Mashayekhi v Legal Aid NSW [2020] NSWCATAD 78

Civil and Administrative Tribunal New South Wales Medium Neutral Citation: Mashayekhi v Legal Aid NSW [2020] NSWCATAD 78 Hearing dates: On the papers Date of orders: 06 March 2020 Decision date: 06 March 2020 Jurisdiction: Administrative and Equal Opportunity Division Before: N S Isenberg RFD, Senior Member Decision: (1) The proceedings be dealt with on the papers without a hearing. (2) Mr Mashayekhi's application to the Tribunal is dismissed for lack of jurisdiction. Catchwords: JURISDICTION – administrative review – legal aid - relevance of issues raised by the Applicant – enabling legislation – basis of Tribunal's jurisdiction. Legislation Cited: Administrative Decisions Review Act 1997 (NSW) Civil and Administrative Tribunal Act 2013 (NSW) Legal Aid Commission Act 1979 (NSW) Legal Profession Uniform Law (NSW) Legal Profession Uniform Law Application Act 2014 (NSW) Cases Cited: None cited. Texts Cited: Administrative Review Proceedings in NCAT, March 2017 paper by Justice Robertson Wright, President NCAT Category: Procedural and other rulings Parties: Amin Mashayekhi (Applicant) Legal Aid NSW (Respondent) Representation: Solicitors: Applicant (Self Represented) Legal Aid NSW (Respondent) File Number(s): 2020/00004336 Publication restriction: Nil

REASONS FOR DECISION

Background 1. This matter involves an application to the Civil and Administrative Tribunal ("the Tribunal" or NCAT") by the Applicant (Mr Mashayekhi), to review the refusal by the Respondent, Legal Aid New South Wales (Legal Aid NSW) of Mr Mashayekhi's application for legal aid for his appeal to the Court of Criminal Appeal against a conviction and sentence. 2. Legal Aid NSW informed Mr Mashayekhi by letter dated 19 November 2019 that it had permitted an appeal to be made to the Legal Aid Review Committee against the refusal of his application for aid. By letter dated 21 November 2019, Mr Mashayekhi was informed by the Legal Aid Review Committee that his appeal was disallowed. 3. On 19 December 2019 Mr Mashayekhi applied to the Tribunal for: 1. a review of the decisions referred to in the letters of 19 and 21 November 2019 (the Substantive Application); and 2. a stay of the order made by Legal Aid NSW to suspend Mr Mashayekhi's "Legal Grant" so that a solicitor will be "re-instated" to his case (the Application). 1. The only respondent referred to in both applications was Legal Aid NSW. 2. I observe that the Legal Aid Commission Act 1979, (LAC Act) formerly known as Legal Services Act 1979, constituted the 'Legal Aid Commission of New South Wales' (Legal Aid Commission) as a corporation. The Australian Business Number (ABN) of the Legal Aid Commission is 81 173 463 438. 3. The letterheads in evidence of Legal Aid NSW and the Legal Aid Review Committee show different telephone and facsimile numbers. However, both letterheads disclose the same street address, post office box number, document exchange number and internet web site. The letterheads also identify each of Legal Aid NSW and Legal Aid Review Committee by the Legal Aid Commission ABN. 4. Legal Aid Review Committees may be established under s 53 of the LAC Act. However, Legal Aid NSW is not referred to in the LAC Act nor in any other legislation to which my attention has been drawn. 5. There is no evidence before the Tribunal that Legal Aid NSW is a separate legal entity rather than a name used by the Legal Aid Commission. However, as the matter does not seem to be in dispute and does not affect my findings or orders, I make no findings in that regard. 6. On 10 January 2020 the Tribunal received an email from Joshua Kulawiec, Senior Solicitor, In-house Counsel Unit, Legal Aid NSW (Mr Kulawiec). The email referred to matter "20/4336" and requested "that this matter be summarily dismissed on the papers for lack of jurisdiction". On 15 January Mr Kulawiec sent a further email to the Tribunal with submissions in support of his 10 January request. 7. Although no Notice of Representation has been filed with the Tribunal by any solicitor acting for Legal Aid NSW (nor for the Legal Aid Commission nor any Legal Aid Review Committee) and although Mr Kulawiec has not expressly stated that he represents Legal Aid NSW as Respondent in these proceedings, I assume that Mr Kulawiec is an in-house legal representative of Legal Aid NSW and for the purpose of these Reasons will proceed on that basis. 8. Mr Mashayekhi disputes Legal Aid NSW's claim that the Tribunal lacks jurisdiction to deal with the Application. 9. At a directions hearing on 28 January 2020 the Tribunal made procedural orders/directions for the parties to file written submissions concerning the 15 January submissions and noted that the parties agreed "a hearing may be dispensed with and the dismissal application can be dealt with on the basis of the [parties'] written submissions …." 10. Both Legal Aid NSW and Mr Mashayekhi filed documents in support of their positions as to the extent of the Tribunal's jurisdiction to deal with the Application.