Brown v Legal Services Commissioner
[2015] NZHC 1943
•17 August 2015
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 2015-470-1
CIV 2015-470-2
CIV 2015-470-3
CIV 2015-470-4 [2015] NZHC 1943
BETWEEN BARBARA BROWN
Appellant/Applicant
AND
LEGAL SERVICES COMMISSIONER Respondent
Hearing: 12 August 2015 Counsel:
B Brown, in person
L Hansen for Commissioner of Legal Services
P F Gorringe, amicus curiaeJudgment:
17 August 2015
JUDGMENT OF HEATH J
This judgment was delivered by me on 17 August 2015 at 11.00am pursuant to
Rule 11.5 of the High Court Rules
Registrar/Deputy Registrar
Copies to:
L Hansen, Commissioner of Legal Services
P F Gorringe, HamiltonB Brown, Applicant
BROWN v LEGAL SERVICES COMMISSIONER [2015] NZHC 1943 [17 August 2015]
Introduction
[1] Ms Brown challenges two decisions given by the Legal Aid Tribunal on 4
December 2014.1 She does so by way of both appeal and application for judicial review. In each case, the Tribunal declined to accept an application for review of the decision of the Legal Services Commissioner (the Commissioner) out of time, but recorded that, in any event, it would have upheld the Commissioner’s decision to decline aid.2
[2] Aid is sought for a variety of proceedings, all of which have their genesis in the unhappy and acrimonious separation of Ms Brown from her former husband, Mr Sinclair. As it happens, in a recent judgment in which she dealt with an application for review of orders for security for costs in separate judicial review proceedings that
challenged various decisions made in the Family Court,3 Duffy J had cause to make
some preliminary assessments of the merits of particular proceedings for which aid is sought.4
[3] For present purposes, the substantive proceedings in respect of which aid was declined may be grouped under three headings:
[a] Judicial review proceedings in the High Court (the judicial review proceedings).
[b] A defamation proceeding in the District Court (the defamation proceeding).
[c] Proceedings in the Family Court (the Family Court proceedings).
1 [citation redacted].
The Tribunal’s decisions
[4] On 6 January 2015 Ms Brown filed an appeal against the Tribunal’s decision of 4 December 20145 in which it declined to extend time to appeal against decisions of the Commissioner made on 4 June 2014 to decline aid for the Family Court proceedings.
[5] On the same day, Ms Brown filed an appeal against a second decision of the Tribunal, also given on 4 December 2014,6 in which the Tribunal declined to extend time for Ms Brown to seek a review of the Commissioner’s decision of 22 May
2014, declining further aid to conduct the judicial review proceedings and the defamation proceeding.
[6] On 7 January 2015, each of those decisions was also challenged by way of judicial review. Given the limited grounds on which an appeal can be brought against a decision of the Tribunal,7 I propose to consider Ms Brown’s complaints on the basis of her judicial review application.
[7] The issue for this Court is one of evaluation of the Tribunal’s decisions. No
question of law arises, so the appeals must, on any view, be dismissed.
The judicial review proceedings
[8] There are five judicial review proceedings in this Court in respect of which aid is sought. All five were considered by Duffy J when determining whether orders for security for costs ought to have been made by the Associate Judge. Her Honour’s judgment was delivered on 30 June 2015, some six months after the present proceedings were filed.8
[9] The first is an application to review a decision made by Judge Wills in the
Family Court at Tauranga which, as a result of non-compliance with procedural orders, operated to debar Ms Brown from participating in a substantive relationship
5 [citation redacted].
6 [citation redacted].
7 An appeal to the High Court lies only on a question of law: Legal Services Act 2011, s 59.
8 See paras [4]–[7] above.
property proceeding.9 Duffy J considered it was arguable that, in the context in which the application to debar came before the Court, the Family Court Judge exercised her discretion to debar unreasonably. In particular, Duffy J said:10
[58] From the perspective of a judicial review of Judge Wills’ decision the key issue appears to be whether the discretion to debar the applicant from defending the relationship property proceedings was exercised reasonably. The case-law the Judge referred to involved examples of far greater delay than had occurred in the present case. Here the proceeding had only been commenced six months earlier. It is not clear to me why time for filing a defence was abridged. Judge Wills referred to allegations the applicant was disposing of relationship chattels but that could have been remedied by an order restraining disposition under s 43 of the Property (Relationships) Act
1976. On the day Judge Wills delivered the judgment debarring the
applicant’s defence there was no possibility of concluding the relationship property division as the first respondent needed to obtain access to the relationship property in order to prepare an inventory. It is not even clear to me that there was a hearing on 22 December 2011 as the applicant contends that the matter was dealt with on the papers that day. The judgment records appearances in chambers from counsel for the first respondent and counsel for the applicant, which suggests a hearing. However, it is clear from the body of the judgment that the applicant was no longer legally represented by then.
[10] The second and third judicial review applications arise out of orders made by Judge Coyle, on 30 March and 21 May 2012. In the former, Judge Coyle declined to adjourn a formal proof hearing when a late application was made for leave to file a notice of defence in protection order proceedings brought by Mr Sinclair. Instead, he
debarred Ms Brown from defending the application.11 On 21 May 2012, the Judge
awarded costs in favour of the opposing party on the formal proof hearing and on a discontinued application for costs made by Ms Brown.12
[11] Although Duffy J described the Statement of Claim in this proceeding as “a mess”, she considered that there were underlying grounds that could give rise to a successful challenge to the orders Ms Brown sought to impugn. Duffy J said:13
[77] It is clear from the judgment that Judge Coyle found it was the applicant’s “substantial history of breaches” and non-compliance with court orders that led to the Judge deciding to debar the defence in the matter before her. It would follow, therefore, that if the applicant’s conduct in other
9 [citation redacted].
10 [citation redacted].
proceedings were an irrelevant consideration, it had a material impact on the decision to debar her defence. This would be enough to invalidate the decision to debar the applicant’s defence, which in turn would mean that her exclusion from the hearing of the substantial matter on 30 March 2012 was a breach of natural justice. This would mean the decision to grant the protection order was invalid and the costs order that followed would also be invalid.
[78] Relief in judicial review is discretionary and it might seem that as regards a decision to grant a protection order in March 2012 any relief now would be futile or moot. However, there is the costs order which the applicant remains liable to pay until that is set aside. Thus relief would have real meaning still in that respect. Further, there is also the reputational damage which the applicant has suffered. In O’Regan v Lousich Tipping J found that a breach of natural justice by the Maori Land Court that detrimentally impacted on the reputation of the plaintiff was amenable to judicial review. Thus I consider that the material before me discloses that in relation to the two judgments of Judge Coyle the applicant has a prima facie meritorious case for judicial review.
[12] The fourth application concerns orders made by Judge Geoghegan on 14 May
2014. The Judge required Ms Brown to give security for costs on an application for a protection order and stayed “all applications by [Ms Brown] before the [Family] Court unless and until [she] has met all outstanding costs awarded payable to [the opposing party]”.14
[13] Duffy J had concerns about both orders. She said:15
[95] A stay of all the applicant’s applications in the Family Court, particularly future applications, goes against the principle of access to justice as guaranteed by s 27 of the New Zealand Bill of Rights Act 1990. The applicant may have legitimate claims that will be barred by the “unless order”/stay of proceedings. Her pursuit of costs against the first respondent following his discontinuance of the contempt application may be an example here.
[96] There are established mechanisms for dealing with frivolous and vexatious proceedings, or proceedings that are an abuse of process. For example, the Family Court has power to stay or dismiss proceedings if it considers that there is no reasonable basis for the proceeding or application, if the proceeding is frivolous, vexatious or an abuse of process.107
Similarly, there is a power to strike out pleadings.108 Further, there is the vexatious litigant regime set out at s 88B of the Judicature Act 1908. A
blanket “unless order”/stay of proceedings that relates to all present and
future applications brought by one party against another cuts across those established regimes.
[97] Nor is there any need to impose a blanket “unless order”/stay of proceedings to ensure the first respondent receives the outstanding costs that he is owed. The costs awards are judgment debts that the first respondent can pursue. All the usual remedies for recovery of debts are available to him. So it is hard to see any policy reason for reading r 237 in the way that the first respondent seeks. Further, I consider there are reasonable arguments to be made for not reading the rule so broadly. Nor do I consider that the Family Court’s inherent powers to control its processes go so far as to allow it to make a blanket “unless order”/stay of proceedings that extends to all present and possible future substantive applications that one particular party might bring against another particular party. The decisions to which Judge Geoghegan referred do not recognise the District Court having such extensive power. Indeed, I could find no decisions of this Court which recognised that effect.
[98] It follows that, unlike Associate Judge Doogue, I am not convinced that Judge Geoghegan had jurisdiction to make the blanket “unless order”/stay of proceedings. I think the applicant has a prima facie meritorious argument (may have a reasonably strong claim) that this order is ultra vires.
[14] The fifth judicial review application is directed to another judgment of Judge Geoghegan, delivered on 12 June 2013. This was an application by Mr Sinclair for an order dissolving their marriage. The application was opposed because Ms Brown challenged the date of separation. Mr Sinclair alleged that separation occurred on 25
February 2011, whereas Ms Brown contended it was 13 March 2011. The Judge accepted Mr Sinclair’s evidence on this issue.16
[15] The difference between the two dates could not have made any difference to whether a dissolution order was validly made. For the purposes of establishing that the marriage “had broken down irreconcilably”,17 the period of two years from the date of separation had expired, whichever date was chosen.18
[16] Ms Brown is concerned about the financial implications of acceptance of the earlier date because, she says, it throws costs onto her which would otherwise have been shared. Duffy J described the prospects of success in respect of this proceeding as “extremely weak”.19
[17] Ms Hansen, for the Commissioner, accepts that the views expressed by Duffy J, in respect of all five substantive judicial review proceedings, represent a change in circumstances since both the original decision of the Commissioner and the review decisions of the Tribunal were given. As a result, the Commissioner is reconsidering applications for aid in respect of the four proceedings that Duffy J considered were arguable, and has invited Ms Brown to make further submissions on whether aid should be granted on the fifth, the separation date point.
The defamation proceeding
[18] Ms Brown has sued Mr Sinclair her former husband for defamation. I
considered the likely merits of the claim in a judgment that I gave on 16 December
2014 on Ms Brown’s appeal against a decision given in the District Court at
Tauranga on an application for security for costs.
[19] Some of the allegations made by Ms Brown have been admitted by Mr Sinclair. The content of what had been said was such that a claim for defamation was not unreasonable. There is a presumption that if a person were defamed without any lawful justification or excuse, that some damage will flow in the ordinary course of events from the mere invasion of that person’s right of reputation. The value that might be put on the loss of reputation stemming from particular words will vary from case to case, but a plaintiff may be fully justified in bringing an action in
defamation to vindicate his or her character.20
[20] In the defamation proceeding in the District Court, Judge Ingram had ordered security to be given in the sum of $10,000 and that the proceeding be stayed until such time as that sum had been paid.21 I allowed the appeal and substituted an order of $1000. Ms Brown advised me that that sum has not been paid. At present, the defamation proceeding remains stayed.22 However, if legal aid were granted, the
appropriateness of the order will need to be reconsidered.
20 [citation redacted].
[21] The present position is that the Commissioner has made an interim grant of legal aid to enable counsel to be instructed for the purpose of a judicial settlement conference in the District Court. If settlement were not achieved, the Commissioner is prepared to consider a fresh application for a substantive grant.
The Family Court proceedings
[22] There are a number of proceedings in respect of which aid is sought. In summary, a grant of aid will allow Ms Brown:
(a) to oppose Mr Sinclair’s application for costs in a contempt proceeding that he has brought against Ms Brown;
(b)to oppose Mr Sinclair’s application for a rehearing of the costs order made by Judge Wills, in an endeavour to increase the amount payable;
(c) to oppose Mr Sinclair’s application for a security for costs order in Ms
Brown’s application for a protection order; (d) to bring an application for a protection order;
(e) to bring an application for a maintenance order; (f) to bring various applications for re-hearings;
(g)to oppose an application by Mr Sinclair to debar Ms Brown from taking further Family Court proceedings;
(h) to seek costs in Mr Sinclair’s discontinued contempt proceeding.
[23] The Commissioner, based on Duffy J’s views, has granted legal aid for a barrister, Mr Sutton, to review all of these applications and to report to the Commissioner on the likelihood of success. The Commissioner intends to make a decision on whether to grant aid after considering Mr Sutton’s opinion.
Analysis
[24] It is unnecessary for me to determine whether the decisions made by the Tribunal were or were not correct on the facts before it at the time the decisions were made. That approach is rendered otiose by the need for the Commissioner to consider all decisions on legal aid afresh, in light of the observations made by Duffy J in her decision.
[25] I consider that the present application can be adequately determined on the basis of the Commissioner’s acceptance of the need to reconsider whether aid should be granted in light of that judgment. I do so on the basis that, even if Ms Brown had persuaded me that the Tribunal erred in an administrative law sense, this Court retains a discretion not to grant relief where to do so would have no utility.
[26] I have already outlined the steps that the Commissioner intends to take to deal with applications for aid. Subject to two reservations, I am satisfied that the Commissioner’s position is reasonable and that the grants of aid that have been made and the further consideration to be given presently negates the need for relief on judicial review of the Tribunal’s decisions. My reservations are:
(a) So far as the dissolution issue is concerned, while there may be some prejudice to Ms Brown as a result of Judge Geoghegan’s acceptance of Mr Sinclair’s separation date, the fact remains that the Judge heard evidence from each of them and made a decision that is not the subject of an appeal.23 In addition, the time difference is immaterial. These were substantive decisions; no procedural error is apparent. I agree with Duffy J that Ms Brown’s prospects of success are slim.24
(b)So far as the defamation proceeding is concerned, I confirm Ms Hansen’s advice to me that no fresh application is required and that the Commissioner will treat this as a reconsideration of an application
that she deems (whatever the strict legal position) to remain on foot.
23 As the required period of separation of two years had passed in any event, no successful appeal could have been brought against the order for dissolution of the marriage: see para [15] above.
24 Duffy J characterised the claim as “extremely weak”: see para [16] above.
It is possible that amendments may be required to deal with other steps for which aid has not currently been granted, though I am sure that any application can be made with relative informality and without undue delay.
[27] Ms Brown has raised a concern about a letter that was sent to one of the barristers who has previously represented her suggesting that she had a criminal conviction and had misled medical practitioners. I do not need to go into the detail. It is sufficient to observe that Ms Brown denies the allegations, and there is no evidence before the Court to support them.
[28] So far as the Family Court proceedings are concerned, I am satisfied that the steps that the Commissioner proposes to take are reasonable. However, there may be merit (for reasons of efficiency and cost) for the Commissioner to use the opinion given by Ms Simes on 5 June 2014 as her first port of call on the applications with which the opinion deals. But, ultimately, that is something for the Commissioner to decide.
Result
[29] The appeals25 are dismissed.
[30] I do not propose, at this stage, to formally dismiss the judicial review applications26 in relation to the Tribunal’s decisions. I have a particular concern about the need for the Commissioner to address promptly applications for aid in respect of maintenance and protection orders that Ms Brown seeks. As I am not presently determining the judicial review applications on a merits based approach, I intend to monitor the steps that the Commissioner is to take. All things being equal,
I expect to be able to dismiss the applications at the next call, on the grounds that they are now moot.
[31] I adjourn the judicial review applications for a telephone conference before me at 9am on the first available date after 14 September. That date shall be fixed by
25 CIV 2015-470-1 and CIV 2015-470-2.
26 CIV 2015-470-3 and CIV 2015-470-4.
the Registrar, in conjunction with counsel and Ms Brown, including Mr Gorringe as
amicus curiae.
[32] No less than three working days prior to that conference, Ms Hansen shall file and serve a memorandum setting out the steps that the Commissioner has taken in respect of the legal aid applications in issue. If the issues raised have been rendered moot, the applications will be dismissed at that conference.
[33] I make no order as to costs as between Ms Brown and the Commissioner.
[34] Pending further order of the Court, I direct that this judgment shall be distributed only to the parties, counsel and the Legal Aid Tribunal. I will need to hear from counsel and Ms Brown further on questions of anonymisation.
[35] I thank Mr Gorringe for his valuable assistance as amicus in this proceeding. I continue his appointment to the time of final disposition of the present appeals and applications. Mr Gorringe may render a note of his costs to the Deputy Solicitor- General at that time. Those costs shall be paid out of moneys appropriated by Parliament for that purpose. I reserve leave to apply should any unexpected issues
arise involving quantum.
P R Heath J
Delivered at 11.00am on 17 August 2015
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