Khalid v Legal Aid Commission of NSW

[2016] NSWSC 1640

Supreme Court

New South Wales

Medium Neutral Citation:	Khalid v Legal Aid Commission of NSW [2016] NSWSC 1640
Hearing dates:	15 November 2016
Date of orders:	28 November 2016
Decision date:	28 November 2016
Jurisdiction:	Common Law
Before:	Bellew J
Decision:	1. The proceedings are dismissed.  2. The plaintiff is to pay the defendant’s costs as agreed or assessed.
Catchwords:	ADMINISTRATIVE LAW – Judicial Review – Plaintiff one of six accused facing a charge of conspiring to do an act in preparation for a terrorist act or acts – Where plaintiff had engaged a solicitor shortly after his arrest in December 2014 – Where that solicitor had acted for him absent a grant of legal aid for almost two years – Where the solicitor was not a member of the relevant panel of legal practitioners created by the defendant for the purposes of assignment of grants of legal aid in complex criminal cases – Where the guidelines promulgated by the defendant provided that exceptional circumstances were required to be established before an assignment of a grant of legal aid in such a matter could be made to a practitioner who was not a member of the relevant panel – Where the plaintiff had expressed a preference to be represented at his trial by his present solicitor – Where the defendant assigned the grant of legal aid to another solicitor – Whether the defendant failed to take relevant matters into account in reaching that decision – Whether the defendant’s decision was unreasonable in all of the circumstances
Legislation Cited:	Criminal Code 1995 (Cth) Legal Aid Commission Act 1979 (NSW)
Cases Cited:	Associated Provincial Picture Houses v Wednesbury Corporation [1948] 1 KB 223 Bromley London Borough Council v Greater London Council [1983] 1 AC 768 Conyngham & Ors v Minister for Immigration and Ethnic Affairs (1986) 68 ALR 423 Gamble v Emerald Hill Electrical Pty Limited [2010] VSC 611 Legal Services Commission v Stephens (1981) 2 NSWLR 698 Minister for Aboriginal Affairs v Peko-Wallsend Limited (1986) 162 CLR 24; [1986] HCA 40 Minister for Corrections NSW v Elomar (No. 2) [2016] NSWSC 1040 Minister for Immigration and Citizenship v Li (2013) 249 CLR 332; [2013] HCA 13 R v Khalid (No 2) [2015] NSWSC 1921 Secretary of State for Education and Science v Tameside Metropolitan Borough Council [1977] AC 1014
Category:	Principal judgment
Parties:	Sulayman Khalid – Plaintiff Legal Aid Commission of NSW - Defendant
Representation:	Counsel: P Gray SC and G Foster – Plaintiff K Richardson SC and V McWilliam – Defendant   Solicitors: Zali Burrows Lawyers – Plaintiff Legal Aid NSW – Defendant
File Number(s):	2016/330112
Publication restriction:	Parts of paragraphs [9], [20], [23],[30] and [35] are suppressed pursuant to orders made on 2 December 2016.

Judgment

INTRODUCTION

1. By an amended summons filed on 15 November 2016, Sulayman Khalid (“the plaintiff”) seeks orders in the following terms:

1. A declaration that the defendant, the Legal Aid Commission of NSW has acted ultra vires, and/or otherwise not in compliance with the Legal Aid Commission Act NSW 1979 (sic) and/or its guidelines thereunder, and/or otherwise contrary to law, when assigning the matter of Khalid, File ID: 16C045443 to Ms Sophie Toomey.

2. An order that the defendant assign the matter of Khalid File ID: 16C045443 to Zali Burrows, solicitor.

3. In the alternative an order that the defendant assign the matter of Khalid File ID: 16C045443 to a private legal practitioner according to law.

4. Costs.

2. The orders sought are opposed by the defendant.

3. In support of the summons the plaintiff read affidavits of Zali Burrows, solicitor of 2 November 2016, 7 November 2016 and 14 November 2016. Objections were taken to those parts of Ms Burrows’ affidavits which included material which was not before the relevant decision maker(s). I upheld those objections. Ms Burrows was not cross-examined on the contents of any of her affidavits.

4. The defendant read the affidavit of Sally McAtee, solicitor, of 10 November 2016, to which no objection was taken. Ms McAtee was cross-examined on the contents of her affidavit.

THE FACTS

5. The plaintiff is one of six accused presently charged with conspiracy to do an act in preparation for a terrorist act or acts, contrary to ss. 11.5 and 101.6(1) of the Criminal Code 1995 (Cth). He was arrested on 25 December 2014 and has been in custody since that time. The joint trial of the six accused is to commence on 31 July 2017. I am presently engaged in hearing various pre-trial applications brought by the plaintiff, and by some of his co-accused.

6. In or about late 2014/early 2015 (i.e within a short period of his arrest) the plaintiff instructed Ms Zali Burrows, solicitor, to act for him. At that time, the plaintiff had been charged with one count of possessing documents connected with the preparation for a terrorist act, knowing of that connection. Since that time, a further five persons have been charged as a result of the investigation conducted by police. As a consequence, the Crown has presented an indictment alleging a single offence of conspiracy against all six accused. The fundamental allegations made against the plaintiff pursuant to the conspiracy count are, in large measure, the same as those which had been made against him when he was first charged with the substantive count.

7. Ms Burrows has continuously acted for the plaintiff since he retained her following his arrest. She has done so absent a grant of legal aid. The work undertaken by Ms Burrows has included instructing counsel in relation to an application for the plaintiff’s release, as well as instructing counsel in a pre-trial application of some complexity which proceeded over several days: R v Khalid (No 2) [2015] NSWSC 1921. As far back as 2014 Ms Burrows has represented the plaintiff in matters unrelated to his forthcoming trial.

8. Pursuant to s. 50 of the Legal Aid Commission Act 1979 (NSW) (“the Act”) the Legal Aid Commission of NSW (“the Commission”) has created specialist panels of legal practitioners to whom grants of legal aid may be assigned from time to time. Two of those panels are the General Criminal Law Panel (“the General Panel”) and the Serious Criminal Law Panel (“the Serious Panel”). Ms Burrows is a member of the General Panel. She is not a member of the Serious Panel.

9. At some time prior to 21 September 2016 Ms Burrows applied to the Commission, on the plaintiff’s behalf, for a grant of legal aid in respect of his forthcoming trial. In an email of 21 September 2016 sent to Mr Griffiths (the Acting Team Leader (Grants Crime) at the Commission) Ms Burrows stated (inter alia):

Is there any way to retrieve the application from an archive as I need to add additional information to the application in respect of status of proceedings.

I have been acting for Mr Khalid since January 2015 [suppressed by orders of 2 December 2016]. The new consolidated brief is approximately 7,500 pages and with hundreds of electronic files, an additional charge was added with co-accused.

Pre-trial is less than 2 months away and I need to add information to the grant application.

In (sic) recent matter of Alqudsi, in sentencing remarks, Her Honour Justice Adamson commended the defence for running the trial efficiently in respect of shortening the trial (Crown told jury estimate was 6 weeks – when actually ran 14 days). We seek to manage the case of Khalid in a similar efficient manner.

10. Ms Burrows’ reference in that email to the “recent matter of Alqudsi” was a reference to the trial of Hamdi Alqudsi (“Alqudsi”) which proceeded before Adamson J and a jury in this Court earlier this year. The allegations against Alqudsi were, in some respects, not dissimilar to those against the plaintiff. Ms Burrows acted as Alqudsi’s solicitor in those proceedings. She did so pursuant to the Commission’s assignment to her of a grant of legal aid which had been made to Alqudsi. That grant was assigned notwithstanding that Ms Burrows was not a member of the Serious Panel.

11. On 21 September 2016 Mr Griffiths responded to Ms Burrows’ email, advising that there did not appear to be any existing application made on behalf of the plaintiff and that accordingly, Ms Burrows would need to submit a fresh application. Mr Griffiths went on to state the following:

Please be aware that since 1/4/09 it has been Legal Aid policy that, unless exceptional circumstances can be demonstrated, practitioners seeking allocation of a grant of aid must be a member of the relevant Legal Aid Panel. Practitioner’s (sic) seeking to act in legally aided matters for such serious charges such as this clients’ (sic) are expected to be members of Legal Aid’s Serious Criminal Law Panel.

I note that you do not appear to be on Legal Aid’s Serious Crime Panel.

12. Attached to Mr Griffiths’ email were a number of documents in relation to the assignment of grants to practitioners, one of which was headed “Criminal Law Panel Information Sheet”. Under the heading “Grants Allocation Policy in brief – Determining exceptional circumstances when assigning” that document stated the following:

The Grants Allocation Policy will be used when making a determination on whether to assign a matter to a non-panel practitioner or to a panel practitioner not at the top of the list. This determination is based on a number of exceptional circumstances that can be allied to the application.

13. The document went on to state (inter alia) the following:

Allocating grants of legal aid to non-panel practitioners

Grants of legal aid may be assigned to non-panel private practitioners but only where Legal Aid NSW is satisfied that there are exceptional circumstances.

What will constitute exceptional circumstances?

In deciding whether there are exceptional circumstances, the officer allocating the grant of aid will take into consideration:

Whether the practitioner can be easily accessed by the legally assisted person. For example, in cases where the practitioner and the legally assisted person live in a regional or remote part of NSW and there are a limited number of practitioners available to do legal aid work in that area;

Where the legally assisted person has a significant difficulty in dealing with the legal system because of a:

A psychiatric condition.

A developmental disability.

An intellectual disability,

or physical disability

And that practitioner can effectively communicate with the legally assisted person and advocate on their behalf.

The matter requires a practitioner who has demonstrated knowledge or specialist accreditation in the particular area of law and the practitioner has that expertise.

Where a private practitioner has submitted an application for a general panel and is awaiting determination by the selection committee; or

If an interstate practitioner makes an application for aid on behalf of an intestate client.

IMPORTANT NOTES

In cases where a practitioner submits an application for legal aid on behalf of a client and the practitioner is a (sic) not on the relevant panel, the grant will on be assigned where Legal Aid is satisfied that there are exceptional circumstances as set out above. If the grant is assigned to that practitioner, the practitioner will be advised that no further grants will be assigned to him or her unless the practitioner is a member of the relevant panel.

Grants of aid will not be made to practitioners whose applications for appointment to the panel were refused by the Selection Committee. Assignment refusal letters to unsuccessful panel applicants must be done by a legal officer (emphasis in original).

14. Mr Griffiths concluded his email to Ms Burrows by stating the following:

Could you please by close of business on Wednesday 28 September 2016:

provide me with your brief submission addressing criterion 3: Current and extensive criminal law experience in the conduct of Supreme Court criminal law matters;

advise whether you undertake to apply for (the panel);

advise whether you undertake to comply with Serious Criminal Law Practice Standards.

15. On 29 September 2016 there was correspondence within the Commission between Mr Griffiths, a Ms Way (a solicitor in the Commission’s Commonwealth Crime Unit) and a Ms Whitehead (the Commission’s Director of Grants). That correspondence culminated in an email from Ms Whitehead to Mr Griffiths which was in the following terms:

Hi Stuart

As discussed I think we should just do a panel offer to the serious crime panel on this, unless Steven thinks we should instead approach particular panel members directly given their particular expertise. Thanks

16. What was meant by “a panel offer to the serious crime panel” is not explained in the evidence. Presumably it refers to offering an assignment of a grant of legal aid to one or more members of the Serious Panel.

17. On 5 October 2016 an unsigned letter was sent from the Commission’s Grants Division to the plaintiff in (inter alia) the following terms:

You have been granted legal aid for this criminal law matter. The grant of legal aid is effective from 21 September 2016.

Your lawyer is:

Sophie Toomey

Toomey Criminal Defence Lawyers

PO Box 242

BONDI NSW 2026

…

Legal Aid NSW will not pay the costs of any legal work done in this matter before 21 September 2016.

18. On 6 October 2016 Mr Griffiths wrote to Ms Burrows stating:

We do not appear to have received a response to my email of the 21st September 2016, with a response required by 28th September 2016.

After discussions with the Senior Grants Criminal Solicitor and the Director of Grants, who both noted you are not on the Serious Crime Panel, I was instructed by the Director of Grants to grant aid and to assign it to a member of the Serious Crime Panel. As you are not the assigned practitioner in this matter, under Sec 25 and 26 of the Legal Aid Commission Act 1979 (NSW) we are unable to discuss this clients (sic) matter with you further.

19. At this point it should be noted that at the commencement of the hearing, the parties identified what was then said to be a specific factual issue. Ms Burrows maintained (as she asserted in the correspondence set out at [20] below) that she had responded to Mr Griffiths’ earlier letter. Senior counsel for the Commission indicated to me at the commencement of the hearing that her clear instructions were that no such response had ever been received by the Commission. Ultimately, senior counsel for the plaintiff disavowed any reliance upon the proposition that there had been a failure on the part of the Commission to take into account matters raised in the correspondence which Ms Burrows maintains was sent. In those circumstances it is not necessary for me to the issue which was identified.

20. On 6 October 2016 Ms Burrows responded to Mr Griffiths stating (inter alia) as follows:

I believed that the response letter was attached to email 6.06pm 21 September 2016 and upon checking, re-sent 4 October as I was unsure if it had previously attached because I did not view an attachment in the sent box.

With respect it is difficult to assume that a solicitor would get across an eight thousand page brief and hundreds of electronic files and prepare a Notice of Defence Response that is due now.

…

It would be a great detriment to Mr Khalid if there was any delay in the proceedings due to change of solicitor, as the proceedings have been on foot since January 2015. There are co-accused in this matter and it is unlikely extensions would be granted to enable a new solicitor to be across such an enormous brief. I have been in the matter at onset. [suppressed by orders of 2 December 2016]. I rely upon the reasons as stated in the response letter. In view of the stage of the proceedings, the rapport with the client, in midst of part-heard bail application, the size of the brief, there are exceptional circumstances. Importantly, I have my client’s confidence and he has firmly expressed his desire to have me as his solicitor in the proceedings. He has issues of trust and mistrust of Government employees and persons he does not have a history with. I acted for him since 2014 whereby I successfully obtained an injunction against Chanel (sic) Seven Today Tonight program and I set a precedent in respect of verbal contracts with media over editorial control of a program story. I have succeeded in some difficult applications.

As previously stated, I am seeking appointment to the Serious Crime Panel, yet it has not be open for some time. I have had experience in serious matters such as a 400 kilogram cocaine importation trial for two co-accused, a 25 kilo cocaine possession matter and so on. The pre-trial applications of Alqudsi [suppressed by orders of 2 December 2016] in respective of illegal assignment of AFP search warrants, was a first that I discovered upon careful examination of client’s briefs. It was noted that the AFP have been assigning warrants without legal process for 10 years or so, no other solicitor has picked this up and challenged on this basis.

I am surprised Legal Aid panel did not consider the defence of efficiency of the Alqudsi trial when it was estimated 6 weeks and finished in less than 3 week (sic).

21. Later that same day, Ms Burrows again wrote to Mr Griffiths stating (inter alia) as follows:

In respect of sections 25 and 26 of the Legal Aid Commission Act 1979 (NSW), Mr Khalid has instructed me as his solicitor, Legal Aid assigning the matter to Ms Toomey does not dictate that Mr Khalid must instruct her. Mr Khalid is my client until he states otherwise. Therefore, with respect I believe that as instructed solicitor I can discuss the matter with you.

I have advised Ms Toomey that I will seek further instructions from Mr Khalid in respect of the Legal Aid grant assignment and advise her tomorrow.

22. On 10 October 2016 Ms Burrows wrote to Mr Grant, the Chief Executive Officer of the Commission, taking issue with the decision to assign the grant of legal aid to Ms Toomey. Ms Burrows advanced a number of reasons why, in her view, the matter should have been assigned to her. She stated (inter alia):

I refer to you (sic) letter dated 5 October 2016 confirming a grant of aid to my client Sulayman Khalid and that the grant as not been assigned to me due to Legal Aid NSW policy. No reasons or reference to policy was provided.

I also note that my letter to you dated 22 September 2016 setting out exceptional circumstances and my experience, was not considered. I was advised that the matter is assigned to another private practitioner, however it appears that there was little consideration of section 12 of the Legal Aid Commission Act 1979, setting out the duties to be observed in the provision of legal aid.

Although I am not on the Legal Aid Panel for serious crime, I am on the panel for general crime. It appears that new applications for serious crime panel were not opened in 2015 and 2016. With respect, the statutory provisions do not mandate that the private legal practitioner must be on the serious crime panel, and I submit that exceptional circumstances exists in respect of assigning the matter to me.

Mr Khalid has been informed of the decision of Legal Aid NSW to assign the grant to Ms Toomey. I am instructed that it is Mr Khalid’s express wishes that the matter be assigned to me and that he does not wish to instruct any other solicitor. Application was made for grant of aid for myself as solicitor and Scott Corish of Counsel. Attached to the application was copy of the Notice of the Prosecution case for consideration as to the advancement of complexity of proceedings.

23. Having cited the provisions of ss. 12(f) and s. 49(1) of the Act Ms Burrows continued:

In accordance with the assignment, principles to be observed as stated above require consideration to the interests of Mr Khalid. I have had carriage of the matters since early January 2015, and consideration should be given in respect of my experience, the size of the brief is over 8000 pages with hundreds of electronic files, further consideration should be given to the advanced stage of the proceedings, [suppressed by orders of 2 December 2016], Mr Khalid’s part-heard bail application is on foot, the defence case is due to be filed in a few days and the pre-trial hearing is 14 November 2016. Ms (sic) Scott Corish of Counsel is on the serious crime panel and has been briefed. It should be noted that Mr Corish and I most recently appeared in the Alqudsi matter in the Supreme Court of New South Wales, the first trial for a matter of s. 7 Crimes (Foreign Incursion and Recruitment) Act 1978. The CDPP noted in its press release, that it was ‘complex legal proceedings’. In sentencing remarks, the defence was commended for the efficiency of the trial. We will be conducting the Khalid matter in the same efficient manner in respect of aiming to achieve the best outcome for my client and efficiency also limits the burden upon the Legal Aid budget.

It is noted that the practitioner assigned the matter does not appear to be any more experienced than myself in National Security matters. Furthermore, any delay in proceedings for purpose (sic) of new representation requiring time to get across the brief and obtain instructions, would most likely not favour with the presiding trial Judge. To change legal representation now would most certainly not be in the interest of Mr Khalid considering that he has been in custody for a considerable amount of time and should not endure further delay for a trial date.

At the onset of the legal aid application, Mr Khalid expressed his choice for me to be his legal practitioner in the matter. Accordingly, the Commission was aware of his wishes. We seek that this request is considered in accordance with section 12(f)(ii).

We seek that the Commission ensures, as part of its statutory obligations, Mr Khalid’s interests and choice in the provision of legal aid, and that such considerations of antithetical to the decision of 5 October 2016 which Mr Khalid was granted Legal Aid but I excluded.

Time is of the essence and I would greatly appreciate your attention to this matter as a matter of urgency.

24. On 13 October 2016 Mr Doumit, the senior solicitor in the Grants Division of the Commission, wrote to Ms Burrows in response to her correspondence of 6 October 2016 and 10 October 2016. In doing so, he made reference to a number of provisions of the Act, as well as the Grants Allocation Guidelines (“the Guidelines”).

25. The opening paragraph of the Guidelines is in the following terms:

The following principles apply to the assignment of work under a grant of legal aid to private legal practitioners under s.12(f) of the Legal Aid Commission Act 1979 (NSW).

26. The provisions of the Guidelines include the following:

A. Criminal Law matters

General

1) Criminal Law matters will be assigned to the Legal Aid NSW in-house legal practice wherever possible, subject to Legal Aid NSW Policies.

2) Where an in-house practitioner is unable to act, the matter will be assigned to a private practitioner. Unless there are exceptional circumstances as set out in Part C of these Guidelines, the private practitioner must be a member of the relevant Legal Aid NSW private practitioner panel.

…

4) If the matter is to be assigned to a private practitioner and the client has expressed a preference for a particular panel practitioner, the matter will be assigned to that practitioner. Legal Aid NSW will be satisfied that a panel practitioner is the client’s preferred practitioner where that practitioner has submitted the client’s application for Legal Aid via the Grants Online system.

…

7) If there are exceptional circumstances as set out in Part C of these Guidelines, the matter will be offered by the Grants Division to either

a non-panel practitioner, or

an individual panel practitioner who services the court where the proceedings are being heard, and if necessary to further practitioners until the matter is accepted.

In choosing the practitioner, the Grants Division will take into account any comments made by the in-house practice on the Request for Transfer. The in-house practice is not to engage a practitioner prior to submitting the Request for Transfer and is not to nominate a particular practitioner in the Nominated Office/Practitioner field on the Request.

27. Paragraph 2 of the Guidelines deals with what are referred to as “Complex criminal law matters”. Under sub para (1), such matters are said to include (inter alia) all trials in this Court. It follows that the proceedings against the plaintiff constitute, for the purposes of the Guidelines, a “complex criminal law matter”. In respect of such matters the Guidelines go on to provide as follows:

2) In special circumstances, matters that would normally be covered by the General Criminal Law Panel may be assigned to practitioners appointed to the Serious Criminal Law Panel.

28. The Guidelines assume that if a grant of legal aid to an accused in a complex criminal law matter is to be assigned it will, absent exceptional circumstances, be assigned to a member of the Serious Panel. In that regard Part C of the Guidelines, is in (inter alia) the following terms:

C Exceptional Circumstances

a particular practitioner has a current case grant of Legal Aid and/or extensive history of representing the legally assisted person.

Representation of an applicant for legal aid on a duty basis or in committal proceedings does not establish an extensive history of representation.

29. Having made reference to the Guidelines Mr Doumit said:

As you are aware, you are not appointed to the relevant panel.

Legal Aid NSW is not satisfied that you have established the exceptional circumstances as required in Part C despite your involvement since January 2015. That involvement does not establish “an extensive history of representation such as to warrant assignment to you rather than a member of (the Serious Panel).

I also note that you rely upon your recent appearance for Mr Alqudsi in another legally-aided matter to establish exceptional circumstances.

You will recall, in the letter approving that matter being assigned to you, the following information:

“This determination of exceptional circumstances being established to justify assignment other than to a member of (the Panel) applies to the particular circumstances of this application only. It will not be considered a precedent for future applications for legal aid. That you are authorised to conduct this matter should not be regarded as any indication that any future application for membership of (the Panel) by you will be successful.”

The grant of aid will remain with the currently assigned practitioner.

30. On 14 October 2016 Mr Corish of counsel, who has previously been retained by Ms Burrows to appear for the plaintiff and who has appeared in that capacity before me on numerous occasions, wrote to Mr Doumit in the following terms:

Steven,

When you have a chance can you call me please.

While I’m endeavouring to stay out of it, I understand the Grants Div is making certain decisions about the grant of aid and that correspondence is firing off about the issue. I’m a little concerned I that (sic) I am being dragged into the arena and possibly being verballed.

If you need any information from me about a matter, please just say so.

The matter is complex and I’m endeavouring to get on top of it before the pre-trial hearing’s (sic) listed by Bellew J on 14-16 Nov.

There is an ongoing/part hear bail application that relates to (or in the context of) repeated attempts to get the accused computer access to view the brief and frustrated attempts to have a conference with the accused which is privilege (sic) and not over heard by the Corrective Services staff given by the EHRR classification.

[Suppressed by orders of 2 December 2016] recently the Cth as (sic) joined a multitude of accused, further complicating the matter, [suppressed by orders of 2 December 2016].

To the extent I can observe, Ms Burrows seems to have a stable and on-going relationship with the accused, his circumstances and the family of the accused.

I have no allegiance to any particular solicitor. But, to be blunt, I doubt I will get on top of the brief unless I am working with someone who knows the brief. As things stand, I do not know the brief well enough to prepare it thoroughly without the assistance of a solicitor who has knowledge of the brief, the history of the matter and all the complexities.

As I said, if you need any information from me – just call.

Regards

Scott

31. On about 21 October 2016 the plaintiff wrote to the Commission in the following terms:

To legal aid commission

I do not want Sofi Tumy (sic) to be assigned to my case or any other lawyer. I only trust Zalie (sic) Burrows in my matter.

She has been my lawyer for 4 years Im concerned Legal aid are trying to stuff up my case by telling me to have a lawyer that they choose.

I have pretrial in a few weeks and a Bail Application which Zalie (sic) is doing and there is no way any other lawyer can take my case.

Please respect my wishes for Zalie (sic) to remain on my case.

Sincerely yours

Sulayman Khalid

32. On 25 October 2016 an unsigned letter was sent to the plaintiff from the Grants Division of the Commission in (inter alia) the following terms:

Dear Mr Khalid

LEGAL AID MATTER

Notice under section 38 of the Legal Aid Commission Act 1979

Reference is made to your undated letter received by Legal Aid NSW requesting re-assignment of the this matter to a practitioner who is not a member of the Serious Criminal Law Panel.

Legal Aid NSW is required to provide a legal aid service, in accordance with certain obligations. To comply with those obligations it is empowered to keep grants of aid under close supervision and consideration. Legal Aid NSW has the responsibility of applying its funds in the ways it considers best in the public interest. Accordingly, it must ensure that unnecessary or additional legal costs are not incurred, as that has the potential to deny legal aid in other areas.

Legal Aid NSW is not satisfied in this instance that there are, as required, exceptional circumstances for the withdrawal of instructions from the assigned practitioner.

Legal Aid NSW may consider terminating the grant of aid if a further request for a change in solicitor is made and if you are not prepared to continue to instruct and co-operate with the legal representative currently acting.

33. On 27 October 2016 Ms Burrows wrote to Mr Doumit enclosing a copy of the plaintiff’s letter referred to at [31] above. She again questioned the Commission’s decision to assign the grant of legal aid to Ms Toomey. Having canvassed a number of issues (some of which had been the subject of earlier correspondence) Ms Burrows concluded by stating:

In light of all of the above, including issues raised in previous correspondence, it appears to the writer that in this instance Legal Aid has acted ultra vires the provisions of the Legal Aid Act (sic) and/or policies, or alternatively has not acted in accordance with same.

I would be pleased to receive full written response to these matters, otherwise I am instructed to make application to the Supreme Court for declaratory relief on an urgent basis (emphasis in original).

34. Mr Doumit responded by email to Ms Burrows on 28 October 2016. He stated (inter alia):

Thank you for your email attaching your letter and Mr Khalid’s further request for re-assignment.

As most of the issues you raised were dealt with in my email to you of 13 October 2016 I will not repeat the whole of that response.

There are a number of things I will state so that there is no confusion:

You have not been assigned the grant of legal aid in this matter.

Legal Aid NSW Policy and the Grants Allocation Guidelines are published on the Legal Aid NSW website and provide the basis for assigning the matter to the currently assigned practitioner.

This matter has not been assigned to you as you are not a member of the Legal Aid NSW Serious Criminal Law Panel.

A matter will only be assigned to a non-panel lawyer where Legal Aid is satisfied there are exceptional circumstances.

You have been clearly advised that the assignment of the matter of Alqudsi to you is not be regarded as a precedent for future applications.

While ‘exceptional circumstances’ can include an extensive period of representation, as indicated in the email of 13 October 2016, ‘representation of an applicant for legal aid on a duty basis or in committal proceedings does not establish an extensive history of representation’ (emphasis in original).

As the officer responsible for determining whether the matter should be re-assigned to you, I confirm I am not satisfied that there are exceptional circumstances nor am I satisfied it will be the most effective, efficient, and economical way of allocating legal aid resources [see 2.4 of the Grants Allocation Guidelines].

I refer you to the Court of Appeal decision in Legal Services Commission of NSW v Stephens [1981] 2 NSWLR 698. It confirms that s. 12(f)(ii) does not automatically entitle an applicant to the legal practitioner of their choice.

Other concerns raised by you

The reason that you have not been assigned other legal aid matters in the “first instance” is that you are a member of the Legal Aid NSW General Criminal Law Panel of which there are currently 682 members in the Sydney metropolitan region. All legally-aided matters are offered to the in-house practice first. Only those matters that the in-house practice assign back for conflict or workload reasons (and where the initial application for legal aid has not been lodged on Grants Online by a member of the appropriate panel) are offered to the General Criminal Law Panel. That represents a very small proportion of the matters that are legally-aid.

35. At this stage it is necessary for me to note that on 1 November 2016 I heard and determined a notice of motion filed on behalf of several of the plaintiff’s co-accused seeking certain pre-trial orders. Those proceedings, being in the nature of a pre-trial application in the absence of the jury, were the subject of a non-publication order. I delivered an ex-tempore judgment on that day. That judgment was the subject of a separate non-publication order. Following the proceedings on that day, Ms Burrows again wrote to Mr Doumit. In doing so, she referred extensively to both the proceedings themselves, and the terms of my judgment. It is a matter of considerable concern that such references were made as they were in clear breach of the non-publication orders. Those parts of her correspondence aside, Ms Burrows’ correspondence to Mr Doumit following the proceedings on 1 November 2016 included the following:

….. it is with the greatest respect that the matter be assigned to me in the best interests of Mr Khalid, simply on the basis that I can comply with the pre-trial directions and any solicitor appointed by Legal Aid most likely not, nor can they rely upon Mr Corish, who relies upon me in respect of knowledge of brief, pre-trial issues from the first terrorism offence and instructions from the client. …. If Ms Toomey remains in the matter, she would most likely not be in a position to properly instruct Mr Corish …..

Seeking your urgent reconsideration in the best interests of Mr Khalid to assign the matter to me so I can instruct Mr Corish of counsel for the pre-trail (sic) that is in 2 weeks and submissions and evidence to be filed this Friday. Your assigned private legal practitioner is not in the position to properly instruct Mr Corish where as I am. ….. It is in the interest of Mr Khalid to assign the matter to a solicitor who has knowledge of the brief, instructions, consistent representation in the matter [suppressed by orders of 2 December 2016] (emphasis in original).

As this matter is urgent, please respond by close of business today, failing which I am instructed to attend the Supreme Court tomorrow, seeking declaratory relief and other relief and costs.

36. On 1 November 2016 Mr Doumit wrote to Ms Burrows stating the following:

Thank you for your email and letter.

The decision to assign the matter as per Legal Aid NSW policies and guidelines will remain unchanged.

Please forward any remaining brief items to Ms Toomey so that she may continue preparation.

RELEVANT LEGISLATIVE AND RELATED PROVISIONS

37. The Commission is constituted by s. 6 of the Act and is a statutory body representing the Crown. Division 2 of the Act sets out the functions of the Commission. Its principal function (pursuant to s. 10(1) of the Act) is to provide legal aid and other legal services.

38. Section 11 of the Act governs the provision of legal aid and is in the following terms:

11 Provision of legal aid

(1) Legal aid may be provided by the Commission by such means as it may determine, including any one or more of the following means:

(a) by arranging for the services of private legal practitioners to be made available, wholly or partly at the expense of the Commission,

(b) by making available the services of the Chief Executive Officer or members of staff of the Commission, or

(c) by arranging for the services of the Public Defenders to be made available.

(2) Nothing in this Act prevents the Commission from providing, to a patient within the meaning of the Mental Health Act 2007 , aid in respect of any matter, whether of a legal nature or not, by arranging for the services of persons approved by the Commission, whether or not those persons are private legal practitioners.

(3) Except as provided by subsection (2), this Act applies to and in respect of the provision of legal aid by a person approved by the Commission under that subsection in the same manner as it applies to and in respect of the provision of legal aid by a private legal practitioner.

39. Section 12 imposes duties on the Commission in respect of the provision of legal aid in the following terms:

12 Duties to be observed in the provision of legal aid

In respect of the provision of legal aid, the Commission shall:

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

(b) have regard to the need for legal aid to be readily available and easily accessible to disadvantaged persons throughout New South Wales,

(c) ascertain and keep under review community needs in relation to legal aid,

(d) liaise with professional bodies representing private legal practitioners and, where appropriate, use the services of private legal practitioners in the provision of legal aid,

(e) determine the allocation of legal aid services between the Chief Executive Officer or members of staff of the Commission and private legal practitioners and the principles on which private legal practitioners are to be offered or refused matters on assignment,

(f) ensure, if work is assigned to a private legal practitioner, that the assignment is made in accordance with principles determined from time to time by the Commission and after consideration of the following:

(i) the interests of the legally assisted person,

(ii) any choice expressed by the legally assisted person for a particular private legal practitioner,

(iii) the fair and reasonable distribution of work among private legal practitioners who are appointed to the relevant panel under Division 2 of Part 3,

and that the principles so determined by the Commission are publicly notified or available on request,

(g) ensure, by the assignment of appropriate work, the maintenance of the office of the Public Defenders,

(h) ensure the co-ordination of legal aid services and the avoidance of any unnecessary duplication in the provision of legal aid services,

(i) ensure that, except where otherwise expressly provided by this Act, nothing is done by the Commission, the Chief Executive Officer or members of staff of the Commission which may interfere with the relationship between a solicitor acting in the solicitor’s professional capacity and the solicitor’s client, and

(j) have regard to the desirability of enabling members of staff of the Commission to use and develop their expertise by undertaking, as far as is reasonably practicable, a full range of professional legal work.

40. I have previously set out (at [25]-[28] above) some of the relevant provisions of the Guidelines. The Commission has also published a document entitled “Panels information”. That document contains (inter alia) the following:

Requirement to be appointed to a panel

Legal Aid NSW requires private lawyers (and in some cases barristers who directly represent clients) to be appointed to a panel in order to undertake legal aid work.

41. One of the panels created by the Commission is the Serious Panel. The Serious Panel is established pursuant to s. 50(1) of the Act which is in the following terms:

50 Panels of private legal practitioners

(1) The Commission may establish panels of suitably qualified and experienced legal practitioners in private practice who have notified the Commission that they are willing to act as legal practitioners for legally assisted persons.

(2) A body, whether incorporated or unincorporated, which provides community legal services is not eligible to be included in a panel, unless the Commission otherwise determines.

(3) A panel may be established according to such criteria as the Commission determines, and publicly notifies or makes available on request, which may include (but are not limited to):

(a) matters generally, or matters of a particular type or class, or

(b) a specified jurisdiction, or

(c) a specified area of the State.

THE GROUNDS UPON WHICH RELIEF IS SOUGHT

42. The amended summons sets out the following grounds upon which relief is sought:

1. The assignment was made otherwise than in accordance with s. 12 of the Act, in particular ss. 12(a) and (f).

2. The assignment was made otherwise than in accordance with Sections A and C of the Guidelines which comprise the principles referred to in section 12(f) of the Act.

3. The decision maker(s) failed to take into account relevant matters including:

4. the fact that applications for inclusion on the Serious Panel were not open in 2015 and 2016, thus preventing Ms Burrows from making application for inclusion as a panel lawyer; and

5. the plaintiff’s emphatic preference that Ms Burrows act as his solicitor in his forthcoming trial.

6. The decision was so unreasonable as to constitute error of law and/or jurisdictional error.

SUBMISSIONS OF THE PARTIES

Submissions of the plaintiff

43. Senior counsel for the plaintiff identified five separate decisions made by the Commission in respect of which judicial review was sought, namely:

1. the decision contained in the letter from the Commission to the plaintiff of 5 October 2016 to assign the grant of legal aid to Ms Toomey;

2. the decision contained in the email of 13 October 2016 from Mr Doumit to Ms Burrows that such assignment should remain with Ms Toomey;

3. the decision contained in the letter from the Commission to the plaintiff of 25 October 2016 that there were no exceptional circumstances warranting the assignment of the grant of legal aid to Ms Burrows (and its withdrawal from Ms Toomey);

4. the decision contained in the email from Mr Doumit to Ms Burrows of 28 October 2016 refusing Ms Burrows’ request that the grant of legal aid be assigned to her; and

5. the decision contained in the email from Mr Doumit to Ms Burrows of 1 November 2016that the assignment of the grant of legal aid to Ms Toomey would “remain unchanged”.

44. Senior counsel for the plaintiff submitted that it was clear on the evidence that the plaintiff’s strong preference was that Ms Burrows continue to act for him as his solicitor, as she had been doing for approximately two years. It was submitted that the evidence established that Ms Burrows had already devoted a large amount of time to scrutinizing and analysing the evidence to be relied upon by the Crown and that a single circumstance, namely the fact that Ms Burrows was not a member of the Serious Panel, had dominated the thinking of the decision maker(s), to the effective exclusion of other, plainly relevant, factors.

45. Senior counsel submitted that the evidence established exceptional circumstances warranting the assignment of the grant to Ms Burrows. Such circumstances were said to include the fact that:

1. throughout 2015 and 2016, applications for membership of the Serious Panel were closed, thus precluding Ms Burrows’ inclusion on the Panel;

2. Ms Burrows had acted for the plaintiff in these proceedings (which were acknowledged by the Commission to be complex and serious) for a period of almost two years;

3. as a consequence, Ms Burrows had a comprehensive knowledge of the facts, and the evidence relied upon by the Crown;

4. Ms Burrows had the trust and confidence of the plaintiff;

5. the complexity of the proceedings, and the fact that the plaintiff’s trial is to take place in a relatively short period, meant that any other solicitor who might be instructed in the matter at this point would find himself or herself at a distinct disadvantage in properly preparing the matter and representing the plaintiff;

6. notwithstanding the fact that she was not a member of the Serious Panel, Ms Burrows had considerable experience in acting for persons charged with serious criminal offences; and

7. the Commission had previously assigned the grant made in favour of Alqudsi to Ms Burrows, in circumstances where Alqudsi had been charged with a not dissimilar offence, and notwithstanding the fact that Ms Burrows was not a member of the Serious Panel.

46. Senior counsel submitted that quite apart from their exceptional nature, these circumstances rendered the Commission’s decision to assign the grant to Ms Toomey so unreasonable that no reasonable decision maker could possibly have made it. It was submitted, in particular, that no decision maker could reasonably have concluded that assignment to a practitioner other than Ms Burrows was the most efficient, effective and economical way in which to provide legal aid to the plaintiff, given that Ms Burrows had acted for him for almost two years.

47. Senior counsel further submitted that there was a complete absence of any indication that the decision maker(s) had ever applied their respective minds to the interests of the plaintiff and, more specifically, to the question of whether or not his interests were best served by assigning the grant to a lawyer not of his choosing who, at least at present, was entirely unfamiliar with his case, as opposed to assigning it to a lawyer who had acted for him for a considerable period of time, who had gained his trust and confidence, and who had acquired a thorough knowledge of the evidence to be led against him. It was submitted that correspondence from the Commission reflected a failure on the part of the Commission to carefully and properly consider such matters, to the point where nothing more than “lip service” had been paid to them.

48. Senior counsel took particular issue with Mr Doumit’s conclusion that the period over which Ms Burrows had acted for the plaintiff in the current proceedings did not establish “an extensive history of representation”. Senior counsel submitted that such conclusion was so far removed from reality as to be unreasonable.

49. Finally, senior counsel described Mr Doumit’s conclusion that he was not satisfied that assignment of the grant to Ms Burrows would be the most effective, efficient and economical way of allocating legal aid as “staggering”. It was submitted that it was indicative of the inherently unreasonable nature of the decision which had been made.

Submissions of the Commission

50. Senior counsel for the Commission submitted that on a proper analysis, there were in two relevant decisions made, namely:

1. the decision of 5 October 2016 to assign the grant to Ms Toomey; and

2. the decision of 25 October 2016 to confirm that assignment.

51. Senior counsel emphasised that the Act generally, and s. 11 in particular, reflected a clear intention on the part of the Parliament to confer a broad discretion in respect of the provision of legal aid. This, it was submitted, was a fundamental consideration in determining whether any error had been established.

52. To the extent that the plaintiff asserted that relevant matters had not been taken into account, senior counsel for the defendant submitted that merely because a decision maker did not specifically advert to a particular consideration did not, of itself, inevitably lead to a conclusion that such consideration had not been taken into account. It was submitted that on a proper analysis of the evidence, it was plain that all relevant information was before the decision maker in each case, and had been considered.

53. Senior counsel emphasised the high bar which was required to be overcome in order to establish that a decision was unreasonable in the sense for which the plaintiff contended. It was submitted that in circumstances where Ms Burrows was not a member of the Serious Panel, but Ms Toomey was, it was not only open to the Commission to conclude that the most appropriate course was to assign the matter to Ms Toomey, it was plainly reasonable to have done so.

54. In advancing these submissions senior counsel emphasised that it was not part of my function to engage in a review of the merits of the Commission’s decision. Senior counsel emphasised that the fact that a decision may be one about which minds differ does not lead to a conclusion that it is unreasonable. It was submitted that, leaving aside the allegations of unreasonableness, the submissions advanced on behalf of the plaintiff invited me to engage in an impermissible merits review.

55. Senior counsel further submitted that in making its determination, the Commission was bound to apply its own policies having regard to s. 12(f) of the Act. Such policies, it was submitted, were to be found in the provisions in the Guidelines relating to exceptional circumstances. It was submitted that in the present case, the Commission had clearly considered whether there were exceptional circumstances warranting the assignment of the grant to Ms Burrows, and had concluded that there were not. It was submitted that there was no room for a conclusion that the Commission’s decision to assign the matter to Ms Toomey was unreasonable, given that:

1. there is an obvious interest in ensuring that accused persons in complex and lengthy trials are represented by appropriately qualified specialist practitioners;

2. that interest is entirely consistent with the Commission’s duty to ensure that legal aid is provided in the most effective, efficient, and economical manner;

3. the Commission is required to assign grants of legal aid in accordance with relevant principles which, in the present case, required that in the absence of exceptional circumstances, an assignment in a matter such as this be made to a member of the Serious Panel.

CONSIDERATION

56. Before considering the individual grounds relied upon by the plaintiff, a number of preliminary observations should be made.

57. Firstly, the issues raised by the various grounds overlap to some extent, such that some matters raised in the submissions may be relevant to more than one ground. To the extent that grounds 1, 2 and 3 raise issues of unreasonableness, those issues have been considered in determining ground 4.

58. Secondly, although the parties were at issue in terms of the number of decisions of which review is sought, it seems to me that nothing turns on that question. Whatever view is taken of the matter, the decisions that the plaintiff seeks to impugn are those of 5 October 2016 (assigning the grant to a lawyer other than Ms Burrows) and 25 October 2016 (refusing the plaintiff’s request to vary that determination). I accept the submission of senior counsel for the plaintiff that the second of those decisions, being later in time, is the operative one.

59. Thirdly, in circumstances where the Parliament has conferred a broad discretion upon the Commission to (inter alia) provide legal aid, the role of this Court is to review the legal validity of any such decision. These are not appellate proceedings enabling a general review of the Commission’s determination or enabling a substitution, for that determination, of the order or decision which this Court thinks ought to have been made: Minister for Corrections NSW v Elomar (No 2) [2016] NSWSC 1040 at [4].

60. With those matters in mind I turn to consider the individual grounds upon which the plaintiff relies.

GROUND 1 – The assignment was made otherwise than in accordance with s. 12 of the Act, in particular ss. 12(a) and (f).

61. The provisions of the Act are set out above. Section 12 mandates that in respect of the provision of Legal Aid, the Commission shall (inter alia):

(a)   ensure that Legal Aid is provided in the most effective, efficient and economical manner;

…

(f)   ensure, if work is assigned to a private legal practitioner, that the assignment is made in accordance with principles determined from time to time by the Commission and after consideration of the following:

(i) the interests of the legally assisted person,

(ii) any choice expressed by the legally assisted person for a particular private legal practitioner,

(iii) the fair and reasonable distribution of work among private legal practitioners who are appointed to the relevant panel under Division 2 of Part 3,

and that the principles so determined by the Commission are publicly notified or available on request,

62. To the extent that this ground asserts that a grant of legal aid was made contrary to the mandatory requirement in s. 12(a), the plaintiff essentially relies on the same matters that are relied upon in support of his case that the decision of the Commission was unreasonable. I have considered those matters in the context of ground 4 below.

63. The provisions of para. (f) required the Commission to consider the matters in sub-paras. (i) – (iii). For present purposes, the focus is upon sub-paras (i) and (iii).

64. As to sub-para. (i), the correspondence between Ms Burrows and the Commission canvassed, at considerable length, matters which might be regarded as relevant to the issue of the plaintiff’s interests. Given the nature of that correspondence, it is inconceivable in my view that the relevant decision maker(s) within the Commission were not aware of what were said to be the plaintiff’s best interests, or that they failed to take those matters into account in deciding to assign the grant to Ms Toomey. True it is that there was no specific reference in any of the correspondence emanating from the Commission to the fact that any such issue had been considered. However, the effect of s. 11 is to confer a wide discretion upon the Commission to provide legal aid by such means as it may determine. That discretion falls to be exercised having regard to a range of considerations.

65. The mere fact that a decision maker does not make express reference to a particular matter or consideration does not lead to a conclusion that such matter or consideration has not been taken into account. The failure to specifically make reference to a matter in written reasons has been described as a “very unsure guide” in that regard: Gamble v Emerald Hill Electrical Pty Limited [2010] VSC 611 at [32] per Ross J and the authorities cited therein. Moreover not every consideration that a decision maker is required to take into account, but fails to take into account, will justify the impugned decision being set aside. There may, in a given case, be a factor which, although not taken into account, is so insignificant that the failure may not materially affect the ultimate decision: Minister for Aboriginal Affairs v Peko-Wallsend Limited (1986) 162 CLR 24; [1986] HCA 40 at 40 per Mason J (as his Honour then was).

66. In essence, the plaintiff’s assertion that the decision was made other than in accordance with s. 12(f)(i) of the Act was tantamount to the proposition that the interests of the plaintiff were such as to warrant the assignment being made to Ms Toomey. Such a proposition invites an impermissible merits review.

67. As to s. 12(f)(ii), the evidence establishes the plaintiff’s clear preference that Ms Burrows remain as his solicitor. Once again, that was a factor which was canvassed in correspondence, including the correspondence from the plaintiff himself. Mr Doumit was clearly aware of it. He expressly referred to it in his correspondence to Ms Burrows of 28 October 2016 (set out at [34] above). In doing so, he correctly pointed out that the fact that a person may express a preference for a particular solicitor does not mandate that the grant in question will be assigned to that solicitor: Legal Services Commission v Stephens (1981) 2 NSWLR 698. The matter remains one for the Commission, in the exercise of the discretion conferred upon it by the Act. In all of these circumstances there is, in my view, no room for the suggestion that the provisions of s. 12(f)(ii) were not given proper consideration.

68. It follows that subject to the question of unreasonableness which I have dealt with in the context of ground 4, ground 1 is not made out.

GROUND 2 – The assignment was made otherwise than in accordance with Sections A and C of the Guidelines, which comprise the “principles” referred to in s. 12(f) of the Act.

69. The relevant parts of paragraphs A and C of the Guidelines are set out at [26]-[28] above. Essentially, it was put on behalf of the plaintiff that the decision to assign the grant to Ms Toomey was made other than in accordance with the Guidelines because exceptional circumstances had been made out, warranting the assignment of the grant to Ms Burrows. Such a proposition again invites an impermissible merits review. It is not for me to determine, on an application for judicial review, whether in my view the relevant circumstances were exceptional.

70. For these reasons ground 2 is not made out.

71. To the extent that the matters relied upon in support of this ground touch upon the asserted unreasonableness of the decision, I have considered them in the context of ground 4.

GROUND 3 – The decision maker(s) failed to take into account relevant matters including:

(i) the fact that applications for inclusion on the Serious Panel were not open in 2015 and 2016, thus preventing Ms Burrows from making application for inclusion as a panel lawyer; and

(ii) the plaintiff’s emphatic preference that Ms Burrows act as his solicitor in his forthcoming trial

72. The matter in (i) above was clearly a matter within the knowledge of the Commission. Reference was made to it in Ms Burrows’ correspondence of 10 October 2016 (at [22] above). For the reasons I have previously explained, the absence of any specific reference to that issue on the part of the Commission does not mean that it was not considered.

73. The issue arising from (ii) above has been dealt with in the context of ground 1 (at [67] above).

74. For these reasons, ground 3 is not made out.

GROUND 4 – The decision was so unreasonable as to constitute error of law or jurisdictional error

75. The assertion of unreasonableness is the essence of the plaintiff’s complaint. Before considering the competing the positions of the parties in respect of this ground, it is necessary to make reference to a number of principles which are established by the authorities.

76. In AssociatedProvincial Picture Houses v Wednesbury Corporation [1948] 1 KB 223 Lord Greene MR said at 230:

… once it is conceded, as it must be conceded in this case, that the particular subject-matter dealt with by this condition was one which it was competent for the authority to consider, there, in my opinion, is an end of the case. Once that is granted (counsel) is bound to say that the decision of the authority is wrong because it is unreasonable, and in saying that he is really saying that that the ultimate arbiter of what is and is not reasonable is the court and not the local authority. It is just there, it seems to me, that the argument breaks down. It is clear that the local authority are entrusted by Parliament with the decision on a matter which the knowledge and experience of that authority can best be trusted for deal with. The subject-matter with which the condition deals is one relevant for its consideration. They have considered it and come to a decision upon it. It is true to say that, if a decision on a competent matter is so unreasonable that no reasonable authority could ever have come to it, then the courts can interfere. That, I think, is quite right; but to prove a case of that kind would require something overwhelming, and, in this case, the facts do not come anywhere near anything of that kind. I think (counsel) in the end, agreed that his proposition that the decision of the local authority can be upset if it is proved to be unreasonable, really meant that it must be provide to be unreasonable in the sense that the court considers it to be a decision that no reasonable body could have come to. It is not what the court considers unreasonable, a different thing altogether. If it is what the court considers unreasonable, the court may very well have different views to that of a local authority on matters of high public policy of this kind. Some courts might think that no children ought to be admitted on Sundays at all, some courts might think the reverse, and all over the country I have no doubt on a thing of that sought honest and sincere people hold different views. The effect of the legislation is not to set up the court as an arbiter of the correctness of one view over another. It is the local authority that are set up in that position and, provided they act, as they have acted, within the four corners of their jurisdiction, this court, in my opinion, cannot interfere.

77. Subsequent authorities have considered the meaning of the term “unreasonable” in the sense referred to by Lord Greene MR in that passage. For example, in Secretary of State for Education and Science v Tameside Metropolitan Borough Council [1977] AC 1014 Lord Diplock said (at 1064):

To fall within this expression it must be conduct which no sensible authority acting with due appreciation of its responsibilities would have decided to adopt.

78. Subsequently in Bromley London Borough Council v Greater London Council [1983] 1 AC 768 Lord Diplock expanded upon the issue, describing (at 821) decisions falling into this general category as those decisions that:

… looked at objectively, are so devoid of any plausible justification that no reasonable body of persons could have reached them.

79. Lord Diplock’s formulation was adopted by Wilcox J in Conyngham & Ors v Minister for Immigration and Ethnic Affairs (1986) 68 ALR 423 at 433–4. Subsequently, in Minister for Immigration and Citizenship v Li (2013) 249 CLR 332; [2013] HCA 13 the High Court concluded that a decision of the Migration Review Tribunal to refuse to adjourn review proceedings was unreasonable, to the extent that the Tribunal had exceeded its jurisdiction. The following propositions may be distilled from the judgment of the plurality (Hayne, Kiefel and Bell JJ):

1. the legal standard of reasonableness must be the standard indicated by the true construction of the statute. It is necessary to construe the statute because the question to which the standard of reasonableness is addressed is whether the statutory power has been abused ([67]);

2. the decision in Wednesbury (supra) is not the starting point for the standard of reasonableness, nor should it be considered the end point. The legal standard of unreasonableness should not be considered as limited to what is in effect an irrational (if not bizarre) decision or in other words, one that is so unreasonable that no reasonable person could have arrived at it. Lord Greene MR should not be taken to have limited the concept of unreasonableness in this way. His Lordship’s judgment may more sensibly be taken to recognise that an inference of unreasonableness may, in some cases, be objectively drawn even where a particular error in reasoning cannot be identified ([68]).

3. the drawing of an inference of unreasonableness in the absence of specific error is recognised by the principles governing the review of a judicial discretion ([68]);

4. specific errors in decision-making may also be seen as being encompassed by unreasonableness ([72]);

5. a court may infer that in some way there has been a failure to properly exercise the relevant discretion if, upon the facts, the result is unreasonable or plainly unjust ([76]);

6. the reasoning in (v) above may apply to the review of the exercise of a statutory discretion, where unreasonableness is an inference drawn from the facts, and from the matters falling for consideration in the exercise of the statutory power ([76]);

7. even where some reasons have been provided, it may nevertheless not be possible for a court to comprehend how the decision was made. Unreasonableness is a conclusion which may be applied to a decision which lacks an evident and intelligible justification ([76]).

80. With these principles in mind, I turn to consider ground 4.

81. In essence, it was submitted on behalf of the plaintiff that irrespective of the fact that Ms Burrows was not a member of the Serious Panel, and in light of the fact that she had:

1. represented the plaintiff for almost 2 years;

2. become familiar, over that period of time, with the voluminous evidence relied upon by the Crown and the likely issues at trial;

3. already instructed counsel a in complex pre-trial application;

4. gained the trust and confidence of the plaintiff; and

5. considerable experience in representing persons charged with serious criminal offences,

6. it was unreasonable for the grant of legal aid to be assigned to Ms Toomey, particularly in circumstances where:

7. the plaintiff’s trial was eight months away;

8. Ms Toomey had had no prior involvement in the matter;

9. Ms Toomey had not even met the plaintiff; and

10. Ms Toomey had no familiarity whatsoever with the evidence, or the issues.

82. In advancing this ground senior counsel for the plaintiff pointed to particular parts of the evidence which, it was submitted, were indicative of unreasonableness. These matters included   

1. the apparent primacy which was said to have been given, particularly by Mr Doumit, to the fact that Ms Burrows was not a member of the Serious Panel;

2. Mr Doumit’s observation in his correspondence of 28 October 2016 (at [34] above) that “representation of an applicant for legal aid on a duty basis or in committal proceedings does not establish an extensive history of representation” for the purposes of establishing exceptional circumstances; and

3. Mr Doumit’s conclusion (in the same correspondence) that he was not satisfied that the assignment of the grant to Ms Burrows would be “the most effective, efficient, and economical way of allocating legal aid resources”.

83. The matters relied upon by senior counsel for the plaintiff in these respects are not without some substance. Ms. Burrows is an obviously experienced legal practitioner who has acted for the plaintiff in relation to his current proceedings for almost two years. She has, in the course of so doing, acquired a knowledge of the matter that is not presently shared by Ms Toomey. Indeed, Ms Toomey has never even met the plaintiff. Those observations are not intended, in any way, as criticisms of Ms Toomey. They are simply the facts.

84. Mr Doumit’s observation in his correspondence of 28 October 2016 as to what might establish an extensive history of representation (for the purposes of determining whether there were special circumstances warranting the assignment of the grant to a practitioner who was not a member of the Serious Panel) is, at the very least, curious. On any view of the evidence, Ms Burrows’ representation of the plaintiff goes substantially beyond having acted for him on a duty basis or in committal proceedings. What Mr Doumit intended to convey by making reference to those matters is not at all clear.

85. Moreover, the assignment of the grant to Ms Toomey may well (and is seemingly likely to) involve, at least to some degree, a duplication of preparatory work already undertaken by Ms Burrows. The efficiency of that course may be open to question. Quite apart from issues of efficiency, and although I am not privy to the fee arrangements in place between the Commission and a practitioner who is the assignee of a grant of legal aid, it is not difficult to conceive that the assignment of the matter to a practitioner other than Ms Burrows may involve the unnecessary expenditure of public money, in favour of the practitioner to whom the matter is assigned, in respect of work already performed by Ms Burrows. On one view, it is difficult to reconcile all of these circumstances with Mr Doumit’s apparent conclusion that the assignment of the grant to Ms Toomey constitutes the “most effective, efficient and economical way of allocating legal aid resources”.

86. For these reasons, the matters relied upon by the plaintiff may be capable of supporting a conclusion that the decision to assign the grant to Ms Toomey is lacking in logic. However, that is not what I am required to determine on an application for judicial review. Want of logic is not synonymous with error of law. Even if an affirmative conclusion were reached that the decision is illogical, it would not, by virtue of that finding alone, be an unreasonable decision. As long as there is some basis for an inference or conclusion, or in other words if an inference or conclusion is reasonably open, there is no place for judicial review, even if the inference or conclusion appears to have been drawn as a result of illogical reasoning. This is because no error of law has taken place: Elomar (No. 2) (supra) at [93] – [94] and the authorities cited therein.

87. One of the matters which the Commission was entitled to (and obviously did) take into account in reaching its decision was that Ms Burrows is not a member of the Serious Panel. Whether, in all of the circumstances of this case, the plaintiff’s interests are best served by a practitioner who is a member of that Panel (as opposed to Ms Burrows) representing him may be something about which reasonable minds may differ. However, it is clearly open to the Commission for formulate, and act upon, its own policies: Stephens (supra) at 704-705 per Hope JA. In the context of the present case those policies are reflected in (inter alia) the Guidelines which, as I have noted, assume that in a matter such as this, any assignment will, absent exceptional circumstances, be made in favour of a member of the Serious Panel. It is not a matter for me to determine whether the circumstances of this case were exceptional in that sense. To do so would be to engage in an impermissible merits review. The Commission was entitled to have regard to the fact that a member of the Serious Panel is obviously an experienced practitioner who has demonstrated, to the satisfaction of the Commission, the requisite experience and expertise to act as the solicitor for an accused person in a matter of this nature. The weight to be attributed to that fact, and indeed to all other relevant factors, was a matter for the Commission, not the Court: Peko-Wallsend (supra) at 41 per Mason J (as his Honour then was). It was open to the Commission to conclude that in all of the circumstances, and notwithstanding the matters relied upon by senior counsel for the plaintiff, a member of the Serious Panel would best protect and represent the plaintiff’s interests.

88. It follows that I am unable to determine that the Commission’s decision to assign the matter to Ms Toomey was not one which was reasonably open to be made. It follows that I am not satisfied that the Commission’s decision was unreasonable in the sense described in the authorities.

89. It follows that ground 4 is not made out.

ORDERS

90. I make the following orders:

1. The proceedings are dismissed.

2. The plaintiff is to pay the defendant’s costs, as agreed or assessed.

**********

Decision last updated: 05 December 2016