Sordini v Wilcox

[1982] FCA 150

Re: DANILO SORDINI; DOMENICO SORDINI and VITTORIA SORDINI
And: STUART FRANCIS WILCOX; ALAN ANTHONY HARDIMAN; STANFORD BRUCE JUDDERY and
LEGAL AID COMMISSION (A.C.T.) (1982) 64 FLR 439
ACT No. G12 of 1982
Administrative Law - Legal Practitioners

COURT

IN THE FEDERAL COURT OF AUSTRALIA

AUSTRALIAN CAPITAL TERRITORY DISTRICT REGISTRY
GENERAL DIVISION
Northrop J.(1)

CATCHWORDS

Administrative Law - provision of legal assistance by Legal Aid Commission (A.C.T.) - whether to be provided by private legal practitioners or by officers of the Commission - guidelines determined for such allocation - review by Review Committee - application for order of review - whether procedures required by law to be observed were observed - whether proper exercise of power.

Administrative Decisions (Judicial Review) Act 1977 s.5.

Legal Aid Ordinance 1977 (A.C.T.) ss.5, 6, 8, 9, 10, 11, 13, 17, 18, 20, 21, 22, 23, 26, 32, 32A, 35, 36, 37, 38, 39, 39A, 40, 80.

Legal Practitioners - Legal aid - Assignment to private practitioner - Refusal to - Review - Legal Aid Ordinance 1977 (A.C.T.), s. 11.

HEADNOTE

Section 26(3) of the Legal Aid Ordinance 1977 (A.C.T.), so far as relevant, provided:

"Where . . . an officer of the Commission decided to grant an application for legal assistance, . . . the officer shall also decide, in accordance with guidelines determined by the Commission in pursuance of sections 11 . . .

(a) whether the legal assistance should be provided by making available the services of a private legal practitioner or whether the legal assistance should be provided by making available the services of an officer of the Commission;

(b) the nature and extent of the legal assistance to be provided."

Guideline 4 provided: "in any event where a person qualifies for legal assistance then the legal staff of the Commission, only, shall if available be assigned to act for him/her: (a) where the matter involves a charge triable upon indictment, and the costs of the matter including costs of committal proceedings are estimated by the Director or a committee to exceed $2,000 unless in all the circumstances the Director is of the opinion that it is reasonable to assign the legally assisted person to a private legal practitioner."

Section 39A of the Ordinance provided:

"A Review Committee that reviews a decision referred to it under sub-section 36(3) shall not make a decision on the review unless it had afforded to the person who requested the review a reasonable opportunity -

(a) to attend a meeting of the Review Committee;

(b) to address the Review Committee in relation to the review; and

(c) to place before the Committee any document relevant to the review."

On 25th November, 1981, the first applicant applied for legal assistance to be provided by private legal practitioners at his trial on a charge of murder which was due to commence on 8th February, 1982. The costs of the trial were estimated to exceed $2,000. The director of the Legal Aid Commission (A.C.T.) replied by letter dated 22nd December, 1981, that, under the guidelines determined by the Commission pursuant to s. 11 of the Legal Aid Ordinance 1977, he had determined that the Public Defender instructed by an officer of the Commission would be assigned to act for the first applicant. By letter dated 6th January, 1982, the first applicant's solicitors sought a reconsideration of the director's decision, but the director replied by letter dated 12th January, 1982, confirming his decision. By notice in writing dated 14th January, 1982, the first respondent requested the Commission to refer the decision to a Review Committee for review in accordance with s. 36(3) of the Ordinance. The committee confirmed the director's decision and the first applicant sought a review of the committee's decision pursuant to s. 5 of the Administrative Decisions (Judicial Review) Act 1977.

The first applicant asserted that a breach of the rules of natural justice had occurred in connexion with the making of the Review Committee's decision and that the making of the decision was an improper exercise of the power conferred by the enactment in pursuance of which it was purported to be made. Evidence showed that the committee fulfilled the duties imposed upon it by s. 39A of the Ordinance, that it extended an opportunity to the applicant's solicitor referred to therein, and that the committee's decision was made on the basis that even if the private legal practitioners were agreeable to accept the assignment of legal assistance on the basis of fees prescribed by the Commission, nevertheless the committee would not assign the matter to them.

Held: (1) The Review Committee decided the review in accordance with the guidelines determined by the Commission in pursuance of s. 11 of the Legal Aid Ordinance 1977 and had properly exercised its discretion in exercising its powers under ss. 26(3), 36(3) and 39 of the Ordinance.

(2) Accordingly, in all the circumstances the applicant had not made out the grounds based upon s. 5(1)(a) or (b) of the Administrative Decisions (Judicial Review) Act 1977.

(3) The Review Committee had complied with the requirements of s. 39A of the Ordinance as well as the other requirements set out in the Ordinance, giving reasons for its decision and giving full consideration to all submissions made on behalf of the applicant.

(4) Accordingly, the applicant had not made out any of the grounds set out in s. 5(1)(e) of the Administrative Decisions (Judicial Review) Act 1977 nor of any of the grounds contained in s. 5 of the Act.

House v. The King (1936) 55 CLR 499, applied.

(5) The application would be dismissed.

HEARING

Melbourne, 1982, July 14-15, 30. #DATE 30:7:1982

ORDER OF REVIEW.

Pursuant to the provisions of s. 5 of the Administrative Decisions (Judicial Review) Act 1977, the first applicant sought a review of a Review Committee's decision made under the Legal Aid Ordinance 1977 affirming a decision made under that Ordinance by the director of the Legal Aid Commission (A.C.T.).

T. J. Higgins, for the applicants.

P. Flemming, for the respondent Review Committee.

Cur. adv. vult.

Solicitors for the applicants: Gillespie-Jones & Co.

Solicitor for the respondent Review Committee: B. J. O'Donovan, Commonwealth Crown Solicitor.

J. D. WHITEHEAD

ORDER

1. The application be dismissed.

2. The respondents have leave to move for an order for costs.

3. There be liberty to apply. Orders accordingly.

JUDGE1

This application is brought under the Administrative Decisions (Judicial Review) Act 1977, "the Judicial Review Act", and relates to a decision made by a Review Committee constituted under the Legal Aid Ordinance 1977 (A.C.T.), as amended, "the Ordinance". Legal assistance was in fact offered to the first named applicant but the issues raised is whether that legal assistance should be provided by making available the services of private legal practitioners, as defined in s.5 of the Ordinance, or by making available the services of officers of the Legal Aid Commission (A.C.T.) "the Commission", a body incorporated under s.6 of the Ordinance.

The function of the Commission is to provide legal assistance in accordance with the Ordinance by arranging for the services of a private legal practitioner being a barrister, a solicitor, or a barrister and solicitor practising on his own account or in partnership, or by making available the services of officers of the Commission, s.8. It performs its functions under the name "the Legal Aid Office (A.C.T.)", s.94, and is empowered to do all things necessary or convenient to be done for or in connection with the performance of its functions. When it arranges for the services of private legal practitioners it may arrange for a barrister only, or a solicitor who then instructs a barrister, and is empowered to determine the amount of fees to be paid for the services provided by private legal practitioners, s.9 and s.32. Section 10 of the Ordinance imposes duties and obligations upon the Commission. The specified duties and obligations are mandatory and some are stated in absolute terms. In some respects they are contradictory, but are to be read together, cf. comparative legislation considered by the Court of Appeal, Supreme Court of New South Wales in Legal Services Commission of New South Wales v. Stephens, unreported, 18 December 1981, per Street C.J., Moffatt P., and Hope J.A.

In the present case s.11 of the Ordinance is of importance and is set out in full:

"11. The Commission shall determine guidelines for the allocation of work between officers of the Commission and private legal practitioners having regard to the following considerations:
(a) the need for legal services to be readily available and easily accessible to disadvantaged persons;
(b) the need to make the most efficient use of the moneys available to the Commission;
(c) the desirability of enabling a legally assisted person to obtain the services of the lawyer of his choice;
(d) the desirability of maintaining the independence of the private legal profession; and
(e) the desirability of enabling officers of the Commission to utilize and develop their expertise and maintain their professional standards by conducting litigation and doing other kinds of professional legal work."

The Commission has determined guidelines under s.11. The validity of these guidelines was not challenged in these proceedings. For present purposes the relevant guidelines are set out:

"GUIDELINES DETERMINED BY THE COMMISSION PURSUANT TO SECTION 11
1. Where a person has not chosen a legal practitioner to act for him, he will subject to 2(c) hereof, be offered the choice of a private legal practitioner on the list maintained by the Commission or the services of a legal practitioner who is an officer or member of staff of the Commission.
2. Subject to these Guidelines, a person who applies for legal assistance through a private legal practitioner shall be referred by the Commission to that practitioner upon a grant of legal assistance. Provided that such referral shall not occur where:-
. . .
(b) such referral is not contrary to the Commission's duty and the importance of ensuring that the commitment and actual financial commitments of the Commission do not exceed the amount of commitment and/or funds available to it from time to time; or
(c) there is some other good reason in the opinion of the Commission not to do so.
3. A legally assisted person has the right to change solicitors provided that:-
(a) he first gives notice in writing to the Director of his intention to do so and gives reasons;
(b) the Director or his delegate or a Committee approves; and
(c) as a general rule, no additional expense is incurred by the change.
4. In any event where a person qualifies for legal assistance then the legal staff of the Commission, only, shall if available be assigned to act for him/her:-
(a) where the matter involves a charge triable upon indictment, and the costs of the matter including costs of committal proceedings are estimated by the Director or a Committee to exceed $2,000 unless in all the circumstances the Director is of the opinion that it is reasonable to assign the legally assisted person to a private legal practitioner;
(b) in all applications for dissolution of marriage where the Guidelines permit the granting of assistance;
(c) in respect of Debtors Bankruptcy Petitions;
(d) in matters under Clause 8 of the Further Guidelines where a discretion is exercised by the Director or a Committee; and
(e) in preparing simple wills in appropriate cases."

Under s.13 of the Ordinance an officer of the Commission when practising as or performing any of the functions of a solicitor or exercising a right of audience in a court in pursuance of the Ordinance is required to observe and comply with the normal requirements of a member of the legal profession, s.13. The chief executive officer of the Commission is the Director of Legal Aid, "the Director", s.17, and the Commission is empowered to appoint the Director, Assistant Directors and other officers, see s.17, s.18 and s.20. The Director has a power of delegation, s.21, and provision is made for legal professional requirements, s.22 and s.23.

Part V of the Ordinance makes provision for legal assistance to be provided by the Commission. Applications for legal assistance are to be decided in accordance with the provisions of s.26. In the present case, the application for legal assistance was made by the first named applicant and was decided by the Director. In these circumstances the provisions of s.26(3) became applicable. The relevant parts of that sub-section are set out:

"26. . . .
(3) Where . . . an officer of the Commission decides to grant an application for legal assistance, the . . . officer shall also decide, in accordance with guidelines determined by the Commission in pursuance of sections 11 . . . -
(a) whether the legal assistance should be provided by making available the services of a private legal practitioner or whether the legal assistance should be provided by making available the services of an officer of the Commission;
(b) the nature and extent of the legal assistance to be provided; . . ."

Under sub-section (5), for the purpose of deciding an application for legal assistance, an officer may make such enquiries and obtain such advice (including the opinion of counsel) and reports as the officer considers desirable.

The first named applicant had been committed for trial on the charge of murder. He had applied for and had been offered legal assistance for the committal proceedings to be provided by making available the services of private legal practitioners of his own choice, namely a firm of solicitors who were authorized to brief counsel to appear. That offer had been rejected and in fact the first named applicant had been represented by two barristers briefed by the solicitors of the applicants' choice. The legal fees involved were paid by the second and third named applicants, being the parents of the first named applicant, "the parents". Subsequently, by application dated 25 November 1981 the first named applicant made application for legal assistance at the trial which was due to commence on 8 February 1982. The application was forwarded to the Director under cover of a letter dated 18 December 1981 from his solicitors. The letter stated that the trial was estimated to occupy about ten sitting days and assistance was sought to cover a Queen's Counsel from Sydney, who had not appeared at the committal proceedings. The letter stated that the fees of Queen's Counsel would be of the order of $720 on brief and refreshers of $480, and in addition there would be conference and reading fees at $120 per hour (subject to an upper limit), together with $100 per day as compensation for being away from chambers. In addition, it was sought to obtain assistance to pay his accommodation expenses in Canberra and air fares between Sydney and Canberra to attend the trial and at any weekend during the continuation of the trial. The letter stated that it was not possible to obtain Queen's Counsel at the fees stated in the scale determined by the Commission. In addition, junior counsel who had appeared at the committal proceedings would be briefed. In addition, fees for the solicitors were sought, details of the amount of those fees being set out in the letter. The letter then continued:

"Please advise whether a grant of aid may be made on the above basis as soon as possible so that we may brief counsel and start preparing for the trial."

The letter also contained a brief statement of the nature of the circumstances surrounding the charge of murder and possible defences and courses open to the first named applicant at the trial. At this stage it is important to note that under s.32A of the Ordinance where a private legal practitioner performs or has performed legal services on behalf of a legally assisted person, he is not able to accept payment for performing those services other than the payments to which he is entitled under the Ordinance. This provision prevents a legal practitioner from receiving payment for services from the Commission and making up his normal fees by receiving payment from the legally assisted person or from persons acting on behalf of a legally assisted person.

Under s.26(1) of the Ordinance, the Director decided that the first named applicant was entitled to be offered legal assistance and thus it became necessary for him to exercise the discretion conferred by s.26(3). The Director decided that the legal assistance to be offered should be provided by making available the services of officers of the Commission. Notification of that decision was given to the first named applicant's solicitors by a letter dated 22 December 1981, s.35 of the Ordinance. The relevant parts of that letter are set out:

"RE: DANILO SORDINI
I have your letter of 18 December 1981 and your client's written application dated 25 November 1981. I note that:
1. The case is to go ahead in February next year;
2. The Public Defender and other legal staff of the Commission will be available and can take the case;
3. The cost of the case on your calculations will clearly exceed $2,000.00.
Having regard to the Guidelines as determined by the Commission under Section 11 of the Ordinance, I have determined that the Public Defender, instructed by Ms Anne Marie Proctor of this Office, shall be assigned to act for your client."

The Public Defender is an officer of the Commission.

Part VI of the Ordinance contains provisions for the reconsideration and review of decisions made by officers of the Commission. Under s.36(1), where a decision has been made refusing to provide legal assistance of the nature or to the extent applied for, the person who applied for the legal assistance may request that the decision be reconsidered. By letter dated 6 January 1982, the solicitors for the first named applicant sought a reconsideration of the decision. In seeking the reconsideration of the decision of the Director, the first named respondent and his solicitors had each stated the fact that the first named respondent did not wish to be represented by the Public Defender and by officers of the Commission. Questions arose as to whether the Director is empowered to reconsider a decision made by him, but that question need not be decided in this matter. The Director wrote a letter dated 12 January 1982 to the solicitors for the first named applicant as follows:

"RE: DANILO SORDINI
I have given a lot of thought to your letters of 5th and 6th January in identical terms and have also, by arrangement, attended your client and his sister at the Belconnen Remand Centre.
It is my belief that the decision taken under the Guidelines is one which is not capable of reconsideration under Section 36 of the Ordinance as it confers a duty directly on me once I am satisfied about the basic facts of the case. However, I have looked at the matter again and taken into account all the things that were put to me by your client and his sister during our lengthy meeting at Belconnen.
I am of the view that I should only assign the legal staff of the Commission to your client upon his trial for murder."

By notice in writing dated 14 January 1982, the first named respondent, in accordance with s.36(3) of the Ordinance requested the Commission to refer the decision to a Review Committee for review. That sub-section is set out:

"36. . . .
(3) Where a decision is confirmed or varied following a reconsideration of the decision under sub-section (2), the person who requested the reconsideration may, by notice in writing to the Commission, request the Commission to refer the decision, or the decision as varied, as the case may be, to a Review Committee for review and the Commission shall comply with any such request."

Review Committees are established under s.37 of the Ordinance. Each Review Committee is constituted by a private legal practitioner, an officer of the Commission who holds a current practising certificate, and a person, not being a private legal practitioner or an officer of the Commission who has qualifications or experience relevant to the performance of the function of a Review Committee. The function of a Review Committee is to review decisions referred to the Committee under sub-section 36(3), s.39. The members of a Committee are appointed by the Commission which appoints one of them to be chairman of the Committee, s.38. The following parts of s.39A and s.40 of the Ordinance are of importance:

"39A. A Review Committee that reviews a decision referred to it under sub-section 36(3) shall not make a decision on the review unless it has afforded to the person who requested the review a reasonable opportunity:
(a) to attend a meeting of the Review Committee;
(b) to address the Review Committee in relation to the review; and
(c) to place before the Committee any document relevant to the review.
40. (1) A Review Committee that reviews a decision of an officer of the Commission or of a Legal Aid Committee referred to it under sub-section 36(3) (in this section referred to as a 'primary decision') shall give a decision in writing -
(a) confirming the primary decision;
(b) varying the primary decision; or
(c) setting aside the primary decision and making a decision in substitution for the primary decision.
. . .
(3) A Review Committee shall cause a copy of its decision to be sent to the person who requested the review and to the Commission.
(4) A Review Committee shall, if requested to do so by the person who requested the review, cause a short statement in writing of the reasons for the decision to be sent to the person.
(5) The decision of a Review Committee shall be final and conclusive."

For present purposes it is not necessary to refer to the provisions of the Ordinance concerning finances of the Commission or the other provisions of the Ordinance except to note that s.80 contains provisions relating to the meetings of a Review Committee. Such a Committee may regulate the conduct of proceedings at its meetings as it sees fit and shall keep minutes of those meetings.

A Review Committee constituted by the first three named respondents reviewed the decision of the Director at a meeting held on 26 January 1982. The first named applicant and his solicitor each attended that meeting. A transcript was taken of what they said at that meeting. Many matters were raised by members of the Committee, the first named applicant and his solicitor and the last two named persons were given every opportunity to address the Committee in relation to the review and to place before the Committee any documents relevant to the review. The documents placed before the Committee included correspondence between the first named applicant and his solicitors, between those solicitors and the parents, a letter of advice from the parents' solicitors to the parents, and a letter from the first named applicant's solicitors to Queen's Counsel confirming the brief of counsel and the fees to be charged and that the parents were paying the legal expenses. In addition, the earlier correspondence between the Director and the first named applicant's solicitors was before the Committee. As a preliminary matter the Committee ruled that it had jurisdiction to review the decision of the Director. The substance of the claim for review was that the first named applicant was satisfied with his representation in relation to the committal proceedings and that he thought that his legal representatives would do a good job on the trial and that he did not want the Public Defender to defend him because he thought that that representation may not be adequate and felt that there would be a greater likelihood of a mistake being made. He was affected also by what he had heard at the remand centre concerning trials conducted by the Public Defender. As I have said, thereafter the discussions ranged far and wide including discussions concerning the fees to be charged by the Queen's Counsel and the fees to be determined by the Commission and set out in the scale published by the Commission. During the course of submissions the chairman of the Committee asked the question, if the matter be assigned to the first named applicant's solicitors, whether the private practitioners, including Queen's Counsel, would do the case for the fees that had been determined by the Commission. The solicitor answered that he would have to speak to counsel about that. The chairman also put to the solicitor:

"Right now, the question is are you or is your team if you like, prepared to do it for those fees (as determined by the Commission) because we take the view, we think rightly, that we as a Committee have no power to override the fees fixed by the Commission."

In reply the solicitor said:

"I understand that you may take that view that's why I put to you a second alternative. The only thing I could do is talk to them."

Following further substantial discussions the chairman asked the solicitor whether there was anything further he wanted to put, to which the solicitor replied:

"I don't think there is anything else I can put Mr. Chairman."

Thereafter further discussions took place concerning the question of fees and the "right" of a legally assisted person to have legal practitioners of their choice. During these discussions it was put to the solicitor that it would be necessary to know whether the private legal practitioners, including the Queen's Counsel, would accept an offer of legal assistance by arranging for the services of private legal practitioners since, if accepted, the fees to be charged by them would be much less than those that had been negotiated and the difference could not be paid to the private legal practitioners, since otherwise there would be no merit in assigning the matter to them. The question was of some urgency since the trial was due to commence on 8 February 1982 and time was needed for the preparation for trial by the person who was to appear. To enable the solicitor to attempt to telephone counsel, the Committee proposed to retire to consider the matter. As one member said, "I think we must try and decide whether or not it is a matter we would assign even if they would accept it". The chairman then arranged for the solicitor to have the use of the telephone in the room in which the Committee was meeting and then said that the solicitor could use that telephone "and we can discuss it in the meantime". The members of the Committee then retired to another room. The solicitor attempted, unsuccessfully, to contact counsel. He then informed the members of the Committee that he had been unable to contact either counsel, but that he thought he could contact them that afternoon. The Committee informed him that that was unnecessary as a decision had already been made.

The Committee meeting was then resumed and the chairman said:

"We have come to a decision about this and the decision is to affirm (sic) the decision that's under review and we will publish our reasons as we are required to do, so the phone calls won't be necessary. I might add that that's a unanimous decision not that it makes any difference one way or the other but it is unanimous. And that concludes that. But we will publish the reasons and we'll have them out to you tomorrow."

In the context of the previous discussions the statement that "so the phone calls won't be necessary" must be taken to have meant that the Committee would not have assigned the matter to the private legal practitioners even if they had agreed to accept the scale of fees determined by the Commission. It is noted also that the solicitor had not requested reasons, s.40(4) of the Ordinance, but nevertheless the Committee stated that it would publish its reasons.

On the day of the meeting, 26 January 1982, the Review Committee member, being the officer of the Commission, on behalf of the chairman, wrote to the first named applicant's solicitors as follows:

"RE: DANILO SORDINI - REVIEW OF DECISION TO REFUSE AID
We refer to the meeting of the Review Committee held today at which Mr Ian Gillespie-Jones was present with his client. The Committee has taken into account all matters submitted but has decided unanimously that the decision under review is not to be altered.
It is important therefore that you advise the Commission urgently whether your client is going to avail himself of the officers of the Commission or not as if he intends to accept the decision, then it will be important that Mr Palmer familiarise himself with the case forthwith. A telephone call to our Mr Hardiman or Mr Wheeler will suffice.
The reasons for our decision will be delivered to you shortly."

The first named applicant did not accept the offer of legal assistance. The trial commenced on 8 February 1982 and the first named applicant was represented by the private legal practitioners already referred to. The trial extended over eight sitting days. The jury disagreed and a new trial was ordered.

The Review Committee published its reasons on 11 February 1982. These reasons are set out in full:

"R E A S O N S F O R D E C I S I O N
APPLICATION BY DANILO SORDINI TO REVIEW THE DIRECTOR'S DECISION
The applicant and his solicitor appeared on the hearing of an application to review the decision of the Director, subsequently reconsidered and confirmed in substance, to assign this case to the Public Defender and staff. The original grant of aid was for representation by private barristers and solicitors in respect of an inquest into the death of Alan Brennan on the 11th August 1981. Although aid was granted for that representation the account, when it was subsequently rendered by the applicant's solicitors, was paid by the applicant or his parents. The present application in reality relates to the representation of the applicant at the trial which is fixed for the 8th February 1982.
The Committee decided that it had jurisdiction to review this particular decision though that decision on jurisdiction was not unanimous (Mr. Hardiman dissenting).
The Committee is of the view that it is bound by the guide lines determined by the Commission pursuant to Section 11 of the Legal Aid Ordinance though it recognises that it has a duty to hear the applicant and his solicitor in full as indeed the Committee has done. The proposition that the Committee is bound by the guide lines of the Commission was not challenged by the applicant and the members of the Committee having read the decision of the Court of Appeal in New South Wales in Legal Services Commission of New South Wales -v- G.J. Stephens believes that that decision re-enforces the view that the guide lines are both valid and bind this Committee.
On page 4 of the guide lines in paragraph 4 it is provided that where the fees are likely to exceed $2,000.00 then officers of the Commission will be assigned to the case 'unless in all the circumstances the Director is of the opinion that it is reasonable to assign the legally assisted person to a private legal practitioner'. Obviously the present case is one where the fees will substantially exceed the sum of $2,000.00, and the question for the Committee is one of reasonableness.
It transpired at the hearing that the applicant's solicitor had advised his client to obtain independent legal advice concerning representation at the hearing. That advice was to the effect that it was the sort of case where Queen's Counsel is necessary. It also appeared that Mr. Toomey of Queen's Counsel had already been engaged and the fees with him had been agreed. It further appeared that the applicant was not going to be required to pay any legal fees to his advisers immediately but that his parents would provide security for costs in the form of a mortgage over the parents' home for a maximum sum of $25,000.00 or such lesser sum as will be involved depending upon the amount of the account at the conclusion of the matter. The size of the account will obviously vary with the length of the trial and other factors that may occur during the trial. It appeared also that that arrangement with Counsel was a definite arrangement and that a brief either had been delivered or would be delivered upon the basis agreed. The applicant was unable to indicate that his advisers would accept an assignment from the Commission upon the prescribed fees laid down by the Commission. The applicant's solicitor attempted to ascertain the views of Mr. Higgins and Mr. Toomey on that matter but neither was available and accordingly the Committee was left in the position of not knowing whether, if the case were assigned to Mr. Gillepsie-Jones and Counsel, that assignment would be accepted. It is obviously unpractical (sic) and unreasonable to refer the case to the private practitioner when the private practitioner is not able to indicate that he and his Counsel will accept the assignment on the basis of the fees prescribed by the Commission.
It also appeared that the Public Defender was available and was willing to undertake this trial. No convincing reason was advanced why the Public Defender would perform any less well in the conduct of the matter and with the assistance of the staff of the Commission than would Mr. Toomey of Counsel with Mr. Higgins of Junior Counsel and Mr. Gillepsie-Jones as instructing solicitor. In the view of the Committee there was nothing to choose between the competence, on the evidence presented to the Committee, between the competing potential representatives of the applicant. The Committee was aware that there are nearly one thousand pages of transcript of the evidence at the inquest to read but it is obvious that that task has to be undertaken either by Mr. Toomey, who did not represent the applicant at the inquest, or by the Public Defender who did not represent him either. Although the applicant's independent advice was to the effect that Queen's Counsel was necessary it was also evident that an opinion had been expressed by Mr. Gillespie-Jones of Counsel who led Mr. Higgins at the inquest for the applicant that it was not essential for Queen's Counsel to represent the applicant.
In all these circumstances the Committee was of the view that it was not reasonable to assign this case to the private profession and accordingly the Committee confirmed the decision of the Director."

The applicants bring this action pursuant to s.5 of the Judicial Review Act. The first three named respondents only were named as respondents to the application, but the Commission has added a respondent by order of the Court on 8 June 1982. Counsel for the respondents stated that each of the first three named respondents, being the members of the Review Committee, would abide by the order of the Court. Counsel for the respondents, very properly, made substantive submissions on behalf of the Commission. Where there are no adversary parties appearing before an administrative body, as in this case, it is important that the Court receive assistance of counsel appearing for the administrative body making the decision which is being challenged under the Judicial Review Act.

There is no doubt that the first named applicant is a person aggrieved under the Judicial Review Act, but counsel for the respondents contended that the parents, voluntarily, had agreed to pay the costs of representation of the first named applicant by private legal practitioners and thus could not be persons aggrieved under the Act. There is much force in that submission, but it is not necessary for the Court to express an opinion on it since the issues arise on the application of the first named applicant (hereinafter called "the applicant") and the matter can be decided on the basis that he is the only applicant.

The application for the order of review set out a large number of grounds upon which the application was made. In the course of submissions, counsel for the applicant limited his submissions to two grounds only, namely those referred to in s.5(1)(a) and (e) of the Judicial Review Act, viz.:

"(a) that a breach of the rules of natural justice occurred in connection with the making of the decision;
. . .
(e) that the making of the decision was an improper exercise of the power conferred by the enactment in pursuance of which it was purported to be made;"

In support of paragraph (e) counsel relied upon s.5(2) and in particular the following paragraphs of that sub-section:

"(2) The reference in paragraph (1)(e) to an improper exercise of a power shall be construed as including a reference to -
(a) taking an irrelevant consideration into account in the exercise of a power;
(b) failing to take a relevant consideration into account in the exercise of a power;
. . .
(f) an exercise of a discretionary power in accordance with a rule or policy without regard to the merits of the particular place;
(g) an exercise of a power that is so unreasonable that no reasonable person could have so exercised the power;"

Initially counsel for the applicant suggested there may be a doubt as to whether the Review Committee, in making its decision, conducted a full review of the decision of the Director and in particular whether it had complied with the requirements of s.26(3) of the Ordinance. A perusal of the reasons for the decision of the Committee shows clearly that it decided the review in accordance with the guidelines determined by the Commission in pursuance of s.11 of the Ordinance. The relevant guidelines have been set out. They reflect the considerations referred to in s.11 of the Ordinance and in particular paragraphs (b), (c) and (e) of that section. Guideline No. 4 was relevant for the purposes of the exercise of power by the Committee. The applicant qualified for legal assistance. The matter involved a charge triable upon indictment and the costs were estimated to exceed $2,000. Legal staff of the Commission were available to act for the applicant. Accordingly, the Review Committee, in the exercise of its powers under s.36(3), s.39 and s.26(3) of the Ordinance, was under a duty of assigning officers of the Commission to provide legal assistance to the applicant "unless in all the circumstances the Director (here the Review Committee) is of the opinion that it is reasonable to assign the legally assisted person to a private legal practitioner", cf. wording of s.26(3) of the Ordinance. The only question for decision by the Review Committee was whether in its opinion it was reasonable to assign the matter to the private legal practitioners referred to in the application for legal assistance. The discretion so conferred is unlimited except to the extent that matters to be taken into account must be relevant to a consideration of what is, in all the circumstances, reasonable. A perusal of the reasons for decision discloses this is what the Review Committee did. There is no substance in the suggestion made by counsel for the applicant.

In the present case, I do not need to decide whether the rules of natural justice are imported by law into the conduct of meetings by the Review Committee. In a negative manner, s.39A of the Ordinance imposes a duty upon the Review Committee to afford to the applicant a reasonable opportunity to attend the meeting, to address the Committee in relation to the review and to place before the Committee any documents relevant to the review. Not only did the Committee afford this privilege to the applicant, but it extended it also to the applicant's solicitor. The complaint made is that the Committee did not give the applicant any practical opportunity prior to the decision being made, to contact the two counsel concerning the amount of their fees and that that constituted a breach of the rules of natural justice. For present purposes, if that case is made out, I am prepared to accept that that conduct would constitute a non-compliance with s.39A of the Ordinance and thus come within s.5(1)(b) of the Judicial Review Act, namely:

"that procedures that were required by law to be observed in connection with the making of the decision were not observed."

From the extracts of transcript of what occurred at the meeting already set out, it is clear that the decision of the Committee was made on the basis that even if the private legal practitioners were agreeable to accept the assignment of legal assistance on the basis of the fees prescribed by the Commission, nevertheless the Committee would not assign the matter to them. Thus in those circumstances "the phone calls won't be necessary". The written reasons for decision indicate that some reliance was based on the fact that the applicant was unable to indicate that his legal advisers would accept the assignment on that basis and that, "It is obviously unpractical (sic) and unreasonable to refer the case to the private practitioner when the private practitioner is not able to indicate that he and his Counsel will accept the assignment on the basis of the fees prescribed by the Commission".

The meeting had been interrupted to allow the applicant's solicitors to make telephone calls in an attempt to ascertain that fact, but the Committee, when told that counsel could not be contacted, informed the solicitor that that was unnecessary as a decision had already been made. In a formal meeting the Committee confirmed the fact that telephone calls were unnecessary.

There is a conflict between these statements and the reasons for decision relating to this aspect, but in my opinion this does not constitute a non-compliance with the requirements of s.39A of the Ordinance nor, if the principles of natural justice applied, with the requirements of those principles. The non-acceptance of the offer of legal assistance to be provided by private legal practitioners for the committal proceedings was known. The offer of legal assistance for the trial by assigning officers of the Commission was known to the applicant and his solicitor and the offer remained in existence. They knew that the fees to be received by private legal practitioners acting for persons on legal assistance had been prescribed. Nevertheless, the review was sought on the basis that the negotiated fees, not the prescribed fees, should be paid. The review was conducted on that basis. An indulgence had been granted to the applicant's solicitor to see if the negotiated arrangements could be varied, but at the same time the Committee made it clear that it had to decide the review whether or not it was a matter that it would assign to private legal practitioners, even if they agreed to accept the prescribed fees. That is what the Committee did. Unfortunately the reasons for decision did not say that, but stated that the Committee took into account the matters therein referred to.

In all the circumstances, the applicant has not made out the grounds based upon s.5(1)(a) or (b) of the Judicial Review Act. Nevertheless, the factual material is a matter which must be taken into account when considering the remaining issues.

The other ground relied upon by the applicant can be summarized by reference to the well-known legal principle to be applied in deciding whether a discretion has been validly exercised or not. The critical statement of the principle appears in House v. The King (1936) 55 C.L.R. 499 per Dixon, Evatt and McTiernan JJ. at pp.504-5:

"The manner in which an appeal against an exercise of discretion should be determined is governed by established principles. It is not enough that the judges composing the appellate court consider that, if they had been in the position of the primary judge, they would have taken a different course. It must appear that some error has been made in exercising the discretion. If the judge acts upon a wrong principle, if he allows extraneous or irrelevant matters to guide or affect him, if he mistakes the facts, if he does not take into account some material consideration, then his determination should be reviewed and the appellate court may exercise its own discretion in substitution for his if it has the materials for doing so. It may not appear how the primary judge has reached the result embodied in his order, but, if upon the facts it is unreasonable or plainly unjust, the appellate court may infer that in some way there has been a failure properly to exercise the discretion which the law reposes in the court of first instance. In such a case, although the nature of the error may not be discoverable, the exercise of the discretion is reviewed on the ground that a substantial wrong has in fact occurred."

There is no need to make reference to any of the other numerous authorities relating to this matter. The statement in House v. The King related to a court exercising appellate jurisdiction. With necessary adaptions, the principle applies equally to a court exercising original jurisdiction in considering the exercise of a discretion by an administrative body. The application of the principle can be summarized, particularly where the reasons given by the administrative body may not be as adequate as could be desired, as follows:

"Whether the material before the administrative body was such that the body properly directing itself to all relevant matters of law could not have reached the conclusion that it did."

Section 5(1)(e) of the Judicial Review Act states the principle in another way and particular instances are given in s.5(2) of the Act.

A full summary of the material before the Committee has been set out. It is not necessary to refer in detail to that material. The reasons for decision of the Committee have been set out in full and reference has been made to one defect in them, but in the circumstances of this case that defect is not sufficient to establish the ground set out in s.5(1)(e) of the Judicial Review Act. Lengthy and detailed submissions were made to the Court by counsel for the applicant, but in reality they were directed more to persuading the Court itself to exercise a discretion conferred by the Ordinance on the Committee. That is the very thing the Court should not do. The Committee had to decide whether, in its opinion, it was reasonable to assign the applicant to the private legal practitioners referred to in the application before it. It complied with the requirements of s.39A of the Ordinance as well as the other requirements set out in the Ordinance. It gave reasons for its decision. Full consideration has been given to all the submissions made by counsel for the applicant. The Court finds that the applicant has not made out the ground set out in s.5(1)(e) of the Judicial Review Act nor any of the other grounds contained in s.5.

During the course of submissions the Court raised the question of whether, on the facts of this case, the decision of the Committee could be varied after the completion of the legal proceedings the subject of the application for legal assistance. The applicant had refused the offer of legal assistance made by the Commission. The private legal practitioners had completed their professional duties under the agreement by which they had been engaged. If the matter was assigned now to those practitioners they could not receive fees in excess of those prescribed by the Commission. Although this matter was raised, no submissions were made in relation to it and the Court expresses no opinion on it.

In the result the application for judicial review is dismissed. Leave is granted to the respondents to move for an order for costs. There will be liberty to apply.