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APPENDIX 11 - DENIAL OF LEGAL AID: DECISION RE-AFFIRMED
LETTER FROM LEGAL AID AND FAMILY SERVICES, ATTORNEY-GENERAL'S
DEPARTMENT TO RENNICK BRIGGS, DATED 20 DECEMBER 1996
LEGAL AID AND FAMILY SERVICES
Your Ref: APQ/Sean Millard
20 December 1996
Rennick Briggs
Lawyers
DX 179 MELBOURNE
Dear Sirs
FINANCIAL ASSISTANCE: APQ v. COMMONWEALTH AND COMMONWEALTH
SERUM LABORATORIES
I refer to your letters of 23 September, 25 October and 18
November 1996 concerning your client's request for a review of a decision
to refuse financial assistance to her under the Commonwealth Public Interest
and Test Cases Scheme. This request is in relation to her claim in the
Supreme Court of Victoria against the Commonwealth and CSL for damages
for psychiatric injury arising out of alleged shock suffered by the applicant
when she was advised she was at risk of contracting Creutzfeldt Jacob
Disease (CJD) as a result of human pituitary hormone treatment for infertility.
Your client also appears to be seeking a reconsideration of
my decision as notified in my letter to you of 4 October 1996 affirming
the earlier decision to refuse assistance under the Special Circumstances
Scheme. I continue to hold the views expressed in that letter. I am enclosing
a copy of the letter for your information.
I have considered your submissions concerning the Commonwealth
Public Interest and Test Cases Scheme. In particular, I have considered
your comments regarding the legal status of the guidelines. However, I
do not consider that the decision of the High Court in Norbis v Norbis
assists your client. I note that, in that case, the High Court was
considering whether the alleged failure, by a Family Court judge at first
instance, to apply guidelines developed in respect of the application
of s.79 of the Family Law Act 1975 by decisions of the Family
Court in relation to the division of assets in a property settlement amounted
to an error of law. The High Court found that it did not, in that the
issues that arise under s.79 are such that there is little or no scope
for giving guidance in the form of binding rules of law which might unfairly
fetter judicial discretion. However, the High Court did consider there
may be some instances where failure by a court to observe such guidelines
may result in a finding that a judicial discretion has miscarried.
I also note that Justices Mason and Deane referred to the need for consistency
in judicial adjudication, which in their view provides an important countervailing
consideration supporting the giving of guidance by appellate courts, whether
in the form of principles or guidelines.
The application of the guidelines for the Commonwealth Public
Interest and Test Cases Scheme involve different considerations. These
guidelines take the form of directions approved by the Attorney-General
for the making of decisions authorising or refusing financial assistance
by his delegates. Some of those directions provide for exercises of discretion
but others, like the requirement that assistance may only be authorised
in cases arising under Commonwealth law, involve no discretion and are
clearly mandatory. While these directions, which relate to a nonstatutory
scheme of assistance established under the general appropriation for financial
assistance matters, may not be legally binding and may be relaxed where
it is expedient to do so in order to do justice in particular cases, they
may only be relaxed by the AttorneyGeneral and not by officers exercising
his delegated authority.
The recent decision of the Federal Court in BristolMyers
Squibb Pharmaceuticals and Ors v Minister for Human Services and Health
and Ors (No. NG 213 of 1994, date of decision 18 September 1996) does
not favour your submission. In that case the Court rejected the suggestion
that the possibility that a person might obtain assistance under a nonstatutory
scheme might give rise to a legitimate expectation and noted that `guidelines
are just that and no more' and that `Government policy may be administered
by Ministers to arrive at what they regard as appropriate decisions. The
individual Ministers are bound by Government decisions on funding'. Your
submission on this point must therefore fail.
I cannot accept your suggestion that the decision should have
been made while the guidelines for the Cases of National Importance
Scheme were still applicable and that these guidelines, which extended
eligibility to matters arising under Commonwealth law should therefore
still apply to your client's request. The estimated costs of the hearing
alone in this matter was well in excess of funds available for the purposes
of providing financial assistance and required consideration at an appropriate
level. It was not possible to make a decision during the period that these
guidelines were in operation and I cannot accept that the Commonwealth
is in any way obliged to apply the former guidelines on this basis.
I acknowledge that your client's claim may be a matter of
public importance. However, it is not a matter of public importance
as defined in the guidelines. I do not accept your claim that a `Commonwealth
ingredient' is all that is required by the guidelines. The guidelines
specifically require that cases in which assistance is sought must involve
questions arising under a law of the Commonwealth and are not satisfied
where the Commonwealth is simply a party to or has an interest in the
subject matter of a proceeding.
I note that your client is claimed to be suffering distress
after learning that she is at risk of contracting CJD. However, the Commonwealth
has provided compensation in all cases where CJD has developed and has
provided funding for counselling for all those who participated in the
hormone treatment programs.
I consider that the decisions to refuse assistance to your
client were correct and I do not propose to disturb them.
Yours faithfully
Margaret Browne
First Assistant Secretary
Legal Aid and Family Service
Encl. copy letter of 4 October 1996
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