B v Attorney-General
[2000] NZCA 27
•23 February 2000
| IN THE COURT OF APPEAL OF NEW ZEALAND | CA292/96 |
| BETWEEN | B |
| Appellants |
| AND | ATTORNEY-GENERAL AND OTHERS |
| Respondents |
| Hearing: | 22 February 2000 (In Chambers) |
| Coram: | Henry J Blanchard J |
| Appearances: | J A L Gibson QC for Appellants C J Mathieson for First and Third Respondents K P McDonald QC for Second Respondent |
| Judgment: | 23 February 2000 |
| JUDGMENT OF THE COURT |
By judgment of 18 March 1999 this Court dismissed an appeal against the striking out of the appellants’ proceeding. Conditional leave to appeal to the Privy Council was however granted on 29 April 1999 upon condition that within three months the appellants must prepare and dispatch the record to England and either personally or by recourse to the legal aid fund provide security for costs of $2,000.
The appellants sought legal aid for the purpose of pursuing the appeal to the Privy Council. Section 19(1)(c)(ii) of the Legal Services Act 1991 provides that civil legal aid may be granted in respect of an appeal to the Privy Council in civil proceedings where “the Attorney-General certifies that a question of law of exceptional public importance involved and that the grant of aid is desirable in the public interest”.
In granting conditional leave this Court had said that the matter in issue could not, for the reasons given in the judgment of 29 April, be regarded as of great general or public importance but that it did fall within the residual category of r2(b) (“or otherwise”) because of its real significance for the appellant family and because there was an arguable incompatibility with the Court’s earlier decision in Attorney-General v Prince & Gardner [1998] 1 NZLR 262.
On 20 July 1999 the Attorney-General advised counsel for the appellants, Mr Gibson QC, that the application for legal aid had been considered and that the Attorney did not consider that the appeal raised issues which made it desirable in the public interest to make a grant of civil legal aid. The application had therefore been declined.
The appellants then indicated an intention to seek judicial review of that decision of the Attorney-General. They applied under the Legal Services Act for legal aid in order to pursue the judicial review application. Submissions in support of this application were sent to the Wellington District Legal Aid Unit on 7 September 1999. In the meantime, without opposition from the respondents, this Court had extended time for compliance with the leave condition pertaining to the filing of the record. The other condition, concerning the payment of security, had been complied with. Time was further extended to 1 March 2000 by an order of this Court on 24 September 1999.
No decision has been forthcoming from the Legal Aid Unit other than in a respect about to be mentioned. The intended judicial review proceeding has not been commenced.
The appellants have now applied to this Court for yet a further extension of time. Their counsel has advised that permission has just been given informally by the Legal Aid Unit for a relatively small unexpended sum originally granted in respect of the appeal to this Court to be applied towards the judicial review proceeding. Mr Gibson also advised that it was his client’s intention to proceed with judicial review of the Attorney-General’s decision even if further legal aid is not forthcoming. However, he accepted that it was unlikely that a High Court hearing could occur within six months. He also accepted that even if the review proceeding was successful and the Attorney-General was then obliged to reconsider the original application for legal aid, it was possible that the same decision would be made. In this connection it is worth mentioning that both the Attorney-General and the Legal Aid Unit have received opinions from counsel independent of Crown Law Office unfavourable to the appellant.
We have decided, after hearing submissions, that the Court should not further extend the time for compliance with the condition concerning the record. Final leave will be refused if there has not been compliance by 1 March. We do this for three reasons. First, there has already been a very lengthy delay since the decision of this Court, and by the time the judicial review application can be determined the delay will be likely to be approaching 18 months. Secondly, there are obvious difficulties standing in the way of the course now being pursued by the appellants. Thirdly, we consider that even if the appellants are eventually successful in obtaining judicial review and then in persuading the Attorney-General to grant legal aid for the appeal to the Privy Council, they will not be substantially prejudiced by this Court’s refusal of leave because the avenue of a petition to the Privy Council will remain open. Any additional costs involved in the need to bring petition would presumably be covered by legal aid.
The application for leave to further extend time is therefore dismissed.
Solicitors
Sygrove Law Office, Wellington for Appellants
Crown Law Office, for Respondents
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