Brown v Legal Aid Tribunal

[2015] NZHC 3128

ORDER PROHIBITING PUBLICATION OF NAMES OR IDENTIFYING PARTICULARS OF PARTIES.  ORDER PROHIBITING SEARCH, COPYING OR INSPECTION OF THE COURT FILES IN RESPECT OF WHICH THIS JUDGMENT HAS BEEN GIVEN WITHOUT LEAVE OF A JUDGE ON AN APPLICATION MADE ON NOTICE TO ALL PARTIES. THIS IS AN ANONYMISED VERSION OF A JUDGMENT AND MAY BE PUBLISHED IN THIS FORM.

IN THE HIGH COURT OF NEW ZEALAND TAURANGA REGISTRY

CIV 2015-470-3

CIV 2015-470-4 [2015] NZHC 3128

BETWEEN

BARBARA BROWN

Plaintiff

AND

LEGAL AID TRIBUNAL FIRST DEFENDANT

LEGAL SERVICES COMMISSIONER Second Defendant

Hearing:	8 December 2015 (by telephone)
Counsel:	B Brown, in person, Plaintiff L Hansen for Commissioner of Legal Services
Judgment:	9 December 2015

JUDGMENT (NO. 2) OF HEATH J

This judgment was delivered by me on 9 December 2015 at 2.00pm pursuant to

Rule 11.5 of the High Court Rules

Registrar/Deputy Registrar

Solicitors:
Crown Law, Wellington (E Devine)
Legal Services Commissioner, Wellington
Copy to:

B Brown, Plaintiff

BROWN v LEGAL SERVICES COMMISSIONER [2015] NZHC 3128 [9 December 2015]

[1]      In a judgment given on 17 August 2015,1 I dismissed two appeals brought by Ms Brown against decisions of the Legal Aid Tribunal.  I adjourned the remaining two applications before me, by which Ms Brown sought judicial review of the same decisions.2

[2]      Ms Brown sought judicial review to challenge refusal of legal aid to pursue other proceedings in the High Court, various proceedings in the Family Court, and a defamation proceeding in the District Court.  All proceedings have their genesis in the unhappy and acrimonious separation of Ms Brown from her former husband, Mr Sinclair.

[3]      When I heard the appeals and judicial review proceedings on 12 August

2015, an intervening event had occurred which had the potential to render both the appeals and the review proceedings moot.   The question whether aid should have been granted now fell to be determined against the background of a judgment delivered  by  Duffy J,  on  30  June  2015,  some  six  months  after  the  present proceedings were filed.3    In all but one of the five proceedings in respect of which review is currently sought, Duffy J determined that each raised arguable issues.

[4]      After setting out the nature of the substantive proceedings for which aid is sought, and the conclusions of Duffy J on each, I recorded that the Legal Services Commissioner accepted that aid should be reconsidered.4

[5]      I  adjourned  the  proceeding  to  enable  the  Commissioner  to  reassess  the position, while dismissing appeals from the Tribunal’s decisions, on the grounds that no questions of law were evident.5   I indicated that I expected to dismiss the present applications at the next call once the Commissioner had advised the position she

intended to take.6

1      [citation redacted].

2      Ibid, at paras [29] and [31].   The two decisions in issue are [citation redacted] and [citation redacted].

3      [citation redacted].

4      [citation redacted] at paras [9]–[16].

5 Ibid, at para [6].

6 Ibid, at para [30].

[6]      Ms Hansen, for the Commissioner, filed a memorandum for the purpose of a telephone conference held on 8 December 2015.  She confirmed:

(a)       Aid has been granted for the four judicial review proceedings that

Duffy J identified as having merit.

(b)Aid was declined to review a decision of the Family Court relating to the time of separation, for the purpose of a dissolution of marriage.

[7]      As to the second of those, Duffy J expressed the view that the grounds on which review was sought were “extremely weak”.7    I said that the “prospects of success [were] slim”.8

[8]      Aid has been granted to enable a barrister, Mr Sutton, to review proceedings in relation to the Family Court cases.  He is yet to report.

[9]      A  complication  has  arisen  due  to  the  fact  that  Mr  Gorringe,  who  was appointed as counsel to assist the Court in this proceeding and who has acted in the past  for  Ms  Brown,  sadly passed  away on  10  November  2015.   Aid  has  been transferred to Mr McArthur, of Tauranga.  There may be some proceedings in respect of  which  formal  transfer  is  still  required.    They  can  be  actioned  through  Mr McArthur.

[10]     Ms Brown still disputes the appropriateness of the decline of aid to challenge

the Family Court’s dissolution decision.  Ms Hansen pointed out that, on 13 October

2015, a decision was made to refuse aid.  Ms Brown applied to review that decision but, on 13 November 2015, the Tribunal held it had no jurisdiction to do so because Ms Brown had not sought reconsideration by the Commissioner first.9

[11]   I suggest that Ms Brown take advice from Mr McArthur on whether consideration can be sought to address this issue.   I make no  comment on the

correctness or otherwise of the Tribunal’s decision of 13 November 2015.

7      [citation redacted].

8      [citation redacted].

9      [citation redacted] at paras [32] and [33].

[12]     Notwithstanding  certain  criticisms  of  Ms  Hansen’s  memorandum  by  Ms Brown, I am satisfied that the issues raised in the present proceedings are now moot. That requires them to be dismissed.  In the event that Ms Brown wishes to challenge any decisions made after my judgment of 17 August 2015 was made, fresh applications will be required.

Publication of judgment

[13]     I raised with Ms Brown whether my judgment of 17 August 2015 and this judgment should now be published publicly.

[14]     Ms Brown informed me that Duffy J was still to decide whether to distribute publicly her judgment of 30 June 2015.  In my judgment of 17 August 2015, I made references to parts of that judgment which may or may not be suppressed from publication by any future order that Duffy J may make.

[15]     Accordingly, both my judgment of 17 August 2015 and this judgment shall be distributed only to Ms Brown, counsel for the Legal Services Commissioner and the Tribunal, pending further order of the Court.   This issue will be reviewed once Duffy J has decided how to deal with the suppression issue before her.10

Result

[16]     The judicial review proceedings11 are dismissed, with no order as to costs.

P R Heath J

Delivered at 2.00pm on 9 December 2015

10     In relation to defamation proceedings in respect of which Ms Brown had sought anonymity, see

[citation redacted] and [citation redacted].

11     CIV 2015-470-3 and CIV 2015-470-4.