Supreme Court New South Wales Medium Neutral Citation: Donaghy t/as GJ Donaghy & Company Solicitors v Legal Aid Commission of NSW [2022] NSWSC 626 Hearing dates: 17 May 2022 Date of orders: 20 May 2022 Decision date: 20 May 2022 Jurisdiction: Common Law Before: Griffiths AJ Decision: (1) The amended summons is dismissed. (2) The plaintiff pay the defendant's costs of the proceedings, as agreed or assessed. Catchwords: ADMINISTRATIVE LAW – Whether statutory source for impugned decisions ADMINISTRATIVE LAW – Hearing rule – Notice ADMINISTRATIVE LAW – Ground of review other than procedural fairness – Irrationality and/or Legal Unreasonableness ADMINISTRATIVE LAW – Ground of review other than procedural fairness – Irrelevant and relevant considerations – Consideration bound to take into account ADMINISTRATIVE LAW – Ground of review other than procedural fairness – Improper purpose Legislation Cited: Justice Legislation Amendment Act (No 2) 2019 (NSW) Legal Aid Commission Act 1979 (NSW) Cases Cited: Amos v Western New South Wales Local Health District [2016] NSWSC 1162 Attorney-General (NSW) v Quin (1990) 170 CLR 1; [1990] HCA 21 Davis v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCAFC 213 De Bruyn v Victorian Institute of Forensic Mental Health (2016) 48 VR 647; [2016] VSC 111 Donaghy v Council of the Law Society of NSW (No 2) [2015] NSWCA 224 Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337; [2000] HCA 63 Hall v The University of New South Wales [2003] NSWSC 669 Hird v Chief Executive Officer of Australian Sports Anti-Doping Authority (2015) 227 FCR 95; [2015] FCAFC 7 Italiano v Carbone [2005] NSWCA 177 Jones v Dunkel (1959) 101 CLR 298; [1959] HCA 8 Karimbla Property (No 50) Pty Ltd v State of New South Wales [2015] NSWSC 778 Kassam v Hazzard [2021] NSWSC 1320 Khalid v Legal Aid Commission of NSW [2016] NSWSC 1640 Kioa v West (1985) 159 CLR 550; [1985] HCA 21 [2014] FCAFC 1 Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986) 162 CLR 24; [1986] HCA 40 Minister for Immigration and Multicultural Affairs v Eshetu (1999) 197 CLR 611; [1999] HCA 21 Minister for Immigration and Border Protection v Singh (2014) 231 FCR 437; Minister for Immigration and Border Protection v Stretton (2016) 237 FCR; [2016] FCAFC 11 Minister for Immigration and Border Protection v SZSSJ (2016) 259 CR 180; [2016] HCA 29 Minister for Immigration and Border Protection v SZVFW (2018) 264 CLR 541; [2018] HCA 30 Minister for Immigration and Citizenship v Li (2013) 249 CLR 332; [2013] HCA 18 Minister for Immigration and Citizenship v SZMDS (2010) 240 CLR 611; [2010] HCA 16 Muswellbrook Shire Council v Hunter Valley Energy Coal Pty Ltd [2019] NSWCA 216 National Home Doctor Service Pty Ltd v Director of Professional Services [2020] FCA 386 Plaintiff M1/2021 v Minister for Home Affairs [2022] HCA 17 Plaintiff M61/2010E v Commonwealth (2010) 243 CLR 319; [2010] HCA 41 Plaintiff M64/2015 v Minister for Immigration and Border Protection (2015) 258 CLR 173; [2015] HCA 50 Re Minister for Immigration and Multicultural Affairs; Ex parte Applicant S20/2002 [2003] HCA 30; (2003) 198 ALR 59 State of Victoria v Master Builders' Association of Victoria [1995] VR 121 Texts Cited: NA Category: Principal judgment Parties: Geoffrey James Donaghy (Plaintiff) Legal Aid Commission of New South Wales (Defendant) Representation: Counsel: D Birch (Defendant) Solicitors: Plaintiff (Self Represented) Crown Solicitor's Office NSW (Defendant) File Number(s): 2021/00212885-1 Publication restriction: Nil Judgment 1. By an amended summons filed on 17 November 2021, the plaintiff (Mr Donaghy) seeks judicial review relief in respect of certain actions taken by the defendant in declining to appoint Mr Donaghy's law firm to several Legal Aid panels. In brief, Mr Donaghy alleges that the actions are invalid for want of procedural fairness and/or irrationality/unreasonableness and/or failure to take into account relevant considerations and/or improper purpose. The amended summons appears to raise more heads of judicial review than what Mr Donaghy told Johnson J in an interlocutory hearing, where he described his challenge as relying on procedural unfairness. 2. For the following reasons the amended summons will be dismissed, with costs. Background facts summarised 1. Mr Donaghy relied on two affidavits, filed on 6 August 2021 (which is the composite of two affidavits dated and filed on 3 August 2021 and which contains an annexure) and 18 October 2021 respectively. The defendant (LAC) relied on two affidavits affirmed by Ms Danielle Roth and filed on 22 November 2021 and 22 December 2021 respectively. Ms Roth is a Senior Solicitor employed in the LAC in the Private Lawyer Quality Standards (PLQS) Unit, a position she has held since October 2020. 2. Ms Roth described amendments to the Legal Aid Commission Act 1979 (NSW) (LAC Act) which came into effect on 27 July 2020. Rather than assign legal aid matters to private legal practitioners as occurred previously, the amendments require matters to be assigned to law practices. Ms Roth described how in late 2020 the LAC invited members of the existing Legal Aid panels to apply for membership of the revised panels. This new scheme commenced on 1 February 2021. Ms Roth also described how, immediately prior to 1 February 2021, Mr Donaghy was a member of the Summary Criminal Law Panel and the General Family Law Panels under the previous scheme and that he had also been a member of other panels under that previous scheme. 3. On or about 14 December 2020, Mr Donaghy lodged an application seeking to be appointed to some of the revised panels. 4. There is a lengthy history both predating that application and relating to its consideration and determination by the LAC. That history may be summarised as follows. 5. As noted above, Mr Donaghy was a member of at least two panels under the previous scheme. The evidence discloses, however, that the LAC had concerns at various times as to Mr Donaghy's capacity to conduct legal aid work. For example, on 11 November 2015, the LAC decided not to reappoint Mr Donaghy to the General Criminal Law Panel having regard to the Court of Appeal decision in Donaghy v Council of the Law Society of NSW (No 2) [2015] NSWCA 224 with particular reference to [97]­-[104]. 6. On 6 November 2019, the LAC decided not to reappoint Mr Donaghy to the Care and Protection Panel on the basis that he had not demonstrated that he had provided prompt, reliable and professional service in the conduct of legal aid matters. Criticisms which Mr Donaghy had made of the Department of Family and Community Services were also taken into account. 7. On 16 March 2020, Mr Donaghy was advised by the LAC that it was considering suspending his membership of the Summary Criminal Law Panel and General Family Law Panels pursuant to s 51(5) of the LAC Act as then in force. This arose from Mr Donaghy's plea of guilty to a high range drink driving offence on 11 February 2020 and several client complaints that he had not attended listed court dates and had failed to communicate appropriately with those clients. 8. Following material provided by Mr Donaghy in response to the LAC's concerns, the LAC told him on 6 April 2020 that it had deferred its decision to suspend or remove him from the Panels for three months (ie until 7 July 2020), but that no further legal aid work would be assigned to him during that period. He was also asked to provide a report from his treating psychologist addressing his capacity to return to full time legal practice. Not without some delay on Mr Donaghy's part, he ultimately provided on 11 May 2020 a medical certificate from his General Practitioner regarding his capacity to retain his existing matters. 9. The LAC then told him in an email dated 12 May 2020 that it had reconsidered its decision to transfer his legal aid matters but added that it needed an updated medical certificate and progress report from Mr Donaghy's counsellor by 5 July 2020 prior to the LAC reaching a final decision on his suspension. 10. On 5 June 2020, the LAC told Mr Donaghy that it had received a further complaint in relation to his conduct representing a client (whom I shall refer to as "K") and that it intended to take this into account in considering the deferred suspension decision. On 19 June 2020, Mr Donaghy responded to that further complaint regarding K. On 23 June 2020, the LAC confirmed that Mr Donaghy's failure to report the breakdown of his relationship with K remained a matter to be taken into account. 11. It was not until 10 July 2020 (and after the LAC had written to Mr Donaghy on 6 July 2020 noting that he had failed to provide a progress report and an updated medical certificate by 5 July 2020) that Mr Donaghy provided some requested documents. 12. On 16 July 2020, Mr Donaghy was told that the LAC had decided not to remove him from the relevant Panels and had instead determined to make his membership conditional for a period of six months, including by placing a cap on the number of legal aid matters in his practice. He was told that his panel membership would be reviewed on 16 January 2021 and that the condition would be lifted if he was not subject to any further complaints and/or did not fail audits during that period. 13. On 6 November 2020, Mr Donaghy was told that the LAC would conduct an audit of some of his assigned legal aid matters.He was asked to have ten selected files relating to nine legally aided clients ready for collection by 7 December 2020. 14. There was an exchange of correspondence between the LAC and Mr Donaghy during November and December 2020 regarding the renewal of his practising certificate by the Law Society having regard to his conviction and sentence for the high range drink driving offence earlier that year. His renewed practising certificate had a condition requiring him to give an undertaking to the Law Society that he would provide copies of medical reports concerning his capacity to practise. 15. Mr Donaghy was granted an extension of time to provide the selected files for the purpose of the audit. On 14 December 2020, the LAC informed Mr Donaghy that no information had been provided in response to its enquiries regarding the condition on his practising certificate. He was told that the LAC had decided to suspend him from the relevant Panels. On the same day, Mr Donaghy provided the requested material and also complained about the volume of requests for information he had been required to deal with over the previous six months. 16. On 15 December 2020, Mr Donaghy was told that the LAC was now satisfied that his Panel membership could be reactivated, conditional upon him continuing to provide to the LAC relevant medical reports required pursuant to his undertaking to the Law Society. 17. Against that early background, it is now desirable to summarise relevant matters concerning Mr Donaghy's December 2020 application for membership of certain panels under the new regime and the LAC's consideration and determination of that application. Mr Donaghy's application for membership of Legal Aid Panels 1. On or about 14 December 2020, after receiving an invitation from the LAC to apply to join the new panel regime which was due to commence on 1 February 2021, Mr Donaghy lodged a pro forma application for membership of the following panels: the Summary Crime, Indictable Crime, Child Crime, Family Law, Care & Protection, Domestic Violence and Mental Health Panels. 2. By a letter dated 14 January 2021 (which was in fact sent on 13 January 2021, as confirmed by Ms Roth's affidavit filed on 22 December 2021 at [57] and Mr Donaghy's email dated 13 January 2021 referring to this letter), Mr Donaghy was told that the LAC had formed the preliminary view that he should be reappointed to the Family Law and Summary Criminal Law Panels only. He was told that the reasons for this decision were as follows: The current undertaking on your practicing certificate requiring you to comply with medical treatment and submit reports every six months addressing your fitness to practice; The criminal convictions disclosed in your application; Your non appointment to the Care & Protection (Adult) Panel in 2019; The substantiated complaints against you in 2019 and 2020 and the subsequent suspension from the General Family Law and Summary Crime panels; your further suspension from Legal Aid NSW panels in December 2020 for failure to respond to our request for information; the current cap on your legal aid matters to 30; your files are currently the subject of a quality audit. 1. This letter also invited Mr Donaghy to consider withdrawing his panel application in relation to the five other panels to which he sought appointment. It was explained that if he did not do so, the effect of a formal refusal of his application would be to prevent him from applying again within a six-month period. By an email dated 13 January 2021, Mr Donaghy declined to withdraw his application in respect of the five other panels. 2. There were logistical difficulties during December 2020 and January 2021 in collecting the requested audit files. These difficulties were not all Mr Donaghy's responsibility. By a letter dated 21 January 2021, the LAC wrote to Mr Donaghy describing some of the difficulties it had experienced in obtaining the files. The letter also referred to an earlier letter dated 19 January 2021 from the LAC (which apparently was not received by Mr Donaghy until March 2021) in which he was advised that the LAC would not be determining his panel application until the file audit had been completed. He was asked to deliver the audit files by close of business on 29 January 2021 and was told that failure to co-operate with the audit process could result in the refusal of his panel application. 3. The requested files were ultimately received by the LAC around 2 February 2021. 4. By an email dated 19 March 2021, Mr Donaghy was advised by the LAC that the audit had not been completed and that his panel application was deferred pending the outcome of the audit. A copy of the LAC's 19 January 2021 letter was attached to that email. On 19 March 2021, Mr Donaghy complained in an email to the LAC that he had not previously received its letter dated 19 January 2021. He also raised an allegation of bias. 5. By a letter dated 23 March 2021, the LAC advised Mr Donaghy that he had previously been informed by the letter dated 16 July 2020 that a decision to suspend or remove his panel membership had been deferred for six months and that any audit would be taken into account in reaching a determination. He was also told that previous panel memberships were automatically deactivated when the new regime commenced on 1 February 2021. 6. On 30 March 2021, Mr Donaghy complained that there had been a grant of legal aid to another legal practitioner in respect of one of his clients and that he had been the "subject of a systematic campaign and bullying and harassment by the Professional Standards Section of [the LAC] for a period now of in excess of two years". 7. On 15 April 2021, Mr Donaghy further complained that the delay in finalising the audit was a further example of the LAC's "bullying conduct" and he threatened to commence proceedings in this Court. 8. Also on 15 April 2021, the LAC sent Mr Donaghy an apology for the delay and told him that it intended to contact him by 23 April 2021 concerning the audit outcome. 9. The parties exchanged further correspondence during the period 16 April and 4 May 2021 (in circumstances where the audit was not finalised by 23 April 2021). The correspondence included copies of the LAC's previous letters dated 16 March 2020, 5 June 2020, 23 June 2020 and 11 November 2020 regarding complaints against Mr Donaghy, his criminal conviction and the condition on his practising certificate. 10. On 12 May 2021, Mr Donaghy wrote to the LAC and requested that the audit report be provided to him. 11. It is desirable to set out the relevant parts of the letter dated 14 May 2021 sent by the LAC's Deputy CEO (Ms Hitter) to Mr Donaghy (emphasis added): I refer to your application for the Private Lawyer Panels, received 14 December 2020. Consideration of that application was deferred pending the outcome of a Quality Audit that was conducted on your files. By way of background, in 2020, the Private Lawyer Quality Standards Unit conducted an investigation into three independent complaints about your conduct in legally aided matters. On 16 July 2020, you were advised that a decision was made to allow you to remain on the NSW Legal Aid Panels, conditional on a limit of 30 legal aid matters in your practice. You were advised that your panel membership would be reviewed in January 2021, on the basis of any further complaints or adverse audit outcomes. The recent audit was conducted as a result of that decision. That audit took longer than anticipated and I apologise for the delay. The files were carefully considered by Senior Solicitors in the Family Law Division who found them to be non-compliant with the Legal Aid NSW Quality Standards. I attach a copy of the Audit Outcome Report. You have the opportunity to respond to the Audit Outcome Report. I understand your files have been returned to you. The key areas of concern were the lack of evidence on file of client correspondence, and the absence of consistent and complete file notes setting out client instructions or advice given. I am concerned that the totality of material before me indicates that you are not able to meet the standard required of Legal Aid NSW panel practitioners in accordance with the Panel Service Agreement and Quality Standards. This material includes judgments in previous disciplinary matters, the investigated complaints, your criminal conviction and practicing certificate conditions. In making a determination of the panel application of GJ Donaghy & Co, I will take into account your response to the outcome of the audit, as well as any further matters of relevance you raise. Please provide your response within 2 weeks, by 27 May 2021. If you require further time to respond please contact the Private Lawyer Quality Standards Unit. If your response is not received by then, the panel application will be determined on the basis of the information at hand. 1. The LAC acknowledges that, notwithstanding the contents of that letter, a copy of the Audit Outcome Report was not attached to the covering email. Mr Donaghy raised this omission with the LAC on 17 May 2021. He described the omission as further bullying behaviour. 2. On 17 May 2021, Mr Donaghy was provided by email with a copy of the Audit Outcome Report. 3. By a letter dated 17 May 2021, Mr Donaghy wrote to the LAC and stated that he would not respond to the Audit Outcome Report, which he said had been prepared by "anonymous persons" and was undated and unsigned. He repeated his complaints of bullying and asked Ms Hitter to recuse herself on the basis of apprehended bias. 4. Ms Hitter informed Mr Donaghy on 27 May 2021 that she would not recuse herself and that Mr Donaghy's matters would be reassigned to other practitioners if he was not reappointed to the relevant panels. Mr Donaghy was also given a further opportunity to provide any response to the Audit Outcome Report and any other submissions he wished to make up until 2 June 2021. 5. No response or other submissions were provided by Mr Donaghy. On 11 June 2021, he was informed by a letter from Ms Hitter that his panel application was refused and that steps would be taken to reassign the matters presently assigned to him. Ms Hitter said in her 11 June 2021 letter that her decision to refuse Mr Donaghy's panel application was for the reasons set out in her letter dated 14 May 2021 (see [32] above). He was also advised by Ms Hitter that he would not be permitted to reapply for the panels for a period of 3 years and there was no right of internal review of the decision. 6. By a letter dated 30 June 2021, Mr Donaghy complained to the CEO of the LAC (Mr Thomas) about various matters relating to the refusal of his panel application, noting that: * he had been refused reappointment to the panels as at mid-June 2021; * he was not advised that he would not be transferred to the new panel regime until the end of February 2021; * he was not advised his matters would be transferred until his panel application was refused; and * the manner in which his clients were informed of the transfer was insensitive and unprofessional. 1. Mr Donaghy asked Mr Thomas to reconsider the transfer of one of his clients, whom he described as "a vulnerable client" and to permit that client to retain Mr Donaghy's legal representation of him. 2. Mr Thomas responded to these matters in a letter dated 16 July 2021, which noted that: * Mr Donaghy had been advised that he would not be transferred to the new panel system by letters dated 19 and 21 January 2021 respectively; * Mr Donaghy had been advised by at least 27 May 2021 that his matters would be transferred if his panel application was refused; * his clients should have been personally contacted in relation to the transfer of those matters and that steps would now be taken to redress that error; and * the decision to refuse his panel application also constituted a decision that no LAC files could remain with him and he had failed to provide any submissions when that was made clear to him on 27 May 2021. 1. The CEO's letter concluded with the following paragraph: I trust this addresses the issues you have raised. I am confident that the process undertaken by PLQS Unit was appropriate and afforded you procedural fairness. I have determined that the decision to refuse your panel application and reassign the matters in your practice was correct, and Legal Aid NSW deems the matter concluded. 1. Mr Donaghy commenced the present proceedings on 26 July 2021. Relevant legislative provisions 1. The LAC is constituted by s 6 of the LAC Act and is a statutory body representing the Crown: s 6(3). 2. Division 2 of the LAC Act sets out the functions of the LAC. Its principal function (pursuant to s 10(1) of the Act) is to provide legal aid and other legal services. 3. Sub-section 10(2) sets out various things which the LAC may do in the exercise of its principal function. 4. Sub-section 10(4) provides: The Commission may do all such supplemental, incidental and consequential acts as may be necessary or expedient for the exercise of its functions. 1. Section 11 deals with the provision of legal aid and relevantly provides: 11 Provision of legal aid (1) Legal aid may be provided by the Commission by such means as it may determine, including any one or more of the following means— (a) by arranging for the services of law practices to be made available, wholly or partly at the expense of the Commission, 1. Part 3 is headed "Provision of legal aid". Part 3, Div 1 is titled "General" and deals with matters including the provision of legal aid and the mechanism by which a person makes an application for legal aid. 2. Prior to the amendments which commenced in mid-2020, Pt 3, Div 2 was titled "Assignment of work through panels of private legal practitioners" and provided for a detailed regime by which the LAC was to assign work. In particular, ss 50 to 52 relevantly provided (emphasis added): 50 Panels of private legal practitioners (1) The Commission may establish panels of suitably qualified and experienced legal practitioners in private practice who have notified the Commission that they are willing to act as legal practitioners for legally assisted persons. … 51 Application for appointment to panel (1) A legal practitioner in private practice may apply to the Commission for appointment to one or more panels. (2) The Commission is to establish a selection committee under this Act, comprising a nominee of the Law Society, a nominee of the Bar Association and such other persons as may be appointed by the Commission. (3) All matters relating to the membership and procedure of a selection committee are to be determined by the Commission after consultation with the Law Society and the Bar Association. (4) An application is to be assessed by the selection committee which, after its assessment is made, is to recommend to the Commission whether, in its opinion, the applicant is a suitable person to be appointed to the panel or panels for which the person has applied. (5) The Commission may not— (a) refuse to appoint a legal practitioner to a panel for which the legal practitioner has made application, or (b) suspend or remove a legal practitioner from a panel, otherwise than at the legal practitioner's request, unless the Commission has given written notice to the legal practitioner of its reasons and has given the legal practitioner a reasonable opportunity to be heard in relation to the proposed refusal or removal. … 52 Conditions applying to members of panels (1) The appointment of a legal practitioner to a panel is for 2 years (or such other term as may be specified by the regulations), unless the legal practitioner is sooner removed from the panel at his or her request or in accordance with this Division. (2) A legal practitioner in private practice may re-apply under section 51 for appointment to a panel. (3) Before work may be assigned to a legal practitioner who is appointed to a panel, the practitioner must enter into a service provision agreement with the Commission. … (5) Appointment to a panel does not confer an entitlement to work. 1. Prior to the Justice Legislation Amendment Act (No 2) 2019 (NSW) (Amending Act) commencing operation, s 12(f) of the LAC Act provided: 12 Duties to be observed in the provision of legal aid In respect of the provision of legal aid, the Commission shall— … (f) ensure, if work is assigned to a private legal practitioner, that the assignment is made in accordance with principles determined from time to time by the Commission and after consideration of the following: (i) the interests of the legally assisted person, (ii) any choice expressed by the legally assisted person for a particular private legal practitioner, (iii) the fair and reasonable distribution of work among private legal practitioners who are appointed to the relevant panel under Division 2 of Part 3, and that the principles so determined by the Commission are publicly notified or available on request, 1. As noted above, relevant provisions of the Amending Act commenced on 27 July 2020. Those provisions entirely repealed the previous Pt 3, Div 2 and replaced those provisions with a new Pt 3, Div 2 titled "Assignment of work to law practices", which comprises only ss 49 and 50. Those amendments enable the LAC to engage law practices (which include sole practitioners and law firms) for the provision of legal aid, instead of engaging private legal practitioners. The amendments also remove the express statutory requirement that the LAC establish panels in order to engage law practices. 2. The second reading speech for the Amending Act explained these amendments as follows: "Schedule 1.15 to the bill will amend the Legal Aid Commission Act 1979 to provide greater flexibility for Legal Aid NSW in determining the basis upon which it retains law firms and practitioners to act on grants of legal aid. The amendments will also allow Legal Aid NSW a greater level of scrutiny over the quality of work done by private practitioners acting on grants of aid." (Hansard, Legislative Council, 23 October 2019, p93). 1. Section 49 now relevantly provides: 49 Assignment of work (1) The Commission is to determine the procedure for engaging law practices for the provision of legal aid, which may relate to, without limitation— (a) the eligibility criteria of law practices, or (b) the matters for which a law practice may be engaged, which may include (but are not limited to)— (i) matters generally, or matters of a particular type or class, or (ii) matters in a specified jurisdiction, or (iii) matters in a specified area of the State, or (c) the manner in which work is to be distributed to law practices, having regard to the interests of the legally assisted person or any choice expressed by the legally assisted person for a particular law practice. … (3) A law practice that has been engaged by the Commission for the provision of legal aid does not have an entitlement to be given work. 1. The current version of s 49 merely provides that the LAC is to determine its own procedure for engaging law practices and for distributing work to them. It no longer requires the LAC to employ a panel system, but it can do so in its discretion (as is currently the position). The LAC Act no longer provides for an express entitlement for legal practitioners to apply to the LAC for appointment to a panel (cf former s 51(1)). Nor does it confer on the LAC an express power to assess and determine a person's application to be a member of a Legal Aid panel. It might also be noted that the express provision in s 51(5) concerning procedural fairness was omitted. 2. The Amending Act also replaced s 12(f) of the LAC Act, which now provides: 12 Duties to be observed in the provision of legal aid In respect of the provision of legal aid, the Commission shall— … (f) ensure, if work is assigned to a law practice, that the assignment is made in accordance with procedures determined from time to time by the Commission in accordance with Division 2 of Part 3, 1. That obligation is contingent on work being assigned to a law practice. It does not deal with the manner in which the LAC determines to appoint applicants to panels. Mr Donaghy's submissions summarised 1. Mr Donaghy represented himself. He provided a written outline of his written submissions and also made lengthy oral submissions in support of his judicial review challenge. His submissions may be summarised as follows. 2. First, Mr Donaghy described the challenged decision as the LAC's decision dated 16 July 2021 in which he was informed that Mr Thomas considered that he had been afforded procedural fairness and that the decisions to refuse his panel application and reassign his legal aid matters to other practitioners were correctly made. In oral submissions, he clarified that he did not intend to exclude from his judicial review challenge earlier LAC decisions, including Mr Hitter's decision dated 11 June 2021 and her earlier correspondence on 14 May 2021. He submitted that these matters, all taken together, constituted the "process" undertaken by the LAC which he now challenged. 3. Secondly, in support of his submission that the LAC's impugned conduct had a statutory source, Mr Donaghy submitted that ss 11(1), 12(f) and 49 of the LAC Act were the relevant statutory provisions. 4. Thirdly, in support of his complaint of procedural unfairness, Mr Donaghy contended that: 1. he was misleadingly informed by the LAC's 14 May 2021 letter that the adverse "case against [him] was the audit outcome and other general matters"; 2. in her affidavit dated 22 November 2021, Ms Roth deposed that in 2020 the LAC had consulted with "Ms Sexton, Senior Solicitor at our Lismore Office and Hugh Van Dugteren Solicitor in Charge at our Lismore Office" on issues relating to Mr Donaghy and that both those persons "expressed serious concerns about Mr Donaghy's concern to act for vulnerable clients and the reputational damage that he may be causing to Legal Aid NSW"; 3. this evidence: 1. left unclear the precise time in 2020 being referred to; and 2. no particulars were provided as to who spoke to Ms Sexton and Mr Van Dugteren. 1. Fourthly, Mr Donaghy submitted that the LAC's claim that he had failed to co-operate in providing the audit files was factually baseless and demonstrated unreasonableness as well as procedural unfairness. 2. Fifthly, he contended that the LAC acted arbitrarily and capriciously in deciding to terminate his panel membership as of 1 February 2022, even though the audit was not completed. 3. Sixthly, he contended that the procedural unfairness was highlighted by the fact that the relevant LAC officers against whom he complained were all legal practitioners and ought to have understood and complied with their procedural fairness obligations. 4. Finally, Mr Donaghy urged the Court to take into account the fact that neither Mr Thomas nor Ms Hitter had been called to give evidence for the LAC, which denied him the opportunity to cross-examine them. 5. As to Mr Donaghy's complaint of irrationality and/or unreasonableness, he made the following contentions in his outline of written submissions (without alteration): (a) The plaintiff submits under this category that the Defendants conduct which resulted in the Decision of the 16th of July 2021 was so infected by irrationality that it cannot be said that the Decision was reasonable. (b) The Defendant having relied upon four (4) distinct categories of complaints against the Defendant, namely "Previous disciplinary action; 2 Previous refused Panel application; 3 Non cooperation with Legal Aid NSW; 4 Outcome of the quality audit conducted by inhouse family law division (c) The defendant then recommended that the conclusion of these submissions" A letter be sent giving him one month to respond to the non-compliant audit outcome and provide submissions in relation to the intention to refuse his panel applications. (d) This letter was irrational and misleading in that the defendant was clearly intending to rely upon several other grounds of complaint however told the Plaintiff that the main area of concern was the non-complaint (sic) audit outcome. (e) It is submitted that the process of fact finding by the Defendant in reaching the Decision was so irrational and unreasonable as to amount to an excess of jurisdiction such that the Defendant was acting ultra vires. 1. In support of his case, Mr Donaghy also relied upon a Notice to Produce dated 3 August 2021, in which he had sought production of various LAC materials, including materials relating to the audit and other internal correspondence relating to some of his previous dealings with the LAC and some of its officers. The LAC resisted the Notice to Produce on the ground of relevance. On 26 November 2021, Johnson J set aside the Notice to Produce on that basis. Despite that ruling, Mr Donaghy submitted that the LAC's refusal to provide him with the materials he had sought in the Notice to Produce supported his claims of irrationality/unreasonableness because the LAC now sought to rely upon some of those materials in defending the present proceeding. The LAC's submissions summarised 1. To avoid adding unnecessarily to the length of these reasons for judgment, I will summarise and address the salient points raised by the LAC in its written and oral submissions in the next section. Consideration and Determination 1. As the LAC pointed out, Mr Thomas' decision dated 16 July 2021, which Mr Donaghy identifies as the focus of his judicial review challenge, was a letter sent by the CEO in response to Mr Donaghy's letter dated 30 June 2021. The decision to refuse Mr Donaghy's panel application had been made well prior to 16 July 2021. The 16 July 2021 letter confirmed that the decision to refuse Mr Donaghy's panel application had been made by Ms Hitter on 11 June 2021. 2. Despite this matter having been drawn to his attention, Mr Donaghy did not seek to amend his amended summons. He persisted in challenging the "decision" recorded in the 16 July 2021 letter. As noted above, however, Mr Donaghy clarified in his oral submissions that his judicial review challenge was directed to the process leading up to and including the 16 July 2021 letter. 3. However the matter is approached, it is plain that the critical decision which was made as part of that process was Ms Hitter's decision dated 11 June 2021. This decision was to the effect that Mr Donaghy's panel application had been refused and there would be a reassignment of his existing legal aid matters. As noted above, he was told that this was for the reasons set out in Ms Hitter's earlier letter dated 14 May 2021. 4. I shall explain why Mr Donaghy's judicial review complaints, for which he carries the onus, have not been established. Before doing so, it is desirable to say something about a threshold issue raised by the LAC, namely the amenability of the LAC's conduct to judicial review. 5. The LAC's primary submission was that its conduct relating to and including the matters recorded in both the 11 June 2021 and 16 July 2021 letters was not the subject of any express statutory power and was therefore not susceptible to judicial review. It emphasised the significance of the amendments made by the Amending Act. The LAC contended that there is no longer a legal requirement for it to use a panel system, nor any express entitlement for legal practitioners to apply for appointment to a panel (in contrast with the former s 51(1)). Nor is there any longer an express power to assess and determine a person's application to join a panel. With reference to the present form of s 12(f) and the requirement that any work assigned to a law practice must be made in accordance with procedures from time to time determined by the LAC in accordance with Pt 3 Div 2 of the LAC Act, the LAC submitted that this requirement does not deal with the manner in which it determines to appoint applicants to any panels. 6. The question whether there is a statutory source for the LAC's decision to refuse Mr Donaghy's panel application is difficult and contestable. In particular: 1. In considering the effect of the Amending Act on the question of whether the LAC now exercises a statutory decision-making power when appointing law practices to panels, there is need to assess the appropriate weight to the potential relevance of statutory provisions such as s 10(4) (see [46] above) of the LAC Act. This sub-section provides that in exercising its principal function of providing legal aid and other legal services in accordance with the LAC Act, the LAC "may do all such supplemental, incidental and consequential acts as may be necessary or expedient for the exercise of its functions". On the relevance of such provisions, see, for example, Hird v Chief Executive Officer of Australian Sports Anti-Doping Authority (2015) 227 FCR 95; [2015] FCAFC 7 at [210] and De Bruyn v Victorian Institute of Forensic Mental Health (2016) 48 VR 647; [2016] VSC 111 at [86]. Another potentially relevant provision is s 11(1)(a) (see [47] above), which states that the LAC may provide legal aid by such means as it may determine, including by arranging for the services of law practices to be made available at the LAC's expense. 2. Assuming for the moment that the LAC is correct in contending that the decision did not have a statutory source, that does not necessarily mean that the heads of judicial review relating to procedural unfairness and irrationality/unreasonableness are not available (see, for example, State of Victoria v Master Builders' Association of Victoria [1995] 2 VR 121; Hall v The University of New South Wales [2003] NSWSC 669 at [114]; Karimbla Property (No 50) Pty Ltd v State of New South Wales [2015] NSWSC 778 at [72]; Amos v Western New South Wales Local Health District [2016] NSWSC 1162 at [93]-[97] and Davis v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCAFC 213). In some circumstances decisions made pursuant to a non-statutory power may be amenable to judicial review under either of those heads. 3. Even if the impugned decision does not have a direct statutory source, some account may need to be taken of the fact that the relevant conduct has occurred within the context of a broad statutory framework (see, for example, Plaintiff M61/2010E v Commonwealth (2010) 243 CLR 319; [2010] HCA 41 and Minister for Immigration and Border Protection v SZSSJ (2016) 259 CLR 180; [2016] HCA 29). This is particularly so where the impugned decision has the capacity adversely to affect a person's rights or interests. 4. Finally, and perhaps most significantly, the threshold question need not be resolved in this proceeding because, for reasons which I will now provide, Mr Donaghy has failed to make good his claims that the LAC's conduct was affected by any jurisdictional error. (a) No procedural unfairness 1. Ms Hitter's letter of 14 May 2021 (see [32] above) put Mr Donaghy on notice of the matters which the LAC was proposing to consider, namely: 1. the conclusions of the Audit Outcome Report; 2. the judgments in previous disciplinary matters; 3. the investigated complaints (being the "three independent complaints" referred to in the second paragraph of the letter); 4. Mr Donaghy's criminal conviction; and 5. the conditions on Mr Donaghy's practising certificate. 1. Mr Donaghy was expressly invited to address these matters and was told that the LAC would take into account his response to the outcome of the audit, as well as any further matters of relevance he raised. 2. Mr Donaghy submitted that he was denied procedural fairness because he was not told which of the "judgments in previous disciplinary matters" were to be considered. In different circumstances, there may have been some force in this submission. It must be rejected, however, in circumstances where Mr Donaghy was being invited to respond to this and other matters raised in the 14 May 2021 letter. If he had any doubt or uncertainty regarding the particulars of any of the five listed matters, it was open to him to seek clarification from the LAC. He did not do so. 3. Mr Donaghy complained that when he was ultimately provided with the Audit Outcome Report, he was denied procedural fairness because the document was "prepared by anonymous persons". Mr Donaghy was told in the 14 May 2021 letter that the audit had been conducted by "Senior Solicitors in the Family Law Division" of the LAC, but was not told their exact identities. It was open to Mr Donaghy to ask the LAC to identify the relevant persons and to show the relevance of that matter if the LAC asked him to do so. The difficulty for Mr Donaghy is that he made no such request. 4. Mr Donaghy was ultimately provided with the unsigned and undated two-page Audit Outcome Report and was told of the LAC's "key areas of concern" in the letter of 14 May 2021. The files were returned to him. Mr Donaghy had every opportunity to review his own files and prepare a response which addressed the substance of the concerns raised in the Audit Outcome Report. It is well-established that where procedural fairness is owed, the decision-maker must give the affected person an opportunity to deal with adverse information that is credible, relevant and significant to the decision to be made (see, for example, Kioa v West (1985)159 CLR 550 at 629; [1985] HCA 81 per Brennan J). There is no procedural unfairness if the affected person (in this case, Mr Donaghy) chooses not to take advantage of that opportunity. 5. To similar effect, Basten JA said the following in Italiano v Carbone [2005] NSWCA 177 at [88]: An opportunity foregone, but reasonably available, does not demonstrate breach of procedural fairness. To demonstrate procedural [un]fairness it is usually necessary to show that a claimant "lost an opportunity to put any information or argument to the decision-maker, or otherwise suffered any detriment" … 1. Mr Donaghy also complained of procedural unfairness because the Audit Outcome Report addressed only four of the ten files which had been requested: [4(q)] of his written submissions. I am not persuaded that the random selection of only four of the ten provided files gives rise to either procedural unfairness or irrationality/unreasonableness. 2. In his written submissions, Mr Donaghy further complains at [5(c)] that the matters in paragraphs (b)­-(e) of the 14 May 2021 letter (see [74] above) were "general matters" and that the LAC was inviting him, "in effect, to guess the case against him". However, as I have already pointed out, if Mr Donaghy had any doubts or uncertainty on these matters, he could have asked the LAC to particularise them. But he failed to do so. 3. There is nothing in the evidence to suggest that the LAC was unwilling to respond to Mr Donaghy's reasonable requests. Take, for example, the issue of the client complaints. On 3 May 2021 (less than two weeks before the 14 May 2021 letter), Mr Donaghy had asked the LAC to provide him with a copy of a particular complaint. In response, the Solicitor in Charge of the PLQS Unit (Ms Burgess) sent Mr Donaghy an email which re-attached for Mr Donaghy's benefit the correspondence in which the issue of the complaints against him had been raised (including, for example, the LAC's letter of 16 March 2020, which detailed the complaints against him in relation to three of his clients). 4. Similarly, it is difficult to see how there could have been any confusion in relation to the references in the 14 May 2021 letter to "your criminal conviction" or "your practising certificate conditions". Mr Donaghy's conviction and sentence for a high range drink driving offence, and the consequent condition imposed upon his practising certificate, had been the subject of extensive correspondence with the LAC. That correspondence was also provided to Mr Donaghy afresh by Ms Burgess' email of 3 May 2021. 5. In his written submissions, Mr Donaghy complains at [5(e)-(f)] that the internal submission prepared for the decision-maker which referred to consultation with LAC lawyers at the Lismore Office was not disclosed to Mr Donaghy. The reference in the submission is that the LAC lawyers were consulted in 2020 "on the above issues relating to Mr Donaghy." The "above issues", as disclosed in the preceding paragraph, were the complaints arising since September 2019 (i.e. those in relation to three relevant clients). It was not some new matter to which Mr Donaghy should have been provided the opportunity to additionally respond. 6. In his oral submissions, Mr Donaghy complained of procedural unfairness arising from the contents of an internal LAC document dated 5 May 2021, which was an internal submission prepared by Ms Roth, which was approved by her superior, Ms Burgess and then provided to Ms Hitter for the purpose of her making a decision on Mr Donaghy's panel application. In particular, Mr Donaghy complained that the submission urged the decision-maker to take into account various matters, including alleged non-cooperation by Mr Donaghy with the LAC. The alleged non-cooperation was particularised in the submission. The fundamental difficulty with this part of Mr Donaghy's case is that the reasons set out in Ms Hitter's letter dated 14 May 2021 (as adopted by her in making her 11 June 2021 decision) make no reference to the matter of Mr Donaghy's alleged non-cooperation as one of the matters which would be taken into account in determining his panel application. Contrary to Mr Donaghy's submission, I see no reason to doubt the truthfulness of Ms Hitter's letters dated 14 May and 11 June 2021. I do not accept that the alleged non-cooperation was taken into account by either Ms Hitter or Mr Thomas. 7. Nor do I accept Mr Donaghy's contention that Ms Roth should also be regarded as a decision-maker having regard to her role in preparing the submission and recommending to Ms Hitter that Mr Donaghy be refused appointment to all panels. The submission cannot be viewed as a decision on the part of either Ms Roth or her superior, Ms Burgess. Rather, its contents confirm the fact that the document is simply a submission which was prepared for the assistance of the ultimate decision-maker, Ms Hitter. 8. Significantly, Ms Hitter did not adopt all the matters raised in the submission. Indeed, it is evident that Ms Hitter gave careful consideration to the various drafts of what ultimately became the 14 May 2021 letter, the various iterations of which were drafted by Ms Roth. A draft dated 6 May 2021 was significantly revised by Ms Roth after a discussion she had with Ms Hitter on 12 May 2021 [see Court Book p 180]. For these reasons, I reject Mr Donaghy's contention that he was denied procedural fairness because of some parts of Ms Roth's submission dated 5 May 2021. 9. For similar reasons, given the absence of any reference in Ms Hitter's letters dated 14 May and 11 June 2021, I reject Mr Donaghy's separate submission that he was denied procedural fairness because Ms Hitter had taken into account in making her decision on his panel application serious allegations made against him in late 2018 by another LAC officer, Ms Beckhouse. On the evidence before me, I find that Ms Beckhouse's allegations played no part in the consideration and determination of Mr Donaghy's panel application. 10. In his written submissions, Mr Donaghy also complains at [5(g)-(i)] that the LAC took into account against him the delay in the provision of the requested files for the purposes of the audit, by which the LAC "exploited its own failure to act to the disadvantage of the Plaintiff". The internal submission referred to the delay in the audit process in the following way: Unfortunately given it is a new process, there has been some delay in co-ordinating and completing the Quality Audit which was conducted by Family. His files were returned to him on 12 April 2021, however he has not yet been advised of the outcome. Understandably, Mr Donaghy has expressed frustration at the delay. I find that the delay in the LAC receiving the files from Mr Donaghy was not a matter that was taken into account against him. Accordingly, there was no legal requirement that it be specifically disclosed to him for his response. 1. Mr Donaghy complains at paragraph [5(i)] of his written submissions that there was unfairness arising from "the fact that [he] had complied with the conditions imposed on him in July 2021 [sic]", which is said to have been "simply ignored". As the LAC contended, it is unclear why this is a matter of procedural fairness. In any event, the conditional panel membership which was conveyed to Mr Donaghy on 16 July 2020, to be in place until 16 January 2021, was contingent on Mr Donaghy not having "failed any audits you are subject to during this period". The LAC had started the process of requesting Mr Donaghy's files for audit on 6 November 2020. This matter was referred to in the LAC's letters of 21 January 2021 and 23 March 2021. And by the LAC's 14 May 2021 letter it was apparent that Mr Donaghy had been found to have failed the audit. 2. Mr Donaghy complains at [5(j)] of his submissions that the relevant LAC officials involved were legal practitioners and should have observed relevant ethical duties and requirements. Those matters may not be doubted, but it is difficult to see how they have any relevance to the allegation of procedural unfairness. 3. Mr Donaghy's complaints of bullying don't advance his procedural fairness case. The claims go to the merits of the LAC's actions and not procedural fairness. Nor is there any basis for Mr Donaghy's claims that there was bias against him. Nothing in Ms Roth's letter of 14 January 2021 indicated that she would approach her assessment of Mr Donaghy's panel application with anything other than an open mind (in any event, I am not persuaded that Ms Roth was the relevant decision-maker in respect of that subject). Nor has Mr Donaghy pointed to any persuasive material which might make good a claim of apprehended bias in respect of either Ms Hitter or Mr Thomas having regard to the relevant test in Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337; [2000] HCA 63 at [6]. (b) No irrationality/unreasonableness 1. In raising the grounds of irrationality/legal unreasonableness, Mr Donaghy presumably relies upon cases including Minister for Immigration and Citizenship v Li (2013) 249 CLR 332; [2013] HCA 18; Minister for Immigration and Citizenship v SZMDS (2010) 240 CLR 611; [2010] HCA 16; Minister for Immigration and Border Protection v SZVFW (2018) 264 CLR 541; [2018] HCA 30; Plaintiff M64/2015 v Minister for Immigration and Border Protection (2015) 258 CLR 173; [2015] HCA 50; Minister for Immigration and Border Protection v Stretton (2016) 237 FCR 1; [2016] FCAFC 11; Minister for Immigration and Border Protection v Singh (2014) 231 FCR 437; [2014] FCAFC 1 and Davis. 2. In National Home Doctor Service Pty Ltd v Director of Professional Services [2020] FCA 386 at [119], I sought to summarise some of the relevant principles concerning review for irrationality/unreasonableness where there is a statutory source for the relevant decision-making: 1. Both grounds of judicial review are stringent and confined and require the judicial review court "to assess the quality of the administrative decision by reference to the statutory source of the power exercised in making the decision" (SZVFW at [79] per Nettle and Gordon JJ) and on the basis of the factual information before the decision-maker (Stretton at [7]-[13]). 2. Where reasons are provided, they are the focal point for the assessment of legal unreasonableness (SZVFW at [84] per Nettle and Gordon JJ and Singh at [47] per Allsop CJ, Robertson and Mortimer JJ). 3. Although the standard of legal unreasonableness applies across a range of statutory powers, the indicia of legal unreasonableness must be found in the scope, subject and purpose of the particular statutory provisions in issue in any given case and the reasoning process in review for legal unreasonableness is inevitably fact dependent (Singh at [48]). 4. Legal unreasonableness can either be "outcome focussed" (without necessarily identifying another underlying jurisdictional error) or it can focus on an examination of the reasoning process by which the decision-maker arrived at the outcome of the exercise of power (Singh at [44]-[47]). 5. In a case where a decision-maker's statutory function calls for a "broad and subjective" evaluation, the task of demonstrating the requisite lack of an "evident and intelligible justification" becomes a "virtually insuperable hurdle" (Plaintiff M64/2015 at [55]-[57]). 6. Legal unreasonableness requires the Court to acknowledge that there is "an area of decisional freedom" vested in the decision-maker in exercising a statutory discretionary power (Li at [28] per French CJ and Singh at [44]). 1. Different considerations may arise when the conduct which is said to be irrational/unreasonable has a non-statutory source (see Davis). 2. In assessing Mr Donaghy's complaints of irrationality and/or unreasonableness, it is important to bear in mind the observations of Bell and Crennan JJ in SZMDS at [124] that "to describe reasoning as 'illogical, or unreasonable, or irrational' may merely be an emphatic way of expressing disagreement with it (to similar effect, see Gleeson CJ and McHugh J's observation in Minister for Immigration and Multicultural Affairs v Eshetu (1999) 197 CLR 611; [1999] HCA 21 at [40] and that of Gleeson CJ in Re Minister for Immigration and Multicultural Affairs; Ex parte Applicant S20/2002 [2003] HCA 30; (2003) 198 ALR 59 at [5]). As will emerge, those observations have a strong resonance in Mr Donaghy's case. I do not doubt the sincerity of his subjective belief that the LAC has acted irrationally, but I do not consider that he has met the high threshold of establishing extreme illogicality, for the reasons which I now provide. 3. First, paragraphs [6(a)-(g)] of Mr Donaghy's written submissions appear to repeat his complaints in relation to procedural fairness (see in particular [6(d)]). Mr Donaghy does not advance any freestanding basis for a conclusion of unreasonableness (in any relevant sense). I've explained above why I have rejected his procedural unfairness complaints. 4. Secondly, as noted above, in an appropriate case, judicial review may be available for unreasonableness in relation to an impugned administrative decision even where it lacks a statutory foundation: see Davis and the discussion in the context of a jurisdictional fact argument in Muswellbrook Shire Council v Hunter Valley Energy Coal Pty Ltd [2019] NSWCA 216 at [21]-[22] per Basten JA, at [131]-[132] per Macfarlan JA and at [187]-[201] per Leeming JA. Mr Donaghy did not identify any ascertainable standard, capable of application by the Court, in determining whether the decision was legally unreasonable or irrational. 5. Thirdly, the test for irrationality in the context of jurisdictional error involves asking whether logical, rational or reasonable minds might adopt different reasoning or might differ in any decision. Jurisdictional error is unlikely to arise where reasonable minds might differ as to the conclusion that might be reached: SZMDS at [131]. Having regard to the various matters raised in the 14 May 2021 letter and Mr Donaghy's failure to respond to any of those matters, including the Audit Outcome Report, Mr Donaghy has not met the high threshold of establishing that the LAC's actions or decision-making were irrational or unreasonable in the relevant legal sense. 6. Fourthly, I reject other particular elements of Mr Donaghy's complaint of irrationality with respect to the following particular matters: 1. Contrary to Mr Donaghy's submission, there is nothing irrational in the fact that Ms Roth made a preliminary decision on 14 January 2021 to reappoint Mr Donaghy to two panels notwithstanding that the audit was on foot, yet Ms Hitter subsequently relied upon the outcome of the audit in her 11 June 2021 decision. Mr Donaghy was told on several occasions that the completed audit would be taken into account in determining his panel application. 2. As explained above, there is nothing irrational in a body such as the LAC choosing a random sample of client files provided by a legal practitioner to audit, rather than audit all the ten files that Mr Donaghy was asked to provide. Indeed, it might be thought that it was rational to do so having regard to the delays in finalising the audit which presumably would have taken even longer if all ten files had been reviewed. 3. As also explained above, I do not accept Mr Donaghy's contention that it was irrational and/or unreasonable for the LAC to take into account his conduct in providing the audit file. This is simply because I am not satisfied that this was a matter which was taken into account in arriving at the 11 June 2021 decision. It is notable that there is no mention of this matter in Ms Hitter's reasons set out in her 14 May 2021 letter, in circumstances where she stated in her 11 June 2021 letter that these were the reasons for refusing Mr Donaghy's panel application. I do not accept Mr Donaghy's submission that those reasons were untruthful. There is nothing to suggest that they were. True it is that the LAC did not call either Ms Hitter or Mr Thomas as witnesses. But there was no obligation to do so and I am not persuaded that there is any basis for drawing an adverse inference with reference to the principle in Jones v Dunkel (1959) 101 CLR 298; [1959] HCA 8. That principle can apply in some judicial review cases (but see in the case of a minister, the decision in Kassam v Hazzard [2021] NSWSC 1320 at [132]-[133] per Beech-Jones CJ at CL). The principle has no application in respect of Mr Thomas or Ms Hitter because the principle only applies so as to reinforce an inference which arises elsewhere in the evidence. No evidence capable of raising such an inference is present in this case. 4. Nor am I persuaded that it was irrational or unreasonable for the LAC to reassign Mr Donaghy's legal aid clients consequential upon the decision to refuse his panel application. Mr Donaghy also complained about the LAC's decision not to grant legal aid in respect of a client from whom he had accepted instructions in January 2021 but had delayed in seeking a grant of legal aid. In an email dated 30 March 2021 (which was said to be written in response to a letter from the LAC dated 29 March 2021, which is not in evidence), Mr Donaghy asked the LAC to reconsider its decision not to grant legal aid in respect of this particular client and he set out in some length why he considered that there were objective reasons for there to be a grant of legal aid having regard to the client's welfare, "fragile health and concerns for her personal safety" [Exhibit A, p 104]. The LAC responded to Mr Donaghy's letter of 30 March 2021 by an email dated 31 March 2021 in which he was informed that the decision had been made with reference to both Grants Allocation Guidelines and the fact that his panel application for the particular panel had been deferred [Exhibit A, p 106]. In my view, this approach was not irrational nor unreasonable. I do not doubt the sincerity of Mr Donaghy's dissatisfaction with what occurred but I view this as a good example of him expressing strong disagreement with the decision on its merits and falling well short of demonstrating irrationality. 5. Nor do I regard Mr Donaghy's claims of irrationality and/or unreasonableness to be supported by the fact that the LAC ultimately put into evidence some of the material which Mr Donaghy sought in the Notice to Produce which was set aside by Johnson J on the ground of irrelevance, as was sought by the LAC. Johnson J made clear at [22] of his interlocutory judgment dated 26 November 2021 that, even though Mr Donaghy had then filed his amended summons, "the current state of this litigation is regrettably less than clear". I am not prepared to draw any adverse inference against the LAC who elected to adduce material in the filed affidavits which may have been caught by the Notice to Produce. It was open to the LAC to respond to the case which was being put against it. (c) Failure to consider relevant considerations and improper purpose 1. As noted at [1] above, these additional heads of judicial review were raised in the amended summons, but they were not developed by Mr Donaghy in his written or oral submissions. In any event, these complaints should also be rejected for the following reasons. 2. Mr Donaghy has not demonstrated that the LAC failed to consider properly (or at all) the various considerations listed by him in [6] of his amended summons. As the High Court plurality (Kiefel CJ, Keane, Gordon and Steward JJ) recently emphasised in Plaintiff M1/2021 v Minister for Home Affairs [2022] HCA 17 at [24]-[27] in a different statutory context concerning the statutory obligation to consider representations, such consideration must occur within the bounds of rationality and reasonableness. Their Honours also emphasised the dangers in using labels such as "proper, genuine and realistic consideration". Furthermore, their Honours reiterated the well settled proposition that the Court is not empowered on a judicial review to substitute its decision for that of an administrative decision-maker (see Plaintiff M1/2021 at [26]). 3. It is settled law that in the case of the exercise of a statutory discretionary power, a decision-maker may commit jurisdictional error if he or she fails to take into account a consideration which he or she is bound to take into account in making that decision (see Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986) 162 CLR 24 at 39; [1986] HCA 40 per Mason J). Whether or not a particular consideration is one which the decision-maker is bound to take into account turns on the subject matter, scope and purpose of the relevant statute. 4. As noted above, there is a contestable but undetermined question as to whether or not the LAC's decisions impugned by Mr Donaghy involved the exercise of statutory discretionary powers. Assuming, for the sake of argument, that the source of the impugned decision-making lies in statute, Mr Donaghy has not persuaded me that any of the considerations identified in his amended summons are considerations which the LAC was bound to take into account. Rather, his list of considerations suggest that, properly viewed, his challenge is one to the merits of the LAC's actions. 5. Mr Donaghy's listed considerations may be relevant to his separate complaints of irrationality and/or legal unreasonableness, but for the reasons given above I reject that aspect of his case. 6. If the source of the LAC's conduct and decisions is non-statutory, it is difficult to see how such matters attract judicial review by reference to a failure to consider relevant considerations. That is simply because, on this hypothesis, there is no framework to assess the subject matter, scope and purpose of a statute which provides the legal framework for determining whether any of the identified considerations in the amended summons are considerations which the decision-maker was bound to consider in the circumstances of this case. 7. Turning to Mr Donaghy's allegation that the LAC refused to collect his files for audit until 21 January 2021 for the improper purpose of delaying the audit, there is simply no evidentiary basis to support that serious allegation. The unfortunate logistical difficulties experienced in seeking to collect the files are adequately explained in Ms Roth's second affidavit at [53] to [62]. This ground of review is also rejected. (d) Decision to not reassign legal aid matters to Mr Donaghy 1. The second decision (or second component of a decision) which the LAC made on 11 June 2021, was to reassign the Legal Aid matters which had previously been assigned to Mr Donaghy under the previous panel regime. 2. Mr Donaghy was informed that a consequence of not being appointed to the Legal Aid Panels would be that his existing matters would be reassigned. Mr Donaghy was invited to provide a response. He chose not to do so. 3. For the following reasons, Mr Donaghy's complaints in respect of the LAC's action in reassigning Mr Donaghy's legal aid matters are rejected. 4. First, the LAC's concern, as expressed in the 14 May 2021 letter, was that Mr Donaghy was "not able to meet the standard required of Legal Aid NSW panel practitioners in accordance with the Panel Service Agreement and Quality Standards." Mr Donaghy was invited to address that concern. It would be incongruous if it was not irrational for the LAC, having concluded that this concern was substantiated, to reassign Mr Donaghy's existing matters. 5. Secondly, s 49(3) of the LAC Act expressly provides that even a law practice that has been engaged by the LAC for the provision of legal aid does not have an entitlement to be given work. Mr Donaghy put in oral submissions the proposition that s 49(3) would only apply if he were a "fresh applicant", whereas he had regularly received work from the LAC for ten years up to that point. I am not minded to accept this submission. It is not apparent that this construction of the statutory language is available and/or persuasive. The LAC Act does not qualify the statement that a law practice is not entitled to be given work. Additionally, it is apparent from the LAC's 11 June 2021 letter that Mr Donaghy's law practice was not to be engaged by the LAC for the provision of legal aid. If a law practice that has been engaged by the LAC is to have no entitlement to be given work, it necessarily follows that a law practice whose application to be appointed to the relevant Legal Aid panels has been rejected also does not have an entitlement to be given work, notwithstanding the fact that they had earlier been provided with work by the LAC. Lastly, even if one were to accept Mr Donaghy's point and employ the language of "fresh applicant", in my view Mr Donaghy was such an applicant. To reiterate some points made above, the Amending Act dismantled the earlier panel regime and constructed a new regime entirely. The consequence was that all existing panel memberships (which were personal to the legal practitioner) were terminated and law practices were invited to apply under the new regime. The consequence of applying s 49(3) would still be to deny Mr Donaghy an entitlement to be given work by the LAC. 6. Thirdly, Khalid v Legal Aid Commission of NSW [2016] NSWSC 1640, upon which Mr Donaghy relied, concerned an application for judicial review of a decision not to assign a grant of legal aid to the plaintiff's existing solicitor, where the existing solicitor was not a member of the relevant Legal Aid panel. Khalid pre-dated the Amending Act, and so involved the more prescriptive earlier form of s 12(f): see Khalid at [61]. Bellew J rejected a challenge to that decision on the basis of unreasonableness at [75]-[89], in particular holding at [87] that the LAC was entitled to take into account the fact that the solicitor was not a member of the relevant panel, and adding that it was open to the LAC to conclude that a member of the relevant panel would best protect and represent the particular client's interests. I accept the LAC's submission that this reasoning applies with equal force to the present case. 7. Finally, I am not persuaded that there was any procedural unfairness or irrationality in the LAC's decision to reassign Mr Donaghy's legal aid matters consequential upon the 11 June 2021 letter. Mr Donaghy was on full notice that this could occur and he had the opportunity to make submissions in response. The decision to reassign his matters was rational in the circumstances of the refusal of his panel application. Relief 1. The relief claimed in the amended summons is relevantly as follows (without alteration): 3. An Order that the Defendant appoint the Applicant to the Legal Aid Panels forthwith. 4. An Order that the Defendant appoint the Applicant to the Legal Aid Panels according to Law. 5. Further and/or in the alternative that the Defendant be ordered to restore the Plaintiff's grants of Legal Aid held as at 16 June 2021 [sic]. 6. A declaration that the Defendant's decision of 16 July 2021 was void for denial of procedural fairness because … 1. As the LAC pointed out, paragraphs 3, 4 and 5 of the amended summons fundamentally misunderstand the jurisdiction of the Court in judicial review proceedings. The duty and jurisdiction of the Court to review administrative action do not go beyond the declaration and enforcing of the law which determines the limits and governs the exercise of the repository's power: Attorney-General (NSW) v Quin (1990) 170 CLR 1 at 35-36; [1990] HCA 21. It is not the function of the Court on judicial review to substitute its own decision for that of the LAC (see Plaintiff M1/2021 at [26]) or compel the LAC to make a particular decision where a discretion is involved. 2. There is one further matter which warrants comment. It relates to the LAC's submission (at [124] of its written submissions) regarding the utility of granting Mr Donaghy any relief even if it were limited to setting aside the relevant decisions and remitting Mr Donaghy's panel application to the LAC (assuming, of course, that Mr Donaghy had established a jurisdictional error). The LAC submitted that the utility of even that limited relief may be "questionable". It submitted that a particular matter which the LAC would require Mr Donaghy to address if the matter were remitted for redetermination would be the allegedly incorrect answers in his panel application form, which related to his disciplinary history. It is not all clear that Mr Donaghy did provide "incorrect answers" on his application form as asserted by the LAC. If Mr Donaghy had succeeded in establishing a material reviewable error of law, I would not have been minded to withhold appropriate relief on the basis of lack of utility as contended by the LAC. Some final observations 1. Although I have rejected Mr Donaghy's judicial review complaints, this should not be taken as an endorsement by the Court of the merits of the LAC's actions. The distinction between judicial review of the legality of administrative decision-making and the merits of such decision-making is well settled. It is only too apparent from the evidence, however, that there has been a strained relationship between Mr Donaghy and the LAC extending over several years. Mr Donaghy gave the impression in Court of being a forceful and determined legal practitioner. He has a robust and forthright style of advocacy. I assume that the qualities he displayed in presenting his case before me are also employed by him in representing his clients, whether legally aided or not. 2. As noted above, Mr Donaghy was advised by Ms Hitter in her 11 June 2021 letter that he would not be permitted to reapply to join any LAC panels for three years which, I assume, reflects a policy of the LAC. On its face, that appears a somewhat harsh constraint which not only adversely affects Mr Donaghy's financial and professional interests, but also those of any potential clients in the Lismore area who would benefit from his robust and forceful advocacy. It is important, of course, that the LAC have regard to the individual circumstances in Mr Donaghy's case when applying any relevant policy constraints. Conclusion 1. For these reasons, the amended summons will be dismissed. The parties were agreed that costs should follow the event. 2. The Court hereby makes the following orders: 1. The amended summons is dismissed. 2. The plaintiff pay the defendant's costs of the proceedings, as agreed or assessed. ********** DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 20 May 2022