Khalid v Legal Aid Commission of NSW

By an amended summons filed on 15 November 2016, Sulayman Khalid (“the plaintiff”) seeks orders in the following terms:

The orders sought are opposed by the defendant.

In support of the summons the plaintiff read affidavits of Zali Burrows, solicitor of 2 November 2016, 7 November 2016 and 14 November 2016. Objections were taken to those parts of Ms Burrows’ affidavits which included material which was not before the relevant decision maker(s). I upheld those objections. Ms Burrows was not cross-examined on the contents of any of her affidavits.

The defendant read the affidavit of Sally McAtee, solicitor, of 10 November 2016, to which no objection was taken. Ms McAtee was cross-examined on the contents of her affidavit.

The plaintiff is one of six accused presently charged with conspiracy to do an act in preparation for a terrorist act or acts, contrary to ss. 11.5 and 101.6(1) of the Criminal Code 1995 (Cth). He was arrested on 25 December 2014 and has been in custody since that time. The joint trial of the six accused is to commence on 31 July 2017. I am presently engaged in hearing various pre-trial applications brought by the plaintiff, and by some of his co-accused.

In or about late 2014/early 2015 (i.e within a short period of his arrest) the plaintiff instructed Ms Zali Burrows, solicitor, to act for him. At that time, the plaintiff had been charged with one count of possessing documents connected with the preparation for a terrorist act, knowing of that connection. Since that time, a further five persons have been charged as a result of the investigation conducted by police. As a consequence, the Crown has presented an indictment alleging a single offence of conspiracy against all six accused. The fundamental allegations made against the plaintiff pursuant to the conspiracy count are, in large measure, the same as those which had been made against him when he was first charged with the substantive count.

Ms Burrows has continuously acted for the plaintiff since he retained her following his arrest. She has done so absent a grant of legal aid. The work undertaken by Ms Burrows has included instructing counsel in relation to an application for the plaintiff’s release, as well as instructing counsel in a pre-trial application of some complexity which proceeded over several days: R v Khalid (No 2) [2015] NSWSC 1921. As far back as 2014 Ms Burrows has represented the plaintiff in matters unrelated to his forthcoming trial.

Pursuant to s. 50 of the Legal Aid Commission Act 1979 (NSW) (“the Act”) the Legal Aid Commission of NSW (“the Commission”) has created specialist panels of legal practitioners to whom grants of legal aid may be assigned from time to time. Two of those panels are the General Criminal Law Panel (“the General Panel”) and the Serious Criminal Law Panel (“the Serious Panel”). Ms Burrows is a member of the General Panel. She is not a member of the Serious Panel.

At some time prior to 21 September 2016 Ms Burrows applied to the Commission, on the plaintiff’s behalf, for a grant of legal aid in respect of his forthcoming trial. In an email of 21 September 2016 sent to Mr Griffiths (the Acting Team Leader (Grants Crime) at the Commission) Ms Burrows stated (inter alia):

Ms Burrows’ reference in that email to the “recent matter of Alqudsi” was a reference to the trial of Hamdi Alqudsi (“Alqudsi”) which proceeded before Adamson J and a jury in this Court earlier this year. The allegations against Alqudsi were, in some respects, not dissimilar to those against the plaintiff. Ms Burrows acted as Alqudsi’s solicitor in those proceedings. She did so pursuant to the Commission’s assignment to her of a grant of legal aid which had been made to Alqudsi. That grant was assigned notwithstanding that Ms Burrows was not a member of the Serious Panel.

On 21 September 2016 Mr Griffiths responded to Ms Burrows’ email, advising that there did not appear to be any existing application made on behalf of the plaintiff and that accordingly, Ms Burrows would need to submit a fresh application. Mr Griffiths went on to state the following:

Attached to Mr Griffiths’ email were a number of documents in relation to the assignment of grants to practitioners, one of which was headed “Criminal Law Panel Information Sheet”. Under the heading “Grants Allocation Policy in brief – Determining exceptional circumstances when assigning” that document stated the following:

The document went on to state (inter alia) the following:

Mr Griffiths concluded his email to Ms Burrows by stating the following:

On 29 September 2016 there was correspondence within the Commission between Mr Griffiths, a Ms Way (a solicitor in the Commission’s Commonwealth Crime Unit) and a Ms Whitehead (the Commission’s Director of Grants). That correspondence culminated in an email from Ms Whitehead to Mr Griffiths which was in the following terms:

What was meant by “a panel offer to the serious crime panel” is not explained in the evidence. Presumably it refers to offering an assignment of a grant of legal aid to one or more members of the Serious Panel.

On 5 October 2016 an unsigned letter was sent from the Commission’s Grants Division to the plaintiff in (inter alia) the following terms:

On 6 October 2016 Mr Griffiths wrote to Ms Burrows stating:

At this point it should be noted that at the commencement of the hearing, the parties identified what was then said to be a specific factual issue. Ms Burrows maintained (as she asserted in the correspondence set out at [20] below) that she had responded to Mr Griffiths’ earlier letter. Senior counsel for the Commission indicated to me at the commencement of the hearing that her clear instructions were that no such response had ever been received by the Commission. Ultimately, senior counsel for the plaintiff disavowed any reliance upon the proposition that there had been a failure on the part of the Commission to take into account matters raised in the correspondence which Ms Burrows maintains was sent. In those circumstances it is not necessary for me to the issue which was identified.

On 6 October 2016 Ms Burrows responded to Mr Griffiths stating (inter alia) as follows:

Later that same day, Ms Burrows again wrote to Mr Griffiths stating (inter alia) as follows:

On 10 October 2016 Ms Burrows wrote to Mr Grant, the Chief Executive Officer of the Commission, taking issue with the decision to assign the grant of legal aid to Ms Toomey. Ms Burrows advanced a number of reasons why, in her view, the matter should have been assigned to her. She stated (inter alia):

Having cited the provisions of ss. 12(f) and s. 49(1) of the Act Ms Burrows continued:

On 13 October 2016 Mr Doumit, the senior solicitor in the Grants Division of the Commission, wrote to Ms Burrows in response to her correspondence of 6 October 2016 and 10 October 2016. In doing so, he made reference to a number of provisions of the Act, as well as the Grants Allocation Guidelines (“the Guidelines”).

The opening paragraph of the Guidelines is in the following terms:

The provisions of the Guidelines include the following:

Paragraph 2 of the Guidelines deals with what are referred to as “Complex criminal law matters”. Under sub para (1), such matters are said to include (inter alia) all trials in this Court. It follows that the proceedings against the plaintiff constitute, for the purposes of the Guidelines, a “complex criminal law matter”. In respect of such matters the Guidelines go on to provide as follows:

The Guidelines assume that if a grant of legal aid to an accused in a complex criminal law matter is to be assigned it will, absent exceptional circumstances, be assigned to a member of the Serious Panel. In that regard Part C of the Guidelines, is in (inter alia) the following terms:

Having made reference to the Guidelines Mr Doumit said:

On 14 October 2016 Mr Corish of counsel, who has previously been retained by Ms Burrows to appear for the plaintiff and who has appeared in that capacity before me on numerous occasions, wrote to Mr Doumit in the following terms:

On about 21 October 2016 the plaintiff wrote to the Commission in the following terms:

On 25 October 2016 an unsigned letter was sent to the plaintiff from the Grants Division of the Commission in (inter alia) the following terms:

On 27 October 2016 Ms Burrows wrote to Mr Doumit enclosing a copy of the plaintiff’s letter referred to at [31] above. She again questioned the Commission’s decision to assign the grant of legal aid to Ms Toomey. Having canvassed a number of issues (some of which had been the subject of earlier correspondence) Ms Burrows concluded by stating:

Mr Doumit responded by email to Ms Burrows on 28 October 2016. He stated (inter alia):

At this stage it is necessary for me to note that on 1 November 2016 I heard and determined a notice of motion filed on behalf of several of the plaintiff’s co-accused seeking certain pre-trial orders. Those proceedings, being in the nature of a pre-trial application in the absence of the jury, were the subject of a non-publication order. I delivered an ex-tempore judgment on that day. That judgment was the subject of a separate non-publication order. Following the proceedings on that day, Ms Burrows again wrote to Mr Doumit. In doing so, she referred extensively to both the proceedings themselves, and the terms of my judgment. It is a matter of considerable concern that such references were made as they were in clear breach of the non-publication orders. Those parts of her correspondence aside, Ms Burrows’ correspondence to Mr Doumit following the proceedings on 1 November 2016 included the following:

On 1 November 2016 Mr Doumit wrote to Ms Burrows stating the following:

The Commission is constituted by s. 6 of the Act and is a statutory body representing the Crown. Division 2 of the Act sets out the functions of the Commission. Its principal function (pursuant to s. 10(1) of the Act) is to provide legal aid and other legal services.

Section 11 of the Act governs the provision of legal aid and is in the following terms:

Section 12 imposes duties on the Commission in respect of the provision of legal aid in the following terms:

I have previously set out (at [25]-[28] above) some of the relevant provisions of the Guidelines. The Commission has also published a document entitled “Panels information”. That document contains (inter alia) the following:

One of the panels created by the Commission is the Serious Panel. The Serious Panel is established pursuant to s. 50(1) of the Act which is in the following terms:

The amended summons sets out the following grounds upon which relief is sought:

Senior counsel for the plaintiff identified five separate decisions made by the Commission in respect of which judicial review was sought, namely:

Senior counsel for the plaintiff submitted that it was clear on the evidence that the plaintiff’s strong preference was that Ms Burrows continue to act for him as his solicitor, as she had been doing for approximately two years. It was submitted that the evidence established that Ms Burrows had already devoted a large amount of time to scrutinizing and analysing the evidence to be relied upon by the Crown and that a single circumstance, namely the fact that Ms Burrows was not a member of the Serious Panel, had dominated the thinking of the decision maker(s), to the effective exclusion of other, plainly relevant, factors.

Senior counsel submitted that the evidence established exceptional circumstances warranting the assignment of the grant to Ms Burrows. Such circumstances were said to include the fact that:

Senior counsel submitted that quite apart from their exceptional nature, these circumstances rendered the Commission’s decision to assign the grant to Ms Toomey so unreasonable that no reasonable decision maker could possibly have made it. It was submitted, in particular, that no decision maker could reasonably have concluded that assignment to a practitioner other than Ms Burrows was the most efficient, effective and economical way in which to provide legal aid to the plaintiff, given that Ms Burrows had acted for him for almost two years.

Senior counsel further submitted that there was a complete absence of any indication that the decision maker(s) had ever applied their respective minds to the interests of the plaintiff and, more specifically, to the question of whether or not his interests were best served by assigning the grant to a lawyer not of his choosing who, at least at present, was entirely unfamiliar with his case, as opposed to assigning it to a lawyer who had acted for him for a considerable period of time, who had gained his trust and confidence, and who had acquired a thorough knowledge of the evidence to be led against him. It was submitted that correspondence from the Commission reflected a failure on the part of the Commission to carefully and properly consider such matters, to the point where nothing more than “lip service” had been paid to them.

Senior counsel took particular issue with Mr Doumit’s conclusion that the period over which Ms Burrows had acted for the plaintiff in the current proceedings did not establish “an extensive history of representation”. Senior counsel submitted that such conclusion was so far removed from reality as to be unreasonable.

Finally, senior counsel described Mr Doumit’s conclusion that he was not satisfied that assignment of the grant to Ms Burrows would be the most effective, efficient and economical way of allocating legal aid as “staggering”. It was submitted that it was indicative of the inherently unreasonable nature of the decision which had been made.

Senior counsel for the Commission submitted that on a proper analysis, there were in two relevant decisions made, namely:

Senior counsel emphasised that the Act generally, and s. 11 in particular, reflected a clear intention on the part of the Parliament to confer a broad discretion in respect of the provision of legal aid. This, it was submitted, was a fundamental consideration in determining whether any error had been established.

To the extent that the plaintiff asserted that relevant matters had not been taken into account, senior counsel for the defendant submitted that merely because a decision maker did not specifically advert to a particular consideration did not, of itself, inevitably lead to a conclusion that such consideration had not been taken into account. It was submitted that on a proper analysis of the evidence, it was plain that all relevant information was before the decision maker in each case, and had been considered.

Senior counsel emphasised the high bar which was required to be overcome in order to establish that a decision was unreasonable in the sense for which the plaintiff contended. It was submitted that in circumstances where Ms Burrows was not a member of the Serious Panel, but Ms Toomey was, it was not only open to the Commission to conclude that the most appropriate course was to assign the matter to Ms Toomey, it was plainly reasonable to have done so.

In advancing these submissions senior counsel emphasised that it was not part of my function to engage in a review of the merits of the Commission’s decision. Senior counsel emphasised that the fact that a decision may be one about which minds differ does not lead to a conclusion that it is unreasonable. It was submitted that, leaving aside the allegations of unreasonableness, the submissions advanced on behalf of the plaintiff invited me to engage in an impermissible merits review.

Senior counsel further submitted that in making its determination, the Commission was bound to apply its own policies having regard to s. 12(f) of the Act. Such policies, it was submitted, were to be found in the provisions in the Guidelines relating to exceptional circumstances. It was submitted that in the present case, the Commission had clearly considered whether there were exceptional circumstances warranting the assignment of the grant to Ms Burrows, and had concluded that there were not. It was submitted that there was no room for a conclusion that the Commission’s decision to assign the matter to Ms Toomey was unreasonable, given that:

Before considering the individual grounds relied upon by the plaintiff, a number of preliminary observations should be made.

Firstly, the issues raised by the various grounds overlap to some extent, such that some matters raised in the submissions may be relevant to more than one ground. To the extent that grounds 1, 2 and 3 raise issues of unreasonableness, those issues have been considered in determining ground 4.

Secondly, although the parties were at issue in terms of the number of decisions of which review is sought, it seems to me that nothing turns on that question. Whatever view is taken of the matter, the decisions that the plaintiff seeks to impugn are those of 5 October 2016 (assigning the grant to a lawyer other than Ms Burrows) and 25 October 2016 (refusing the plaintiff’s request to vary that determination). I accept the submission of senior counsel for the plaintiff that the second of those decisions, being later in time, is the operative one.

Thirdly, in circumstances where the Parliament has conferred a broad discretion upon the Commission to (inter alia) provide legal aid, the role of this Court is to review the legal validity of any such decision. These are not appellate proceedings enabling a general review of the Commission’s determination or enabling a substitution, for that determination, of the order or decision which this Court thinks ought to have been made: Minister for Corrections NSW v Elomar (No 2) [2016] NSWSC 1040 at [4].

With those matters in mind I turn to consider the individual grounds upon which the plaintiff relies.

The provisions of the Act are set out above. Section 12 mandates that in respect of the provision of Legal Aid, the Commission shall (inter alia):

To the extent that this ground asserts that a grant of legal aid was made contrary to the mandatory requirement in s. 12(a), the plaintiff essentially relies on the same matters that are relied upon in support of his case that the decision of the Commission was unreasonable. I have considered those matters in the context of ground 4 below.

The provisions of para. (f) required the Commission to consider the matters in sub-paras. (i) – (iii). For present purposes, the focus is upon sub-paras (i) and (iii).

As to sub-para. (i), the correspondence between Ms Burrows and the Commission canvassed, at considerable length, matters which might be regarded as relevant to the issue of the plaintiff’s interests. Given the nature of that correspondence, it is inconceivable in my view that the relevant decision maker(s) within the Commission were not aware of what were said to be the plaintiff’s best interests, or that they failed to take those matters into account in deciding to assign the grant to Ms Toomey. True it is that there was no specific reference in any of the correspondence emanating from the Commission to the fact that any such issue had been considered. However, the effect of s. 11 is to confer a wide discretion upon the Commission to provide legal aid by such means as it may determine. That discretion falls to be exercised having regard to a range of considerations.

The mere fact that a decision maker does not make express reference to a particular matter or consideration does not lead to a conclusion that such matter or consideration has not been taken into account. The failure to specifically make reference to a matter in written reasons has been described as a “very unsure guide” in that regard: Gamble v Emerald Hill Electrical Pty Limited [2010] VSC 611 at [32] per Ross J and the authorities cited therein. Moreover not every consideration that a decision maker is required to take into account, but fails to take into account, will justify the impugned decision being set aside. There may, in a given case, be a factor which, although not taken into account, is so insignificant that the failure may not materially affect the ultimate decision: Minister for Aboriginal Affairs v Peko-Wallsend Limited (1986) 162 CLR 24; [1986] HCA 40 at 40 per Mason J (as his Honour then was).

In essence, the plaintiff’s assertion that the decision was made other than in accordance with s. 12(f)(i) of the Act was tantamount to the proposition that the interests of the plaintiff were such as to warrant the assignment being made to Ms Toomey. Such a proposition invites an impermissible merits review.

As to s. 12(f)(ii), the evidence establishes the plaintiff’s clear preference that Ms Burrows remain as his solicitor. Once again, that was a factor which was canvassed in correspondence, including the correspondence from the plaintiff himself. Mr Doumit was clearly aware of it. He expressly referred to it in his correspondence to Ms Burrows of 28 October 2016 (set out at [34] above). In doing so, he correctly pointed out that the fact that a person may express a preference for a particular solicitor does not mandate that the grant in question will be assigned to that solicitor: Legal Services Commission v Stephens (1981) 2 NSWLR 698. The matter remains one for the Commission, in the exercise of the discretion conferred upon it by the Act. In all of these circumstances there is, in my view, no room for the suggestion that the provisions of s. 12(f)(ii) were not given proper consideration.

It follows that subject to the question of unreasonableness which I have dealt with in the context of ground 4, ground 1 is not made out.

The relevant parts of paragraphs A and C of the Guidelines are set out at [26]-[28] above. Essentially, it was put on behalf of the plaintiff that the decision to assign the grant to Ms Toomey was made other than in accordance with the Guidelines because exceptional circumstances had been made out, warranting the assignment of the grant to Ms Burrows. Such a proposition again invites an impermissible merits review. It is not for me to determine, on an application for judicial review, whether in my view the relevant circumstances were exceptional.

For these reasons ground 2 is not made out.

To the extent that the matters relied upon in support of this ground touch upon the asserted unreasonableness of the decision, I have considered them in the context of ground 4.

The matter in (i) above was clearly a matter within the knowledge of the Commission. Reference was made to it in Ms Burrows’ correspondence of 10 October 2016 (at [22] above). For the reasons I have previously explained, the absence of any specific reference to that issue on the part of the Commission does not mean that it was not considered.

The issue arising from (ii) above has been dealt with in the context of ground 1 (at [67] above).

For these reasons, ground 3 is not made out.

The assertion of unreasonableness is the essence of the plaintiff’s complaint. Before considering the competing the positions of the parties in respect of this ground, it is necessary to make reference to a number of principles which are established by the authorities.

In Associated Provincial Picture Houses v Wednesbury Corporation [1948] 1 KB 223 Lord Greene MR said at 230:

Subsequent authorities have considered the meaning of the term “unreasonable” in the sense referred to by Lord Greene MR in that passage. For example, in Secretary of State for Education and Science v Tameside Metropolitan Borough Council [1977] AC 1014 Lord Diplock said (at 1064):

Subsequently in Bromley London Borough Council v Greater London Council [1983] 1 AC 768 Lord Diplock expanded upon the issue, describing (at 821) decisions falling into this general category as those decisions that:

Lord Diplock’s formulation was adopted by Wilcox J in Conyngham & Ors v Minister for Immigration and Ethnic Affairs (1986) 68 ALR 423 at 433–4. Subsequently, in Minister for Immigration and Citizenship v Li (2013) 249 CLR 332; [2013] HCA 13 the High Court concluded that a decision of the Migration Review Tribunal to refuse to adjourn review proceedings was unreasonable, to the extent that the Tribunal had exceeded its jurisdiction. The following propositions may be distilled from the judgment of the plurality (Hayne, Kiefel and Bell JJ):

With these principles in mind, I turn to consider ground 4.

In essence, it was submitted on behalf of the plaintiff that irrespective of the fact that Ms Burrows was not a member of the Serious Panel, and in light of the fact that she had:

In advancing this ground senior counsel for the plaintiff pointed to particular parts of the evidence which, it was submitted, were indicative of unreasonableness. These matters included

The matters relied upon by senior counsel for the plaintiff in these respects are not without some substance. Ms. Burrows is an obviously experienced legal practitioner who has acted for the plaintiff in relation to his current proceedings for almost two years. She has, in the course of so doing, acquired a knowledge of the matter that is not presently shared by Ms Toomey. Indeed, Ms Toomey has never even met the plaintiff. Those observations are not intended, in any way, as criticisms of Ms Toomey. They are simply the facts.

Mr Doumit’s observation in his correspondence of 28 October 2016 as to what might establish an extensive history of representation (for the purposes of determining whether there were special circumstances warranting the assignment of the grant to a practitioner who was not a member of the Serious Panel) is, at the very least, curious. On any view of the evidence, Ms Burrows’ representation of the plaintiff goes substantially beyond having acted for him on a duty basis or in committal proceedings. What Mr Doumit intended to convey by making reference to those matters is not at all clear.

Moreover, the assignment of the grant to Ms Toomey may well (and is seemingly likely to) involve, at least to some degree, a duplication of preparatory work already undertaken by Ms Burrows. The efficiency of that course may be open to question. Quite apart from issues of efficiency, and although I am not privy to the fee arrangements in place between the Commission and a practitioner who is the assignee of a grant of legal aid, it is not difficult to conceive that the assignment of the matter to a practitioner other than Ms Burrows may involve the unnecessary expenditure of public money, in favour of the practitioner to whom the matter is assigned, in respect of work already performed by Ms Burrows. On one view, it is difficult to reconcile all of these circumstances with Mr Doumit’s apparent conclusion that the assignment of the grant to Ms Toomey constitutes the “most effective, efficient and economical way of allocating legal aid resources”.

For these reasons, the matters relied upon by the plaintiff may be capable of supporting a conclusion that the decision to assign the grant to Ms Toomey is lacking in logic. However, that is not what I am required to determine on an application for judicial review. Want of logic is not synonymous with error of law. Even if an affirmative conclusion were reached that the decision is illogical, it would not, by virtue of that finding alone, be an unreasonable decision. As long as there is some basis for an inference or conclusion, or in other words if an inference or conclusion is reasonably open, there is no place for judicial review, even if the inference or conclusion appears to have been drawn as a result of illogical reasoning. This is because no error of law has taken place: Elomar (No. 2) (supra) at [93] – [94] and the authorities cited therein.

One of the matters which the Commission was entitled to (and obviously did) take into account in reaching its decision was that Ms Burrows is not a member of the Serious Panel. Whether, in all of the circumstances of this case, the plaintiff’s interests are best served by a practitioner who is a member of that Panel (as opposed to Ms Burrows) representing him may be something about which reasonable minds may differ. However, it is clearly open to the Commission for formulate, and act upon, its own policies: Stephens (supra) at 704-705 per Hope JA. In the context of the present case those policies are reflected in (inter alia) the Guidelines which, as I have noted, assume that in a matter such as this, any assignment will, absent exceptional circumstances, be made in favour of a member of the Serious Panel. It is not a matter for me to determine whether the circumstances of this case were exceptional in that sense. To do so would be to engage in an impermissible merits review. The Commission was entitled to have regard to the fact that a member of the Serious Panel is obviously an experienced practitioner who has demonstrated, to the satisfaction of the Commission, the requisite experience and expertise to act as the solicitor for an accused person in a matter of this nature. The weight to be attributed to that fact, and indeed to all other relevant factors, was a matter for the Commission, not the Court: Peko-Wallsend (supra) at 41 per Mason J (as his Honour then was). It was open to the Commission to conclude that in all of the circumstances, and notwithstanding the matters relied upon by senior counsel for the plaintiff, a member of the Serious Panel would best protect and represent the plaintiff’s interests.

It follows that I am unable to determine that the Commission’s decision to assign the matter to Ms Toomey was not one which was reasonably open to be made. It follows that I am not satisfied that the Commission’s decision was unreasonable in the sense described in the authorities.

It follows that ground 4 is not made out.

I make the following orders: