Mashayekhi v Legal Aid NSW

[2020] NSWCATAD 78

Civil and Administrative Tribunal

New South Wales

Medium Neutral Citation:	Mashayekhi v Legal Aid NSW [2020] NSWCATAD 78
Hearing dates:	On the papers
Date of orders:	06 March 2020
Decision date:	06 March 2020
Jurisdiction:	Administrative and Equal Opportunity Division
Before:	N S Isenberg RFD, Senior Member
Decision:	(1)   The proceedings be dealt with on the papers without a hearing. (2)   Mr Mashayekhi’s application to the Tribunal is dismissed for lack of jurisdiction.
Catchwords:	JURISDICTION – administrative review – legal aid - relevance of issues raised by the Applicant – enabling legislation – basis of Tribunal’s jurisdiction.
Legislation Cited:	Administrative Decisions Review Act 1997 (NSW) Civil and Administrative Tribunal Act 2013 (NSW) Legal Aid Commission Act 1979 (NSW) Legal Profession Uniform Law (NSW) Legal Profession Uniform Law Application Act 2014 (NSW)
Cases Cited:	None cited.
Texts Cited:	Administrative Review Proceedings in NCAT, March 2017 paper by Justice Robertson Wright, President NCAT
Category:	Procedural and other rulings
Parties:	Amin Mashayekhi (Applicant) Legal Aid NSW (Respondent)
Representation:	Solicitors: Applicant (Self Represented) Legal Aid NSW (Respondent)
File Number(s):	2020/00004336
Publication restriction:	Nil

REASONS FOR DECISION

Background

1. This matter involves an application to the Civil and Administrative Tribunal (“the Tribunal” or NCAT”) by the Applicant (Mr Mashayekhi), to review the refusal by the Respondent, Legal Aid New South Wales (Legal Aid NSW) of Mr Mashayekhi’s application for legal aid for his appeal to the Court of Criminal Appeal against a conviction and sentence.

2. Legal Aid NSW informed Mr Mashayekhi by letter dated 19 November 2019 that it had permitted an appeal to be made to the Legal Aid Review Committee against the refusal of his application for aid. By letter dated 21 November 2019, Mr Mashayekhi was informed by the Legal Aid Review Committee that his appeal was disallowed.

3. On 19 December 2019 Mr Mashayekhi applied to the Tribunal for:

1. a review of the decisions referred to in the letters of 19 and 21 November 2019 (the Substantive Application); and

2. a stay of the order made by Legal Aid NSW to suspend Mr Mashayekhi’s “Legal Grant” so that a solicitor will be “re-instated” to his case (the Application).

4. The only respondent referred to in both applications was Legal Aid NSW.

5. I observe that the Legal Aid Commission Act 1979, (LAC Act) formerly known as Legal Services Act 1979, constituted the ‘Legal Aid Commission of New South Wales’ (Legal Aid Commission) as a corporation. The Australian Business Number (ABN) of the Legal Aid Commission is 81 173 463 438.

6. The letterheads in evidence of Legal Aid NSW and the Legal Aid Review Committee show different telephone and facsimile numbers. However, both letterheads disclose the same street address, post office box number, document exchange number and internet web site. The letterheads also identify each of Legal Aid NSW and Legal Aid Review Committee by the Legal Aid Commission ABN.

7. Legal Aid Review Committees may be established under s 53 of the LAC Act. However, Legal Aid NSW is not referred to in the LAC Act nor in any other legislation to which my attention has been drawn.

8. There is no evidence before the Tribunal that Legal Aid NSW is a separate legal entity rather than a name used by the Legal Aid Commission. However, as the matter does not seem to be in dispute and does not affect my findings or orders, I make no findings in that regard.

9. On 10 January 2020 the Tribunal received an email from Joshua Kulawiec, Senior Solicitor, In-house Counsel Unit, Legal Aid NSW (Mr Kulawiec). The email referred to matter “20/4336” and requested “that this matter be summarily dismissed on the papers for lack of jurisdiction”. On 15 January Mr Kulawiec sent a further email to the Tribunal with submissions in support of his 10 January request.

10. Although no Notice of Representation has been filed with the Tribunal by any solicitor acting for Legal Aid NSW (nor for the Legal Aid Commission nor any Legal Aid Review Committee) and although Mr Kulawiec has not expressly stated that he represents Legal Aid NSW as Respondent in these proceedings, I assume that Mr Kulawiec is an in-house legal representative of Legal Aid NSW and for the purpose of these Reasons will proceed on that basis.

11. Mr Mashayekhi disputes Legal Aid NSW’s claim that the Tribunal lacks jurisdiction to deal with the Application.

12. At a directions hearing on 28 January 2020 the Tribunal made procedural orders/directions for the parties to file written submissions concerning the 15 January submissions and noted that the parties agreed “a hearing may be dispensed with and the dismissal application can be dealt with on the basis of the [parties’] written submissions ….”

13. Both Legal Aid NSW and Mr Mashayekhi filed documents in support of their positions as to the extent of the Tribunal’s jurisdiction to deal with the Application.

Material before the Tribunal

14. The parties filed and rely on:

1. Letters to Mr Mashayekhi of 19 and 21 November 2019 respectively from Legal Aid NSW and the Legal Aid Review Committee.

2. Mr Mashayekhi’s letter to the Tribunal of 10 December 2019 headed “Request to review a decision of “Legal Aid – New South Wales”” which enclosed the Substantive Application and the Application, both dated 10 December 2019 and filed 19 December 2019.

3. Email from Mr Kulawiec to the Tribunal on 10 January 2020 referred to above.

4. Email from Mr Kulawiec to the Tribunal on 15 January 2020 referred to above.

5. Letter from Mr Mashayekhi to the Tribunal dated 21 January 2020 the stated purpose of which was to:

1. A. Confirm the jurisdiction of the NCAT, and

2. B. Request an interim order.

6. Letter of submissions from Mr Mashayekhi to the Tribunal dated 28 January 2020 .

7. Email from Mr Mashayekhi to the Tribunal on 18 February 2020 with further submissions.

Mr Mashayekhi’s Application

The order sought by Mr Mashayekhi in the Application was “To stay the order made by Legal Aid NSW to suspend my Legal Grant so I can get a solicitor re-instated to my case.”

Jurisdiction of the Tribunal

General legislative scheme

15. The Tribunal was established by the Civil and Administrative Tribunal Act 2013 (CAT Act). The objects of the CAT Act include enabling the Tribunal to review decisions made by certain persons and bodies, to determine appeals against such decisions and to ensure that the Tribunal’s processes are open and transparent (ss 3(b)(ii) and (iii) and s 3(f)).

16. Part 3 of the CAT Act, ss 28 – 34, is entitled ‘Jurisdiction of Tribunal’. Section 28 provides “The Tribunal has such jurisdiction and functions as may be conferred or imposed on it by or under this Act or any other legislation.”

17. In summary, Part 3 provides that the Tribunal has jurisdiction if specific legislation empowers the Tribunal to exercise jurisdiction, including jurisdiction to make ancillary and interlocutory decisions.

Issues before the Tribunal

18. Mr Mashayekhi’s claims in evidence include allegations by him to the Office of the Legal Service Commissioner (OLSC) concerning two lawyers, one a solicitor and the other a barrister. Mr Mashayekhi has commenced separate proceedings at the Tribunal, which I understand are against the OLSC in relation to those allegations.

19. The proceedings with which I am dealing concern the Tribunal’s jurisdiction to deal with Mr Mashayekhi’s Stay Application and Substantive Application against Legal Aid NSW and not with Mr Mashayekhi’s concerns regarding OLSC.

20. In summary Mr Mashayekhi’s claims against Legal Aid NSW are:

1. What Mr Mashayekhi describes in his 10 December 2019 letter as the “termination” of his grant of legal aid pursuant to decisions by Legal Aid NSW and the Legal Aid Review Committee respectively on 19 and 21 November 2019. Mr Mashayekhi submits that Legal Aid NSW assigned a solicitor to determine the merits for an appeal in respect of a criminal conviction and sentence. He further submits that the solicitor “conducted himself inappropriately and provided false legal advice” to Legal Aid NSW and, acting on that advice, Legal Aid NSW terminated his legal aid grant.

2. Mr Mashayekhi’s 21 January 2020 letter to the Tribunal, included an application that the Tribunal provide “an Interim Order to Legal Aid NSW to reinstate [his] grant.”

3. Mr Mashayekhi’s letter dated 28 January 2020 claims he is not seeking a review of a decision made under the “Legal Aid Commission Act”. However, he expressly states he is:

… applying for the NCAT to overturn the decision to cancel my grant on the basis that:

The Legal Aid Commission relied on the provisions of the LPUL to assess a complaint in regards to my legal team, finding in favour of the complainees …

21. I understand that Mr Mashayekhi’s reference to “LPUL” is a reference to the Legal Profession Uniform Law (NSW). I will use that abbreviation in these Reasons.

22. Mr Mashayekhi’s 28 January letter states the Legal Aid Commission advised OLSC to close his complaint against the solicitor and barrister referred to above. Mr Mashayekhi states the investigation:

“… was ineffective and reached an incorrect conclusion … principally [because he] was denied the opportunity to respond to assertions [he claims] are incorrect … the Legal Aid Commission Act prohibits the Legal Aid Commission from engaging in the assessment of a solicitors' conduct.

Further, in approving my grant of Legal Aid, the Legal Aid Commission instructed the Solicitor to perform such investigation limited only to a limited scope (which would only benefit the police case and not the defense) [sic]. The Legal Aid Commission Act prohibits the Legal Aid Commission from making instructions on behalf of a grantee. The presiding jurisdiction for the determination of improper adherence to the Act is the NCAT.

…

My application is for the annulment of the determination of the Legal Aid Commission to terminate my Grant of Legal Aid. I further apply for an order by the NCAT to be made against Legal Aid to reinstate my Grant so that an alternative solicitor may progress my criminal appeal. I make this application because Legal Aid Commission made the decision to cancel my Legal Grant (or not to pay for a legal representative) by relying on the provision of LPUL.

The NCAT has jurisdiction where any institution relies on the LPUL to make a determination, and, where the provisions of the Legal Aid Commission Act are in dispute.

…

My respectful submission to the Tribunal is that the NCAT has the jurisdiction to review the decisions in dispute…

Legal Aid NSW’s case

23. On 10 January 2019 Mr Kulawiec sought summary dismissal of matter “20/4336” “for lack of jurisdiction” claiming the Tribunal “has no jurisdiction to review a decision of Legal Aid NSW or the Legal Aid Review Committee.” Mr Kulawiec submitted:

The Tribunal can only deal with decisions where an enabling Act confers jurisdiction on the Tribunal and authorises the Tribunal to review a decision of the agency. The Legal Aid Commission Act 1979 does not confer jurisdiction on the Tribunal to review decisions of Legal Aid NSW or the Legal Aid Review Committee

24. On 15 January 2020 Mr Kulawiec made further email submissions. They substantially comprise extracts from a paper delivered in March 2017 by the Tribunal’s then President, Mr Justice Wright. The thrust of the submissions seems to me to be set out at [16] in His Honour’s paper, namely:

16    The ADR Act [Administrative Decisions Review Act 1997 (NSW)] establishes that the Tribunal does not have general authority to review all administrative decisions. Instead, the Tribunal only has administrative review jurisdiction where enabling legislation expressly permits such a review.

25. Mr Kulawiec’s 15 January email included:

The applicant's application does not identify enabling legislation which enables the application to be made and empowers NCAT to review the decision of Legal Aid NSW or the Legal Aid Review Committee. The Legal Aid Commission Act 1979 does not enable such review.

Consideration

Determination on the papers

26. Pursuant to s 50 of the Civil and Administrative Tribunal Act 2013 (NSW) (CAT Act) hearings open to the public are required for Tribunal proceedings, subject to exceptions outlined in that section. One of the exceptions is that the Tribunal may dispense with a hearing if it is satisfied that the relevant issues can be adequately determined in the absence of the parties by considering any written material provided to the Tribunal and the Tribunal has afforded the parties an opportunity to make submissions about the proposed order and taken any such submissions into account.

27. I am satisfied that the issues now before the Tribunal can be adequately determined in the absence of the parties by a consideration of material before the Tribunal.

28. The parties were afforded an opportunity to make submissions as to whether the Tribunal should make an order dispensing with a hearing in respect of the relevant issues. At the directions hearing on 28 January 2020 both parties consented to the Tribunal dispensing with such a hearing and determining issues on the papers. I proceeded accordingly.

Enabling powers

29. Mr Mashayekhi’s 28 January response to Mr Kulawiec’s 15 January submission includes that the Tribunal has “enabling powers” in the LPUL and the LAC Act. He does not identify any specific provisions of either Act which support his submission, nor have I located any such provisions.

Legal Profession Uniform Law (NSW) (LPUL)

30. Section 3 of LPUL relevantly provides that its objectives “are to promote the administration of justice and an efficient and effective Australian legal profession”.

31. The term “Legal Aid Commission” does not appear in LPUL nor does “Legal Aid NSW”.

32. Section 6 of LPUL contains definitions used in LPUL. The word “tribunal’ is used on 163 occasions and is defined inclusively as “… a panel or person authorised to hear or determine a matter”. The term “designated tribunal” appears 120 times in LPUL and is defined as follows:

"designated tribunal" means--

(a)   a court or tribunal specified or described in a law of this jurisdiction for the purposes of a provision, or part of a provision, of this Law in which the term is used; or

(b)   a member or officer so specified or described of such a court or tribunal.

33. The Tribunal is not specifically named or described in LPUL, whether so as to enable it to exercise any powers or otherwise.

34. Mr Mashayekhi provided no evidence that the Tribunal was empowered by any legislation to review any decisions or deal with any appeals in respect of grants of legal aid.

35. Accordingly, I reject Mr Mashayekhi’s submission that LPUL provides “enabling” powers to the Tribunal in respect of reviews or appeals concerning grants of legal aid.

Legal Aid Commission Act 1979 (LAC Act).

36. The LAC Act makes numerous references to the power of the Legal Aid Commission to make grants of legal aid subject to conditions and empowers the Commission to vary conditions and terminate grants, s 38. Indeed s 38 includes:

38 Variation of grant of legal aid

(1)   The grant of legal aid to a person may, at any time, be varied by the Commission so as to—

(a)   terminate the provision of the legal aid,

(b)   alter the nature or extent of the legal aid,

(c)   make the provision of the legal aid subject to a condition or an additional condition …

37. Mr Mashayekhi’s 28 January letter states:

The Legal Aid Commission, in making the Grant of Legal Aid, improperly made instructions to the solicitor with limitations restricting their investigation; such that, it became impossible for that solicitor to properly determine merit for my appeal.

38. Division 4 of Part 3, ss 56 to 60 of the LAC Act, deals with appeals in respect of the provision of legal aid. That division relevantly includes:

1. Section 56 (1) – a person dissatisfied with determinations or decisions in respect of grants of legal aid “may appeal to a Legal Aid Review Committee”.

2. Sections 59 and 60 provide:

59 Determination of appeal(1)   A Legal Aid Review Committee shall determine an appeal made to it and in so doing may make such order with respect to the matter the subject of the appeal as it thinks fit

…

60 Effect and implementation of determination or order

(1)   A determination or order of a Legal Aid Review Committee under section 59 in respect of an appeal shall be deemed to be the final decision of the person or body whose determination, variation or decision was the subject of the appeal and shall be given effect to accordingly.

…

39. The LAC Act includes over 20 referrals to “tribunal” but makes no express mention of NCAT nor of applications to NCAT.

40. I reject Mr Mashayekhi’s submission that the LAC Act provides “enabling” powers to the Tribunal.

Other issues raised by Mr Mashayekhi

41. On 18 February 2020 Mr Mashayekhi replied to earlier submissions and letters by Legal Aid NSW, its adviser(s) and the Legal Aid Review Committee by referring to specific legislation. He stated:

I draw [the Tribunal’s] attention to Civil and Administrative Tribunal Act 2013 - Part 3 Jurisdiction of Tribunal and specifically Section 29 General Jurisdiction. Relevant legislation provided for your reference.

And

also refer to Legal Profession Uniform Law Application Act 2014 - PART 11 - PROCEDURES OF NCAT AS DESIGNATED TRIBUNAL FOR DISCIPLINARY MATTERS.

Section 29 of the Civil and Administrative Tribunal Act 2013

42. In relation to the first submission above, Mr Mashayekhi provided the following excerpt from the CAT Act. The underlining is from Mr Mashayekhi.

29 General jurisdiction

(1)   The Tribunal has "general jurisdiction" over a matter if:

(a)   legislation (other than this Act or the procedural rules) enables the Tribunal to make decisions or exercise other functions, whether on application or of its own motion, of a kind specified by the legislation in respect of that matter, and

(b)   the matter does not otherwise fall within the administrative review jurisdiction, appeal jurisdiction or enforcement jurisdiction of the Tribunal.

Note : The general jurisdiction of the Tribunal includes (but is not limited to) functions conferred on the Tribunal by enabling legislation to review or otherwise re-examine decisions of persons or bodies other than in connection with the exercise of the Tribunal's administrative review jurisdiction

(2)   The Tribunal also has the following jurisdiction in proceedings for the exercise of its general jurisdiction:

(a)   the jurisdiction to make ancillary and interlocutory decisions of the Tribunal in the proceedings,

(b)   the jurisdiction to exercise such other functions as are conferred or imposed on the Tribunal by or under this Act or enabling legislation in connection with the conduct or resolution of such proceedings.

(3)   A "general decision" of the Tribunal is a decision of the Tribunal determining a matter over which it has general jurisdiction

(4)   A "general application" is an application made to the Tribunal for a general decision.

(5)   Nothing in this section permits general jurisdiction to be conferred on the Tribunal by a statutory rule unless the conferral of jurisdiction by such means is expressly authorised by another Act.

43. I find that s 29 of the CAT Act provides that in order for the Tribunal to have “general jurisdiction” over a matter there must be a legislative basis, either from the CAT Act or “enabling legislation” to enable the Tribunal to make decisions or exercise other relevant functions.

44. I further find that s 29, by itself, does not empower the Tribunal to make the orders sought by Mr Mashayekhi.

Legal Profession Uniform Law Application Act 2014 – Part 11

45. Mr Mashayekhi submitted that Part 11 of the Legal Profession Uniform Law Application Act 2014 (LPUL Application Act) is relevant legislation.

46. Mr Mashayekhi’s substantive proceedings before the Tribunal involve the rejection of his application for legal aid (to appeal to the Court of Criminal Appeal in respect of, as I understand it, his conviction and the imposition of a custodial sentence). The issue presently before me is whether the Tribunal has jurisdiction to make orders sought by Mr Mashayekhi in relation to a legal aid grant.

45. I observe that Part 11 of the LPUL Application Act headed “Procedures of NCAT as designated tribunal for disciplinary matters” comprises ss 135 to 147.

46. Section 135 of LPUL states that the purpose of Part 11 is to provide procedures of the Tribunal as contemplated by s 301 of the LPUL in relation to disciplinary applications made to the Tribunal by a designated local regulatory authority which is of the opinion that alleged conduct of a respondent lawyer may amount to either unsatisfactory professional conduct or professional misconduct.

47. I find that Part 11 of the Legal Profession Uniform Law Application Act 2014 is not relevant to these proceedings and I reject Mr Mashayekhi’s submission to the contrary.

Decision

50. Having regard to my above findings, the correct and preferable decisions are firstly that the Tribunal may deal with the relevant issues without holding a public hearing by considering the material before me, and secondly there is no evidence that the Tribunal has jurisdiction to review the decision by Legal Aid NSW to refuse the legal aid sought by Mr Mashayekhi.

Orders

1. The proceedings be dealt with on the papers without a hearing.

2. Mr Mashayekhi’s application to the Tribunal is dismissed for lack of jurisdiction.

**********

I hereby certify that this is a true and accurate record of the reasons for decision of the Civil and Administrative Tribunal of New South Wales.

Registrar

Decision last updated: 06 March 2020