with what appeared in 28 (a). VLA can point to alternative arguments. In the final analysis, it seems to me that the exercise of seeking enlightenment from s. 29 is not very helpful but on balance tends to support the argument of the plaintiff.
Counsel for the plaintiffs sought to raise an argument based on s. 21 (1)(b) (iv) (new s. 19 1(b)(iv)) which states that the functions of a member of the panel of independent reviewers includes, when appointed, the reviewing of decisions of the VLA or an officer of VLA or of another independent reviewer, including the review of decisions in respect to the allocation of work amongst practitioners. It is submitted for the plaintiffs that allocating work between VLA and private practitioners was such a decision and that it was, therefore, intended that for the provision to be consistent, s. 36 (5)of the Act, would apply to such a decision. VLA submits that what was referred to in s. 21 (1) (b) was a different issue - that is the vetting of allocation of work generally amongst practitioners. It is unnecessary for me in all the circumstances to determine these questions.
Conclusion
For the above reasons I am persuaded that VLA erred in taking the position that the decisions in question in these matters were not open to reconsideration or review under the Act. I will hear further submissions as to the form of orders.
0
1