APPENDIX 11 - DENIAL OF LEGAL AID: DECISION RE-AFFIRMED

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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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