Ford v Legal Aid Commission of Qld

[1997] QSC 92

IN THE SUPREME COURT

OF QUEENSLAND

No. 1533 of 1997

Brisbane

Before  Mr Justice Ambrose

[Ford v Legal Aid Commission of Qld & Ors]

BETWEEN:
  PAUL GRAHAM FORD
  Applicant
AND:
  LEGAL AID COMMISSION OF QUEENSLAND
  First Respondent

AND:
  JOHN HODGINS
  Second Respondent

AND:
  CLARE ENDICOTT, BILL O'CONNOR
  and ROSS BEER
  Third Respondents

REASONS FOR JUDGMENT - B W AMBROSE J

Judgment delivered 16 May 1997

CATCHWORDS: LEGAL AID ACT 1978 - application to review decision to refuse Legal Aid - applicant's case not within constraints imposed by policy manual of Legal Aid - whether "guidelines" made under s.13(b) allow aid to be refused without regard being made to other "relevant matters" in s.29 - whether determination of priorities (s.11) permits the Commission to deny aid to categories of actions not specified in the policy manual - meaning of "guidelines"

Counsel:D Rangiah for the applicant

P Munro for the respondents

Solicitors:Reidy & Tonkin for the applicant

Legal Aid Commission (Qld) for the respondents

Hearing Date:   2 May 1997

IN THE SUPREME COURT

OF QUEENSLAND

No. 1533 of 1997

Brisbane

Before  Mr Justice Ambrose

[Ford v Legal Aid Commission of Qld & Ors]

BETWEEN:
  PAUL GRAHAM FORD
  Applicant
AND:
  LEGAL AID COMMISSION OF QUEENSLAND
  First Respondent

AND:
  JOHN HODGINS
  Second Respondent

AND:
  CLARE ENDICOTT, BILL O'CONNOR
  and ROSS BEER
  Third Respondents

REASONS FOR JUDGMENT - B W AMBROSE J

Judgment delivered 16 May 1997

This is an application to review the decision of the first respondent refusing to grant legal assistance to the applicant under the Legal Aid Act 1978.
           On 10 May 1995 the acting Director of Community Services recommended to the Department of Health that the applicant not be prescribed opiate medication and that he not be registered as a therapeutic drug dependant client.
           It is the applicant's case that over a period of approximately 30 years he had taken an opiate medication obtained on medical prescription for arthritic pain in his spine.  Before a prescription could be given by his medical practitioner, a clearance was required form the Department of Health. 
           In about May 1995 an officer of the Department of Health advised the applicant's medical practitioner that he could not continue to prescribe the opiate medication to him.  Subsequently on 26 September 1995 the applicant was given written notification of this decision with very brief reasons for it in the following term:

"In your casse the chief health officer has been advised that you have been using drugs which if used for a long time may lead to drug dependence.  Additionally the chief health officer has been advised that when medically examined your body showed signs of injecting drug use.  In your case there is a suggestion that your need for drugs may be one of drug dependence rather than for a medical condition.  This view is strengthened by the existence of bogus facsimile message purporting to have been sent by the Federal Minister for Health received by Dr Salanitri and subsequently forwarded to his office.  I enclose a copy of this message.

If the chief health officer receives advice that you are drug dependent it is possible for a doctor to be authorised to prescribe drugs for your dependence.

To resolve the present difficulties I suggest that you seek a further appointment with Dr K Pullen at 'Biala' Roma Street Brisbane.

Upon receipt of Dr Pullen's report the chief health officer will give further consideration to your case."

Much correspondence has passed between the applicant and the Department of Health since that letter.
           The applicant desires to seek a judicial review of the decision of the Department of Health on various grounds.
           On 14 July 1995 the applicant applied for legal assistance under the Legal Aid Act to review that decision.  The application was refused by the first respondent.  On 23 January 1996 the refusal was reviewed by the Legal Aid Committee which confirmed the decision of the first respondent.  Thereupon the applicant had his application referred to the Review Committee which on 13 March 1996 confirmed the decision of the first respondent to refuse to grant legal assistance.
           It is clear that the refusal to grant legal assistance is based upon constraints contained in the policy manual of the Commission.
           Chapter 3 of the policy manual - "APPLICATION FOR LEGAL AID ... ELIGIBILITY AND GENERAL CONDITIONS OF AID" states at p.11:

"MEANS AND MERIT TESTS

The Act provides that legal aid will be made available only if two conditions are met:

.the person in need of legal aid cannot afford to pay, as assessed by a means test, the costs of the services of a private solicitor

.it is reasonable in all the circumstances, as assessed by the merit test, to provide legal aid (see Chapter 4)."

Chapter 4 of the policy manual is entitled "Merit Test and ... matters for which legal aid may be granted". 
           Under the heading "Civil Matters" the policy provides (at p.22):

"Generally where there is a power in a court or tribunal to award costs, the Commission does not fund the matter and requests the applicant's solicitor to conduct the case on a speculative basis ... ".

Chapter 4 then goes on at p.23 to enumerate the "Civil Matters where legal aid may be granted".
           It is unhelpful to analyse the different sorts of legal proceedings specified in which legal aid "may be granted".  It suffices to say that judicial review of the decision of the Queensland Department of Health under the Judicial Review Act 1991 is not one of them. The policy manual does in fact specify certain sorts of applications for judicial review where legal aid may be granted being "Discrimination, human rights and equal opportunity matters arising under relevant State and Federal Law and resulting appeals including applications for Judicial Review".
           It was not contended that the review which the applicant seeks of the decision of the Department of Health to decline to authorise the prescription of opiate drugs for him comes within the specified civil matters in which legal aid "may be granted". 
           Having regard to the statements in the policy manual it is clear that there is a significant limitation of the types of civil matter in which "legal aid may be granted". 
           It is the contention of the respondent that within the constraints imposed by the policy manual in Chapter 4, it may grant legal aid in civil matters; however it does not grant legal assistance in respect of civil matters not within a category specified in that Chapter.
           It is the case for the applicant that any constraints imposed by Chapter 4 of the policy manual purporting to control the exercise of the statutory discretion given to the Legal Aid Commission to grant legal assistance are unlawful or at least legally ineffective.  It is the applicant's contention essentially that the Commission is obliged to consider the whole of the circumstances of every application for legal assistance although in exercising its discretion it must give weight to whether or not the particular matter for which legal assistance is sought, does or does not come within the category of "civil matters where legal aid may be granted". 
           In this case the Commission relied upon the fact that a review of the Health Department decision under the Judicial Review Act did not come within one of the categories of matters specified in Chapter 4 of its policy manual. The reasons given by the Review Committee of the Commission makes this clear. The written reasons provided under s.32 of the Judicial Review Act 1991 state:

"The reasons for the Committee's determination are listed below:

1.The Legal Aid Office (Queensland) does not provide funding for this type of matter.

The types of matters for which aid is granted are listed in the Legal Aid Commission policy manual issued March 1995.  Aid is not granted for matters which are not referred to in this document.  For example the civil law guidelines do not refer to defamation which is another type of matter not funded by the Legal Aid Commission.  The policy manual does not permit the exercise of any discretion in the funding of matter types.

All decisions of the Review Committee must fit within Legal Aid Commission policy.  The Committee is not permitted to change policy nor go outside the Commission's guidelines in making its decision."

It is the contention of the applicant that the Legal Aid Commission both initially and subsequently in the various reviews of the primary decision, has improperly declined to consider the whole of the merits of the applicant's application for legal assistance as required under the Legal Aid Act 1978 and has improperly fettered its discretion in the performance of its obligations under that Act.
           The applicant seeks simply to have the decision reviewed so that the Commission consider his application afresh considering all the circumstances placed before it giving such weight as it thinks appropriate to the fact that the proposed judicial review for which legal assistance is sought is not contained in the policy manual as one of the matters in respect of which legal aid "may be granted".
           It is contended for the Legal Aid Commission that it is indeed constrained by the content of the policy manual not to grant the applicant legal assistance for the purpose of judicially reviewing the decision of the Department of Health.  It is contended that in any event the prospects of the applicant succeeding upon any judicial review are so slight that his application would almost certainly be refused on the second limb of the merit test - "whether the applicant has reasonable prospects of success in the proceedings".
           The matter however has been argued essentially on the point whether under the Legal Aid Act 1978 the Commission may in accordance with its published policy manual lawfully limit the types of legal matter in respect of which it will grant legal aid and decline to consider the merits of any application for legal assistance in respect of other types of matter. This involves a consideration of the provisions of the Act which I will now undertake. 
Under s.11(1) of the Legal Aid Act 1978 the Commission must, inter alia:

"(a)ensure that legal assistance is provided in the most effective, efficient and economical manner;and

...

(e)make maximum use of services which private legal practitioners offer to provide on a voluntary basis; and

...

(h)make the services of the Commission available to persons eligible for legal assistance by establishing ... and by making such other arrangements as it considers appropriate; and

(i)... determine priorities in the provision of legal assistance as between different classes of persons or classes of matters;"

Section 11(4) provides:

"In the performance of its function the Commission shall have regard to the amount of moneys for the time being standing to the credit of the fund and of any moneys likely to be received by the Commission for the purposes of the fund."

Section 12 provides:

"The Commission shall determine guidelines for the allocation of work between officers of the Commission and private legal practitioners having regard to the following considerations -

(a)the need for legal services to be readily available and easily accessible to disadvantaged persons;

(b)the need to make the most efficient use of the moneys available to the Commission; ... ".

Section 13 of the Act provides:

"13.The Commission shall determine and make known to the public guidelines to be applied -

(a)in the application of section 26(4) for the purpose of determining whether a person requiring legal advice should be required to make an application for legal assistance; and

(b)in the application of section 29 for the purpose of determining whether legal assistance may be provided to a person under this Act; and

(c)...

(d)...

(e)... ".

Section 20 provides:

"(2)The Director shall, as and when required by the Commission furnish reports with respect to the policy the Director is pursuing, or proposes to pursue, in the exercise or discharge of the Director's powers and functions under this Act.

(3)The Commission may issue directions to the Director on matters of policy and the Director shall observe and carry out the directions given."

Section 26(4) provides:

"Where legal advice is being provided to a person under this Act and it appears to an officer of the Commission or a private legal practitioner that the legal advice required by the person is likely to be of a substantial or continuing nature the officer or legal practitioner may require the person to make an application for legal assistance under subsections (1) and (3) and, where such a requirement is made, those subsections and sections 29(1) to (5) and (8), 32 and 36(2) apply in relation to the application."

Section 27 provides:

"(1)An application for legal assistance shall, in accordance with the directions of the Commission, be decided by a legal aid committee, by the Director or by another officer of the Commission authorised by the Director to decide applications for legal assistance.

(2)The Commission shall give directions as to -

(a) the classes of cases in which applications for legal assistance are to be decided by a legal aid committee; and

(b) the classes of cases in which such applications are to be decided by officers of the Commission."

Section 29 of the Act has a heading:

"Circumstances under which legal assistance may be provided"

and provides inter alia:

"29(1)Subject to this section, legal assistance, other than legal assistance consisting of the giving of legal advice or the provision of duty lawyer services, may be provided to a person (the 'applicant') only if

(a)the applicant is in need of the legal assistance because of the applicant's inability to afford the cost of obtaining from private legal practitioners the legal services for which legal assistance is sought; and

(b)it is reasonable in all the circumstances to provide the legal assistance.

...

29(8)In deciding whether it is reasonable in all the circumstances to provide legal assistance to the applicant regard must be had to all relevant matters including -

(a)the nature and extent of -

(i)any benefit that may accrue to the applicant, to the public or to any section of the public from the provision of the assistance; and

(ii)any detriment that may be suffered by the applicant, by the public or by any section of the public if the assistance is not provided; and

(b)subject to paragraph (c), in the case of assistance in relation to a proceeding in a court or before a tribunal - whether the proceeding is likely to end in a way favourable to the applicant;

...

29(10)   Legal assistance must not be provided to the applicant in, or in connection with, a review by a review committee under part 6."

In the course of argument I raised the question of the provision of legal assistance on the review application before me.  Counsel for the first respondent indicated that in the circumstances of this case where a matter of significant public importance was raised as to the effect of the guidelines contained in the policy it had been decided to grant legal assistance to bring this application.
It is the contention of the applicant that the provisions of s.29(8) required that the Commission in the present case have regard to the whole of the circumstances placed before it when considering his application for legal assistance and that reliance upon the policy manual containing the "guidelines" made under s.13(b) of the Act as obviating the necessity to go further after determining that it did not come within a "class of civil matter" specified as being one in which legal aid might be granted, resulted in the failure of the Commission to properly perform its statutory obligation.
It is the legal effect to be given to s.13(b) when read with s.29(1) and (8) which must be determined. This determination must be made in the context of the provisions of the Act to which I have referred and in particular to ss.11(1)(a), (1)(h) and (1)(i) and s.11(4).
           It is clear from the terms of the legislation that in the performance of its function under the Act it is not contemplated that the Legal Aid Commission will have unlimited funds to provide legal assistance for all person throughout the State of Queensland who might seek it.  Section 11 of the Act contemplates the Commission facilitating the provision of voluntary legal services by private practitioners and this is reflected at p.22 of the policy manual to which I have referred.  See s.11(1)(e) and the reference to private practitioners conducting a case "on a speculative basis" in Chapter 4 of the policy manual because "generally" the Commission will not fund a matter in a court with power to award costs - which of course this court has upon a review under s.49 of the Judicial Review Act 1991.
           Section 11(h) assumes in my view that some people will not in some circumstances be "eligible for legal assistance" and that it will be necessary for officers of the Commission to determine questions of eligibility.
           Having regard to the limitation on funds available to perform its function, under s.11(1)(i) the Commission must determine "priorities in the provision of legal assistance as between different classes of persons or classes of matters".  It is clear then that the Act contemplates that the Commission will establish priorities between classes of matters and classes of persons for the provision of legal assistance under the Act.  Undoubtedly the priorities will vary from time to time having regard to the funds available and the types of matters in respect of which legal assistance is sought.
Section 13(b) of the Legal Aid Act must be considered in the context of the provisions of s.11 to which I have referred. Under s.13 the Commission must determine and make known to the public "guidelines to be applied" in the application of s.29 for the purpose of determining eligibility for the provision of legal assistance under the Act.
           It is to be noted that the section contemplates the application of guidelines to determine "whether legal assistance may be provided to a person under this Act" - not whether it "should" be provided.
           Obviously the Commission is given a broad discretion to provide legal assistance; it is also given the express power to prefer some classes of persons and/or matters to others in the provision of that assistance.  Section 29 of the Act then sets forth in very general terms the circumstances in which legal assistance may be provided.  Section 29(1)(a) requires that an applicant be in need of assistance because of inability to afford private legal services and s.29(1)(b) that it be "reasonable in all the circumstances" to provide that assistance.
           Section 29(8) lists matters for consideration by the Commission in determining whether "it is reasonable in all the circumstances" to provide legal assistance to an applicant.  It addresses the nature of the matter in respect of which legal assistance is sought.  It has nothing to do with the financial need of the applicant which is dealt with in s.29(2).  Section 29(8) requires that the Commission have regard to "all relevant matters" including the matters specified in (a) and (b).
Undoubtedly guidelines determined and published by the Commission under s.13(b) of the Act are relevant matters. There is no dispute between the applicant and the respondent on this point. It is the case for the applicant however that the guidelines published under s.13(b) - in this case those in Chapter 4 of the policy manual - which do not specify an application for judicial review of the Health Department's decision as a matter "where legal aid may be granted" are not determinative of the classes of action in which assistance may be granted while the policy is in force. For the applicant it is contended that in its express terms, s.29(8) requires the Commission to have regard not merely to Chapter 4 of the policy manual but indeed to "all relevant matters" including those in s.29(8)(a) and (b) of the Act.  It is contended that whatever conclusion the Commission may have come to had it considered s.29(8)(b) as to the likely outcome of any judicial review of the decision of the Health Department, it is clear that in fact the Commission did not consider that because it did not think it necessary to do so.  It simply proceeded on the basis that the application for judicial review of the Health Department's decision not being a matter coming within the list of matters "where legal aid may be granted" under Chapter 4, legal assistance must be refused.

There are obvious problems in the approach of the applicant who seeks to construe s.29(8) as imposing a mandatory requirement that the Commission consider "all relevant matters" - whatever that may mean in the context of the legislation - any policy guidelines under ss.13(b) being merely one of them designed to help cope with difficulties within the contemplation of the Act of providing legal assistance to persons in financial need with a limitation of funds available for that purpose.  The requirement that the Commission administer the limited funds available to it to satisfy the need for readily available and accessible legal services to disadvantaged persons under s.12(a) and (b) of the Act inevitably involves the determination of priorities between different classes of persons and classes of matters in respect of which legal assistance may be funded or provided (vide s.11(1)(i)).  Whether it permits the Commission to determine that legal assistance will not be provided with respect to all categories of action except those specified in its policy manual is the point in issue.
Unfortunately the term "guidelines" used in s.13 is not defined in the Act.  Indeed it is a term not defined in the OED either.  In the Macquarie Australian Dictionary it is defined inter alia as:

"2. (usu.pl.) a statement which defines policy or the area in which a policy is operative."

In Laker Airways Ltd v Department of Trade (1977) 1 QB 643, the Court of Appeal considered whether the formulation of a new policy with respect to British airline services by "guidance" given by the Secretary of State with express statutory power to do so could stand with obligations which arose under the terms of the relevant legislation. At p.699 Lord Denning MR pointed out that the word "guidance" did not denote an order or command and it could not be used so as to reverse or contradict the general objectives or provisions of the statute under which it was given. He said "It can only used so as to explain, amplify or supplement them". At p.714 Roskill LJ in dealing with "guidance" and "direction" observed:

"The difference was well put by Mr Bateson when he submitted that guidance is assistance in reaching a decision proffered to him who has to make that decision, but that guidance does not compel any particular decision.  Direction on the other hand, especially in the context of section 4 is compulsive in character.  It requires the person to whom the direction is given to decide as directed. It deprives him of any freedom of decision, of any power to make his own decision as opposed to that which he is directed to make."

At p.724 Lawton LJ said:

"The statutory word is ‘guidance’, not ‘direction’.  The Secretary of State can point out the way to be followed.  He can tell the Authority what policy is to be applied in the performance of its functions.  The authority is left to decide how to carry out the policy.  In my judgment the guidance must take heed of the statutory objectives set out in section 3(1).  I can find no words in section 3(2) supporting the Attorney-General's submission that ‘guidance’ should be construed as having the same meaning as ‘direction’ and that the guidance given under section 3(2) can provide for setting aside any of the statutory objectives in section 3(1).  The two words are so different.  The word ‘guidance’ has the implication of leading, pointing the way, whereas ‘direction’ even today echoes its latin root of regere, to rule."

The legislation under consideration in Laker Airways and the "guidance" and "direction" given under that legislation and prior legislation are so different from the matters argued in this case as to make the decision itself of little assistance in this case.  On the other hand the discussion of the term "guidance" in that case is not entirely dissimilar from the discussion of the term "guidelines" by Deane J and Mason J in Norbis v Norbis (infra).
           In R v Port of London Authority ex parte Kynoch Ltd [1919] 1 KB 176 at p.184 Bankes LJ said:

"There are on the one hand cases where a tribunal in the honest exercise of its discretion has adopted a policy, and, without refusing to hear an applicant, intimates to him what its policy is, and that after hearing him it will in accordance with its policy decide against him, unless there is something exceptional in his case.  I think counsel for the applicants would admit that, if the policy has been adopted for reasons which the tribunal may legitimately entertain, no objection could be taken to such a course.  On the other hand there are cases where a tribunal has passed a rule, or come to a determination, not to hear any application of a particular character by whomsoever made.  There is a wide distinction to be drawn between these two classes."

Bankes LJ at p.184-185 then considered two cases illustrating the distinction - Reg v Sylvester 31 L.J.M.C. 93, 95 and Rex v London CC [1918] 1 KB 68.
           The facts in the second case were analogous to those in the present case although the legislative basis for the discretion and its exercise were different.  Darling J observed at p.73:

"It has been laid down that the body on whom is conferred the jurisdiction of granting such licences must hear each application on its merits and cannot come to a general resolution to refuse a licence to everybody who does not conform to some particular requirement."

In British Oxygen Co. v Board of Trade [1971] AC 610 Lord Reid at p. 625 observed with respect to what Bankes LJ had said in the Kynoch case:

"I see nothing wrong with that.  But the circumstances in which discretions are exercised vary enormously and that passage cannot be applied literally in every case.  The general rule is that anyone who has to exercise a statutory discretion must not 'shut his ears to an application' (to adapt from Bankes LJ on p.183).  I do not think there is any great difference between a policy and a rule.  There may be cases where an officer or authority ought to listen to a substantial argument reasonably presented urging a change of policy. What the authority must not do is to refuse to listen at all.  But a Ministry or large authority may have to deal already with a multitude of similar applications and then they will almost certainly have evolved a policy so precise that it could well be called a rule.  There can be no objection to that, provided the authority is always willing to listen to anyone with something new to say - of course I do not mean to say that there need be an oral hearing."

In Re Drake and Minister for Immigration and Ethnic Affairs [1979] 2 ALD 634, Brennan P (as he then was) reached a similar conclusion on the ability of a policy document to so "truncate" a discretion as to preclude consideration of the merits of specified classes of cases. He contrasted a policy which "guides" with one which purports to "control" at p.640-641.
           I gain little assistance on the present application from the conclusions reached in those cases. To the extent that they offer any assistance they support the proposition that if a statutory discretion is given without a clear power residing in the person exercising that discretion to constrain its exercise to specified circumstances, the establishment of such a constraint is insupportable.  I obtain little guidance from them in construing an Act the express provisions of which require and empower the body exercising a statutory discretion to determine and publicise the constraints which from time to time will confine the ambit within which that discretion will be exercised.
           In Riddell v Secretary DSS (1993) 114 ALR 340 consideration was given to the effect of a Ministerial direction as to the manner in which a statutory discretion given to the secretary should be exercised. The direction was given pursuant to a power conferred upon the Minister to give directions as to the exercise of the secretary's power to waive the Commonwealth's right to recover overpayment of a debt. The question was whether such a direction given by the Minister on 8 July 1991 was a valid exercise of his statutory power to give such a direction. At p.346 in the judgment of the court it was observed:

"In our opinion, the language of section 1237(3) when considered in its context and having regard to its legislative history, is not apt to have authorised the minister to make the instrument of  8 July 1991.  Section 1237(3) is not expressed in terms which authorise the minister to circumscribe the wide discretion vested in the Secretary by section 1237(1).  The language used is more apt to describe a power in the minister to give general guidance to the Secretary, whether by way of statements of policy or otherwise, in the exercise by him of the discretion vested in him but guidance which will leave the Secretary free, in any particular case, to depart from the guidance provided by the minister's directions if the circumstances of the individual case warrant such a departure."

This observation also reflects the observations to which I have referred in Laker Airways, Norbis v Norbis, British Oxygen Co. and Drake.
           When one has regard to the additional time and expense involved in administering a system for the granting of a discretionary benefit available to only some members of the community - if the body responsible for making the grant is unable to publish and rely upon rules of eligibility - it might be surprising if in the interests of administrative efficiency the legislature would not sometimes empower that body to formulate and enforce such rules.
           The most helpful authority my researches have revealed which involves the interpretation of the term "guidelines" and the nature and extent of their permissible constraint upon the exercise of an administrative discretion is Smoker v Pharmacy Restructuring Authority & Ors (1994) 125 ALR 577. That was a case where under the provisions of the National Health Act 1953 approval was required for the use of premises for the supply of pharmaceutical benefits. Approval could only be granted if it was recommended by the Pharmacy Restructuring Authority. The Authority was required to comply with "guidelines" determined by the Minister for Health in recommending the grant or refusal of approval.
The legislation in that case differed from that under present consideration. However I derive some assistance from the interpretation given the term "guidelines" in that case in the context of the relevant Commonwealth legislation in determining the effect to be given to the same term used in s.13(b) of the Legal Aid Act.
           The relevant section of the Act in that case required that the Authority "comply with" guidelines given by the Minister.  The contention that the "guidelines" in that case did no more than provide a guidance to the Authority which retained a residual discretion in determining an application was rejected.  It was rejected by Wilcox J on the basis that the statute itself required that the Authority "comply with" guidelines and this could not be done if the guidelines were not strictly applied.
           In Norbis v Norbis (1986) 161 CLR 513 at 520 Mason and Deane JJ had observed:

"The term 'guidelines', though not commonly used in relation to judicial discretions, is familiar enough in the bureaucratic and administrative world, where it denotes rules or standards which are not binding and may be relaxed when it is expedient to do so in order to do justice in the particular case.  Guidelines were what Lord Wright had in mind in Evans v Bartlem when he said ([1937] AC 473 at 488):

'It is ... often convenient in practise to lay down, not rules of law, but some general indications, to help the Court in exercising its discretion'."

At p.590 in Smoker, Hill J observed:

"... section 99K is open to the construction that the function conferred upon the Authority to make recommendations is a function itself circumscribed by the requirement to act in accordance with the guidelines.  Section 99K is expressed in terms of function rather than power."

His Honour concluded at p.591:

"... in these circumstances that the legislative history as well as the context in the present case points to an intention on the part of the legislature to authorise what are referred to as 'guidelines' but what more properly should be described as rules which in fact circumscribe the discretion which the Authority has.  It follows, in my view, ... that the so-called guidelines in the present case were validly made."

The question then is whether in the words of Bankes LJ the Commission relying upon the policy it formulated to assist in the very difficult task of administering the provision of legal assistance which will be "reasonable in all the circumstances" with limited funds available for that purpose has impermissibly "shut its ears" to the application brought by the applicant in this case for legal assistance.
           On the face of the reasons for the decision it appears that it did "shut its ears" to the applicant once it determined that his matter was not of a kind specified in Chapter 4 of the policy manual.  Even adopting the approach of Bankes LJ in Kynoch's case there could be no objection to its treating the constraints in the policy manual as a general guideline for the grant of legal assistance and it could not be criticised for departing from those constraints only in the most exceptional circumstances.  However it is necessary to determine whether under the Legal Aid Act it was open to the Commission to exclude from consideration the "merits" of applications for legal assistance in respect of certain categories of matters.  Undoubtedly the Commission had power to establish priorities among classes of matters and classes of persons.  However in excluding certain sorts of cases from the provision of legal aid - if that is the effect of what the constraints in the policy manual did - it went beyond merely establishing priorities.  The essence of determining priorities is the giving of preference or precedence to one class of person or action over others.  In my view it cannot be said that a rule which excludes certain classes of persons or matters from the provision of legal assistance merely implements a determination as to priorities made under s.11(1)(i).
           In fact on its face the policy manual does not exclude, except perhaps inferentially the grant of legal assistance in respect of matters of the sort in respect of which the applicant sought legal assistance.  It specifies a number of categories of matter in respect of which legal assistance "may be granted".  It is only by concluding that it "may not be granted" in respect of matters not within those specified categories that the policy manual can be regarded as specifically excluding certain sorts of application thereby allowing the Commission and its officers to "shut their ears" against those sorts of applications.  This was obviously the conclusion reached by the Commission;  I will assume it was correct in so doing.
In my view the wording of s.13(b) itself suggests that the Commission is given power to determine the classes of persons to whom and matters in respect of which "legal assistance may be provided" under the Act.  Indeed the section requires that such a determination be made known to the public.
           In my judgment the policy manual generally, and in particular Chapter 4 of it, simply records the determination of the Commission of those matters with respect to which legal assistance will currently be provided.  The legislation contemplates the Commission making such a determination from time to time.  Undoubtedly the determinations so made will depend upon the demand for legal assistance in various classes of matters by various classes of persons and the availability of funds to the Commission to provide legal assistance to those persons for those matters.
           Section 29(1) permits legal assistance under the Act to be given "only if" it is reasonable in all the circumstances to provide such assistance.
While s.29(8) does provide that "regard must be had to all relevant matters", in my view upon receipt of an application for legal assistance the first "relevant matter" within the contemplation of s.29(8) will be whether or not the matter in respect of which legal assistance is sought comes within one of the categories in respect of which the Commission has made a determination under s.11(1)(i) and/or s.13(b) which is reflected in Chapter 4 of the policy manual as categories of matters "where legal aid may be granted". Under ss.11(1) and 13 the Commission is from time to time required to determine in respect of what kinds of civil matters legal assistance will be granted. Once such a determination is made it becomes unnecessary for the Commission or its officers to embark upon consideration of all the facts and circumstances, including the impecuniosity of an applicant, and his/her prospects of success in respect of a matter which does not in any event come within one of the categories of matters specified in Chapter 4. It becomes unnecessary simply because such matters are not "relevant" under s.29(8) if the nature of the matter for which assistance is sought is not in a category in respect of which it has been determined that legal assistance may currently be granted. The determination that a matter is one in respect of which legal assistance may be granted will not necessarily result in the grant of legal assistance. For that reason only, the matters contained in s.29(8)(a) and (b) are only some of "all relevant matters" that will need to be considered should the matter in respect of which legal assistance is sought, come within a category that the Commission has determined is one for which legal assistance may be granted.
           Both parties to the application referred to a speech made by the Minister of the day on the second reading of the Bill leading to the passing of the Legal Aid Act in support of their contentions as to its proper interpretation.
           In my view it could not be said upon a study of the Act that its provisions are ambiguous or obscure or that the constructions advanced by either party to the application would result in a manifestly absurd or unreasonable result.
           The Minister on the second reading of the Bill referred to concern expressed in the House as to the "types of actions to be funded".  He said that the Legal Aid Commission would be an independent body which would have to act within the framework of the provisions of the legislation which clearly specified its duties and functions.  He pointed out that the Commission was not "being given free reign to do what ever it pleases". He referred to concern that had been expressed "about assistance being given indiscriminately".  He said that to prevent this from happening the Bill did contain "several safeguards" . He went on to say:

"Firstly the Commission must determine priorities.  The legal assistance provided will always depend upon the funds available.  The determination of priorities in fact is one matter ..."

He continued:

"Then the applicant must further be able to show that it is reasonable in all the circumstances that he be provided with the assistance he seeks."

Section 29(8)(a) requires that regard be paid to the nature and extent of any benefit or detriment to the public or any section of the public when deciding whether or not it is reasonable in all the circumstances to provide or not provide assistance.
           In my view the construction for which the respondent contends if not confirmed by the second reading speech to which I have referred is at least consistent with it.
           The relevant guideline in the policy manual is merely the published self-imposed constraint upon the types of matters with respect to which the Commission will currently provide funds for legal assistance.  It is empowered to impose that constraint upon the exercise of its statutory discretion by ss.11 and 13 of the Act.

           The construction for which the applicant contends would impose a greatly increased and unproductive burden on the Commission officers in the administration of the provision of legal assistance and would deprive determinations made by the Commission under s.11(1)(i) and 13(b) of the Act of any effect in reducing the administrative burden involved in processing applications for legal assistance in the most effective efficient and economical manner required by s.11(1)(a) of the Act. 
           I dismiss the application.

I make no order for costs.