Wentworth v Rogers

[1988] HCATrans 236

IN THE HI.GR COURT OF AUSTRALIA

Office of the Registry

Sydney No S75 of 1987

B e t w e e n -

KATHERINE WENTWORTH

Applicant

and

GORDON JOHN ROGERS

First Respondent

and

LEGAL AID COMMISSION OF NEW

· SOUTH WALES

Second Respondent

Application for special leave

to appeal

Wentworth(9)

WILSON J
DAWSON J

TOOHEY J

TRANSCRIPT OF PROCEEDINGS

AT 'SYDNEY ON FRIDAY, 14 OCTOBER 1988, AT 2.20 PM

Copyright in the High Court of Australia

SlTl 1/1/SDL 1 14/10/88

MR R.A. CONTI, QC:  May it please Your Honours, I appear with

MR R.M. GOOT for the applicant. (instructed

by Carneys) ·

MR M.J. SLATTERY:  May it please Your Honours, I appear

with my learned friend, MR T.A. ALEXIS, for
---- the first respondent. (instructed by Phillips

Fox)

MR M.F. GRAY, QC:  May it please Your Honours, I appear

with my learned friend, MR P.A. JOHNSON, for

the second respondent. (instructed by the Crown

Solicitor for New South Wales)

WILSON J: 

Yes, Mr Conti?

MR CONTI: 

Your Honours, I have three copies of the statute

falling for consideration and three copies of
the single authority to which it may be appropriate
to take you to later.

WILSON J: 

Thank you.

MR CONTI: 

Your Honours, the point shortly to be pursued

a statute of general importance, the LEGAL AID

involves two matters: the interpretation of of justice generally and in the particular circumstances of this case.

Your Honours, very briefly, if I could

ask you to look at the outline of the statute,
Part 3 deals with provision of legal aid and

it appears on page 12 and commences with

section 29. It is section 30(2) and (3) I would

refer you to very briefly, subsection (2) providing

that:

The Commission may, from time to time, determine that legal aid in respect of

such matters or classes of matters as the

Commission determines shall be provided
by the Commission on such terms and conditions

as the Commission determines .....

(3) Without limiting the generality of

subsection (2), the terms and conditions
referred to in that subsection may include
terms and conditions that the legal aid

shall be provided without charge -

which is one alternative -

without means tests or other tests and
without the necessity for compliance with

such formal or procedural requirements -

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Wentworth(9)

I just refer to that as a peripheral matter because,

in the circumstances of this particular case,

it appears that - the evidence is silent but

there is no suggestion that the means test direction

which otherwise applies under section 35 did

not apply. Section 32 deals with false application

and section 33(a) and (d) deal with the provision

of information. Section 34(2) to (6) deal with

the determination of the application and they

require that notice be given. First of all
in subsection (2) that notice be given to the
applicant - of course, in this case, Mr Rogers;

in subsection (4) there is a right of appeal to the

Legal Aid Review Committee which will be exercisable

only by Mr Rogers, and subsection (5):

the person or committee shall record the

reasons for the determination of the application -

it does not say "provide the reasons", it says

"record the reasons", but obviously, presumably,
the reasons have to be provided to Mr Rogers

to enable him to conduct his legal aid review

application if that became necessary. Then,

in subsection (6) notice has to be given to

the opposing party if it is before the action

or, in subsection (7) after the action. The

importance of that will be evident very shortly -

that is the giving notice to the other party.

Section 35 then is of considerable importance

and falls for analysis.

The Commission shall not -

so it is mandatory -

unless it is of the op1n1on that there
are special circumstances relating to the

property or means of the applicant or otherwise,

grant an application unless the applicant

satisfies such means test or other test

as is determined by the Commission in respect

of applicants generally or the class or
description of applicants to which the
applicant belongs.

There is in evidence in the appeal book ,in exhibit C,.

which sets out some parameters and guidelines

as to the circumstances under which the means

test - it sets out the means tests and

the circumstances in which a discretion will

be exercised either in favour or against the

party who had either complied with or was,

indeed, already within the means test as the

case may be.

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Wentworth(9)

Section 35, Your Honours, is important because,

in effect, it mandates the Commission to take

into account the means test unless it is the

opinion that there are special circumstances.

MR TOOHEY:  Does it follow from that, Mr Conti, that the

Commission cannot build into its means test
any broad provision that permits it to depart

from the means test itself other than the special

circumstances to which the subsection refers?

MR CONTI: Yes, Your Honour. That seems to be the only

statutory warrant in this subsection for taking

any such exceptional course. It must address

the means test and comply with the means test unless

there are special circumstances but it seems

as though there would be nothing foreign to

the operation of the subsection if it built

into the means test guidelines which, for the

time being, it adopts . certain discretionary

provisions which would constitute special

circumstances in relation to that means test.

That is certainly what it did in this case and

there is no suggestion that the guidelines in
this particular case were in any way beyond

power. So that problem will not arise.

Your Honours, then subsection (2) provides

that the means test will be determined according
to the ability of the person to pay - that

.says"consequentiar~ Section 36, if I could

just ask you to note only the heading; an applicant

can be required to make a monetary contribution

and section 37 deals with the kinds of people

who can make applications. Section 38, again

just looking at the heading, "Variation of grant

of legal aid". 38A: "Notification of changes".

We then come through to a section.which

we would submit is of pivotal importance to

the way we wish to put our case. It was not

referred to by Mr Justice Yeldham in the first

instance and only received almost passing reference

by the Court of Appeal below at page 60. What

it does is, in effect, provide that where a

person is legally assisted, that person is not

required to meet an order for costs out of his

own resources; the legal aid will fix a maximum

lump sum and that is the only sum to which the

successful party suing the legally aided person

can have recourse. One can imagine that in

a long or complex case that the normal expectation,

if not entitlement, of a successful party - I mean "successful" in the sense of getting success against the legally assisted person as

to having his costs - is very severely qualified

and the section can conceivably work oppressively

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against, as it were, a non-assisted plaintiff against

an assisted defendant because the assistant

defendant can say, "Well, I am going to run

every conceivable issue and string out the case

in an oppressive way"; put the non-assisted

person to considerable proof of every facet

of the case and yet leave that person with recourse

to the fixed sum involved. In fact, I understand

the amount ,is now $7500 referred to in subsection (2),

not $5000.

Your Honours, it is the impact of that particular section and its implications to a

non-assisted opponent, it seemed to us, to bear

relevantly on any justifiable implications
that can be read into certain of the preceding

section which I will take you back to shortly.

That is not the full scope of the Act.

It is necessary to take you back, as part of

our argument, having dealt with the provision

of legal aid, to an earlier part, which was

section 25. As I say, unfortunately, section 47

and its impact, is not dealt with in any of the

reasons below; it seems to us to be very important

in looking at section 35 which was dealt

with below and also section 25 I am now taking

you to.

Section 25(1) and (2), in effect, preserve

or entrench the legal professional relationship

and its privileges into the relationship between

the Commission, its staff and not only the assisted

person but the prospectively assisted person.

In that sense it really takes privileges beyond

the normal solicitor/client relationship. So

that, clearly, the Commission could not, without

the authority of the - if I could use the word

"client" release information to a third party,

and we accept that.

Subsection (3) provides that: 

the Commission is not required to divulge
to any person or court any information
or document ..... relating to the administration
of legal aid.

"Relating to the administration of legal aid".

There is an entitlement to divulge, but not

an obligation, as the Court of Appeal held below,

and we do not quarrel with that. In the authority

I passed up to you, the Court of Appeal in

New South Wales, in TECTRAN CORPORATION V LEGAL

AID COMMISSION, (1986) 7 NSWLR 340, held that

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Wentworth(9)

by virtue of subsection (3) the Legal Aid

Commission could resist production of documents

on subpoena including, therefore, for instance,

any reasons for exercise - if it did exercise

discretion in this case - reasons for the exercise

of that discretion.

The Court of Appeal in TECTRAN had to look

firstly at subsection (4)(a) before it could

come to the view that subsection (3), the privilege

against divulgement applied in relation to,

for instance, subpoena-produced documents.

In TECTRAN the Court of Appeal said that paragraph (a),

which is an exception to subsections (1), (2) and (3),

where it refers to the words:

for the proper administration of this

Act -

they read it narrowly, if I may say so with

respect, and said that it was entirely administrative

in its operation and had no forensic scope of
operation. Section 26, I think, is merely

consequential on section 25 and I need not trouble

you with it.

That is the Act so far as is material for

present purposes. Your Honours, what happened

below before the trial judge, and his process

of reasoning seems to have been as follows:

there was produced the means test which became

exhibit C and details of the assets and liabilities

of the first respondent came into evidence.

It was therefore apparent, it was common ground,

that the means test limits were exceeded because

of the provisions of the means test guin~1;~~s

that assets and income of a spouse could be taken

into consideration. So the means tesc was not

complied with for the purposes of section 35

and so it followed that unless a view was taken

as to special circumstances for the purpose

of section 35(1), the first respondent would

inevitably fail in his application - but he did

not fail.

Before the trial judge and before the Court

of Appeal, to use the words of Mr Justice Yeldham,

the Commission took refuge in the non-divulgence

provisions of section 25(3). So that, effectively,

if I may say so, looking at it from a practical

point of view, there was no way my client could

get her case off the ground. She stood to suffer,

on the one hand, potential prejudice by virtue

of the operation of section 47 yet, on the other

hand, she could not, as it were, get access
to Commission documents to ascertain, firstly,

whether there had been an exercise of discretion

at all and, if so, whether discretion had been

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Wentworth (9)

exercised by reference to relevant matter and not

exercised in relation to irrelevant matter.

She just did not know whether there was any

exercise of discretion at all.

Your Honours, as we read the judgments,

there is no finding, nor could there be a finding,

that the Commission did exercise a discretion.

Mr Justice Yeldham seems to have assumed that

the Commission did exercise a discretion though,
of course, he was not able to say in what way

or to what extent. But what His Honour found

was th is - and it is the first, as it were, step

in His Honour's finding favourable to us - the

second step was unfavourable; In effect, if

one puts the last pages of his judgment together,

what he said was: if it was only a matter of

looking at section 35, because - His Honour

seems to be saying per in curiam - it is not

just, as it were, a grant of discretionary power

but it is a mandated provision which operates

unless a particular discretion is exercised,

His Honour says, at page 44 of the appeal book,

the penultimate paragraph. He said, "If it was

purely a matter of section 35 I would have found
against the Commission and in favour of

Miss Wentworth because the Commission did not produce any document indicating that it had

exercised a discretion and, if so, according

to what parameters."

However, that is obiter, His Honour says,

because the Commission has told us we are taking

refuge in section 25(3). Therefore, His Honour

said, if he is taking refuge in section 25(3),

the non-divulgement provision, it follows,

so His Honour seems to be saying - It is not easy

to get to spell the words out precisely and I

am not saying that with any disrespect as it

is a difficult case - but His Honour seems to

be saying, "Well, if he has taken, as it were,

the section 25(3) point he must have exercised -

he is protecting a discretion. You carry the

onus in relation to making out a misexercise

for discretion - I am not talking about the

onus under section 35(1) because His Honour

held that, in effect, the onus seemed to somehow

reverse on the Commission for the purposes of

section 35(1) if it stood alone - that is he

is saying obiter. If it is not standing alone

it looks at 25(3), His Honour is saying, "Unless

I could conclude from looking at the means test,

looking at the documents which were - the assets

and liabilities that came forward - unless I could
conclude that it was as manifestly ridiculous

to have granted legal aid, then I must assume
that Miss Rogers has not satisfied a miscarriage

of the section 35 function and, of course, what

flows underneath section 35."

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Wentworth (9)

In the Court of Appeal they took essentially

the same view although they disagreed with

Mr Justice Yeldham on his section 35 point.

They said, "Well, it is obiter, anyway, but

we disagree with that. In effect, the onus would remain all the way through and so far as section 35 is concerned it does not operate,

as it were, in the reverse way which

Mr Justice Yeldham found."

So they concluded, and if I could just

take you through three very brief passages -

their reasoning is to be summed up in these

three brief passages:  page 68, about point 2

of the page, the third sentence; the fifth line:

The onus is upon her to establish her case.

Assuming - as in our opinion is the case - that the Commission is not bound in law to disclose its reasons, and may indeed in

some circumstances be precluded from doing

so, the onus is upon Miss Wentworth to

show that the Commission's determinations

could not be supported.

Well, of course, how could she once refuge is taken in section 25(3)? Then, over on to

page 77, at point 4 of the page, the line beginning

"Accordingly", the last sentence in the first

paragraph:

Accordingly there is no obligation on the

Commission to divulge them to any person

or court. Since the statute gives this

right expressly to the Commission, there

is no justification for complaining that

the Commission exercised its right.

It really is saying, "Look, in practical terms,

you have no complaint because there is no way

you are ever going to get your complaint aired

if our approach be correct because they have

taken the secrecy point and you cannot complain".

Well, one would have thought, really, if one's ordinary entitlements under section 47 are

potentially so severely cut down, what is wrong

with the proposition put forward by Mr Justice Yeldham

under section 35 that if no documents are forthcoming

the Commission must be taken not to have exercised

a discretion at all or not to have exercised

it correctly. Taking refuge in section 25(3),

with respect to His Honour Mr Justice Yeldham

and to the Court of Appeal, cannot take that

proposition any further and cannot, as it were,

exclude the proposition.

The last passage is at page 83, the second

paragraph. The Court of Appeal said:

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Wentworth(9)

We have already expressed our view

that the refusal of the Commission to divulge

whether it exercised its discretion under

par (f) and the circumstances upon which

it relied if it did exercise such a discretion,

does not result in Miss Wentworth's being

entitled to have par (f) disregarded.

In other words, they are saying, "We disagree

that paragraph (f) which sets out the discretion

in exhibit C in relation to means test and,

as it were, derives its source of power from

section 35, you cannot disregard that", the

Court is saying.

The Commission and Mr Rogers rely, inter
alia, upon the Commission's right to exercise

a discretion under par (f). In our opinion

it is clear that there was room for the
exercise of that discretion in respect

of the subject grants notwithstanding that

Miss Wentworth complains that the grant

of legal aid involves -

such and such. The Court is saying, "Well,

there was room for the exercise of discretion

but it begs the question:	was it exercised
and, if so, on what terms?"

Your Honour, therefore, the position we

put to you shortly is this and, Your Honours,

we submit that the scope for the injustice -

not just to my client but also to future applicants

for legal aid - is obvious. If the means test

provisions are to be put to one side for special
circumstances but the opponent, subjected to

the section 47 strictures, cannot find out about

them, then they are left with an unwe~comed

legally assisted defendant, or plaintiff, as

the case may be, and there is nothing they can

well know that - I am not suggesting for a moment	do about challenging it even though they might	that these are the facts here - assets have
been, as it were - to use the corporate expression -
·warehoused for the purposes of the case and have not been disclosed to the Commission - all that sort of thing - it would just be very
difficult for a person to have any recourse.

TOOHEY J: Mr Conti, where does paragraph (f) appear in

the means test guidelines?

MR CONTI:  Page 62, Your Honour. It is on page 61 that

the means test starts to be recited and then,

at page 62:

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Wentworth (9)

(f) Discretion - The application of the Means Test should involve discretion to

ensure account is taken of, inter alia,
the following:

i)           The likely costs of the proceedings;

ii)        The type of proceedings .....

iii) Situations where special hardship

would flow - - -

TOOHEY J: What sort of a discretion is that? What is

it talking about?

MR CONTI: It is talking about a qualification on acceptance

of the foregoing general guidelines and it is

sort of supplemental to the discretion which

is picked up in (e)(i) further up the page.

The statutory authority use this document - it derives from section 35, as we observed.

Your Honours, the submission, therefore,

and if I can put this almost in the one sentence,

it follows: given the impact upon one's opponent

or prospective opponent of section 47 - an impact

unhappily which was not ventilated, apparently,

with any great degree below in any event - we

submit that section 35 should be so construed

that if the Commission is unwilling to divulge

the special circumstances - that is to say the

grounds for exercise of the section 35 discretion

and discretions that have come under the auspices

of section 35 - they cannot do that and our

respectful submission is that the opponent,

who has a locus standi in these proceedings - so

much was held by the Court of Appeal in TECTRAN,
and the reason for locus standi was because of

the effect of section 47 I have just outlined -

that person is entitled to say that the Commission

has not granted legal aid validly.

Your Honours, they are the submissions we wish

to put.

WILSON J:  Thank you, Mr Conti. Yes, Mr Slattery?

(Continued on page 11)

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Wentworth (9)

MR SLATTERY:  Your Honours, the main difficulty with my

friend's submission is that what it requires

the Court to read out of section 35 is a de facto

reversal of the onus of proof which would otherwise

apply in the proceedings that have been instituted

and there is no warrant for doing so, firstly, out of the terms of the section and secondly, to do so

would cause a direct collision with another provision

of the Act which is designed plainly to preserve
the confidentiality of the administration and

decision-making processes of the Commission.

WILSON J:	You mean section 25?
MR SLATTERY:	It is section 25(3), in effect. Your Honours,

if my friend's construction of section 35 is correct,

what that means is this, there is a simple way of

evading section 25(3). All one has to do is to

lodge some kind of application for administrative

review. So·as. soon as one does that it, in effect,

my friend is saying the mandatory provisions of

section 35(1) come into operation and the onus falls

to the Commission to disclose its thought processes,
otherwise the Commission must lose.

Now, such a consequence would be absurd in the face of section 25(3) which provides specifically

the reverse. If my friend's construction is right

one wonders why section 25(3) is in the Act at all.

If I could just briefly - - -

DAWSON J:  _I do not know that it makes it harder to

challenge the grant of legal aid, the existence of

section 25(3), in certain circumstances.

MR SLATTERY:  Yes, it does. If the Commission elects to

take a section 25(3) placing of a wall between itself

and the opponent, yes.

DAWSON J:  But you say that is what the Act allows?

MR SLATTERY:  Yes, Your Honour, and that it is difficult

to eke out of section 35 effectively a reversal of

onus, which is what my friend is contending for.

At page 82 of the appeal book the court set out,

in essence - and my friend has already taken

Your Honours to this - the train of reason

is simply this: the onus of proof 1 ies upon the

appellant and it remains with the appellant and if

the Act places obstacles in the way of the appellant,

then it does so, and if that makes it impossible for

the case to be proved, well so be it. That is

what was intended by the Act, but to construe

section 35 in the way that my friend does, or attempts to, is to utterly deny any effect in

practice to section 25(3).

TOOHEY J:	That is not right, is it, Mr Slattery?
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Wentworth(9)

The collisior. course of which you speak is not in e vi tab 1 e

because the subsection does not preclude the

Commission from divulging information.	It simply
does not require it to do so.	There may be cases

where it quite obviously is appropriate for the

Commission not to divulge information. The problem arises, it seems to me, because the

implications of the grant of legal aid are not

confined to the Commission and to the person to

whom legal aid is granted, but in turn there is

implications for the other party to the proceedings

by limiting the amount of costs	that that person
may recover?

MR SLATTERY:  There is no doubt, Your Honour, that those

implications flow. It is quite clear from section 47

that there is potential material prejudice should the

opponent win the proceedings against the legally
aided person. There is no doubt about that and we

do not contend to the contrary but, with respect,

we contend the collision is direct in any

circumstance where there is any attempt by the Commission to take up the benefits provided by

section 25(3).

TOOHEY J:  One wonders, then, about the point of giving

persons standing to challenge the decision of the

Commission if that challenge cannot be founded upon any of the material made available to the Commission

in determining to make a grant of legal aid.

MR SLATTERY:  It does have point, Your Honour, because

it is still up to the Commission to elect whether

or not to divulge or not to divulge the information,

so that the fact of locus standi still has some

meaning or purpose. It still depends upon the

availability of evidence which can only come from -

normally could only come from the Commission.

TOOHEY J:  One can see that the reason for this power given

to the Commission, because it is not hard to

imagine circumstances in which some challenge was

made purely for the purposes of trying to find out

something about the other party's financial position,

in other words, an entirely mischievous sort of

application; but putting those sort of cases

to one side, the person who seeks to challenge the

decision of the Commission has standing but no

material by which that person has any prospect

of challenging the decision, so long as the

means test has built into it a broad discretion to

waive that means test in an appropriate case.

MR SLATTERY:  That is so, Your Honour, but we accept that it

is not inevitable and it is nevertheless something

which the Act directly contemplates. It is simply

that if one takes another position on section 35,

then there is no force, in practical terms, given

S1Tl2/2/HS	14/10/88
Wentworth(9)

to section 25(3).	That is, in any event, the
first argument I wish to put, Your Honours.	The

second is a related argument, which is this, that

when my friend talks of, in effect, the onus of

proof or whatever to justify falling to the

Commission, what he really fails to point to 1s

essentially what is required to be proved in other
sorts of, ~iliesesorts of proceedings by the interest

of the appellant, and it is this. What effectively

has to be proved is that there is no basis on which

this decision is supportable in law, not that in fact

it was not supportable upon the reasons actually

come to, but it is a higher task that has to be

reached and that is that there is no possible basis

on the facts that the decision could be supported,

and the problem with that in the present case is

that there was a great deal of available evidence

which is referred to in the judgment on which the

matter could have been supported.

If I could briefly take Your Honour firstly

to section 35 and then to the way the court dealt

with that kind of evidence. Your Honour,

section 35 is in a sense, as my friend says, a

mandatory negative but then it allows two gateways

out of that situation. The first gateway is with the

words "unless it is of the opinion that there are

special circumstances relating to the property or

means of the applicant, or otherwise", and the second

gateway is, "unless the applicant satisfies such

means test or other test, as is determined by the

Commission in respect of applicants generally, or

the class or description of applicants to which

the applicant belongs, and it is applicable as

at the date on which the application was made".

Now, effectively what the Court of Appeal

said was it was prepared to see in this situation

that there were special circumstances in respect

of gateway one, although there could not have been

any evidence that in fact the Commission held the

relevant opinion, but we draw more comfort from

gateway two, which is that unless the applicant

satisfies such means test or other test. Now, it

was not argued below that the relevant test was

another test. It was always said to have been a

means test, but the material which would indicate

that the means test in this case was satisfied

was referred to amply by the court below. Could I

firstly and briefly take Your Honours to page 62 of

the appeal books, back to the discretionary element

within the means test itself, and that appears at

about point 5 on the page, Your Honours, and

within the means test, there is this discretion and

my friend does not challenge that that is an available

part of the means test. He has not said that is i~

any way beyond power, as I understand him, and that

S1Tl2/3/HS	13	14/10/88
Wentworth(9)

what can be considered are:

i) The likely costs of the proceedings;

ii) The type of proceedings and the

overall financial position of the -

applicant, and -

iii) Situations of special hardship.

It is then,if Your Honours go to page 84 -

TOOHEY J:  Just before you leave paragraph (f), Mr Slattery,

I suppose one has to read that in this way.
the application of the means test should involve
discretion not to apply the means test in the

circumstances that follow?

MR SLATTERY:  There are two answers to that, Your Honour;

the first is that the whole thing is called a means

test, even though I take Your Honour's point that

they really seem to be talking about the mechanical

working out of what happens after the test is

applied, but it is certainly called a means test.

TOOHEY J:  Yes, but my question focuses on the notion of

discretion. It seems to be aimed at a situation in

which the relevant authority can say, "Notwithstanding

the means test we think in these particular

circumstances;• being ( i), ( ii) and (iii), "we ought

not to apply the means test, or at any rate we

ought not to apply it rigidly".

MR SLATTERY:  With respect, we submit the wording really

incorporates the discretion into the means test by

saying, "The application of the means test should

involve'', as though the discretionary element is

part of the same test.

TOOHEY J:

I think that was built into my last suggestion the Commission should not apply the means test

to you that we ought not - it appears to be saying

rigidly.

MR SLATTERY:  Yes, as part of the means test, yes,

Your Honour, and the other point I would make 1n

respect of that is that if for some reason it is not

called a means test, if one goes back to sertion 35,

it could be described as what is called

test and would otherwise be valid, but that appears

not to be in challenge. May I take Your Honours to

page 84 which actually involves the very

considerations that were available to the court on

the evidence and they have summarized the

discretionary matters, the special circumstances,

however one chooses to describe them, depending

upon which gateway of section 35 is being used,

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and I would simply invite Your Honours to read

that page where they are all set out clearly.

TOOHEY J:  It does not look like a "special circumstances"

situation, does it? It is true that section 35(3)

is not exhaustive, but it does seem to be aimed at

the nature of the proceedings or the status of the

applicant, rather than the particular financial

circumstances of an applicant.

MR SLATTERY:  That is an.inclusive definition though,

Your Honour. It is a definition that says that

those matters are included within the definition.

TOOHEY J:  Yes, I appreciate that. I just put to you that

from the nature of the criteria that are spelt out

in subsection (3) it rather seems to be looking at

something other than the financial situation of a

particular applicant and as I read the judgment the

court is relying more upon the discretion in

paragraph (f) than upon the notion of special

circumstances.

MR SLATTERY:	I think that is so, Your Honour, yes.
TOOHEY J:	I am not suggesting that that is not well founded

necessarily, but that is the way the judgment

appears to go.

MR SLATTERY:  Yes, we would not disagree with that,

Your Honour, and that that page and the references

to the evidence within it provides ample ground for

one saying that there was available material for the

Commission to have formed the view, assuming the

validity of the subparagraph (f) portion of the

means test, that a grant of legal aid should be

made in the circumstances and that one is really

dealing with possibilities here and what my friend

has to do on any view is to exclude all possibility
of the correct or reasonable or lawful exercise of

the power.

DAWSON· J; The discretion that is being spoken of on page 84

is the paragraph (f) discretion, or am I not reading

it correctly?

MR SLATTERY:  Yes, I believe it is, which is made more

evident, Your Honour, by the introduction on

page 83.

DAWSON J:  And you regard that as a different discretion

to the section 35 discretion?

MR SLATTERY:	The special circumstances discretion?
DAWSON J:	Yes.
MR SLATTERY:	Yes, although there may well be overlap,

Your Honour.

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DAWSON J:	Yes, but they are two separate - - -
MR SLATTERY:	But they are two quite separate things.

One is within the means test. One springs out of

the statute itself, and that really, in fact,

completes that part of the argument, Your Honour.

Then finally, we also say this, that although we may be caught by an argument that there is no

evidence on the record of there being an opinion
under the first gateway formed by the Commission

because the actual reasons were never disclosed,

nevertheless this Court, the Court of Appeal and

His Honour Mr Justice Yeldham were able to determine

objectively that the second gateway was satisfied,
because if Your Honours look at the words of that

second gateway, as I call it, "unless the applicant

satisfies such means test or other test as

is determined", Your Honours have the fu 11 means

test including the discretionary paragraph,

Your Honours have the facts set out on page 84 of

the appeal book and all in the context "satisfies

meansf'is to furnish with sufficient proof or answer

the requirements of and we submit there is sufficient

material there for that, in fact, to be done and

to be determined objectively.

Your Honours, finally now, as to the

importance of this matter, what we say is this

this is really a particular decision about the onus

of proof arising out of the way a particular case

was conducted before the first instance judge, and

that it is only because this point was taken,

there was no divulgence, that the problem

has arisen, and that it is only in respect

of the conduct of this kind of litigation

that any decision of this Court would have very broad

implications. It would not have implications with

respect to the administration of the legal aid

system as a whole. It would only have implications

for the bringing of proceedings such as these very

same proceedings. Those are my submissions,

Your Honour.

WILSON J:  Thank you, Mr Slattery. Do you want to add

anything, Mr Gray?

MR GRAY:  Just one or two things. I do not want to go over

the argument which we support, but just to draw

Your Honour's attention to section 26 of the Act.

It was mentioned, I think by my friend Mr Conti,

and I think also flowed from the bench, that

section 25 was strictly not an entitlement to rely

upon - was strictly an entitlement to rely and not

divulge matters, but section 26 creates an offence

if those matters are, in fact, divulged and are

not the subject of section 25(4)(a) which is, in

effect, an exception to section 25(3). My friend,

Mr Conti, also glossed very quickly over the fact

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that the Court of Appeal in TECTRAN V LEGAL AID

COMMISSION construed section 25(4)(a) as not

applying to the conduct of legal proceedings,

so that section 24(3) stood as a requirement of

non-divulgence and section 26 stands as creating an

offence if information is, in fact, divulged.

There are two other short points that we would

make. We say that on its plain words section 35

cannot be construed in the way that my friend,

Mr Conti, would construe it. Section 25 is in

plain words and he wants to read into that, as I

understand his argument, that if the Commission

is unwilling to divulge the special circumstances

or any discretionary considerations that it had in

mind, then it should bear the onus to do so.	Now,
we say that is just not possible in the terms of section 35, and the last point we would
make, very quickly, is that it seems to us
to be a quantum leap in principle to in some

way say some principle of law of natural justice,

or whatever, voids an administrative decision because

of the failure to give reasons, and that is what is

in effect sought to be somehow brought in, we say,

by the back door, on my friend's argument.

Those were the only matters.

WILSON J:  Thank you, Mr Gray. Mr Conti.

MR CONTI:	Just in relation to one of the last points made by my learned friend, at page 80 of the appeal book
the Court of Appeal found that section 26 does not operate against the entitlement, as distinct from
obligation, that the Commission referred to in
section 25(3).  Your Honours, can I just deal
with this question of means test.  We submit that
the notion of means test imports a capacity to pay,
not the subject-matter's possible payment. It
follows that the special circumstances referred to
in section 35(1) would pick up the discretion
referred to on page 6'2(e)(i). The discretion
would derive from the words on the fourth line referred to in (f1 I agree it is correct to say,
of subsection (i), "or other test as is determined
by the Commission", but as the content of
paragraph (f) shows, the test as is determined by
the Commission, in effect, involves an exercise
of discretion in that he has formulated, as a
matter of discretion, some other test, and there is the outline of it in paragraph (f).

But in all events the court below just did not

know whether the means test was satisfied by virtue

of (f) or (e) (i) or both. It just does. not know. The

material is just not produced, and that is the force

of our argument.

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WILSON J:  The Court will retire for a moment to consider

its decision in this matter.

AT 3.10 PM SHORT ADJOURNMENT

UPON RESUMING AT 3.15 PM:

WILSON J:  There is no doubt that the relationship

between sections 25 and 35 of the LEGAL AID

COMMISSION ACT present difficulties for a party to litigation who seeks to challenge the grant of legal aid to another party, but the content

of the means test applied by the Commission has not

itself been challenged in these proceedings. In

those circumstances, the decision of the Court of

Appeal is not attended with sufficient doubt to

warrant the grant of special leave to appeal.

Special leave is therefore refused.

MR SLATTERY:	We would apply for costs, Your Honours.
MR GRAY:	And likewise, Your Honours.
WILSON J:	You both seem very reluctant to stand.

Can you oppose that, Mr Conti?

MR CONTI:	No, Your Honour.
WILSON J:	Special leave is refused with costs.

AT 3.16 PM THE MATTER WAS ADJOURNED SINE DIE

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