Ford v Legal Aid Commission of Queensland
[1997] QCA 442
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- Appeal Determined (QCA)
- Ford v Legal Aid Commission of Queensland[1997] QCA 442
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Ford v Legal Aid Commission of Queensland[1997] QCA 442
Reported at [1999] 1 Qd R 267
Ford v Legal Aid Commission of Queensland[1997] QCA 442
Reported at [1999] 1 Qd R 267
IN THE COURT OF APPEAL
SUPREME COURT OF QUEENSLAND
Appeal No. 5181 of 1997
Brisbane
[Ford v Legal Aid Commission of Queensland]
BETWEEN:
PAUL GRAHAM FORD
(Applicant) Appellant
AND:
LEGAL AID COMMISSION OF QUEENSLAND
(Respondent) Respondent
Pincus JA
Thomas J
Dowsett J
Judgment delivered 12 December 1997
Separate reasons for judgment of each member of the Court, each concurring as to the orders made.
APPEAL ALLOWED. ORDERS BELOW SET ASIDE AND REPLACED WITH ORDER THAT THE RESPONDENT’S DECISION REFUSING LEGAL AID BE SET ASIDE AND A DIRECTION THAT THE APPLICATION BE RECONSIDERED ACCORDING TO LAW. RESPONDENT TO PAY THE APPELLANT’S COSTS OF THE APPLICATION AND OF THIS APPEAL TO BE TAXED.
CATCHWORDS: | JUDICIAL REVIEW - Decision refusing legal aid - Making under Legal Aid Act 1978 of “guidelines” for granting legal aid - Whether permissible for guidelines to effect blanket exclusion of certain categories of cases - Whether necessary for respondent to consider factors mentioned in s. 29 to make it “reasonable in all the circumstances” to grant aid. Legal Aid Act 1978 ss 11, 12, 13, 29 Judicial Review Act ss 20(2)(e), 23(f) British Oxygen Co Ltd v Minister of Technology [1971] AC 610 Perder v Lightowler (1990) 101 ALR 151 Re Clarkson ex parte Australian Telegram & Phonogram Officers Association (1982) 56 ALJR 224 Re Drake and Minister for Immigration and Ethnic Affairs No.2 (1979) 2 ALD 634 Smoker v Pharmacy Restructuring Authority (1994) 53 FCR 287 |
Counsel: | Mr D Rangiah for the Appellant Mr PCP Munro for the Respondent |
Solicitors: | Reidy & Tonkin for the Appellant Legal Aid Commission of Queensland for the Respondent |
Hearing Date: | 26 November 1997 |
IN THE COURT OF APPEAL
SUPREME COURT OF QUEENSLAND
Appeal No. 5181 of 1997
Brisbane
Before Pincus J.A.
Thomas J.
Dowsett J.
[Ford v Legal Aid Commission of Queensland]
BETWEEN:
PAUL GRAHAM FORD
(Applicant) Appellant
AND:
LEGAL AID COMMISSION OF QUEENSLAND
(Respondent) Respondent
REASONS FOR JUDGMENT - PINCUS J.A.
Judgment delivered 12 December 1997
I have read the reasons of Thomas J. and agree with them.
IN THE COURT OF APPEAL
SUPREME COURT OF QUEENSLAND
Appeal No. 5181 of 1997
Brisbane
Before Pincus JA
Thomas J
Dowsett J
[Ford v Legal Aid Commission of Queensland]
BETWEEN:
PAUL GRAHAM FORD
(Applicant) Appellant
AND:
LEGAL AID COMMISSION OF QUEENSLAND
(Respondent) Respondent
REASONS FOR JUDGMENT - THOMAS J
Judgment delivered 12 December 1997
This is an appeal against a decision in the Trial Division dismissing an application for judicial review. The decision of which review was sought was the Commission’s refusal to grant legal assistance to the applicant in respect of a judicial review which the applicant desired of a decision by the Department of Health. As the relevant decision was made on 13 March 1996 its validity falls to be determined under the Legal Aid Act 1978 which has since been replaced by the Legal Aid Queensland Act 1997.
In rejecting the appellant’s application for legal assistance the Commission (by its review committee) on 13 March 1996 stated–
“Legal Aid do not fund such an application as the matter before the Committee”
and
“The guidelines are very strict and . . . legal aid is not available for judicial review involving a government department”.
Subsequently when written reasons were requested under s 32 of The Judicial Review Act 1991 the following more carefully formulated articulation of the respondent’s reasons was given.
“The Legal Aid Office (Queensland) does not provide funding for this type of matter.
The types of matters for which aid is granted are listed in the Legal Aid Commission Policy Manual issued March 1995. Aid is not granted for matters which are not referred to in this document. For example, the civil law guidelines do not refer to defamation which is another type of matter not funded by the Legal Aid Commission. The Policy Manual does not permit the exercise of any discretion in the funding of matter types.
All decisions of the Review Committee must fit within Legal Aid Commission policy. The Committee is not permitted to change policy, nor go outside the Commission’s guidelines in making its decision.”
The Commission had formulated certain guidelines for the determination of whether legal assistance is to be provided to an applicant, and plainly the Commission in this instance based the relevant part of its decision entirely upon the guidelines without specifically directing its attention to the requirements of the Legal Aid Act 1978. The contention for the Commission is that the Act permitted it to issue public guidelines, and that once these were issued it was not necessary for the relevant review committee to look beyond them. Two questions arise in the present case namely whether the relevant public guidelines meet the requirements of the Act, and
whether the Commission may determine an application on the basis of such guidelines without directing its mind to other statutory requirements of s 29.
There are two essential statutory prerequisites to granting an application, namely the satisfaction of a means test (which does not relevantly arise in this appeal), and satisfaction of the requirement in s. 29 that it is “reasonable in all the circumstances” to grant legal assistance.
The phrase “reasonable in all the circumstances” is extrapolated in s. 29(8).
“In deciding whether it is reasonable in all the circumstances to provide legal assistance to the applicant, regard must be had to all relevant matters, including–
- the nature and extent of–
- any benefit that may accrue to the applicant, to the public or to any section of the public from the provision of the assistance; and
- any detriment that may be suffered by the applicant, by the public or by any section of the public if the assistance is not provided; and
- subject to paragraph (c), in the case of assistance in relation to a proceeding in a court or before a tribunal—whether the proceeding is likely to end in a way favourable to the applicant; and
- (c) . . .
- (d) . . .”
[(c) and (d) deal with further factors relevant to criminal proceedings]
Under s. 11(1) of the Act the Commission is required to ensure that legal assistance is provided in the most effective, efficient and economical manner; and under s. 11(1)(i) it is required, subject to agreements or arrangements made between the Commonwealth and the State in that behalf, to determine priorities in the provision of legal assistance as between different classes of persons or classes of matters.
Section 11(4) provides–
“In the performance of its function the Commission shall have regard to the amount of moneys for the time being standing to the credit of the fund and of any moneys likely to be received by the Commission for the purposes of the fund.”
The power to make guidelines is mentioned in ss. 12 and 13. In particular s. 13 provides that the Commission shall determine and make known to the public guidelines to be applied on various matters, including–
“(b)in the application of s. 29 for the purpose of determining whether legal assistance may be provided to a person under this Act.”
It may be noted in passing that s. 27(2) enables the Commission to give directions as to the classes of case for which applications for legal assistance are to be decided by a legal aid committee, and those which are to be decided by officers of the Commission. That is very different to a power to give directions as to the classes of case in which applications for legal assistance are to be granted.
The “guidelines” produced by the Commission under ss. 12 and 13 have been presented and published in the form of a “policy manual” consisting of multiple chapters. Chapter 4 is headed “Merit test and matters for which aid may be granted”. Under the subheading “Civil matters” it is stated that–
“Generally, where there is a power in a court or tribunal to award costs, the Commission does not fund the matter and requests the applicant’s solicitor to conduct the case on a speculative basis.”
This is followed by an explanation of the so-called “spec” system apparently designed to assist the diversion of relevant applicants into it.
A subsequent subheading “Civil matters where legal aid may be granted” contains twelve fairly broad categories of matters, commencing with “Administrative Appeals Tribunal cases and resulting Federal Court appeals”. The only category faintly resembling the proceeding that the appellant desired to bring is–
“Discrimination, human rights and equal opportunity matters arising under relevant state and federal law, and resulting appeals including applications for judicial review.”
It is common ground however that the appellant’s desired application does not fall within that description.
This then was the basis, and it would seem the sole basis upon which the Commission refused the application, namely that the policy manual failed to prescribe a category of case into which his case fell.
For the appellant Mr Rangiah submitted that the Commission did not have the power to formulate a policy (or “guideline”) that would effect a blanket exclusion of particular types of proceeding in such a way that the statutory criteria under s. 29 would not need to be considered. It is for example difficult to think that the above statutory provisions give the Commission the power to exclude, say, all criminal proceedings, consistently with the duty cast on the Commission by s. 29(8)(a). It was further submitted that the power that has been given to make and publish guidelines is not a power to override the criteria stated in s. 29, except under the express power to do so in s. 29(4)–
“(4)Guidelines determined for the purposes of this section under section 13 may provide for the exemption of a corporation or class of corporation from consideration of the additional matters mentioned in subsection (3).”
This special provision and the expressio unius principle tend to reinforce the appellant’s submission.
It is quite obvious that the power given by s. 13(b) in any event goes no further than making “guidelines” in the application of s. 29. It is difficult to think that the making of such guidelines may override specific requirements of s. 29, or make it unnecessary for a decision-making body to observe the criteria contained in that section.
Mr Munro for the respondent Commission however submitted that the Commission was empowered to exclude classes of case independently of the factors mentioned in s. 29(8) which he described as personal or idiosyncratic factors. This he submitted was the correct construction of the Act, which requires the Commission to perform duties through use of a single fund, which casts a duty upon the Commission to provide assistance in the most efficient, effective and economical manner, and which gives it a duty to determine priorities under s. 11(1)(i). These factors however do not lead to the result contended for. There is of course nothing special about a government funded body having limited funds to use. Again, the right to determine priorities is not a power to exclude. And in any event the normal meaning of “guideline” would not permit it to override an express statutory requirement.
It was further submitted for the Commission that the policy manual exhaustively states all types of case for which aid may be given; that these are valid guidelines; and that the commissioner and its committee need to look no further than the guidelines. However in my view while the Commission (or its review committee) could properly have regard to the guidelines, including those that assert that the appellant lacks any priority in the class of matter that he wished to litigate, that did not relieve the Commission or its committee from giving individual consideration to other factors under s. 29. These include the circumstances of the applicant and of the public value of the matter going forward.
This conclusion is consistent with the reasoning in a number of cases where courts have considered claims that the application of a policy made it unnecessary for a tribunal to consider the merits of a matter. In Perder v Lightowler (1990) 101 ALR 151 a statute that gave power to a tribunal to exercise decision-making powers also made the exercise of such power subject to the directions of a zone authority. A policy of such an authority was conveyed recommending a freeze on licence transfers. Spender J observed, at p. 157
“[T]his was not a case where the subjective circumstances of the applicant had been considered against the background of a general policy and, after a consideration of the intrinsic subjective factors, a decision had been made in accordance with a general policy. What occurred in this case was that the decision-maker considered himself bound by the direction that had issued under s 38(4). The central submission on behalf of the applicant was that a refusal to transfer any licence is not the adoption of a policy in the exercise of a discretion but was a refusal to exercise any discretion at all. . . . The principle that a decision-maker cannot abrogate a discretion by the application of a universal policy with no consideration of the merits of the matter is clear from the authorities.”
His Honour cited Re Drake and Minister for Immigration and Ethnic Affairs No.2 (1979) 2 ALD 634, 640, referring to Brennan J’s statement
“The Minister must decide each of the cases . . . on its merits. His discretion cannot be so truncated by a policy as to preclude consideration of the merits of specified classes of cases.”
The learned Judge below referred to Smoker v Pharmacy Restructuring Authority (1994) 53 FCR 287 in support of the proposition that in certain circumstances “guidelines” could depart from the ordinary meaning of that term and require the decision-maker to follow a mandatory rule. However the factors in Smoker which compelled such a decision were absent in the present case. These included a statutory requirement that “the authority must comply with the relevant guidelines”. In these circumstances as a matter of construction the court was able to perceive
“an intention on the part of the legislature to authorise what are referred to as ‘guidelines’ but what more properly should be described as rules which in fact circumscribe the discretion which the authority has.” [ibid p. 301 per Hill J]
In the present case, in the language of s. 23(f) of the Judicial Review Act 1991 it is shown that the respondent “exercise[d] a discretionary power in accordance with a rule or policy without regard to the merits of the particular case”. That amounts to an “improper exercise of the power conferred by the enactment under which it was purported to be made” under s. 20(2)(e) of that Act. These provisions are consistent with the principles developed by that part of the common law now generally referred to as administrative law under which decision-makers may have regard to a relevant policy but may not treat it as a fixed determinative rule (British Oxygen Co Ltd v Minister of Technology [1971] AC 610 per Lord Reid at 624-625; Santos Ltd v Saunders (1988) 49 SASR 556, 565, 575; Carroll v Sydney City Council (1989) 15 NSWLR 541).
It is quite clear in the present case that the power to make guidelines under the Legal Aid Act is not a power to direct the review committee or the Commission itself how it must determine the outcome of applications (Aboriginal Legal Service v ATSIA (1996) 69 FCR 565).
In Re Clarkson ex parte Australian Telegram & Phonogram Officers Association (1982) 56 ALJR 224, 228; 39 ALR 1, 9, Gibbs CJ observed
“There is a general principle that a tribunal which is called upon to exercise a discretion does not perform its duty if it acts in blind obedience to a rule or policy that it previously adopted.”
The present decision falls within the type of conduct described by Gibbs CJ as a failure to perform its duty. It was not empowered by ss. 11 or 13 of the Act to impose such constraints upon itself in exercising its important function of granting or declining to grant legal assistance. It follows that the learned Judge erred in dismissing the application for judicial review.
The appeal should be allowed. The orders below should be set aside and replaced with an order that the respondent’s decision refusing legal aid be set aside and a direction that the application be reconsidered according to law.
In considering the question of costs one cannot help noting that the cost of the legal assistance originally sought by the appellant has probably been exceeded many times over by the costs of the subsequent application for judicial review of its refusal of legal assistance and the costs of this appeal, both of which are apparently funded on both sides of the record by the respondent. This might be understandable in a case where the future practice of a public body might be authoritatively determined by the litigation. However the present matter was overtaken by the passage of the Legal Aid Queensland Act 1997 (in force from 1 July 1997), which provides for a quite different scheme (see in particular s. 11 of that Act). In this curious situation the appropriate order for costs seems to be to require the unsuccessful party to pay them. It will therefore be ordered that the respondent pay the appellant’s costs of the application and of this appeal to be taxed.
IN THE COURT OF APPEAL
SUPREME COURT OF QUEENSLAND
Appeal No. 5181 of 1997
Brisbane
Before Pincus JA
Thomas J
Dowsett J
[Ford v Legal Aid Commission of Queensland]
BETWEEN:
PAUL GRAHAM FORD
(Applicant) Appellant
AND:
LEGAL AID COMMISSION OF QUEENSLAND
(Respondent) Respondent
REASONS FOR JUDGMENT - DOWSETT J
Judgment delivered 12 December 1997
I agree with the reasons of Thomas J. and with the orders proposed by his Honour.