Steiner v Victoria Legal Aid

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE

COMMON LAW DIVISION

JUDICIAL REVIEW AND APPEALS LIST

S ECI 2021 04235

LUCY CLAIRE STEINER	First Plaintiff
and
LUCY C STEINER PTY LTD	Second Plaintiff
v
VICTORIA LEGAL AID	Defendant

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JUDGE:	Keogh J
WHERE HELD:	Melbourne
DATE OF HEARING:	18 February 2022
DATE OF JUDGMENT:	8 August 2022
CASE MAY BE CITED AS:	Steiner v Victoria Legal Aid
MEDIUM NEUTRAL CITATION:	[2022] VSC 445

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ADMINISTRATIVE LAW – Judicial review – Decision to remove law practice from panels – Findings of non-compliance with practice standards – Complaints by VLA – Status of panel membership – Whether decision to remove has continuing legal consequences – Whether certiorari available – Somba v Minister for Home Affairs (2019) 269 FCR 517 – Matters relevant to exercise of statutory power – Financial implications of removal – Minister for Home Affairs v Omar (2019) 272 FCR 589 – Allegation of apprehended bias – Reasonableness of removal – Requirements of published notices – Power to prohibit applying for re-inclusion – Procedural fairness – Minister for Home Affairs v DUA16 (2020) 385 ALR 212 – Estoppel – Legal Aid Act1978 (Vic), ss 4, 6, 7, 29A.

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APPEARANCES:	Counsel	Solicitors
For the Plaintiffs	C Gunst QC A F Solomon-Bridge	Holding Redlich
For the Defendant	G Costello QC E Smith	Victorian Government Solicitor’s Office

HIS HONOUR:

The first plaintiff, Lucy Steiner, is a legal practitioner and sole director and shareholder of the second plaintiff, Lucy C Steiner Pty Ltd (a law practice) (‘Firm’).

Under s 29A of the Legal Aid Act 1978 (Vic) (‘Act’) the defendant, Victoria Legal Aid (‘VLA’) may establish practitioner panels in order to provide legal assistance to applicants under the Act. The Firm was included on the child protection and family violence panels established by VLA. Panel membership is a means by which private practitioners are assigned legal work representing persons who VLA has determined should be provided legal assistance, and are paid fees for the work performed. Associated with panel membership, Steiner was appointed by VLA as a panel certifier approved to certify grants of legal assistance to individual applicants who wished to engage the plaintiffs to represent them.

Commencing in 2018, VLA notified the plaintiffs on a number of occasions of complaints about legal work performed by them, and about their management of VLA files. VLA took steps in response to the complaints, including conducting a quality audit of selected files, providing support and training to the plaintiffs on VLA’s requirements, and suspending Steiner’s certifier status and the plaintiffs’ panel memberships for periods.

On 8 October 2021, in relation to a set of complaints, VLA determined to remove the Firm from the panels for a period of 12 months (‘Removal Decision’).

The plaintiffs bring this proceeding seeking to quash the Removal Decision on grounds including jurisdictional error, apprehended bias, misconception of statutory function, ultra vires, unreasonableness and breach of procedural fairness. VLA challenges each ground of review of the Removal Decision.

The Firm was included on the child protection and family violence panels in 2015 and 2016 respectively. A practice may be included on a panel for a period not exceeding five years, and on expiry of that term may be re-included on a panel.[1] No express step was taken by VLA to re-include the Firm on the panels after the initial period of inclusion expired.
[1]Legal Aid Act 1978 (Vic) s 29A(3)(ii), (5) (‘Act’).

VLA argues the Firm’s membership of the panels has expired, and that certiorari cannot be granted to quash the Removal Decision since that order would have no legal effect or utility. The plaintiffs argue that as a result of representations and conduct by the parties there was an extension of their panel membership in accordance with the Act for a further five years beyond the initial term. In the alternative, the plaintiffs argue VLA is estopped from denying the Firm’s membership of the panels, and in any event there remains utility in the orders sought by them. In response to the VLA argument the plaintiffs sought a declaration to the effect that the Firm is a member of the panels.

The following evidence was tendered:

(a) affidavits of Steiner sworn 12 November 2021 and 4 February 2022;

(b) affidavit of Jessica Cleaver, lead counsel at the Victorian Government Solicitor’s Office, affirmed 26 November 2021;

(c) affidavit of Dianna Gleeson, Director of Legal Practice at VLA, affirmed 23 December 2021; and

(d) affidavit of Catharine Thorpe, senior solicitor at the Victorian Government Solicitor’s Office, affirmed 22 December 2021.

There was an objection to some parts of Gleeson’s evidence that I will deal with in these reasons.
The Firm’s inclusion on the panels

VLA established the child protection panel under s 29A(1) of the Act in August 2014.

In November 2014, VLA determined to include the Firm on the child protection panel.

A child protection panel deed was signed by Steiner on 29 March 2015, by Steiner on behalf of the Firm on 9 April 2015 and by VLA on 15 April 2015.

The deed recorded that VLA had determined to include the Firm on the child protection panel subject to it entering into the panel deed.

VLA established the family violence panel on 30 October 2014 to commence on 1 November 2014.

On 2 August 2016, VLA wrote to Steiner to inform her of its decision to include the Firm on the family violence panel. An unsigned copy of a family violence panel deed was included with that letter. Although a signed copy could not be located, it is not in issue that the Firm was included on the family violence panel in accordance with the deed in August 2016, and that the Firm’s initial term on the panel was a period of five years from the commencement date.

There is no material difference in the terms of the child protection deed and the family violence deed (the deeds are referred to in these reasons as the ‘Deed’).

Inclusion of the Firm on the panels had the effect that Steiner, as a director of the Firm, was deemed to be included on the panels.[2] Accordingly in these reasons I refer to inclusion of the plaintiffs on the panels.
[2]Ibid s 29A(7).

History of complaints against the plaintiffs

In 2018 and 2019, VLA notified the plaintiffs of some complaints that had been made about their conduct on matters in which legal assistance had been granted.

On 16 September 2019, Gleeson wrote to the plaintiffs informing them she was considering removing the plaintiffs from the panels because of complaints against them, and their failure to respond to those complaints. The plaintiffs replied by letter dated 28 October 2019, setting out their response to the complaints.

In January 2020, VLA wrote to the plaintiffs giving notice of its intention to suspend them from the panels for a period of three months. Before giving effect to the decision VLA offered the plaintiffs a further opportunity to point to any factual errors in a report which set out its specific concerns. The plaintiffs failed to respond within the time provided because Steiner was travelling overseas and had limited internet access, and became unwell when she returned to Australia.

In March 2020, Gleeson wrote to Steiner notifying her that the Firm was suspended from the panels for three months. During the period of suspension the plaintiffs were able to maintain current files, but were unable to apply for any new grants of legal assistance. Gleeson told the plaintiffs they would be required to adhere to a quality improvement action plan during the period of suspension.

In June 2020, Gleeson wrote to the plaintiffs informing them of her determination to extend the period of suspension from the child protection panel by three weeks, and requiring their response to further complaints. The plaintiffs responded in early July 2020.

Gleeson wrote to Steiner on 15 July 2020 about her membership as a panel certifier on the child protection panel. The letter included:

I have some ongoing concerns about your ATLAS file management practices including the consistency of the information provided to VLA, your submission of file outcomes and accurate billing of work. While I do not intend to impose any limitation on your ability to represent new or existing legally aided clients as a result of these concerns, I am satisfied that it is reasonable to impose conditions on your certifier status designed to assist you to improve your ATLAS file management practices.
Certification
As you are aware your certifier status became due for renewal on 5 January 2020.
In order to ensure that quality legal services are provided to legally aided clients, I am prepared to offer you conditional re-inclusion as a Panel Certifier of the s29A Child Protection and Family Violence Panels until 15 July 2021 (‘the re-inclusion period’).
Conditions of re-inclusion: Child Protection and Family Violence Panels
The conditions of re-inclusion are as follows:
a. For a period of 3 months commencing immediately your status in ATLAS will be set to manual assessment. This means that all claims, extensions and new applications for assistance will be VLA assessed to provide you with real time support and training on VLA’s requirements.
b. You must update ATLAS to include the names of any legal practitioner employed by you who will conduct work on legally aided files.
c. You must provide your practice files for compliance checking and/or quality audit as requested by VLA within time limits set by VLA.
d. You must respond to any request by VLA for information within time limits set by VLA.
e. You must maintain a close adherence to the conditions of panel inclusion as set out from time to time at further decision about your ongoing panel certifier status will then be made based upon you meeting the conditions of re-inclusion.
What you need to do now.
For VLA to be able to reinclude you, you must respond to this offer within 28 days and follow the steps set out below.
If you do not respond, VLA cannot reinclude you on the Panels, and your certifier status will be de-activated in ATLAS.
Gleeson’s letter did not otherwise address the issue of re-inclusion of the plaintiffs on the child protection panel.
On 3 December 2020, VLA wrote to the plaintiffs setting out complaints raised by VLA staff to which they were required to respond (‘VLA complaint’). The first complaint related to a matter where the plaintiffs obtained a grant of assistance and acted for a parent (‘client’) in a Children’s Court child protection proceeding (‘client complaint’). The complaint questioned whether the plaintiffs had failed to keep the client informed about the ongoing proceeding, and their entitlements, rights and obligations in relation to the grant of assistance when they closed the client’s file in VLA’s ATLAS system before the child protection proceeding had concluded. The second complaint concerned alleged shortcomings by the plaintiffs in management of VLA files where there had been grants of assistance, including failures to respond to VLA requisitions, address grant applications on their merits pursuant to VLA guidelines, inaccurate billing and lack of understanding of legislation, legal aid processes and guidelines (‘file management complaint’).
Gleeson wrote to the plaintiffs on 17 December 2020 requesting that Steiner provide four files so that a quality audit could be conducted.
The quality audit findings were sent to the plaintiffs on 2 February 2021. The overall outcome of the audit was:
Given the files audited were of a good standard, I have applied the Good practice and education outcome.
Three of the four files were assessed as having met the required standard. The following key issues were identified to ensure ongoing compliance:
•There were no notes or other material on three of the four files to indicate that you had supervised Ms Rathnakumar’s work on the files.
•It was not clear if the clients were made aware that you as the panel certifier retained overall responsibility for the matter.
•Contemporaneous file notes of client contact were largely missing from all files.
•There was limited personal history or background information evident on two of the four files.
The plaintiffs’ lawyers made a detailed response to the VLA complaint by letter dated 27 January 2021.
On 17 March 2021, the plaintiffs’ lawyers wrote to Gleeson about Steiner’s certifier status on the panels. In the letter, the lawyers set out details of what they said was relevant background, that included:
In your letter to Ms Steiner of 15 July 2020, you advised that you were “prepared to offer [her] conditional re-inclusion as a Panel Certifier of the s29A Child Protection and Family Violence Panels until 15 July 2021 (‘the re-inclusion period’)”. You further advised that Ms Steiner’s s 29A panel membership had been up for renewal in January 2020, saying nothing further on this issue. Ms Steiner had not received any correspondence from VLA in relation to her s 29A panel membership renewal and she had continued to be assigned, and worked on, VLA panel referrals during the period of January 2020 to 19 March 2020. In light of these facts and your express reference to “conditional re-inclusion as a Panel Certifier [as opposed to conditional re-inclusion as a s 29A Panel Member] ... until 15 July 2021”, we assume that, in January 2020, Ms Steiner was re-included as a s 29A panel member as a matter of course for a further period of 5 years.
The lawyers did not seek a response from Gleeson about the stated assumption. The argument advanced in the letter was directed to Steiner’s status as a panel certifier, and the legality of decisions by VLA to set Steiner’s certifier status to manual assessment. The letter concluded:
In light of the above matters, please confirm that Ms Steiner’s manual assessment status on ATLAS has been reinstated to the simplified grants process.
The matters raised in the letter of 17 March 2021 were immediately overtaken by further steps in relation to the VLA complaint. On 19 March 2021, Faz Zamani, senior lawyer, Internal Legal Services at VLA wrote to the plaintiffs’ solicitors about an outcome into investigation of the VLA complaint by VLA’s Internal Legal Services team. Zamani attached to the letter a signed statement from the client, and emails she sent to the practice on 14 April and 25 August 2020. Zamani found the plaintiffs had breached VLA practice standards in relation to the client complaint and the file management complaint. The detailed findings by Zamani were set out in the letter, which concluded:
My findings will be provided to the Executive Director of Legal Practice at VLA who will consider further appropriate action.
On the same day Gleeson wrote to the plaintiffs’ solicitors giving notice of her decision to suspend the plaintiffs’ s 29A panel membership (‘Suspension Decision’). The letter included:
I have become aware that your client has been found to have breached a number of practice standards. The findings are contained in a letter dated 19 March 2021.
I have also become aware that your client is subject to a new complaint requiring investigation by VLA. As such, I have decided to suspend your client’s Panel Membership and Certifier Status under Clauses 2.2(a) and 2.2(d) of Schedule 5 to the Panel Deed on the terms and for the reasons set out in this notice.
It is apparent from the letter that the period of suspension was imposed because of Gleeson’s view as to the seriousness of the new complaint, so that the complaint could be investigated, and Gleeson could consider the VLA complaint investigation findings, and the plaintiffs’ history as panel practitioners.
On 7 April 2021, the plaintiffs issued proceedings in this Court for judicial review to quash the Suspension Decision (‘first proceeding’). On 11 April 2021, the parties to the first proceeding filed a joint memorandum supporting a proposed consent resolution of the proceeding on the basis that the Suspension Decision should be quashed because VLA did not comply with its procedural fairness obligations in respect of the new complaint. On 12 April 2021, the matter came before Cavanough J, who was satisfied it was appropriate to make the proposed orders in accordance with the joint memorandum, and made the following substantive order:
The decision of the defendant made on 19 March 2021 to suspend the second plaintiff's membership of the Child Protection and Family Violence Panels established under s 29A of the Legal Aid Act 1978 (Vic), and to suspend the first plaintiff’s Certifier Status, be quashed.
On 16 June 2021, Gleeson wrote to the plaintiffs’ solicitors stating, in part:
Please note, I continue to have concerns regarding Ms Steiner’s and her law practice’s capacity to meet the requirements of ongoing membership of the panels and certifier status, arising from the complaint outcome dated 19 March 2021 and her history as a panel practitioner. As such I am considering whether to take any further action and will be in contact again if I propose to take that forward.
On 9 July 2021, Kimberley Ison, acting director, Legal Practice at VLA, wrote to the plaintiffs giving notice of intention to remove them from the child protection and family violence panels on the basis of the VLA complaint (‘Notice of Intention’). The Notice of Intention stated, in part:
I refer to VLA’s investigation of your conduct and our correspondence to you dated 19 March 2021 regarding the outcome of that investigation. The purpose of this notice is to inform you that, subject to your response to this notice, I intend to remove Lucy C Steiner Pty Ltd (the Practice) from the s 29A Child Protection and Family Violence panels (the Panels) of which it is currently a member.
On 19 March 2021, VLA notified you of the outcome of an investigation into your conduct, as a panel certifier on the Panels. I have considered those findings, together with your and the Practice’s history in conducting legally assisted matters.
Ison referred to Steiner’s status as a panel certifier:
Your status as a panel certifier will expire on 15 July 2021. VLA will not consider any application for reinclusion as a panel certifier until a final decision has been made in relation to this notice of intention to remove the Practice (Notice). If you are proposing to apply for reinclusion as a panel certifier your response to this Notice will be taken into consideration for the purposes of that application.
Ison wrote in the notice:
I have set out below:
•the material relied upon in considering whether to remove the Practice from the Panels;
•the grounds and reasons for my intention to remove the Practice from the Panels; and
•the intended period of exclusion from the Panels (after which the Practice may apply for inclusion on one or more of the Panels).
You are invited to respond to this Notice of Intention to remove the Practice from the Panels by 5pm on Friday 6 August 2021.
Among the findings in relation to the client complaint, Ison wrote:
You have provided no evidence that, in around April or May 2020, you advised [client] that she was not eligible for legal assistance (as asserted in your response to VLA regarding this complaint, Attachment 2).
The letter set out adverse findings of fact and conclusions that the plaintiffs had breached the practice standards, and stated:
I intend to remove the Practice from the Panels, and to exclude it from applying for inclusion on the Panels, for a period of 12 months.
The plaintiffs were invited to comment on the notice:
VLA invites you to respond to this Notice of Intention to Remove the Practice from the Panels and to provide any relevant additional materials in support of your response.

…
If VLA does not receive a response by 5pm on Friday 6 August 2021, it will determine this Notice of Intention to Remove the Practice from the Panels based on the material already before it.

The plaintiffs’ lawyers responded to the Notice of Intention on 9 August 2021. Attachments to the letter included a further statement by Steiner, correspondence, copies of text exchanges, file notes and some other documents from the legal file to which the client complaint related. In relation to penalty the letter stated:

We do not consider that you should exclude Lucy C Steiner Pty Ltd (trading as Lucy C Steiner Lawyers) from the s 29A Panels.
We do not consider that you have the power to exclude Lucy C Steiner Pty Ltd (trading as Lucy C Steiner Lawyers) from applying for inclusion on the s 29A Panels for a period of 12 months.

The client complaint

The plaintiffs began to represent the client in a Children’s Court proceeding regarding her son in January 2020.

The plaintiffs’ employee solicitor appeared for the client at court hearings on 6 and 12 February 2020. The client did not attend court on either occasion, but was in contact with her solicitor. The proceeding was adjourned for a conciliation conference on 13 May 2020. In February, the understanding appears to have been that the practice would represent the client on the adjourned date, and the client advised the solicitor she would attend the conciliation conference.

In her statement Steiner said:

[The client’s] file was raised by VLA during the [Quality Improvement Action Plan] early in April 2020. I was advised by VLA that any matters where clients had failed to attend court on multiple occasions and where I did not have current instructions, should be closed.

On 5 April 2020, Steiner sent the following email to the client:

You may recall I met you at court regarding your son [the client’s son’s] matter. Ms Nanthakumar has also appeared for you at court and has written to you about the matter.
We note that on the last occasion you were not at court as I understand you were on holidays.
Could you please contact me and advise of [sic] you still require legal representation in this matter. The matter is next listed for a conciliation conference on the 13 May 2020 at 1.30 pm.
If I do not here from you within seven days I will assume you do not require legal representation.
Please do not hesitate to contact me on [mobile telephone number].

On 14 April 2020, Steiner closed the file relating to the client in VLA’s ATLAS system. In her statement Steiner said:

Later that same day (14 April 2020), after I had closed the VLA file, I received an email from [the client] at advising that she required further legal representation.

The email from the client to the plaintiffs reads:

Hope this finds you well. Yes, I require representation as the matter is still ongoing. We do not know what is the situation at the moment since the COVID19 outbreak along with intensified criminal behaviour [the client’s son] is displaying under DHHS care, other than he has been recently released on bail after 21 days at Parkville.
I have requested a response to DHHS claims to be drafted by Sindu. Have not heard anything to that regard.

In her statement Steiner said she spoke to the client on 8 May 2020, and gave the following detail of that conversation:

[The client] advised me that she and the family were living in Sydney. I advised her there was no longer a current VLA grant of legal aid and that, based on her instructions, she would not be eligible for further grants of legal aid. I explained that if she wished to apply again for legal aid she would have to complete an application including, her proof of means I advised her that the next hearing date was the 13 May 2020 for conciliation conference and confirmed Ms Nathakumar had written to her about that date.

Steiner said she told the client that the practice could represent her pro bono for the conciliation conference on 13 May.

The employee solicitor appeared for the client at the conciliation conference on 13 May. The proceeding was adjourned to 5 August 2020.

The file management complaint

The file management complaint related to nine VLA files for assisted clients represented by the plaintiffs.

The individual file complaints, investigation and findings are set out in detail in the VLA letter of 19 March 2021. The following is the content of that letter relevant to two of the file complaints, which sufficiently indicates the nature of the complaints and relevant VLA findings:

File Number [1]
Allegations:
As per VLA’s letter of 3 December 2020 it has been alleged that Ms Steiner failed to respond to requisitions and submitted inaccurate billing.
Investigation:
In investigating and making a finding, I have considered Ms Steiner's response in your letter dated 27 January 2021, documents contained in ATLAS and information from the Grants team (Annexure B).
I have discovered that:
• On 3 March 2020 Ms Steiner submitted a file outcome in respect of this matter.
• The file could not be closed due to an outstanding claim that had been disallowed in 2018.
• On 4 March 2020 and 24 March 2020 VLA’s contributions team wrote to Ms Steiner requesting confirmation that all claims (billing) had been completed. Ms Steiner failed to respond to this request.
• On 8 July 2020, Ms Thielke (of VLA) sent Ms Steiner a further request for information about the billing on this file.
• On 9 July 2020, Ms Steiner advised Ms Thielke that her records show the fee had been paid. Ms Steiner advised that she had submitted an extension which had not been processed by VLA. Within her email, Ms Steiner also stated that she would write a separate letter to VLA in order to confirm the status of the extension. No letter was received by VLA.
• On 28 July 2020, VLA informed Ms Steiner that there was no ‘pending extension’ but that the extension in question had been refused because the assisted person had not returned the equitable charge.
• On 24 September 2020 Ms Steiner spoke to VLA and was advised she could submit a request for reconsideration out of time on this refusal.
• On 28 September 2020 Ms Steiner submitted a reconsideration which was granted by VLA.
• To date, Ms Steiner has not submitted any claims in relation to this extension.
• In your letter of 27 January 2021, Ms Steiner stated that she did not know that she was able to lodge a reconsideration. Ms Steiner has advised in your letter that she was not aware that she was required to resubmit a claim: “However, I was querying if the substantive claim had been allowed.”
• Ms Steiner stated in your letter of 27 January 2021 that: “I do not recall ever being in a situation where I have sought to lodge a reconsideration nearly two years old and I was prepared to write-off the fee that I may have been eligible for.”
Finding:
Based on the above findings of fact I conclude that Ms Steiner breached the following practice standards:
Practice Standard 3.2
• Failed to keep up to date records of billing on this file and provided inaccurate billing information to VLA and is therefore in breach of VLA Practice Standard 3.2 (v):
• Ms Steiner did not respond to the letters requesting further information dated 4 March 2020 and 24 March 2020. Moreover, failed to resubmit claims when disallowed, despite being advised on 8 July 2020 that this was a requirement. Such failures amount to a breach of VLA Practice Standard 3.2(a) and (f):
a. have up-to-date knowledge and understanding of legal aid obligations and processes.
f. submit all documents required by VLA in support of applications for Legal Assistance, reconsideration and independent review within a reasonable time.

• Ms Steiner has demonstrated a lack of required knowledge in relation to lodging reconsiderations and submitting claims. It is standard process that after a claim is disallowed, it must be resubmitted. VLA does not resubmit claims on behalf of practitioners.
Ms Steiner was advised on 8 July 2020 to resubmit her claim. It should also be noted that with respect to the reconsideration out of time, Guideline 18 provides ‘In most matters, VLA may waive or extend the time period in which a person can request internal reconsideration of a decision.’
Steiner’s choice to absorb fees does not absolve her of the responsibility to meet the requirements under VLA Practice Standard 3.2(v):
invoice for every billable event or work item at each stage of the matter

Finally, Ms Steiner’s responses indicates a lack of knowledge or understanding of the requirements of panel practitioners in breach of 3.2 (a) and (b):
have up-to-date knowledge and understanding of the guidelines for legal assistance and the notes on the guidelines.

File Number [2]
Allegations:
VLA alleges that Ms Steiner failed to provide documents as part of an application in a reasonable time.
Investigation:
In determining this allegation, I have considered Ms Steiner’s response in your letter dated 27 January 2021, documents contained in ATLAS and information from the Grants team (Annexure B).
I have discovered that:
• On 21 July 2020 Ms Steiner submitted an application with limited supporting documentation
• On 27 July 2020, a requestion was sent to Ms Steiner requesting additional information, including details relating to the client’s eligibility for aid.
• On 10 August 2020, the application was refused by VLA due to the fact that Ms Steiner failed to provide the further information requested by VLA.
• In your letter of 27 January 2021, Ms Steiner has noted that: “In my view, [the client] no longer satisfied the VLA guidelines. [The client] was also unable to provide positive answers to the questions raised.”
Findings:
Based on my findings of fact I am satisfied that:
• Ms Steiner’s revised recommendation regarding eligibility does not absolve her from the requirement to respond to VLA’s requests for documents/information and the failure to respond to VLA’s requisitions amounts to a breach of VLA Practice Standard 3.2(f):
submit all documents required by VLA in support of applications for Legal Assistance, reconsideration and independent review within a reasonable time.

• Ms Steiner’s failure to notify VLA when a person’s entitlement to assistance changed amounts to a breach of VLA Practice Standard 3.2(n):
notify VLA immediately of anything that may affect the client's entitlement to legal assistance or obligation to pay a contribution to VLA.

I note this VLA Practice Standard was not included in the original allegations, but the information Ms Steiner provided in your letter of 27 January 2021 indicates the basis for the finding. I note specifically Ms Steiner’s statement in your letter:
“I accept that I did not respond to the Requisition. I did not respond because, by the time I received the Requisition, the facts and circumstances of [the client’s] case had fundamentally changed, such that her application for legal aid was no longer relevant.”

• Ms Steiner has been advised on several occasions and specifically in writing on 29 April 2020 that for clients where instructions have not been received, have concerns of merit, or do not have updated means, correspondence needs to be submitted requesting the file is terminated. This will allow VLA to make a determination as to whether the file should be terminated.
I am of the view that Ms Steiner’s failure to provide this information meant that VLA was unable to provide the client with a decision regarding their circumstances and the client was therefore unable to submit a reconsideration. This failure is in breach of VLA Practice Standard 3.3(d):
provide the client with sufficient information to enable them to effectively understand the process, participate in the proceedings, make informed decisions and provide instructions.

Furthermore, Ms Steiner’s lack of awareness that she needs to provide such information indicates a lack of knowledge or understanding of the requirements of panel practitioners in breach of 3.2 (a) and (b):
have up-to-date knowledge and understanding of legal aid obligations and processes.
have up-to-date knowledge and understanding of the guidelines for legal assistance and the notes on the guidelines.

Removal Decision

On 8 October 2021, Gleeson wrote to the plaintiffs notifying them of her decision to remove them from the panels. Gleeson set out the material she considered, which included the letter from the plaintiffs’ solicitors dated 9 August 2021 and attachments. In relation to the client complaint, Gleeson wrote:

You have not suggested that you informed [the client] on, or shortly after, 14 April 2020 that you had closed her VLA file, despite [the client] having emailed you that day to say that she continued to require representation.
In addition, you have provided no documentary evidence to support your assertions that you informed [the client] in May 2020 of her ineligibility for legal assistance, the need for [the client] to submit a new application for assistance or that you no longer represented [the client]. The text messages you provided, which were sent after the 13 May 2020 hearing, contain no reference to the legal representation having come to an end. Further, you have provided no evidence of having informed the Court or DHHS that you or the Practice ceased to act in the matter until September 2020 after having been prompted by VLA and the Court.
In my view, it is standard legal practice that a legal practitioner keep file notes of advice and information provided orally as a contemporaneous record. Further, where legal representation has ended, standard legal practice would require that the legal practitioner write to the client to inform them of the outcome or, if the matter was ongoing, the fact the legal practitioner/client relationship had come to an end with information about the next steps. It would also require that the legal practitioner correspond with the court and other parties to advise that they had ceased to act.
You have not suggested that you sought to clarify with [the client] that you or the Practice no longer represented her after she contacted you by voice message and email in August 2020.
On the other hand [the client’s] email dated 25 August 2020 (provided to VLA by [the client] and referred to in your statement) and [the client’s] statement of 10 February 2021, make it clear that as at 25 August 2020, prior to her complaint to VLA and after the August hearing, [the client] was confused about whether you or the Practice still represented her.
Further, you state that you were copied into communication with DHHS by [the client’s husband] (to an email signed off as [the client and her husband]), which is indicative that [the client] still considered you to be representing her or involved in her matter in some capacity. You have not suggested that you sought to clarify the situation with [the client] after that email.
I find that the Practice did not adequately inform [the client] that her representation and grant of assistance had come to an end and the implications of the same. The information imbalance as between legal practitioners and their clients, and the consequent vulnerability of clients, is reflected in the Practice Standards.
As such, I find that you, and therefore the Practice, did not comply with the obligation under clauses 3.2(m), 3.3(d) and 3.3(g) of the Practice standards, requiring a practitioner to:
•keep the client informed of their entitlements, rights and obligations in relation to a grant of legal assistance;
•provide the client with sufficient information to enable them to effectively understand the process, participate in the proceedings, make informed decisions and provide instructions; and
•provide the client with regular progress reports at each stage, including a final outcome report.

In relation to the file management complaint Gleeson wrote:

You have provided no new information regarding the findings relating to grounds 3 and 4 in the Notice (other than in respect of [the client] complaint, as detailed above) but rely on your previous response.
I have reviewed the materials relating to the compliance issues. I come to the same conclusion as that set out in the Notice dated 9 July 2021 that the Practice breached clauses 3.2(a), 3.2(b), 3.2(f), 3.2(n), 3.2(v) and 3.2(ff) 3.3(d) and 3.3(g) of the Practice Standards.

Gleeson then set out her reasons for removal:

Ground 1 – 2.1(d) of the Removal and Revocation Conditions
The Practice, through Ms Steiner’s conduct as its principal and panel certifier, committed a serious breach of Panel Conditions that, in VLA’s opinion, was a breach of the Practice Standards that had the potential to adversely impact a legally assisted person or VLA.
You have not commented about whether the findings in the [client] matter, if properly made, amount to serious breaches of the Panel Conditions that satisfy ground 1.
I am satisfied that the breach of Practice Standards 3.2 and 3.3 in the [client] matter was a serious breach of the Panel Conditions, for the purposes of ground 2.1(d) of the Removal and Revocation Conditions, in that it had the potential to adversely impact a legally assisted person. That is because:
• the failure to update [the client] or appear on her behalf, in circumstances where she and the Court understood that the Practice were representing her, had the potential to unreasonably delay the court proceedings;
• that risk occurred in the circumstances of child protection proceedings, being serious and complex proceedings subject to statutory time limits; and
• the failure to update [the client] or appear on her behalf limited her ability to obtain legal advice or assistance for the hearing, leaving her exposed to the possibility of the matter being determined without proper legal representation.
Ground 2 – 2.1(d) of the Removal and Revocation Conditions
The Practice, through Ms Steiner’s conduct as its principal and panel certifier, committed a serious breach of Panel Conditions that, in VLA’s opinion, was a breach of the Practice Standards that had the potential to adversely affect VLA’s reputation.
You have not commented about whether the findings in relation to the [client] matter, if properly made, amount to serious breaches of the Panel Conditions that satisfy ground 2.
I am satisfied that the breach of Practice Standards 3.2 and 3.3 in the [client] matter had the potential to adversely affect VLA’s reputation, for the purposes of ground 2.1(d) of the Removal and Revocation Conditions. That is because the conduct comprising the breach had the potential to cause:
• a person to consider that the quality of legal services provided by VLA do not meet the standard required of proper legal representation; and
• a court to question VLA’s ability to provide effective legal representation to participants in court proceedings;
contrary to VLA’s duty to provide legal aid in an effective manner, and one that dispels fear and distrust, in s 7(1)(a) of the Legal Aid Act 1978.
Ground 3 – 2.1(f) of the Removal and Revocation Conditions
The Practice, through Ms Steiner’s conduct as its principal and panel certifier, has a history of failing to meet the Practice Standards that, in VLA’s reasonable opinion, poses an unacceptable risk to the quality of services provided to an Assisted Person or applicant for legal assistance.
This ground relies on the [client] complaint and the other compliance issues. You contend that the compliance issues are not objectively serious in nature and should be considered against your “long history of exemplary legal practice”. Your response to the Notice, and your reference to your long history of exemplary legal practice fail to acknowledge or address the fact that the [client] complaint and other compliance issues that are the subject of the Notice occurred after the Practice had been subject to a suspension and [Quality Improvement Action Plan] on the basis of a series of earlier compliance issues.

Your response does not acknowledge or address that the conduct comprises multiple instances of noncompliance, which, taken together, demonstrate a persistent disregard for the Practice Standards even if an individual instance, taken on its own, may not be considered a serious breach.
I am satisfied that the Practice, through your conduct, has a history of failing to meet the Practice Standards.
I am satisfied that this history of failing to meet the Practice Standards poses an unacceptable risk to the quality of services provided to Assisted Persons or applicants for legal assistance, because:
• your failure to maintain up-to-date knowledge of legal aid obligations and processes, and VLA’s Guidelines poses a risk of providing applicants or legally assisted people inaccurate or inappropriate advice about their eligibility for legal assistance;
• your failure to submit the documents required by VLA for applications, reconsiderations or independent reviews poses a risk of applicants or legally assisted people being incorrectly refused legal assistance or preventing them from pursuing their rights with respect to decisions made by VLA regarding their legal assistance; and
• your failure to keep clients informed of their entitlements, rights and obligations in relation to legal assistance, or to provide clients with sufficient information to enable them to effectively understand, participate, make decisions and provide instructions, poses a risk that clients will not be able to adequately engage in their legal proceedings and may be subject to adverse orders or other determinations.
• your history of failing to meet the Practice Standards poses a risk that is unacceptable because applicants and legally assisted people are some of the most vulnerable members of our community and often have limited capacity to understand the legal proceeding or adequately self-advocate. They are also, at the time they require legal assistance services, engaged in complex and emotionally charged proceedings (such as those in which [the client] was involved). As such, applicants and legally assisted people require a high level of service and support, and VLA is duty bound to provide legal aid in an effective manner so as to dispel their potential fear and distrust.
Ground 4 – 2.1(g) of the Removal and Revocation Conditions
The Practice, through Ms Steiner’s conduct as its principal and panel certifier, has a history of non-compliance with the Practice Standards that, in VLA’s reasonable opinion, may impose an unreasonable cost (including resource cost) burden on VLA
This ground relies on the [client] complaint and the other compliance issues. As with ground 3, you contend that the compliance issues are not objectively serious in nature and should be considered against your history of exemplary legal practice.
Again, your response does not address the context in which the findings were made or that the findings relate to multiple instances of noncompliance.
I am satisfied that the Practice, through your conduct, has a history of failing to meet the Practice Standards.
I am satisfied that this history of failing to comply with the Practice Standards may impose an unreasonable cost (including resource cost) burden on VLA because:
• your failure to adequately apply the guidelines may result in matters being legally assisted where the person or their matter is ineligible for assistance, leading to costs being drawn against the legal aid fund inappropriately; and
• your failure to provide relevant information to VLA may require employees of VLA to seek that information from you and to otherwise follow up missing information on multiple occasions, as it has done in relation to your conduct the subject of ground 4, leading to an unreasonable resource cost burden.

As to the period of removal Gleeson wrote:

I have determined to remove the practice for a period of 12 months, effective immediately, during which period VLA will not consider any applications by the Practice for inclusion on the Panels. This period will allow the Practice time to address the matters leading to the removal and implement appropriate systems and processes.

Financial implications for the plaintiffs of the Removal Decision

In the statements provided to VLA Steiner described in detail the likely financial impact of the Removal Decision. The following is a summary of her evidence.

Almost all of the fee income generated by the plaintiffs is derived from its membership of the s 29A panels. The plaintiffs have almost no privately funded work. In 2018 to 2020, the plaintiffs generated fees of between $7,000 and $10,000 per week from legally aided matters.

Steiner is now 65 years old. Removal from the s 29A panels is likely to end her legal career, certainly as a sole practitioner, and possibly in any capacity.

The Removal Decision is likely to result in the plaintiffs making the Firm’s only employee solicitor redundant, and having to pay her redundancy and termination entitlements. In addition, the plaintiffs will lose the opportunity associated within the employee solicitors’ potential earnings.

The Firm currently leases premises from Steiner in Little Collins Street, Melbourne and in Shepparton. Steiner has mortgage payment obligations on both properties, and would be detrimentally affected if the Firm had to give up the leases.

Steiner will suffer irreparable reputational damage if the Removal Decision is not quashed.

The Act

VLA is established as a body corporate by the Act.[3]
[3]Ibid s 3(1).

The objectives of VLA set out in s 4 of the Act include:

(a) to provide legal aid in the most effective, economic and efficient manner;
(b) to manage its resources to make legal aid available at a reasonable cost to the community and on an equitable basis throughout the state;
(ba) to ensure the coordination of the provision of legal aid so that it responds to the legal and related needs of the community;
…
(c) to provide to the community improved access to justice and legal remedies;

The functions and powers of VLA in s 6(1) of the Act include:

(a) to provide legal aid in accordance with this Act;
(ab) to coordinate, and undertake strategic planning for, the provision of legal aid by—
(i) VLA; and
(ii) subject to subsection (1A), community legal services; and
(iii) private legal practitioners by arrangement with VLA;

In performing its functions under s 6(1)(ab) of the Act, VLA must consult with various bodies and private legal practitioners who provide legal aid by arrangement with it.[4] Legal aid may be provided by VLA by, amongst other things, arranging for the services of private legal practitioners to be made available.[5]
[4]Ibid s 7(1A).
[5]Ibid s 8(1)(b).

Further powers in s 6(2) include that VLA may:

(g) do all things necessary or convenient to be done for, or in connection with, the performance of its functions.

The duties of VLA, set out in s 7(1) of the Act, include:

(a) ensure that legal aid is provided in the most effective, efficient and economic manner and in a manner which dispels fear and distrust, including by—
(i) arranging, as appropriate, for legal aid to be provided by VLA, community legal services and private legal practitioners by arrangement with VLA; and
…

(f) liaise with professional associations in order to facilitate the use, in appropriate circumstances, of services provided by private legal practitioners;

Practitioner panels are governed by s 29A of the Act. The power for VLA to establish panels is in s 29A(1):

(1) VLA may establish different panels for—
(a) different classes of matters in relation to which legal assistance may be provided under this Act; or
(b) different parts of the State—

and may determine the conditions subject to which a private law practice or private legal practitioner may be included on any such panel.

VLA must give notice of a proposal to establish a panel, or include additional names on an established panel, in accordance with s 29A(2) and (3):
(2) If VLA proposes to establish a panel under subsection (1) or include additional names on an established panel, it must, by notice published in a daily newspaper circulating generally throughout Victoria or in the relevant part of the State (as the case requires), invite expressions of interest from private law practices or private legal practitioners in having their names included on the panel.
(3) A notice under subsection (2)—
(a) must be published not later than 21 days before the panel is established by VLA or any additional name included on it, as the case requires; and
(b) must specify—
(i) the qualifications and experience that a private law practice or private legal practitioner included on the panel must have or the part of the State within which their principal place of practice must be located; and
(ii) the period (not exceeding 5 years) during which a private law practice or private legal practitioner may be included on the panel; and
(iii) the basis on which payment will be made to any private law practice or private legal practitioner included on the panel for services performed as a panel member on behalf of an assisted person; and
(iv) performance standards in relation to the provision of services by panel members; and
(v) requirements with respect to the making of reports to VLA and the keeping of records that must be complied with by panel members in respect of the performance of services on behalf of assisted persons; and
(vi) the grounds on which, and process by which, a private law practice or private legal practitioner may be removed from the panel.

Re-inclusion on a panel after expiry of a period is dealt with by s 29A(5), which states that ‘[a] private law practice or private legal practitioner may be re-included on a panel after the expiry of the period for which they were included.’

VLA may assign the conduct of an assisted person’s case to a s 29A panel member.[6]
[6]Ibid s 29B(1).

The plaintiffs have listed other sections of the Act that refer to and deal with delivery of legal assistance under the Act by private legal practitioners and/or private law practices.

The Deed

The term of the Deed was expressed as follows:

2.1 Initial Term
This Panel Deed begins on the Commencement Date and ends on the fifth anniversary of the Commencement Date, unless:
2.1.1 terminated earlier under clause 11;
2.1.2 extended by VLA under clause 2.2.
2.2 Extension of Term
2.2.1 VLA may elect, by notice in writing to the Provider, to extend this Panel Deed for a further period determined by VLA but not exceeding five years.

The commencement date is relevantly defined as the date the Deed is signed on behalf of VLA. Accordingly, the plaintiffs’ initial term of inclusion on the child protection panel expired on 15 April 2020. The plaintiffs were included on the family violence panel in August 2016. Although no copy of the family violence panel deed signed by VLA could be located, the initial term of inclusion could not exceed five years, and must have expired in August 2021.

The Deed defined ATLAS as ‘VLA’s web-based system for lodging and tracking applications for, extensions and invoices.’

The terms and conditions of panel membership were defined in the Deed to include:

(a) the ATLAS Terms and Conditions (Schedule 1);
(b) the VLA Practice Standards (Schedule 2);
(c) Quality Monitoring Term and Conditions (Schedule 3);
(d) Compliance Terms and Conditions (Schedule 4);
(e) Panel Removal and Certifier Status Revocation (Schedule 5);
(f) Performance Outcomes (Schedule 6)

The Deed provided that during the term of inclusion the plaintiffs must comply with those terms and conditions.

The Deed provided that VLA may remove the plaintiffs from the panels in the circumstances specified in Schedule 5 of the Deed.

The process for removal from the panels was set out in clause 1 of Schedule 5 to the Deed:

1.1 The following steps represent the Removal Procedures:
a. Where grounds for Removal are identified (see 2. Grounds for removal on page 3), VLA will send a Provider/Panel Certifier a notice of intention to Remove them from the panel.
b. The notice will outline VLA’s reasons and concerns leading to the proposed Removal.
This notice is intended to enable the Provider or Panel Certifier to respond to all relevant issues. This response will then be considered by VLA before making a final decision. This is an important step for ensuring that natural justice is provided to the Provider/Panel Certifier.
A Provider/Panel Certifier may have their panel membership or certifier status suspended while an investigation is being undertaken.
c. The Provider/Panel Certifier has 28 days to respond to any notice.
d. VLA will assess the Provider/Panel Certifier’s response to the notice (if any) and make a final decision about whether or not to Remove.
e. Where the Provider/Panel Certifier fails to respond to the notice, VLA will make the final decision of whether or not to Remove the Provider/Panel Certifier on the basis of the reasons outlined in the notice.
f. Where VLA decides not to Remove a Provider/Panel Certifier, an alternative Performance Outcome may be applied (such as a formal caution).
g. Where VLA makes a final decision to Remove a Provider/Panel Certifier, a formal letter outlining this decision will be sent to the Provider/Panel Certifier.
h. VLA’s Removal letter will include:
• detailed reasons for Removal
• reasons why the Provider’s/Panel Certifier’s response to the notice did not satisfy VLA’s concerns
• the period of Removal
• details as to how the Provider/Panel Certifier can apply to be re-included to the panel or approved as a Panel Certifier.

The grounds for removal from a panel were set out in clause 2 of Schedule 5, and relevantly included:

d. The Provider or Panel Certifier has committed a serious breach of Panel Conditions. A breach of the Panel Conditions will be regarded as serious where, in VLA’s opinion:
• the breach posed a risk of detriment to the legal aid fund
• the breach was a breach of the Practice Standards that had the potential to adversely impact a legally assisted person or VLA
• the breach had the potential to adversely affect VLA’s reputation

…
f. The Provider or Panel Certifier has a history of failing to meet the VLA Practice Standards that, in the reasonable opinion of VLA, poses an unacceptable risk to the quality of services provided to an Assisted Person or applicant for legal assistance.
g. The Provider or Panel Certifier has a history of breaches of Panel Conditions, including the Practice Standards that, in the reasonable opinion of VLA, may impose an unreasonable cost (including resource cost) burden on VLA.

The Schedule provided that a practice may apply for panel re-inclusion at any time after their removal period from the panel had expired. In addition to meeting the usual requirements for panel inclusion a practice seeking re-inclusion on a panel after removal must satisfy VLA that:

a. they have addressed the issues that resulted in the Removal; or
b. there has been a material change in their circumstances such that the same issues are unlikely to arise again, or
c. they no longer pose a risk to clients or the legal aid fund.

Objections to Gleeson’s evidence

The plaintiffs objected to three parts of Gleeson’s affidavit. The first was a relevance objection to paragraphs 24 to 27, where Gleeson gave details of the plaintiffs’ inclusion on VLA’s family law panel. I agree the evidence is not relevant to an issue in the proceeding, and should be excluded.

The second objection, also on relevance grounds, was to paragraphs 32 to 35 where Gleeson set out the usual process for re-inclusion of a practitioner on a s 29A panel. The plaintiffs claimed VLA had re-included them on the panels in accordance with s 29A of the Act. It was relevant to that claim to know what VLA’s process for re-inclusion was, and whether it had been followed in this case. I reject the plaintiffs’ objection.

The third objection, on the basis of hearsay, was to paragraph 37. In that paragraph Gleeson states that Andrew Morse, the Panels Coordinator at VLA, did not prepare a recommendation for re-inclusion. That evidence is un-objectionable. Gleeson goes on to say that she was informed by Morse of his reasons for not doing so, and what those reasons were. That evidence is objectionable hearsay, and will be excluded. Evidence from the paragraph that is admitted will simply read:

Andrew Morse, the Panels Coordinator did not prepare a Recommendation for re-inclusion with respect to Ms Steiner or the Firm when its initial term on the Child Protection Panel expired in April 2020.

What is the status of the plaintiffs’ panel membership?

This question arises for consideration in two ways.

First, VLA argued that the term of the plaintiffs’ inclusion on the panels had expired, and their interim, bridging period of inclusion came to an end when the Removal Decision was made on 8 October 2021. VLA submitted that whether or not the Court finds that there was error in the Removal Decision, the interim bridging appointment is over, and an order quashing the Removal Decision cannot revive it.[7]
[7]Nolan v Department of Environment and Primary Industries [2014] VSC 412, [63]–[66] (‘Nolan’).

Second, the plaintiffs alleged they were re-included on the panels for a further term after expiry of the initial five-year term. As a result of this controversy, in final submissions the plaintiffs sought to amend the prayer for relief to include a declaration that their panel membership had been so extended. The plaintiffs alleged that they had been re-included on each panel for a further term of five years.

The parties proceeded on the basis that I should determine the status of the plaintiffs’ panel membership, and whether a declaration should be made in that regard.

Submissions
Plaintiffs

There are four independent bases on which the Court should hold that the plaintiffs are members of the panels but for the challenged Removal Decision.

First, on its own case, VLA continued to treat the plaintiffs as members of the panels after expiry of the initial term. A consequence of the Removal Decision is that VLA ceased to treat the plaintiffs as panel members. Certiorari quashing the decision removes the legal effect or legal consequences of that decision. The parties’ legal relations would revert to the time immediately before the Removal Decision, so that the plaintiffs would be treated for all purposes as panel members.

Second, there has been a contractual extension of the plaintiffs’ panel membership. VLA consistently represented to the plaintiffs that they remained panel members. VLA and the plaintiffs conducted themselves on that basis. Indeed, in her letter of 8 October 2021, Gleeson described the Removal Decision as removing the plaintiffs from panels ‘of which it is currently a member’. The parties’ mutual conduct and representations can only be understood as if they waived the formal written notice requirement in the Deed. There is nothing about the representations or conduct of the parties inter se which would suggest to the objective observer that they had agreed to extend the plaintiffs’ membership ‘at will’. Such a style of extension was never communicated, would be entirely uncommercial in the circumstances, and is inconsistent with VLA’s previous suspension of the plaintiffs from the panels that occurred after the expiry of the initial term of membership of the child protection panel. Further, an ‘at will’ relationship does not accord with s 29A(3)(b)(ii) of the Act, which requires inclusion for a ‘period’.

Third, in the alternative, VLA is bound by two different types of estoppel from denying that panel membership was extended beyond the initial terms. First, the representations or conduct by VLA were capable of inducing, and did in fact induce, an assumption by the plaintiffs that the panel terms had been extended. In light of the detrimental reliance suffered by the plaintiffs, it would be wholly unjust or unconscionable for VLA to depart from their assumption that their membership on the panels had been extended for a further five years. Second, a necessary basis for the Court’s judgment[8] in the first proceeding was that the plaintiffs were members of the child protection panel as at 12 April 2021, being a year later than the expiry of the initial period. It follows that the Court’s order of 12 April 2021 finally closed or precluded the re-agitation of the issue of whether the plaintiffs’ membership of the child protection panel had been extended.
[8]This is constituted by what is recorded in Other Matters in the orders of Cavanough J dated 12 April 2021 in proceeding S ECI 2021 00998. There is no separate judgment.

Finally, the plaintiffs had been re-included on the panels pursuant to s 29A(5). The provision is expressed in the passive voice, and does not require an identifiable ‘decision’. There is no basis on which the plaintiffs could have been receiving panel work after expiry of the initial period unless they had been re-included. There is no other explanation for VLA’s representations and conduct but that the plaintiffs were re-included on the panels. If it is necessary it should be inferred that VLA in fact made a decision to re-include. Treating the plaintiffs as panel members beyond the expiry of the initial terms is indistinguishable from a decision to extend the plaintiffs’ membership.

VLA raised the issue of the plaintiffs’ panel membership as an additional or special matter in support of a ground of defeasance, and therefore bears the legal onus of persuading the Court that panel membership had expired.

There is still utility in granting certiorari if the plaintiffs’ arguments about panel membership are rejected. First, the Removal Decision purports to prevent the plaintiffs from reapplying for inclusion on the panel for 12 months. Quashing the decision will allow the plaintiffs to apply immediately for re-inclusion on the panels unimpeded by the 12-months’ restriction. Second, quashing the decision on the basis it was unlawful will be highly relevant to consideration by VLA of any later application for re-inclusion on the panels. Further, if it is concluded certiorari is not available on the basis articulated by VLA, the Court should nonetheless grant a declaration as to the unlawfulness of the Removal Decision because of the reputational damage that would otherwise be suffered by the plaintiffs as a result of the decision.

VLA

It is a necessary component of the plaintiffs’ claim that they establish certiorari is available. Therefore the plaintiffs bear the legal onus of proving that the Removal Decision has ongoing legal effect.

Whether or not the Court finds error in the Removal Decision, it had the effect of bringing to an end the interim bridging inclusion on the panels.[9] Certiorari is not available because, the term of inclusion on the panels having come to an end, a decision to revoke that inclusion has no continuing legal consequence.[10] The plaintiffs’ submission that they would be treated for all purposes as members of the panels if the Removal Decision is quashed is misguided. Certiorari does not quash or remove practical consequences of an impugned decision.[11]
[9]Somba v Minister for Home Affairs (2019) 269 FCR 517, 527 [38] (Logan, Steward and Jackson JJ) (‘Somba’).
[10]Wingfoot Australia Partners Pty Ltd v Kocak (2013) 252 CLR 480, 492 [25] (French CJ, Crennan, Bell, Gageler and Keane JJ); Nolan (n 7) 412, [63]–[66] (McMillan J).
[11]Ainsworth v Criminal Justice Commission (1992) 175 CLR 564, 581 (Mason CJ, Dawson, Toohey and Gaudron JJ); Smethurst v Commissioner of Police (Cth) (2020) 94 ALJR 502, 520 [45] (Kiefel CJ, Bell and Keane JJ).

It is VLA that decides under s 29A(5) whether to re-include a practice on a panel. That power can only be validly exercised by VLA’s board of directors or an officer to whom that power is delegated. There is no evidence the power to re-include was exercised in this case. Such an assertion is inconsistent with the evidence of Gleeson that she did not decide whether the plaintiffs should be re-included on the panels. Even if Gleeson were found to have re-included the plaintiffs beyond the initial term by treating them as panel members for an interim period, there is no evidence that the ongoing term was for a period of time that would continue to the present.

The representations relied on by the plaintiffs as a basis for the estoppel claim were not capable of inducing an assumption that membership of the panels had been extended for a further term of five years, or for any period of time that would continue today. Statements concerning the plaintiffs’ panel membership must be understood in the context of VLA investigating complaints about their conduct. A statement that the plaintiffs were members of the panels after the initial term is not capable of misleading a reasonable person to assume that membership has been extended for five years. The letter from the plaintiffs’ lawyers of 7 March 2021 did not give rise to any duty in conscience for Gleeson to correct the mistaken assumption that membership on the child protection panel had been extended for a further five years in circumstances where VLA was proposing to remove the plaintiffs from the panels. If VLA decided not to remove them, yet the term of membership had expired, the plaintiffs would have been entitled to seek re-inclusion on the panels for a further fixed term. In those circumstances any mistaken assumption would not have caused sufficient detriment to the plaintiffs of the kind that would give rise to a duty on VLA to correct the mistake. Alternatively, if VLA lawfully removed the plaintiffs from the panel, there was no detriment to them as a consequence of the mistaken assumption. Further, the power to re-include on the panel was intended to be exercised for the benefit of a section of the public, namely recipients of legal aid. Estoppel cannot operate in those circumstances to hinder the exercise of a statutory discretion.[12]
[12]Minister for Immigration, Local Government and Ethnic Affairs v Kurtovic (1990) 92 ALR 93, 101 (Ryan J), 109, 111 (Gummow J).

Where an issue has a temporal element, an issue estoppel only operates with respect to the point in time in issue in the earlier proceeding.[13] Therefore, even if the plaintiffs’ panel membership was a necessary basis for Cavanough J’s judgment, no issue estoppel arises as to whether membership on the child protection panel has now expired.
[13]O’Donel v The Commissioner for Road Transport and Tramways (New South Wales) (1938) 59 CLR 744 (Latham CJ, Evatt and McTiernan JJ); Lizzio v Council of the Municipality of Ryde (1983) 155 CLR 211, 232 (Deane J).

There is no general principle that where parties have completed a fixed term of an agreement and proceed to perform the agreement after the fixed term without making a new express agreement, the parties have agreed to renew the agreement for another term of the same period.[14] Accordingly, the plaintiffs’ claim that panel membership was contractually extended for a further five-year term must be rejected.
[14]Brambles Ltd v Wail (2002) 2 VR 169, 184 [54], 188 [61] (Winneke P, Charles and Batt JJA); CSR Ltd v Adecco (Australia) Pty Ltd [2017] NSWCA 121, [5] (McColl JA).

Analysis

VLA has tendered evidence that it submitted leads to the conclusion that after expiry of the initial term of inclusion on the panels the plaintiffs continued to be included for an interim bridging period that ended with the Removal Decision. Resolution of a factual question about the status of the plaintiffs’ panel membership was critical to the judicial review and declaratory relief they seek in this proceeding. The legal onus in respect of that fact is borne by the plaintiffs.

Section 29A(5), which deals with re-inclusion, must be read in the context of the provision as a whole. The natural meaning of ‘re-include’ is to include again. In other words, s 29A(5) gives VLA the power to again include a practitioner on a panel after expiration of the initial term of inclusion, in accordance with s 29A(1).

The power to include a practitioner on a panel has been delegated to a small number of VLA officers, including Gleeson. I conclude that at all relevant times Gleeson had the delegated power to re-include the plaintiffs on the panels, that is to include the plaintiffs again after their initial term had expired.

The plaintiffs were initially included on the panels in accordance with the provisions of the Deed. In relation to re-inclusion the Deed provided:

3.1.4 The Provider’s inclusion on the Panel during the Term and VLA’s entering into this Panel Deed do not entitle the Provider:
…
(b) to expect that future agreements between VLA and the Provider (if any) will be on terms similar to this Panel Deed.

Relevantly the plaintiffs could not expect that they would be re-included on the panels for five years or any other fixed term.

Gleeson has given evidence of VLA’s usual procedure for a practice to be re-included on a s 29A panel, and that the procedure was not undertaken in respect of the plaintiffs’ panel membership. Gleeson said:

40. I did not make any decision whether the Firm should be re-included on the Child Protection Panel or not. I considered it was not appropriate for me to make a decision about re-inclusion while the quality concerns were being investigated. Any decision on re-inclusion of the Firm on the Child Protection Panel for a further fixed term was held in abeyance while quality concerns were being explored. VLA continued to treated the Firm as a panel member for an interim period until those issues were resolved.
41. The Firm was not re-included on the Child Protection Panel or the Family Violence Panel for any fixed term beyond their initial term, but consistently with the approach in the previous paragraph, VLA continued to assign s 29A panel Child Protection matters and s 29A panel Family Violence matters to the Firm after the initial terms.

In relation to the assumption communicated by the plaintiffs’ lawyers, in the letter of 17 March 2021 set out at paragraph 29 above, Gleeson said:
43. … As explained above, I have never made any decision to re-include Ms Steiner or the Firm as a member of a s 29A panel for a further fixed term after the expiry of the initial term. I understand that neither VLA nor its delegates have made any decision to reinclude Ms Steiner or the Firm as a member of a s 29A panel for any further fixed term beyond their initial term.

It is a matter for VLA to decide whether to include or re-include a practitioner on a panel in accordance with s 29A of the Act, and the conditions on which that is to occur.[15] Gleeson’s evidence that no decision was made to re-include the plaintiffs on the panels for a particular term was not challenged. I conclude that VLA did not decide to re-include the plaintiffs on the panels for a further term of five years, or any other fixed term, after their initial term of inclusion had expired.
[15]Act (n 1) s 29A(1), (5).

Throughout 2020 and 2021 Gleeson communicated to the plaintiffs her ongoing concerns about their capacity to meet the requirements of ongoing panel membership. While Gleeson’s letter of 15 July 2020 was specifically addressed to Steiner’s role as a panel certifier, that letter and Gleeson’s other communications to the plaintiffs are consistent with her evidence that she had decided to continue to treat the plaintiffs as being included on the panels after their initial term expired until her concerns were resolved. I conclude that was the only decision made by VLA about the plaintiffs’ ongoing panel membership. Such a decision is within the powers provided to VLA by s 29A(1) and (5) of the Act, augmented as necessary by the power in s 62G.

I accept the plaintiffs’ submission that there is no relevant distinction between VLA treating the plaintiffs as panel members, and the plaintiffs actually being included on the panels.

I turn now to consider the plaintiffs’ argument that there was a contractual extension of their inclusion on the panels for a further five-year term.

VLA did not give notice under clause 2.2 of the Deed that it elected to extend the plaintiffs’ panel membership.

The parties continued to conduct themselves as if the plaintiffs remained panel members after expiry of the initial terms. This included VLA engaging in the process of raising, investigating and determining the VLA complaints after the plaintiffs’ term on the child protection panel had expired. In the Removal Decision, Gleeson described the plaintiffs as current panel members.

The conduct issues that concerned VLA first arose during the period of the plaintiffs’ initial panel term. The complaints raised by VLA with the plaintiffs involved questions about their compliance with the practice standards set out in the Deed. A reasonable person in the position of the plaintiffs would have understood that VLA considered the matters which concerned it might have implications for whether they remained included on the panels, or were to be re-included after the initial term expired. As much was clearly evident from Gleeson’s letter to Steiner of 15 July 2020.

VLA was dealing with the complaints in the context of the plaintiffs’ membership of the child protection and family violence panels. The initial term of inclusion on the family violence panel did not expire until August 2021. What is objectively apparent from VLA’s conduct and correspondence in respect of the plaintiffs in the period to the Removal Decision, is that it continued to treat the plaintiffs as being included on the panels while it investigated the complaints and considered what action, if any, should be taken.

The letter from the plaintiffs’ lawyers to Gleeson of 17 March 2021 was directed to the issue of Steiner’s status as a panel certifier. The lawyers did not seek a response from Gleeson to their stated assumption that the plaintiffs had been reincluded on the child protection panel for a further five-year term. There was no response from VLA to that stated assumption, and no follow up from the plaintiffs or her lawyers about the matter.

It was objectively obvious from Zamani’s letter of 19 March 2021 setting out her findings that the plaintiffs had breached the practice standards, Gleeson’s letter on the same day suspending the plaintiffs’ panel membership, and the letter of 16 June 2021 communicating that she continued to have concerns about the plaintiffs’ panel membership, that the plaintiffs’ inclusion on the panels remained in issue.

I accept VLA’s submission that there is no general principle that where parties continue to perform an agreement after an initial fixed term has expired without making a new express agreement, the parties have agreed to renew the agreement for another term of the same period.[16]
[16]Brambles Ltd v Wail (2002) 2 VR 169, 184 [54], 188 [61] (Winneke P, Charles and Batt JJA); CSR Ltd v Adecco (Australia) Pty Ltd [2017] NSWCA 121, [5] (McColl JA).

A reasonable bystander would regard VLA’s correspondence and conduct throughout 2020 and 2021 as putting the plaintiffs on notice that it remained concerned about their panel membership in the context of the complaints and that there was doubt about whether, and the conditions on which, they would be re-included on the panels for a fixed term. I conclude that, viewed objectively, the representations and conduct of VLA would not have led a reasonable person in the position of the plaintiffs to believe that they had been re-included on the panels for a further five years, or some other fixed term. I reject the plaintiffs’ submission that there was a contractual extension of their inclusion as panel members for a second term of five years.

For similar reasons, the plaintiffs’ claim of estoppel by representation is rejected. The real question is whether there were representations by VLA that were capable of inducing in the plaintiffs an assumption that they had been included on the child protection panel for a further five years after expiry of the initial term.

Gleeson suspended the plaintiffs from the panel for three months from March 2020. In July of that year, she wrote to the plaintiffs conveying her ongoing concerns about their file management practices. It is clear from that letter that the plaintiffs’ re-inclusion on the panel remained in issue.

VLA’s communications to the plaintiffs about the VLA complaint reinforced that their inclusion on the panels remained in issue.

The stated assumption of the plaintiffs’ lawyers in their letter to Gleeson of 17 March 2021, set out at paragraph 29 above, must be viewed in the context of the history of findings by VLA of non-compliance with the practice standards, the contents of Gleeson’s letter to Steiner of 15 July 2020, the ongoing investigation of the VLA complaints, and the further action by VLA in respect of those complaints that followed immediately after the letter and continued. Further, as I have already stated, the stated assumption was simply part of the background set out in the lawyers’ letter. It was not the subject of the letter, and no response was sought from VLA. In all the circumstances, I conclude a reasonable person would not have expected VLA to bring to the plaintiffs’ attention that their inclusion on the child protection panel was in issue, in order to correct the assumption stated by the plaintiffs’ lawyers. Further, I conclude that the conduct and representations relied on by the plaintiffs were not capable of inducing the assumption that VLA had re-included them on the child protection panel for a further term of five years. I reject the plaintiffs’ argument that an estoppel by representation arises to prevent VLA denying that they were included on the panels for a further term of five years.

The plaintiffs also argue an issue estoppel arises from the decision of Cavanaugh J on 12 April 2021.

The Suspension Decision recognised, at least implicitly, that the plaintiffs continued to be included on the child protection panel. However, the decision said nothing about whether the plaintiffs were included for a fixed term, or when and in what circumstances they might cease to be included.

The joint memorandum provided to Cavanaugh J by the parties recorded agreement that the decision to suspend had a discernible or apparent legal effect on the plaintiffs’ rights. It might be accepted that a necessary basis for Cavanaugh J’s judgment was that the plaintiffs were members of the child protection panel as at the date of the decision.

An issue estoppel could only arise in relation to what was a necessary basis for Cavanaugh J’s judgment, namely that the plaintiffs were included on the panels as at 12 April 2021. Different issues arise in this proceeding, namely whether, and the basis on which, the plaintiffs were included on the child protection panel as at 8 October 2021. I conclude that no issue estoppel arises.

For the above reasons I reject the plaintiffs’ submissions that they were included on the panels for a further term of five years after the initial term expired, or that an estoppel arises to that effect. I conclude that the plaintiffs were included on the panels after the first term expired until VLA determined what action, if any, it should take in relation to the complaints.

For reasons I will come to, I have concluded that none of the plaintiffs’ grounds for review of the Removal Decision are made out. In the circumstances, it is not strictly necessary that I determine whether certiorari would have been available had the plaintiffs succeeded on one or more grounds. However, given that argument was advanced by both parties, it is appropriate that I consider the issue.

VLA relied on the decision of the Full Court of the Federal Court in Somba v Minister for Home Affairs (‘Somba’)[17] in support of its submission that whether or not the Court finds error with the Removal Decision, when it was made on 8 October 2021, it had the effect of bringing to an end the interim or bridging inclusion of the plaintiffs on the panels. The appellant in Somba, who was not an Australian citizen, had his visa cancelled under provisions of the Migration Act 1958 (Cth) (‘Migration Act’). He applied to the Administrative Appeals Tribunal for review of that decision, but did not appear on the hearing date, and his application was dismissed. The appellant’s subsequent application to reinstate the application for review was dismissed by the Tribunal on the basis that the time limit in s 500(6L) of the Migration Act had expired, so that reinstatement would be futile. The effect of s 500(6L) was that if a decision was not made on a review application within a specified period, the Tribunal was taken to have affirmed the decision under review. In essence, the Tribunal reasoned that because reinstatement would have the effect that there had been no decision on the application for review within the specified period, the decision to cancel the appellant’s visa was affirmed. The Court allowed the appeal, concluding that even if reinstatement were granted so that the decision to dismiss had no continuing legal effect, the original decision by the Tribunal to dismiss the application for review was a decision for the purposes of s 500(6L), so that that provision was not engaged.
[17]Somba (n 9) 527 [38].

Ground 3 is not made out.

Ground 4 – Misconceiving functions and/or acting unreasonably
Submissions
Plaintiffs

VLA’s task was twofold: to assess whether the grounds for removal had been made out, and then, if satisfied that they had been, to assess the appropriate sanction.

The whole reasoning devoted to the appropriateness of the sanction is contained in two sentences (reproduced at paragraph 49 above). No real assessment was carried out in the decision as to why removal was considered to be the appropriate sanction. The two sentences identified do not expose an intelligible justification for why, having found that grounds for removal were made out, VLA decided to impose the severest sanction available, instead of some other, lesser sanction.

By proceeding on the basis that removal will automatically follow should the grounds for removal be found proved, VLA fundamentally misconceived the distinction between liability and penalty, ignoring the removal process set out in the Deed.

Further, the decision to remove the plaintiffs from the panels was entirely unreasonable. The decision to impose the most severe sanction was made in the face of cogent evidence that it would end the plaintiffs’ legal practices, careers and businesses. The conduct on which the Removal Decision relied was substantially referrable to a period 12 to 18 months prior to the decision. In the meantime the plaintiffs had obtained a positive outcome from a quality audit to which they were subjected by VLA. Further, the client complaint and the compliance complaints were not objectively sufficiently serious to justify the severest sanction of removal being imposed on the plaintiffs. Finally, the decision did not articulate how unidentified ‘systems and processes’ would be implemented in a period during which the plaintiffs would not be trading, and in face of the financial implication issues raised by them.

VLA

VLA’s decision as to the appropriate sanction must be read in conjunction with the findings that there had been serious breaches of panel conditions which enlivened the power to remove, and that the incidents that were the subject of the decision occurred after the practice had been subject to a suspension and quality improvement action plan on the basis of earlier compliance issues. The severity of the findings against the plaintiffs, the plaintiffs’ ongoing compliance issues following previous suspension and imposition of quality improvement, and the finding that the plaintiffs required time to address the matters leading to the removal and to implement appropriate systems and processes, provide an obvious rational explanation as to why the decision was made to remove the plaintiffs from the panels for 12 months. The plaintiffs’ claim that the decision regarding the appropriate sanction lacked an intelligible justification is a clear instance of impermissibly construing the decision-maker’s reasons ‘with an eye keenly attuned to perception of error’.[37]
[37]Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259, 271–2 (Brennan CJ, Toohey, McHugh and Gummow JJ).

Findings as to the severity of non-compliant conduct by the plaintiffs and the multiple instances of non-compliance mean it was not unreasonable for VLA to decide to remove the plaintiffs from the panels. Similarly, despite the file audit of four files indicating overall good file handling practices, the audit also identified certain key issues to be addressed. It was open, rational, reasonable and logical for VLA to find there was an unacceptable risk in future, based on past conduct it found to have occurred.

Analysis

The Removal Decision was not a sanction imposed on the plaintiffs on account of their breach of the practice standards. Rather, it was a decision to protect assisted persons and applicants for assistance, and VLA, in the context of the purposes and objects of the Act, and the provisions of the Deed.

Contrary to the plaintiffs’ submissions Gleeson’s reasons for removing the plaintiffs from the panels do not comprise two sentences, but run for over two and a half pages. I have set those reasons out in paragraph 48 above.

The reasons contain findings relevant to the Removal Decision. These include, first, that Ground 1 amounted to a serious breach of panel conditions that had the potential to adversely impact a legally assisted person. Second, that Ground 2 amounted to a serious breach of panel conditions that had the potential to adversely affect VLA’s reputation. Third, that the plaintiffs had a history of failing to meet practice standards that posed an unacceptable risk to the quality of services provided to assisted persons. It is relevant that under Ground 3 Gleeson commented that the plaintiffs’ response to the complaints failed to address the fact that they occurred after the plaintiffs had been subject to suspension and quality improvement on the basis of a series of earlier compliance issues, and that the conduct on which Ground 3 was based comprised multiple instances of non-compliance that, taken together, demonstrated a persistent disregard for the practice standards. Fourth, that the history of failing to comply with the practice standards may impose an unreasonable cost burden on VLA. The findings by Gleeson should be understood in the context of evidence about the client complaint and compliance issues that she accepted. It is relevant that Grounds 1, 2 and 3 for removal identify the risk of further non-compliance by the plaintiffs and the potential harm that may result.

I reject the plaintiffs’ submission that after finding that the plaintiffs had breached the practice standards Gleeson misconceived her function by failing to consider what then should be done about the plaintiffs’ panel membership. I accept the defendant’s submission that the plaintiffs’ argument on this ground seeks to impermissibly construe Gleeson’s reasons with an eye keenly attuned to perception of error.[38] After making her findings of breach of the practice standards, Gleeson sets out at length her reasons for the decision to remove the plaintiffs from the panels. Those reasons provide an intelligible justification for the decision that was made.
[38]Ibid.

A ground that a decision is legally unreasonable because of illogicality or irrationality is not easily made out.[39] That ground is not made out in this case. Gleeson was entitled to come to the view that she did about the seriousness of the plaintiffs’ conduct given the many instances of non-compliance over a number of years, that continued after a previous suspension and requirement to engage in a quality improvement assistance program. It was not unreasonable to maintain those conclusions in the face of the more recent audit given that it only involved four files and, despite indicating overall good file handling practices, identified that there remained certain key issues to be addressed. Read as a whole and in context, Gleeson’s decision to remove the plaintiffs from the panels was not legally unreasonable.
[39]Djokovic v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (2022) 397 ALR 1, 7 [33] (Allsop CJ, Besanko and O’Callaghan JJ).

Ground 4 is not made out.

Ground 5 – Power to remove
Submissions
Plaintiffs

The clear intent and effect of s 29A is to prohibit VLA from entering into arrangements with law practices and practitioners, or acting against practitioners, on terms other than those which have been advertised by public notice in the form and manner required.

The notices relied on by VLA are deficient in the following respects. First, the published notices did not comply with the requirements of s 29A(3)(b)(vi) of the Act, but instead directed the reader to a website in order to discover what the grounds and processes were. In the case of the family violence panel the website appears to have omitted a necessary link.

Second, the grounds ultimately set out in the practitioner manual to which the reader was directed do not in significant respects reflect the grounds currently relied on in the Removal Decision.

VLA

The newspaper notices for each panel clearly directed the reader to the panel page of the VLA’s website, which informed the reader that the conditions of panel membership were set out in a relevant information package, a link to which was provided on the webpage. The information package specified performance standards and removal grounds and processes.

A requirement to ‘specify’ a matter requires the matter be stated in ‘detail or with specificity’, so that there is ‘clarity and precision’.[40] What is sufficient to specify a matter will depend on context,[41] and requires a practical assessment of the purpose for which the matter is specified.[42]
[40]Evans v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 135 FCR 306, 314–5, [23] (Gray J).
[41]FPM Constructions Pty Ltd v Council of the City of Blue Mountains [2005] NSWCA 340, [146] (Basten JA).
[42]Yates (a Pseudonym) v R (2017) 54 VR 374, 390 [53] (Whelan, Santamaria and Ashley JJA).

Here, although the published notices specified the required matters by directing readers to information contained in a separate document published on the VLA website, there was no vagueness as to the matters set out in s 29A(3)(b). Given the purpose of notice under s 29A(3), being to invite law firms to express interest in becoming a panel member and to inform them about the panel terms and conditions, it should be found that it can be complied with by informing persons as to where the relevant information can be found published online.

In any event, even if the published notices are found not to comply with s 29A(3), there was no legislative intent in the Act that non-compliance would result in either the appointment of panel members or the terms and conditions on which they were appointed being invalid.[43]
[43]Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355, 388–9 [91] (McHugh, Gummow, Kirby and Hayne JJ).

The performance standards and grounds and process for removal have been amended since VLA published the notices in 2014. The Removal Decision was made pursuant to VLA’s current removal and revocation conditions, which are contained in Schedule 5 of the deeds that panel members enter into. The following matters are critical to explaining why VLA has power to amend its performance standards and grounds and process for removal. First, the nature of the duty in s 29A(3)(b) was to give notice about specific matters to inform persons, who wish to express interest in becoming panel members, about those matters. Second, it is a duty to be exercised at a particular point in time — not later than 21 days before the panel is established by VLA or additional names included on it. Third, in comparison, VLA functions exercised under ss 29A(1) and 6(2)(g) can be exercised from time to time during the course of a panel’s term. If, once a panel was established or a panel member appointed VLA was unable to amend the performance standards or removal grounds that apply to that panel, VLA would need to dissolve a panel and reappoint new members whenever it wished to amend performance standards, removal processes, or other matters specified in s 29A(3)(b). That cannot be the legislative intent.

Analysis

On 18 October 2021 the plaintiffs’ lawyers wrote to Gleeson with the following request:

As a matter of urgency, we request that you provide us with a copy of the notice or notices, required pursuant to s 29A(2) of the Legal Aid Act 1978 (Vic), relevantly specifying the grounds on which, and process by which, a private law practice or private legal practitioner may be removed from the Panels. We also urgently require particulars of the publication of the notice or notices in the relevant daily newspaper as also required by that section.

Gleeson’s reply of 28 October 2021 included copies of the following:

• With regards to the Child Protection Panel:
○ the advertisement placed in The Age newspaper on 19 April 2014 regarding the proposed establishment of the s 29A Child Protection Panel;
○ the content available on the website < referred to in that advertisement, as at 19 April 2014; and
○ the information package for the s29A Child Protection Panel, referred to on that website.

• With regards to the Family Violence Panel:
○ the advertisement placed in The Age newspaper on 9 August 2014 regarding the proposed establishment of the s 29A Family Violence Panel;
○ the content available on the website < referred to in that advertisement, as at 9 August 2014;
○ the information package for the s 29A Family Violence Panel, referred to on that website.

The VLA webpage to which a reader of the published notice was directed contains a link to the relevant information package. In the case of the family violence panel, the relevant part of the webpage read:

For people who use assistive technology, such as screen readers, we have documents in an alternative accessible format at Family Violence Panel information package (accessible versions).

The information package contained information that s 29A(3) of the Act required be specified, including the grounds and process by which a practitioner may be removed from the panel.

I reject the plaintiffs’ contention that the link to the information package was omitted from the family violence webpage. Gleeson stated the information package was referred to on the family violence webpage. There is no evidence that the reference to accessible format or accessible versions meant that the link to the package could only be viewed by persons with diverse means using assisted technology.

Where a matter is required to be specified it must be set out ‘definitely or explicitly’, ‘in detail’ and with ‘unambiguous clarity’.[44] The first issue raised by Ground 5 is whether the published notices complied with ss 29A(2) and (3)(b) by directing a reader to a VLA webpage that directed the reader further to VLA practice material that specified the required matters to the requisite degree.
[44]Beckingham v Browne [2021] VSCA 362, [4] (Maxwell P).

The purpose of publishing the notices was not to impose an obligation on a particular recipient, but to inform readers at large of the matters in ss 29A(2) and (3)(b) so that they could consider whether to apply to be panel members. Each published notice directed applicants to the relevant page on VLA’s website for details about each panel as specified in s 29A(3)(b), including performance standards and grounds for removal. The VLA webpage directed readers to an information package that contained the matters specified in s 29A(3) of the Act. Clearly the intention of each notice was that they were to be read by potential applicants in conjunction with the applicable webpage and information package to which applicants were directed. Those documents were incorporated in the notice by reference in a manner that unambiguously gave potential applicants notice of the required matters.

Information about which notice was required ran to many pages. As a practical matter, given the extent of information that was required, it is difficult to envisage how VLA could have proceeded in any other fashion.

The Removal Decision was made pursuant to VLA’s current removal and revocation conditions dated August 2020, which are contained in Schedule 5 of deeds that panel members have entered into since that date. The current removal conditions and process differ from those in the information package on VLA’s website at the time the panel notices were published.

There is nothing in the Act which prohibits VLA from amending the performance standards, reporting requirements and grounds and process for removal applying to panel members.

The information provided by VLA to be read in conjunction with the published notices included that practitioners appointed to panels would be required to enter into a deed with VLA. A copy of an interim panel deed was included in the information package. It was expressly noted the final version of the deed that panel members were required to execute may differ from the interim version.

The Deed executed by the plaintiffs relevantly stated that practice standards, the terms and conditions of panel membership, including reporting requirements and removal procedures, were as set out in schedules to the Deed as amended from time to time and as published on VLA’s website. In other words, the terms of the Deed executed by the plaintiffs contemplated amendment of those matters applying to them.

I accept VLA’s submission that amendment of those conditions applying to panel members was part of the powers and functions of VLA under ss 6(2)(g) and 29A(1), which could be exercised from time to time during the course of a panel’s term or practitioner’s term of inclusion on the panel. Exercise of power to amend the conditions of panel membership relying on ss 6(2)(g) and 29A(1) was not constrained by the date on which notices were published under ss 29A(2) and (3), or by the five-year term of inclusion on the panel.

Ground 5 is not made out.

Ground 6 – Power to prohibit applying for re-inclusion
Submissions
Plaintiffs

VLA has the power to determine the grounds on which and the process by which a private law practice or private legal practitioner may be removed from a panel.[45] Such a power does not enable VLA to prohibit a practitioner from applying for re-inclusion. The existence of such express provisions in other legislation[46] suggests that a removal power by itself does not imply a further power to prevent further applications for inclusion, for a particular period or otherwise.
[45]Act (n 1) s 29A(3)(b)(vi).
[46]Legal Profession Uniform Law Application Act 2014 (Vic) sch 1 s 94; Tax Agent Services Act 2009 (Cth) s 40.25(1).

VLA

Ground 6 should be rejected for the following reasons. First, s 6(2)(g) of the Act empowers VLA to do things that are incidental to its statutory functions and powers. The efficacy of VLA’s power to remove a practitioner would clearly be undermined if the practitioner could automatically and continually reapply to be reappointed. The power to impose a period of disqualification is properly incidental to the removal power.

Second, Schedule 5 of the Deed, which specifies the removal process, provides that a letter informing a practitioner of a decision to remove it from a panel will include ‘the period of removal’, and that a person ‘may apply for panel re-inclusion … at any time after their removal period has expired’.

Alternatively, if it is concluded that VLA lacked power to disqualify a person from applying for re-inclusion to a panel for a certain period, the Removal Decision itself would not be void.[47]
[47]Minister for Immigration and Border Protection v Dhillon (2014) 227 FCR 525, 534–5 [15], 547 [31] (Allsop CJ, Murphy and Pagone JJ).

Analysis

I accept VLA’s submissions in paragraphs 222 and 223 above.

VLA had the power under s 29A of the Act to determine the conditions subject to which the plaintiffs were included on the panels. Those conditions were set out in the Deed. They included the panel removal conditions in Schedule 5 to the Deed. Those conditions, which were in part set out in paragraph 70 above, state that a removal letter will include ‘the period of removal’. The plaintiffs agreed to those conditions of inclusion on the panels. I conclude the power to include such a condition is within s 29A(1), augmented by s 6(2)(g).

This conclusion is reinforced by Gleeson’s reasons for removing the plaintiffs from the panels for 12 months, set out at paragraph 49 above. Although the reasons are brief, read in context of the Removal Decision and the complaint history, they are directed to providing an opportunity to remedy the matters that led to the breaches. Those reasons are consistent with VLA’s objectives and the purposes of the Act to which I have referred.

The plaintiffs’ submission pointing to express powers in other legislation to disqualify or prohibit application for re-registration for a specified period was not convincing. The plaintiffs’ submission does not explain why, or by what means, as a matter of statutory construction, provisions of the Act setting out VLA’s powers and functions are to be construed by reference to the provisions of other statutes that are directed to different purposes and objectives.

Ground 6 is not made out.

Ground 7 – Procedural fairness and failure to inquire
Submissions
Plaintiffs

VLA did not accept a detailed account of a telephone conversation with the client on 8 May 2020. Steiner advised the client that there was no longer a current VLA grant of legal aid and that, based on her instructions, the client would not be eligible for further grants of legal aid. The basis for VLA not accepting Steiner’s account was that ‘it is standard legal practice that a legal practitioner keep file notes of advice and information provided orally as a contemporaneous record’, and none had been provided to VLA.

While VLA’s reasoning is unclear, it must have considered Steiner’s account of that conversation to be an elaborate concoction in circumstances where her honesty had not been put into question, or that the detailed account was an invented and unreliable memory.

Steiner had taken a file note of the conversation. In the circumstances it was quite unfair for VLA to dismiss Steiner’s detailed account on the basis of an absence of a file note, when the need to have sighted a file note was not reasonably apparent as a critical issue, and where rejecting the account in the absence of a file note was a conclusion which was not obviously open. Procedural fairness required in those circumstances that the plaintiffs be warned that, in the absence of a file note, VLA might reject the fact or content of the conversation.

In any event, before dismissing the detailed conversation as never having taken place, it was apparent that VLA did not ask Steiner whether she had a file note, or the client whether she accepted the conversation had occurred. Those were obvious inquiries about a critical fact, each failure to inquire amounting to jurisdictional error.[48]
[48]Minister for Immigration and Citizenship v SZIAI (2009) 83 ALJR 1123, 1128–9 [19]–[25] (French CJ, Gummow, Hayne, Crennan, Kiefel and Bell JJ); Minister for Home Affairs v DUA16 (2020) 95 ALJR 51, 61 [28] (Kiefel CJ, Bell, Keane, Gordon and Edelman JJ).

VLA

In the Notice of Intention VLA drew attention to the need for the plaintiffs to provide evidence in support of the claimed telephone conversation with the client in around May 2020, and to provide any relevant additional materials. There is no unfairness in VLA not expressly itemising what type of documents may be expected to be produced in response to this request. Only a reasonable opportunity to deal with matters adverse to the person’s interests that the decision-maker proposes to take into account is required.[49]
[49]Wills v Chief Executive Officer of the Australian Skills Quality Authority [2022] FCAFC 10, [120] (Logan, Griffiths and Perry JJ).

VLA cannot be found unreasonably to have failed to make an obvious inquiry about a critical fact. The Notice of Intention put the plaintiffs on notice that they had provided no evidence that they advised the client in April or May 2020 that she was not eligible for legal assistance. Further, there was no requirement that VLA ‘put’ Steiner’s account of the telephone conversation of 8 May 2020 to the client in the circumstances of the findings made.

Analysis

The client complaint was the subject of the VLA complaint made to the plaintiffs on 3 December 2020, the plaintiffs’ response through their lawyers on 27 January 2021, the findings communicated by VLA letter on 19 March 2021, the Notice of Intention dated 9 July 2021 and the plaintiffs’ response to the notice dated 9 August 2021. At all times an issue central to the complaint was whether the plaintiffs had kept the client informed of their rights and entitlements in relation to the grant of legal assistance, and had provided the client with sufficient information to enable them to participate in the proceeding. That issue arose in the context of the complaint by the client to VLA that in September 2020 she understood her grant of legal assistance was ongoing, but that the plaintiffs had not appeared on her behalf at hearings in August, or responded when she attempted to contact them.

The plaintiffs were given multiple opportunities to respond to the client complaint. The Notice of Intention specifically invited the plaintiffs to provide any relevant additional materials on which they sought to rely. The plaintiffs responded with detailed submissions, a statement and affidavit by Steiner, and by providing what they considered to be relevant documents from the client file, including emails and text messages.

Procedural fairness required that the plaintiffs be provided with a reasonable opportunity to respond to an issue that may be determined adverse to them. The VLA letters to which I have referred gave the plaintiffs that opportunity.

Further, the plaintiffs’ submissions misunderstand Gleeson’s findings about the client complaint in two important respects. First, Gleeson does not make a finding rejecting Steiner’s evidence that there was a telephone conversation with the client in May 2020 during which she discussed the client’s eligibility for legal assistance, and representation by the plaintiffs. What is implicit from Gleeson’s reasons is that she did not make a positive finding accepting the particulars of the conversation asserted by Steiner, and that she found that Steiner’s communications were not sufficient to keep the client informed of their entitlements, rights and obligations in relation to the grant of legal assistance and the proceeding. It was in that context that Gleeson referred to the fact that the plaintiffs had not provided a file note of the detailed advice and information Steiner asserted had been given to the client during the telephone conversation.

Second, Gleeson relied on a number of other facts to conclude the plaintiffs had not kept the client adequately informed. First, the failure to inform the client on or shortly after 14 April that the plaintiffs had closed her VLA file. Second, the failure to write to the client after they had represented her on 13 May to set out details of the ongoing proceeding, including information about the next steps, and the fact that the retainer had come to an end. Third, failing to respond to the client’s voice message and email in August 2020 by clarifying with her that the plaintiffs no longer represented her. It was on the basis of these matters, and evidence from the client about her confusion in relation to representation and the grant of assistance, that Gleeson concluded that the plaintiffs had breached the practice standards.

The second limb of the plaintiffs’ argument under this ground involved a submission that it was legally unreasonable for Gleeson not to ask Steiner whether she had a file note of her conversation with the client on 8 May 2020, or to ask the client whether she accepted the conversation occurred, before making the Removal Decision. The plaintiffs relied on the recent decision of the High Court in Minister for Home Affairs v DUA16.[50] That case involved two applicants for asylum, CHK16 and DUA16, who had paid the same migration agent to make submissions on their behalf to the Immigration Assessment Authority (‘Authority’). The migration agent fraudulently used a proforma submission in both cases. In the submissions provided for CHK16, the entire personal circumstances concerned the wrong person. The Authority noticed that fact yet did not seek to obtain correct submissions or any new information about the correct applicant before proceeding. In the case of DUA16, the submissions contained information relevant to DUA16’s application and some information relevant to a different applicant. The Authority concluded that those latter references had been included by mistake, and had no regard to them. Before the High Court it was accepted that submissions that were made on instructions from CHK16 might have contained new information. The Court said:

Since new information can be contained, and might be expected to be contained, in submissions, the Authority’s power in s 473DC to get new information plainly extended to getting submissions containing that new information.[51]

[50](2020) 385 ALR 212 (‘DUA16’).

[51]Ibid 219, [25] (Kiefel CJ, Bell, Keane, Gordon and Edelman JJ).

As to the requirement to establish legal unreasonableness, the Court said:

A requirement of legal reasonableness in the exercise of a decision-maker’s power is derived by implication from the statute, including an implication of the required threshold of unreasonableness, which is usually high. Any legal unreasonableness is to be judged at the time the power is exercised or should have been exercised. It is not to be assessed through the lens of procedural fairness to the applicant. Instead, whether the implied requirements of legal reasonableness have been satisfied requires a close focus upon the particular circumstances of exercise of the statutory power: the conclusion is drawn “from the facts and from the matters falling for consideration in the exercise of the statutory power”.[52]

[52]Ibid 220, [26] (Kiefel CJ, Bell, Keane, Gordon and Edelman JJ) (citations omitted).

As to CHK16, the Court said:

The circumstances of CHK16’s case are extreme. The Authority was aware that CHK16 intended to provide submissions and that the submissions might contain new information. But it was apparent, as the Authority realised, that the submissions provided by the agent concerned a different person and that none of the personal information related to CHK16. As the Authority was aware, this was the only opportunity that CHK16 would have to provide his own new information, which could be of considerable importance.[53]

The Court found the Authority acted unreasonably when, rather than taking the simple approach of asking for the correct submissions, it divided the submissions that plainly concerned the wrong person into generic and non-generic information, then treated the generic information that concerned another person as though the information had been correctly provided in relation to CHK16’s circumstances.

[53]Ibid 220–1, [28].

The Court took a different approach in DUA16’s case, noting that the Authority reasonably concluded from the submissions presented to it that a small amount of the information had been included by mistake. The Authority disregarded these errors. The Court said:

The statutory context and the high threshold of legal unreasonableness precludes a conclusion that it could be legally unreasonable for the Authority to fail to get new information in light of what it reasonably identified as errors in submissions.[54]

[54]Ibid 222, [34].

The circumstances of this case do not approach those of CHK16 in Minister for Home Affairs v DUA16, or the threshold for legal unreasonableness. The plaintiffs had multiple opportunities, each of which they used, to respond to the client complaint and to provide relevant evidence. VLA had been in contact with the client on a number of occasions and obtained information from her that was provided to the plaintiffs. In the context of the other communications and failures to communicate identified by Gleeson in her reasons, the telephone conversation of 8 May 2020 is not so centrally important as the plaintiffs assert. By that time the plaintiffs had already failed in mid-April 2020 to write to the client informing her of the status of the grant of assistance and the court proceeding in which she was involved. As Gleeson observed, the same failure occurred after the court appearance on 13 May 2020, at which the plaintiffs represented the client.

In the context of these findings and the whole inquiry in relation to the client complaint, Gleeson was not required to put Steiner’s account of the telephone conversation to the client. Gleeson did not act unreasonably in proceeding to make the Removal Decision.

Ground 7 is not made out.

Hardiman

The plaintiffs accepted that in the absence of another alternative contradictor it was appropriate for VLA to appear to assist the Court on matters of powers and procedure. However, the plaintiffs submitted VLA adopted a protagonist approach in its submissions in breach of the principle in R v Australian Broadcasting Tribunal; Ex parte Hardiman (‘Hardiman’).[55] The plaintiffs did not apply to restrain VLA in relation to its role in the proceeding. In their written submissions for trial, the plaintiffs submitted the Court should take VLA’s breach of the Hardiman principle into account in relation to its evaluative and discretionary decision-making tasks. It was submitted this should include the Court’s judgment on costs orders, and the entertaining of any discretionary ‘defences’, such as the alleged implied waiver of objection to Gleeson as decision-maker following her involvement in the complaints process against the plaintiffs and the first proceeding. The plaintiffs submitted that a finding that VLA had breached the Hardiman principle was relevant to whether such a discretionary defence should now be entertained.
[55](1980) 144 CLR 13, 35–36.

The plaintiffs did not cite any authority for this last proposition, or say anything about the Hardiman issue in oral submissions. The timeliness of the plaintiffs’ response after the circumstances they allege gave rise to an apprehension of bias was a relevant and necessary part of the inquiry in relation to that ground. In the circumstances I was not persuaded by the plaintiffs’ submissions on that issue.

Breach of the Hardiman principle by VLA would be relevant to my costs discretion. In those circumstances, and given no oral submissions have been made about the matter, I will consider the issue in the costs order context.

Conclusion

I have found against the plaintiffs on all grounds of review. I will hear from the parties as to the appropriate orders in relation to my findings about the status of the plaintiffs’ panel membership and costs.

[2022] VSC 445

8 August 2022