Warwick v Legal Aid Commission of NSW

[2018] NSWSC 1920

Supreme Court

New South Wales

• Amendment notes

Medium Neutral Citation:	Warwick v Legal Aid Commission of NSW [2018] NSWSC 1920
Hearing dates:	10 December 2018
Date of orders:	12 December 2018
Decision date:	12 December 2018
Jurisdiction:	Common Law
Before:	Fullerton J
Decision:	The further amended summons is dismissed.
Catchwords:	ADMINISTRATIVE LAW – judicial review – review of a decision of the Legal Aid Commission of New South Wales – grant of an application for legal aid subject to a condition – whether the Guidelines published by the Legal Aid Commission are properly regarded as delegated legislation – whether a condition requiring a person to procure from their spouse a charge over real property is beyond the power conferred on the Commission by the Legal Aid Commission Act
Legislation Cited:	Family Law Act 1975 (Cth) Legal Aid Commission Act 1979 (NSW)
Cases Cited:	Broussard v Minister for Immigration and Ethnic Affairs (1987) 21 FCR 472 Khan v Minister for Immigration and Ethnic Affairs [1987] FCA 713; (1987) 14 ALD 291 Minister for Immigration and Citizenship v Li (2013) 249 CLR 332; [2013] HCA 18 Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259; [1996] HCA 6 NEAT Domestic Trading Pty Ltd v AWB Ltd (2003) 216 CLR 277; [2003] HCA 35 Shi v Migration Agents Registration Authority (2008) 235 CLR 286; [2008] HCA 31 Swift v SAS Trustee Corporation [2010] NSWCA 182
Category:	Principal judgment
Parties:	Leonard John Warwick (Plaintiff) Legal Aid NSW (Defendant)
Representation:	Counsel: A Conolly (Solicitor) (Plaintiff) S Robertson (Defendant)   Solicitors: AR Conolly & Company Lawyers (Plaintiff) The Crown Solicitor (Defendant)
File Number(s):	2018/366265
Publication restriction:	Suppression order in relation to the name of the plaintiff’s wife: see R v Warwick (No 7) [2018] NSWSC 236.

Judgment

1. HER HONOUR: By an amended summons of 5 December 2018 the plaintiff, Leonard John Warwick, seeks judicial review of a decision of the Legal Aid Review Committee (“the Review Committee”) of 3 December 2018 dismissing his appeal from a decision of Legal Aid Commission of NSW of 16 October 2018 (“the original decision”) to grant legal aid for the continuation of his criminal trial conditional upon his wife providing a charge over her legal and equitable interest in a property in Douglas Park (“the Douglas Park property”) as consideration for the grant of aid.

2. In advising the plaintiff by letter of 4 December 2018 that his appeal was unsuccessful, the Review Committee also advised that if the charge over the Douglas Park property is not executed by 15 December 2018 the grant of legal aid will be terminated for breach of a condition.

3. The grant of legal aid the subject of the original decision was also on other terms, including but not limited to the scope of the funding for the continuation of the plaintiff’s criminal trial. Those conditions were also the subject of the plaintiff’s application for review by the Legal Aid Review Committee. There is no application for judicial review of the Committee’s decision concerning those matters.

4. The Legal Aid Commission of NSW was nominated as the first defendant to the further amended summons (hereinafter referred to as Legal Aid NSW). The “Legal Aid Review Committee” and the “Secretary for the Legal Aid Review Committee” were named as the second and third defendants respectively. While the decision under review is the decision of the Review Committee, it is not a legal person and neither is the Secretary of the Committee. Neither should have been named as parties to the proceedings. The first defendant (the only proper party to these proceedings) was represented by counsel. Mr Conolly, solicitor, appeared for the plaintiff. When I raised with Mr Connolly the issue concerning the identity of the parties to the amended summons, I proposed that leave be granted to delete the second and third defendants (hence, the plaintiff moves on the further amended summons).

5. Mr Conolly also appears on the plaintiff’s behalf in his criminal trial. The trial commenced before Garling J, sitting without a jury, on 15 May 2018. It was adjourned on that date until 16 July 2018 and has continued since the adjourned date. The trial resumed before his Honour on 11 December 2018 and will continue into the 2019 legal term.

6. The Douglas Park property was initially identified in a joint asset and liability statement of the plaintiff and his wife as at 11 October 2018 as their home with an estimated value of $1,000,000. That information was provided to Legal Aid NSW as annexure 16 to a letter of 2 October 2018 from the plaintiff’s solicitors, AR Conolly and Company Lawyers, following a request from Legal Aid NSW for further information as to the asset and liability position of the plaintiff and his wife to facilitate Legal Aid NSW processing the plaintiff’s application for legal assistance.

7. By letter of 9 November 2018, the plaintiff’s solicitors supplied additional information concerning the Douglas Park property in support of the plaintiff’s application to the Review Committee for review of the original decision. Under the subheading “Application for Review of Conditions of Grant – Reasons” the following was asserted:

35. [The plaintiff's wife] was transferred the house at Douglas Park in respect of her interest in the marital property after having been married for 25 years and having 3 children, one of whom remains fully dependant, and in high school and one of whom is partly dependant while he completes his trade qualification. The transfer was in recognition of her marital property entitlement to 50% of the total value of the assets of the marriage. She relies on Mr Warwick’s fire brigade pension.

36. [The plaintiff's wife] will not agree to the house to be encumbered due to her incapacity to support herself and the children, her inability to work given her language difficulties and lack of employment in Australia and the dependency of the youngest child on her.

…

60. The property at [Douglas Park] is owned by [the plaintiff's wife]. It is not owned by Leonard Warwick.

8. In the plaintiff’s oral submissions at the hearing of the further amended summons the Court was informed that his wife continues to hold the Douglas Park property as the sole registered proprietor, consequent upon the plaintiff having executed a transfer of his legal interest in the property to her. Given the correspondence with Legal Aid NSW and then the Review Committee referred to above, I assume the transfer occurred on a date between 11 October 2018 and 9 November 2018. The evidence relied upon by the plaintiff in support of the amended summons does not nominate the date of the transfer, nor the solicitors who acted on the conveyance.

The relief sought in the further amended summons

9. The primary relief the plaintiff seeks is an order, in the nature of certiorari, quashing the decision of the Review Committee dismissing the appeal from the original decision to grant legal aid conditionally and an order in the nature of mandamus that the Committee hear and determine the appeal according to law.

10. It is the plaintiff’s case that jurisdictional error infected the decision under review and, additionally, that error is revealed on the face of the record on the following grounds identified in the further amended summons:

1. The second defendant misconstrued s 34B(1)(a) of the Legal Aid Commission Act 1979 (NSW) as authorising the imposition of a condition on the grant requiring the plaintiff to provide security in the form of a charge over real property in which he does not have any legal or equitable interest.

2. The second defendant contravened s 58(b) of the Legal Aid Commission Act 1979 (NSW) by failing to comply with the relevant policy guidelines.

3. The second defendant failed to observe the requirements of procedural fairness and constructively failed to exercise its jurisdiction insofar as the second defendant failed to respond to or deal with, and failed to give proper, genuine, and realistic consideration to, the plaintiff’s submissions that (a) the plaintiff and his spouse are separated, and (b) the plaintiff’s spouse is unwilling to provide the security required by the condition imposed by the first defendant.

4. The second defendant’s decision was legally unreasonable insofar as there was no evident and intelligible justification for the decision to impose a condition on the grant requiring the plaintiff to procure from his spouse a charge over her real property, in particular where on the material before the decision-maker the plaintiff was separated from his spouse and his spouse was unwilling to provide a charge.

5. The second defendant has a statutory duty under section 59 of the Legal Aid Commission Act 1979 to determine the appeal under section 56(1)(a) of that Act instituted by the solicitor for the plaintiff by letter to the second defendant dated 9 November 2018.

11. The defendant submitted, correctly in my view, that ground 1 as pleaded in the further amended summons misstates the terms of the condition imposed on the grant of aid and its effect by describing it as:

[R]equiring the plaintiff to provide security in the form of a charge over real property in which he does not have any legal or equitable interest.

12. That description is in contrast with ground 4 as pleaded which refers to that same condition as one which, properly construed, requires the plaintiff to procure from his spouse a charge over her real property. In oral argument Mr Conolly did not contend otherwise.

13. It is also the plaintiff’s case, as pleaded in ground 2, that the Review Committee failed to observe the requirements of procedural fairness and constructively failed to exercise its jurisdiction by failing to give “proper, genuine and realistic consideration” to his submission that he and his wife are “separated” and that she is unwilling to provide security over the Douglas Park property. I note that the only “separation” between the plaintiff and his wife evidenced in the material placed before the Review Committee and in evidence in these proceedings is the physical or geographic “separation” occasioned by the plaintiff’s remand in custody, bail refused, consequent upon his arrest on 29 July 2015, prior to which he lived in the Douglas Park property with his wife.

14. Finally, the plaintiff contends in ground 4 that the decision of the Review Committee was legally unreasonable, it being his case that the Review Committee’s decision that it was reasonable to consider the Douglas Park property as an asset to secure costs in circumstances where she is a "financially associated person” was “without evident and intelligible justification”.

15. It is the defendant’s case that it was open to Legal Aid NSW under the operative provisions of the Legal Aid Commission Act1979 (NSW) (“the Act”) to impose a condition on the plaintiff’s grant of legal aid obliging him to procure from his wife a charge over the Douglas Park property, being the property in which he held a legal interest prior to the transfer of his interest to his wife. That being so, the defendant submitted that no error of law on the face of the record (however identified) or other legal error was committed in imposing that condition, or by the Review Committee in dismissing an appeal from the original decision granting legal aid conditionally, and that there was no constructive failure by the Review Committee to exercise its statutory jurisdiction under s 56 of the Act or a failure to observe the requirements of procedural fairness. Further, the defendant submitted that it was “reasonable”, in all the circumstances, for the Review Committee to require the plaintiff to procure a charge over the property as a condition to the grant of legal aid or, to put it another way, that there was no basis for the Court to conclude that the Review Committee's decision to dismiss the appeal was so unreasonable or irrational that it was beyond the exercise of a “genuinely free discretion" (see Minister for Immigration and Citizenship v Li (2013) 249 CLR 332; [2013] HCA 18 at 363).

16. Finally, the defendant submitted that to the extent that the Court is concerned with what is said to be a generalised complaint in the plaintiff’s submissions that the Review Committee’s decision is indefensible due to an inadequacy of reasons (cf the plaintiff’s pleaded grounds for the quashing of the decision), there was no obligation on the part of the Committee to provide reasons and, in any event, there is nothing to suggest its reasoning (such as it was revealed in the Review Committee’s notification that the appeal was unsuccessful) miscarried.

The statutory framework in the Act

17. In order to deal with each of the plaintiff’s grounds for challenging the Review Committee’s decision it is necessary to consider the statutory framework in which the original decision was made.

18. In s 10(1) of the Act the principal function of Legal Aid NSW is identified as that of a statutory body representing the Crown in the provision of legal aid and other legal services in accordance with the Act. Section 10(2) provides that in the exercise of its principal function Legal Aid NSW may do any of the following:

(a) determine:

(i) the persons or classes of persons in respect of whom legal aid may be granted, and

(ii) the matters or classes of matters in respect of which legal aid may be granted,

(b) determine priorities in the provision of legal aid as between:

(i) different persons or different classes of persons, and

(ii) different matters or different classes of matters,

(d) specify principles, including the imposition of means tests, to be applied in determining applications for legal aid,

(e) specify the circumstances, if any, in which contributions shall be paid by legally assisted persons and the means of calculating any such contributions,

19. To the extent that it is necessary to find support for the underlying and what might be thought to be the self-evident assumption that the resources available for legal aid are "necessarily limited", and support for the further and related assumption that, at least in some circumstances, those resources should not be made available from the public purse where other persons could reasonably be expected to provide funding for legal assistance (whether or not those persons have a legal obligation to do so), s 35 of the Act prohibits Legal Aid NSW (absent special circumstances relating to the property or the means of the applicant or otherwise) from granting an application for legal aid unless the applicant and each person associated with the applicant satisfies a means (or other) test to be determined by Legal Aid NSW. Furthermore, s 35(2) provides that in the administering of any means test regard must be had to the ability, not only of the applicant for legal aid, but “persons associated with the applicant” to meet the “ordinary professional costs of the legal services sought” under the grant of aid. This evidences a clear legislative intention that in the administering of the Act it is contemplated that people who have a particular association with the applicant for legal assistance are expected to be a source of funding for the provision of legal services to the applicant despite that person, or those people or associates, having no legal or moral obligation to do so.

20. For the purposes of the administering of such a means test, persons "associated with an applicant" include the following:

(a) the applicant's spouse or the applicant's de facto partner,

(b) any person who is financially responsible for, or who provides financial support to, the applicant,

(c) if the applicant is a corporation, any person whose financial interest will, in the opinion of the Commission, be directly and beneficially affected if the proceedings in respect of which legal aid is granted to the applicant are successful,

(d) if the applicant is applying as a member of an unincorporated association, any other member of the association whose financial interest will, in the opinion of the Commission, be directly and beneficially affected if the proceedings in respect of which legal aid is granted to the applicant are successful, and

(e) if the applicant is applying for legal aid in respect of proceedings under Chapter 3 of the Succession Act 2006 [family provision], any other person whose interests will, in the opinion of the Commission, be beneficially affected if legal aid is granted to the applicant.

21. It follows that the Act clearly contemplates that, absent special circumstances, the wife of the plaintiff might be expected to provide financial assistance to her husband for his criminal defence during the continuation of his trial on the assumption that she has the means to do so. It is not for this Court, any more than it is for Legal Aid NSW, to question the authority of the Parliament to legislate that persons associated with an applicant for legal aid may have their means assessed as part of the process by which Legal Aid NSW determines whether an application for assistance will be granted conditionally or unconditionally, or refused. Equally, the fact that express provision is made in the Act for Legal Aid NSW to make an enquiry of the means of that person, or those people, in the process of considering an application for legal assistance gives context to the scope of Legal Aid NSW’s power under ss 34 and 35 of the Act to grant legal aid unconditionally or subject to conditions, and the permissible breadth of any condition that may oblige the applicant for legal aid to secure a charge over property over which that person is said to have no legal control.

34 Determination of Application

(1) The Commission shall determine an application by granting the application unconditionally or subject to conditions or by refusing the application. The Commission may at any time redetermine an application that has been refused.

(2) The Commission shall give notice to the applicant of the determination or redetermination of the application as soon as practicable (and in any case not later than 14 days) after the determination or redetermination is made.

(3) A notice given under subsection (2), except where:

(a) the application relates to proceedings in the Local Court with respect to a criminal offence, or to such other proceedings as the Commission may from time to time determine, and is granted unconditionally, or

(b) the application relates to proceedings in the Local Court with respect to a criminal offence, or to such other proceedings as the Commission may from time to time determine, and is refused wholly or partly on the ground that the applicant fails to satisfy such means test as is determined by the Commission for the purposes of section 35 (1),

shall be in writing.

(4) If there is a right of appeal to a Legal Aid Review Committee against a determination or redetermination of an application:

(a) the notice required under subsection (2) must inform the applicant of that right, and

(b) the reasons for the determination or redetermination are to be recorded.

34B Commission can require security for costs etc

(1) The power of the Commission to impose conditions on the grant or provision of legal aid to a person extends to authorise the imposition of a condition requiring the person:

(a) to provide, or to enter into an agreement to provide, security to the satisfaction of the Commission for the payment of amounts payable or which may become payable by the person to the Commission under this Act, and

(b) to pay any expenses incurred by the Commission by way of stamp duty, registration fees and other disbursements in connection with the provision of any such security or the entering into of any such agreement.

(2) The Commission is empowered to take such action as may be necessary or expedient for or in connection with the due enforcement of any such security or agreement.

Has the plaintiff demonstrated that jurisdictional error infected the original decision?

22. It was Mr Conolly’s ultimate submission that there is nothing in the Act generally, or in ss 34 and 34B in particular, to authorise Legal Aid NSW to impose a condition on a grant of legal aid that is beyond the power or authority of the legally assisted person to obtain or provide. In his submission, that conclusion follows from the language of s 34B where the power to impose conditions is made expressly referable to requiring the legally aided person in subs (1) to provide security of a kind encompassed by subs (1)(a) and in an appropriate case, although not this case, under subs (1)(b). Mr Conolly also submitted that any construction of ss 34 and 34B of the Act that would operate to permit the breadth of construction favoured by the defendant would be unfair and unreasonable since it would result in an otherwise eligible applicant for legal aid being deprived of that assistance in circumstances where he or she is incapable of procuring security from a third party due to their unwillingness or inability to provide it.

23. It is the defendant’s submission that ss 34(1) is a source of plenary power for Legal Aid NSW to impose conditions on a grant of legal aid in the process of determining an application for legal assistance, limited only by the need for the conditions to be consonant with the subject matter, scope and purpose of the Act (see Shi v Migration Agents Registration Authority (2008) 235 CLR 286; [2008] HCA 31 at 316 per Hayne and Heydon JJ). Counsel submitted that there is nothing in the subject matter, scope or purpose of the Act that would support a conclusion that s 34(1) should be read down such that the imposition of a condition on a grant of legal aid that requires the applicant to procure a charge from an associate with the means to provide such a charge is beyond power. On the contrary, it was submitted, the subject matter, scope and purpose of the Act are entirely consistent with conditions of that nature being authorised.

24. It is the defendant’s further submission that, contrary to the submission of the plaintiff, s 34B does not operate to limit or contract the scope of the power in s 34 of the Act, neither should it be construed as implying that the agreement to provide security with which the section is concerned must be security over an asset the applicant for legal aid owns or controls. By way of example, the defendant suggested one form of security which might be required to be provided under s 34B in an appropriate case would be in the form of an unconditional undertaking issued by a bank to secure payment of costs. In the defendant’s submission, to read s 34B in the way contended for by the plaintiff would be to provide no source of power in Legal Aid NSW to authorise the imposition of such a requirement even though an applicant for legal aid that is not a bank is incapable of causing a bank guarantee to be issued without the bank’s cooperation.

Consideration

25. In my view, no damage is done to the express words of s 34B or its intended operation were it construed so as to authorise the imposition of a condition on a grant of legal aid requiring the legally aided person to provide an agreement to provide security to the satisfaction of Legal Aid NSW by procuring from his spouse or other associate an agreement to that effect. In short, I do not regard s 34B as operating to limit the scope of the broad power in s 34. Rather, it operates to extend the general power in s 34 in the particular circumstances with which the section is concerned (namely the provision of security) as well as providing a regime in subs (2)-(4) for the enforcement of any security or agreement the legally aided person was required to provide (or to arrange for another to provide) as a condition on the grant of aid.

Has the plaintiff established that the review committee contravened s 58(b) of the Act by failing to comply with relevant policy guidelines?

26. Section 58 of the Act provides as follows:

Functions of a Legal Aid Review Committee on an Appeal

For the purposes of hearing and determining an appeal, a Legal Aid Review Committee:

(a) has the functions and discretions that the person or body whose determination, variation or decision is the subject of the appeal had in respect of the matter the subject of the appeal, and

(b) is required to comply with any policy guidelines with which that person or body was required to comply in respect of the matter the subject of the appeal.

27. In order for the plaintiff to make out legal or jurisdictional error on the basis of what he contends is a failure to comply with relevant policy guidelines, he is obliged to demonstrate that Legal Aid NSW as the original decision maker was required to comply with particular policy guidelines and that the Committee failed to comply with those guidelines, with that failure amounting to a jurisdictional error (or perhaps an error on the face of the record).

28. The defendant advanced the primary and persuasive submission that the plaintiff appears by his pleaded case to treat the published policies and guidelines as delegated legislation when there is no proper basis for construing them as having legislative force. Although Mr Conolly decried any suggestion that his submissions should be construed in that way, it is difficult to read his submissions in any other way. His submissions in reply to the defendant’s submissions are crafted in such a way that his primary submission is that Legal Aid NSW was required to comply with its policy and guidelines when making the primary decision, citing in that regard ss 10 and 30 of the Act, each of which have plain legislative force and neither of which refer, either expressly or impliedly, to an obligation on the part of Legal Aid NSW to determine applications for legal assistance referable to its stated policy and published guidelines.

29. The plaintiff’s submission that s 30(2) of the Act is the source of power for the promulgating of Legal Aid NSW’s policies and guidelines, in what is said to be the fulfilment of its functions under s 10(2)(a), (d) and (e) of the Act, is neither supported by the text of the section or to be implied by the application of principles of statutory construction. For the same reason, his conclusion that “policies and guidelines have formal legal status under mechanisms laid down by the Act” lacks weight.

30. In any event, the defendant submitted, again persuasively, that there has been no demonstrated failure on the part of the original decision maker or the Review Committee to comply with the policies or guidelines identified in the further amended summons which are conveniently summarised as follows:

(a) policy statements as to the circumstances in which a legally aided person should be required to give a charge over their real property (Contributions Policies 11.2 and 11.511);

(b) guidelines (principally directed to the Legal Aid NSW “file manager”) as to when and how a charge over a legally aided person’s property should be procured (Contribution Guideline 5.4); and

(c) guidelines as to how Legal Aid NSW’s power under s 46 of the Act (power to determine the liability of a legally assisted person to pay costs and expenses) is to be exercised (Contribution Guideline 5.5).

31. On any reading of the policy statements or guidelines upon which the plaintiff relies in the material in evidence on the hearing of the further amended summons, none relate to the question in issue in the proceedings, namely the circumstances in which Legal Aid NSW (and the Review Committee constituted under Act) is empowered to determine an application for legal aid by granting the application subject to a condition that the legally aided person procure a charge from an associated person.

32. In contrast, the somewhat blithe submission is advanced by Mr Conolly that the effect of the policies and guidelines in the materials operate to restrict or somehow govern the circumstances in which Legal Aid NSW may impose what is described by Mr Conolly as a condition that a person other than a legally aided person provide a charge. He provides no basis in the Act generally, or by application of the principles of construction, in support of that construction. Rather, as I read the policy and guidelines, they are of a kind that not only can be departed from in the circumstances of a particular case, but might need to be departed from in order to avoid a decision miscarrying on the basis that the policy or guidelines have been inflexibly applied (see NEAT Domestic Trading Pty Ltd v AWB Ltd (2003) 216 CLR 277; [2003] HCA 35).

33. Accordingly, I would dismiss this ground of the further amended summons.

Has the plaintiff established a constructive failure by the committee to exercise its jurisdiction or failure to observe the requirements of procedural fairness?

34. Ground 3 of the further amended summons encompasses the complaint that the defendant failed to give “proper, genuine and realistic consideration” to (a) the assertion that the plaintiff and his wife are separated, and (b) that the plaintiff's wife is unwilling to provide the security the subject of the conditional grant of legal aid. I have already noted that the plaintiff’s assertion, through his solicitor, that he and his wife are separated, is simply a consequence of his remand in custody, there being no evidence from the plaintiff or his wife that they are separated in contemplation of divorce within the context of the Family Law Act1975 (Cth), and still less that there was any decision to cease cohabitation prior to the plaintiff’s arrest. As counsel for the defendant emphasised in his submissions, the supporting affidavit evidence upon which the plaintiff relies in support of the further amended summons refers to the Douglas Park property as “the plaintiff’s home”, and his remand in custody is nominated as the only reason he is physically separated from his wife.

35. It is also critical to appreciate that the phrase “proper, genuine and realistic consideration” is not an invitation for the Court to engage in a merit review. Although Mr Conolly does not attribute that phrasing to the case law, it is clear, as Basten JA explained in Swift v SAS Trustee Corporation [2010] NSWCA 182 at [45] that the language was introduced into administrative law in Khan v Minister for Immigration and Ethnic Affairs [1987] FCA 713; (1987) 14 ALD 291 and Broussard v Ministerfor Immigration and Ethnic Affairs (1987) 21 FCR 472. His Honour went on to caution against taking that phrasing out of context without acknowledging the provenance of the phrase since its uncritical deployment in proceedings for judicial review is, as his Honour identified, apt to encourage a slide into impermissible merit review.

36. Although Mr Conolly denounced any attempt to persuade the Court to engage in a review of the merits of the Review Committee’s decision, some of his submissions trespass into that area.

37. Although neither the Act nor the common law obliges the Review Committee to give reasons for a determination of an appeal brought pursuant to s 56 of the Act, in the materials tendered by the plaintiff, in particular the Review Committee’s letter of 4 December 2018 advising that the appeal was unsuccessful, a brief statement of reasons was provided. Whilst that ought not be construed minutely with an eye attuned to the perception of error (see Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259; [1996] HCA 6 at 272), the succinct statement to the effect that the Review Committee was satisfied that the plaintiff's wife is a financially associated person, and that it was reasonable to regard the Douglas Park property as an asset to secure costs, does not allow for this Court to find, despite the urging of the plaintiff, that the Review Committee either overlooked the fact that the plaintiff was on remand and thereby physically separated from his wife, or that she would prefer (perhaps not surprisingly) not to give a charge over the Douglas Park property. That being the case, the factual premise inherent in the plaintiff’s third ground is not made out.

Has the plaintiff demonstrated that the Review Committee’s decision was legally unreasonable?

38. In the plaintiff’s written submissions, albeit without developing those submissions in argument, it is said that the Committee’s decision was legally unreasonable because it was without “evident and intelligent justification”. That is also a phrase borrowed, albeit unattributed, from a decision of the High Court in Minister for Immigration and Citizenship v Li where, at 367, Hayne, Kiefel and Bell JJ held that “legal unreasonableness is a conclusion which may be applied to a decision which lacks an evident and intelligible justification”. In the same judgment, at 351, French CJ explained:

The requirement of [legal] reasonableness is not a vehicle for challenging a decision on the basis that the decision-maker has given insufficient or excessive consideration to some matters or has made an evaluative judgment with which the court disagrees even though that judgment is rationally open to the decision maker.

39. Self-evidently, it is not sufficient to make out a claim for judicial review on the grounds of legal unreasonableness that the moving party disagrees with the reasoning of the decision maker, and even less so, that the reasoning has led to a wrong conclusion. It is difficult to discern from the plaintiff’s submissions any support for the contention that the decision was legally unreasonable, save for what is said by the plaintiff to be the inferences that flow from what is said to be an inadequate statement of reasons. I have already observed that the Committee was not obliged to give a detailed statement of reasons. That said, there is nothing in the Committee’s notification to the plaintiff that it considered all grounds of appeal and dismissed them (including, relevantly, the appeal against the imposition of the condition qualifying the grant of legal aid) to suggest that the reasoning was false or supported by flawed reasoning or otherwise.

40. I am not satisfied, having regard to the policy and function of Legal Aid NSW as embossed in the Act, including its structure and intended application, that there is anything irrational or unreasonable in the Committee confirming the approach of the original decision maker that the plaintiff procure a charge over his home (albeit with the legal interest having been recently transferred to his wife) as a condition of the grant of legal aid that Legal Aid NSW is prepared to provide the plaintiff for the continuation of his trial. The analysis I have given to the statutory context in which the determination of an application for legal aid must be made under the Act proceeds on the underlying assumption that those who are regarded as associated with the plaintiff (as that concept is defined in the Act) will be expected to provide funding if it is within their means to do so.

41. While it is correct to observe that a means test is not ordinarily applied to a spouse or de facto spouse when the applicant and the spouse are legally separated, there is nothing in the evidence to support any suggestion that that is the actual status of the plaintiff’s relationship with his wife at this time or at any time in the relevant past.

42. In light of the consideration given to each of the grounds upon which the decision is challenged, the further amended summons and the evidence upon which the plaintiff relies to make good that challenge, and further, in the absence of the plaintiff identifying any particular part of the “record” on which the error of law is said to be patent, the plaintiff’s claim, as pleaded, that the Review Committee’s determination involved an error of law on the face of the record also cannot be entertained.

43. I should make it clear that I am not persuaded that the notification of the results of the appeal in the Review Committee’s letter of 4 December 2018 is properly to be regarded as the “record” for the purposes of certiorari, although even if I am wrong about that, I am not persuaded that error is manifest in the reasoning encompassed by the short statement of reasons.

44. For the foregoing reasons, I make the following order:

1. The further amended summons is dismissed.

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Amendments

22 September 2020 - Name of plaintiff's wife anonymised

Decision last updated: 22 September 2020