WILLIAMS v Legal Services Commission - [2015] SASC 156

SUPREME COURT OF SOUTH AUSTRALIA
(Civil)
WILLIAMS v LEGAL SERVICES COMMISSION
[2015] SASC 156
Judgment of Judge Dart a Master of the Supreme Court
30 September 2015
ADMINISTRATIVE LAW - JUDICIAL REVIEW - GROUNDS OF REVIEW - UNREASONABLENESS
Application for funding of appeal - refusal to provide funding - internal review of decision - no unreasonableness in the decision-making process.
Criminal Law Consolidation Act 1935 (SA) s 353A; Legal Services Commission Act 1977 (SA) s 11, s 17; Supreme Court Civil Rules 2006 (SA) r 200C, referred to.
Minister for Immigration and Citizenship v Li & Anor (2013) 249 CLR 332, applied.
Associated Provincial Picture Houses Limited v Wensbury Corporation [1948] 1 KB 223; Dunsmuir v New Brunswick [2008] 1 SCR 190; Kruger & Ors v The Commonwealth of Australia (1997) 190 CLR 1; Viscariello v Legal Practitioners Conduct Board [2014] SASC 53, considered.

WILLIAMS v LEGAL SERVICES COMMISSION
[2015] SASC 156
JUDGE DART:

In this matter the plaintiff seeks to review a decision of the Legal Services Commission (“LSC”) by which it declined to provide funding for an appeal to the Court of Criminal Appeal (“CCA”). In 2000, the plaintiff was convicted of murder. No appeal from conviction or sentence was, until recently, instituted. The plaintiff proposes to appeal his conviction based on, what he says was, unreliable evidence given by one of the prosecution witnesses. His position is that the witness was suffering from a Post Traumatic Stress Disorder at the time of giving evidence. It is argued this made the evidence unreliable
The appeal is, obviously, considerably out of time. No issue arises pursuant to s 353A of the Criminal Law Consolidation Act 1935 (SA). There has never been an appeal. It is simply a matter of the plaintiff being able to justify an extension of time within which to commence the appeal.
These reasons deal with the defendant’s application for summary dismissal.
Legal Services Commission
The LSC is constituted by the Legal Services Commission Act 1977 (SA) (“LSC Act”). It is necessary to set out some of its provisions so as to be able to understand what has occurred in respect of the decision-making process.
The principles on which the LSC operates are set out in s 11 of the LSC Act, which provides as follows:
In the exercise of its powers and functions the Commission must—
(a)seek to ensure legal assistance is provided in the most efficient and economical manner;
(b)use its best endeavours to make legal assistance available to persons throughout the State;
(d)     have regard to the following factors:
(i)    the need for legal assistance to be readily available and easily accessible to disadvantaged persons;
(ii)     the desirability of enabling all assisted persons to obtain the services of legal practitioners of their choice;
(iii)    the importance of maintaining the independence of the legal profession;
(iv)    the desirability of enabling legal practitioners employed by the Commission to utilise and develop their expertise and maintain their professional standards by conducting litigation and doing other kinds of professional legal work.
The LSC Act also sets out provisions in relation to making an application for legal assistance. Those provisions are in s 17, which provides as follows:
(1)     Subject to subsection (2), an application for legal assistance must be made to the Director in a manner and form determined by the Commission.
(2)     An application for legal assistance may be made without formality or verification—
(a)where the application is of a class exempted by the Commission from the provisions of subsection (1); or
(b)where the Director considers the matter to which the application relates to be of a minor nature and waives compliance with subsection (1).
(3)     The Director must deal with an application for legal assistance in accordance with principles laid down by the Commission, and may grant, unconditionally or subject to such conditions as the Director thinks fit, or may refuse, the application.
(4)     Where an application for legal assistance is refused by the Director, or granted subject to conditions, the applicant may, within fourteen days after receiving notice of the Director's decision, appeal to the Commission against the decision.
(5)     The Director may at any time, by notice in writing, impose conditions on the continuance of the legal assistance, or vary or revoke any of the conditions on which legal assistance is being provided.
(6)     An assisted person may—
(a)    within fourteen days after receiving a notice under subsection (5); or
(b)within fourteen days after receiving notice of refusal by the Director to vary or revoke a condition on which legal assistance was granted,
appeal to the Commission against the decision of the Director.
(7)     On an appeal under subsection (4) or (6), the Commission may affirm the decision of the Director, or vary it in such manner as it thinks fit.
Separately, the LSC has certain guidelines which they apply when considering applications for funding. The LSC only makes legal aid available for matters which it considers have merit. The merits test has three separate limbs which must be satisfied to qualify for funding. They are:
1that the case must have reasonable prospects of success;
2whether a prudent self-funding litigant would risk their own funds in respect of the case; and
3whether the case is a proper use of public funds, given that such funds are limited and that there is significant demand for the funding of litigation.
Background matters
The plaintiff made an application for funding to prosecute an appeal in the CCA in early 2014. He was advised by letter from the defendant on 11 April 2014 that the application for legal assistance had been declined.
The plaintiff thereafter instituted an appeal as provided for in s 17(4) of the LSC Act. After the conduct of the appeal process, the plaintiff was advised on 25 June 2014 that the decision to decline funding had been confirmed by the Appeals Panel. The plaintiff commenced these proceedings on 18 July 2014.
After the commencement of these proceedings the Crown Solicitor wrote to the plaintiff enclosing the relevant LSC Guidelines and invited the plaintiff to supply any further documents or information to be considered by a newly constituted Appeals Panel.
That differently constituted Appeals Panel met on 20 October 2014 (“the Second Appeal Panel”) and confirmed the decision to decline funding for the proposed appeal to the CCA. As a result of the October decision, permission was granted to the plaintiff to amend his Summons. The Second Summons was filed on 10 November 2014[1] and seeks relief in respect of the decision of the Second Appeal Panel. The grounds set out in the Second Summons are:
1.The Legal Aid Appeals Panel has erred in its decision to dismiss the plaintiff’s appeal for legal aid, and the decision is so manifestly unreasonable that no reasonable person could ever have come to it.
[1] FDN8.
The Supreme Court Rules
There was a significant change to the Rules in respect of judicial review, which came into effect on 1 October 2014. Prior to the changes, a plaintiff was permitted to commence proceedings but could not proceed further without the Court’s permission. That provision acted as a filter by which the merits of an application could be assessed in a preliminary way and matters that were clearly unmeritorious disposed of.
The Rules as they operate from 1 October 2014 no longer require that a plaintiff seek permission to proceed with an application for judicial review. Judicial review proceedings are commenced in the same way as any other civil proceeding. The onus is on a defendant who says that an application for judicial review is unmeritorious to make an application for the summary dismissal of the proceedings.
The relevant provision of the Rules is r 200C which provides as follows:
(1)If within 14 calendar days of service a defendant files an application for summary dismissal under rule 232, or to strike out the action or the statement of grounds under rule 104, 117 or 193, insofar as an order for judicial review is sought, or if the plaintiff applies for permission under rule 200(2), the defendant may but is not required to file a response or responding affidavit until determination of the application.
(2)If a defendant files an application under subrule (1) or the plaintiff applies for permission under rule 200(2), the Court must dismiss or strike out the action or statement of grounds, as the case may be, insofar as an order for judicial review is sought, unless satisfied that there is a reasonable basis for the claim for an order for judicial review.
(3)If the Court dismisses or strikes out the action or statement of grounds, the Court may give directions for the further conduct of the action insofar as other forms of relief are claimed.
(4)If the Court does not dismiss or strike out the action or statement of grounds, the Court will give directions for filing a response and responding affidavit if not already filed and for the further conduct of the action under rule 201.
(Emphasis added.)
Because the decision under review became the decision of 20 October 2014, the parties agreed that the new Rules should apply to this matter. Accordingly, the defendant made an application for summary dismissal.
The decision under review
As mentioned above, the second appeal was considered on 20 October 2014. The Second Appeal Panel consisted of three experienced legal practitioners. They had before them all of the material provided by the plaintiff and his solicitors. They also had before them an opinion of Senior Counsel, experienced in criminal matters, together with a subsequent further memo from Senior Counsel. The opinion of Senior Counsel was that the appeal did not have substantial merit and therefore did not have reasonable prospects of success.
The defendant advised the plaintiff by letter dated 21 October 2014 of the outcome of the second appeal. In that letter the defendant said:[2]
The Commissioners fully reviewed all the documentation and written materials on your file and determined that the Commission would not fund this appeal because it did not have reasonable prospects of success and therefore failed the merits test. The determination of the Commissioners that the appeal did not have prospects of success was made on the basis of the totality of the evidence supported the prosecution case.
[2] Exhibit KLL2 to the affidavit of Karen Louise Lehmann sworn 2 December 2014 (FDN9).
The legal test
It is to be remembered that r 200C (2) provides that the court must dismiss an action unless it is satisfied there is a reasonable basis for the claim for an order for judicial review. The onus is on the plaintiff to establish a reasonable basis for his claim for judicial review.
In the case of Viscariello v Legal Practitioners Conduct Board[3] Nicholson J, in dealing with an application for permission to proceed under the previous Rule, accepted that the phrase “reasonable basis” means no more than the plaintiff must have an arguable or prima facie case. His Honour said that the test was similar to the approach adopted on an application for summary judgment. There must be the showing of a prima facie matter of substance which was reasonably arguable.[4] Under the new rule a reasonable basis for a claim will exist if there is a prima facie or arguable case demonstrated by the plaintiff.
[3] [2014] SASC 53.
[4] Supra, at [7].
The defendant accepts that it is amenable to a judicial review of the decision in respect of funding. The defendant’s position, however, is that there is no reasonable basis put forward by the plaintiff on the question of unreasonableness.
The argument of the plaintiff is based on the well-known authority of Associated Provincial Picture Houses Limited v Wensbury Corporation[5] (“Wensbury”). In Kruger & Ors v The Commonwealth of Australia Brennan CJ expressed the proposition in the following terms:[6]
When a discretionary power is statutorily conferred on a repository, the power must be exercised reasonably, for the legislature is taken to intend that the discretion be so exercised.
[5] [1948] 1 KB 223 at 234.
[6] (1997) 190 CLR 1 at 36.
When a court reviews the question of reasonableness of a decision made by another repository of power, it is concerned mostly with the existence of justification, transparency and intelligibility within the decision-making process and with whether the decision falls within a range of possible acceptable outcomes which are defensible in respect of the facts and law.[7]
[7] Dunsmuir v New Brunswick [2008] 1 SCR 190 at 220-221.
In the Minister for Immigration and Citizenship v Li & Anor[8] Gaegler J said the unreasonableness test is a stringent one and constrained by two principal considerations, which are:[9]
One is the stringency of the test that a purported exercise of power is so unreasonable that no reasonable repository of the power could have so exercised the power. The other is the practical difficulty of a court being satisfied that the test is met where the repository is an administrator and the exercise of the power is legitimately informed by considerations of policy.
[8] (2013) 249 CLR 332.
[9] Supra, at 376.
On the hearing of this application the plaintiff said that his argument was most completely articulated in his fifth affidavit.[10] What becomes apparent from consideration of the affidavit is that the plaintiff’s real complaint is with the opinion provided by Senior Counsel. In the affidavit the plaintiff articulates why the opinion of Senior Counsel is unreasonable. Issues about the unreasonableness of the opinion are gone into in great length by the plaintiff in his affidavit.
[10] Affidavit of Brett Stuart Williams sworn 20 April 2015 (FDN 21).
The difficulty for the plaintiff is that this application is seeking a review of the decision of the Second Appeal Panel to decline funding. It is that Appeal Panel that must have acted so unreasonably that the decision was one that no reasonable Appeal Panel could have come to in exercising their statutory power to conduct an appeal.
It is apparent that the Second Appeal Panel had before it all relevant material, including all submissions made on behalf of the plaintiff in respect of the prospective appeal and of course the opinion of Senior Counsel. The plaintiff has only established a reasonable basis for his claim if it is arguable that the Second Appeal Panel acted in a manner so unreasonable as to attract the Wensbury principle.
The Second Appeal Panel obtained the advice of Senior Counsel, considered that advice and, it appears, relied upon that advice. It cannot be said that to do so was unreasonable, let alone so unreasonable as to satisfy the stringent test required if the applicant is to succeed in this application. Accordingly, in the circumstances, it cannot be said that the plaintiff has established a reasonable basis for the claim that the second Appeals Panel acted unreasonably in the Wensbury sense.
In the result the application for judicial review should be dismissed. I will hear the parties as to any consequential matters.