Navigation: Previous Page | Index | Next Page
APPENDIX 9 - DENIAL OF LEGAL AID: RENNICK BRIGGS SEEKS
REVIEW
LETTER FROM RENNICK BRIGGS TO ATTORNEY-GENERAL'S DEPARTMENT,
DATED 23 SEPTEMBER 1996
23rd September 1996
Acting Assistant Secretary
Legal Aid Branch
Legal Aid & Family Services
AttorneyGeneral's Department
National Circuit
BARTON ACT 2600
Dear Sir,
APPLICATION BY APQ FOR LEGAL ASSISTANCE
We refer to the letter dated 28th August 1996 from Legal Aid
& Family Services Division, AttorneyGeneral's Department advising
that financial assistance had been declined under the Commonwealth Public
Interest Test Cases Scheme. We are still awaiting the review by the delegate
of the Minister of the decision declining assistance under the Special
Circumstances Scheme advised under cover of letter dated 25th January
1996.
The following submission is made regarding the applications
by APQ for Legal aid under both the Commonwealth Public Interest Test
Case Scheme and the Special Circumstances Scheme. We will deal with each
Scheme in the above order.
Test Case Scheme
This scheme is, as we understand it, a non statutory scheme,
and the application of funds under the Scheme rests on a discretion which
is unfettered by any mandatory considerations. Naturally guidelines have
been set down to assist in the exercise of the discretion, but they are
guidelines only and cannot, in law, be treated as though they are of inflexible
application. In this regard, Mason and Deane J.J. said, in Nobis v
Nobis (1988) 161 CLR 513 at 520, that:
The term `guidelines', though not commonly used in relation
to judicial discretions, is familiar enough in the bureaucratic and administrative
world, where it denotes rules or standards which are not binding and may
be relaxed when it is expedient to do so in order to do justice in the
particular case. Guidelines were what Lord Wright had in mind in Evans
v Bartlam when he said ([1937] AC 473 at 488):
`it is ....often convenient in practice to lay down, not rules
of law, but some general indications, to help the Court in exercising
the discretion....'
In the present case it appears clear that the guidelines have
been treated as being of inflexible application. See in this regard the
letter of 28th August 1996 from the Solicitor, Legal Aid Branch, which
states, (inter alia), that `This decision has been made because the claim
for damages by APQ is a common law action and such actions are not covered
under the guidelines of this scheme'. This is the wrong approach, and
one which the law does not allow.
The present case is one where aid should be granted, in order
to do justice in the particular case, for the following reasons:
(a) The present guidelines replace guidelines issued in
January 1996. The restriction presently relied on to reject the application
was not in the January guidelines. The application should have been
dealt with earlier that it was, and if so it would have come under the
earlier guidelines, and not have been rejected on the present basis.
In this regard, we note especially the terms of the letter of 21st December
1995 from the Minister for Justice to Mr. Peter Costello, then the Deputy
Leader of the Opposition;
(b) APQ's claim is a matter of public importance either
because it raises a matter in the public interest, or is in the nature
of a test case. The letters sent in support of the application show
that this is so;
(c) Naturally a case for approval under the Scheme requires
a Commonwealth ingredient, which is satisfied by the proceeding being
one in respect of action by the Commonwealth or by its agencies. That
the law which governs the matter is the common law is in our submission
irrelevant. Commonwealth public interest may arise just as much from
the application of the general law to the Commonwealth behaviour, as
by the application of Commonwealth law to Commonwealth behaviour;
(d) APQ's case is not an ordinary case. It is an especially
sad and tragic case. It is also one where she faces a litigant with
potentially unlimited resources. She ought to be able to prepare and
present her case properly and to its best advantage in order that its
success or failure depend on its merits, and not on her lack of financial
resources. The Commonwealth must surely take the same view.
Special Circumstances Scheme
All of what is said in respect of the Test Case Scheme decision
is applicable to the Special Circumstances Scheme decision as well. That
is, the guidelines are treated as rules, the special justice of the application
has not been considered, and the guidelines have been changed before the
decision (in this case by the deletion of paragraph (a)). It is submitted
that the Justice of the case, and its special circumstances, (which are
set out above) should be met by a grant of aid.
These are, in addition, the following two other matters. The
first is the reason given in the letter of 25th January 1996 for the refusal
of aid under the Scheme. The reason is that it is said that it cannot
be determined that `there are special circumstances which lead to the
conclusion that there is a moral obligation on the Commonwealth to make
payment' because `this involves, in effect, making a preliminary finding
on the very matters to be litigated'. This is a `catch 22' situation,
which cannot, for that reason, be correct. It is submitted that the reason
is based on an incorrect interpretation of the guideline. The `payment'
to which the guideline refers is a payment of legal costs, not a payment
of the sum claimed in this litigation. The reference to `payment of legal
costs...'' in the next paragraph of the guidelines makes this clear, as
do the other references to `financial assistance for legal costs...'.
The payment referred to is the payment which is sought in the application,
i.e. in the application for payment of legal costs. The subject of the
litigation is a quite different thing, and is referred to by the use of
the words 'the matter' in other paragraphs of the guidelines. Thus, for
example, guideline (b) refers to `the litigation in respect of which the
payment of aid for costs is sought'. A further reason for considering
that the word `payment' cannot refer to the subject of the litigation,
is because much litigation does not involve any payment, but concerns
things, and action or inaction by the Commonwealth. And further, on the
interpretation given, the guideline would clearly never be able to operate
at all, if a grant of aid depended on a decision as to the merits of the
dispute for which aid was sought.
The second point is that the guidelines themselves are clearly
invalid, on the grounds of Wednesbury unreasonableness. This is
because, as the guidelines are drawn, in order to qualify for aid the
litigation must be litigation which will fail, and it is irrational to
fund such litigation, or only such litigation. Thus guideline (b) on its
terms applies where legislation produces an unfair result. Such a result
can only be produced where the case fails because of the unfair terms
of the legislation, because otherwise there would be a fair result. Guideline
(c) applies where ameliorative legislation is contemplated, but surely
that means that the projected case would fail as well, because that legislation
is not yet passed, or does not yet apply. Guideline (d) (on the present
interpretation) suffers from the same vice, i.e. if the obligation to
pay was only moral, then there would be no legal entitlement. It cannot
be regarded as reasonable to restrict funding to litigation which can't
succeed, and not to fund cases which can. Consequently, the guidelines
for this scheme are invalid, and the application should be considered
without them, on the general justice of the case.
We await your reply.
Yours faithfully
RENNICK GAYNOR KIDDLE BRIGGS
Navigation: Previous Page | Index | Next Page