Convenor, Legal Aid Review Panel v Legal Services Agency HC Auckland CIV 2006 485 1877 - [2007] NZHC 1689

IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY

CIV 2006 485 1877

UNDER Section 61 of the Legal Services Act 2000

IN THE MATTER OF a review by the Legal Aid Review Panel under Part 3 of the Legal Services Act 2000 of a decision of the Legal Services Agency

BETWEEN THE CONVENOR, LEGAL AID REVIEW PANEL
Applicant

AND THE LEGAL SERVICES AGENCY First Respondent

AND AMANDA ELISABETH TURNBULL Second Respondent

Hearing: 28 February 2007

Counsel: M T Scholtens QC and J S McHerron for the Applicant
G D S Taylor and R M Taylor for the First Respondent

Judgment: 5 March 2007

JUDGMENT OF WILD J

Introduction

[1] Is the Legal Aid Review Panel (LARP) entitled to reports to the Legal Services Agency (the Agency) by its Specialist Advisers? That is the issue on this case stated by the Convenor of the LARP, for this Court’s opinion, pursuant to s61 of the Legal Services Act 2000 (the 2000 Act).

[2] Answering the four questions suggested by Mr Taylor seems to me a sensible approach, and will answer the two questions stated for the Court’s opinion.

THE CONVENOR, LEGAL AID REVIEW PANEL V THE LEGAL SERVICES AGENCY AND ANOR HC WN CIV 2006 485 1877 5 March 2007

[3] But first I need to explain what this case is all about and set it in its statutory context, both past and present.

Background

[4] As from 1 March 2007, civil legal aid is available upon criteria set out in s9 of the 2000 Act. These limit legal aid to individuals or trustee corporations with disposable income and capital under a $2,000 threshold, and who have reasonable grounds for taking or defending the proceeding or being a party to it. Section 9(4) gives the Agency a discretion to refuse legal aid if the applicant’s prospects are insufficient, or the nature of the proceeding and the applicant’s interest in it are such that a grant of legal aid is not justified. Amendments which came into force on 1
March 2007 add specific mandatory criteria where legal aid is sought for a proceeding under family and mental health legislation.

[5] It is irrelevant now to trace past eligibility criteria, suffice it to say that they were generally less prescriptive.

[6] The coming into force of the 2000 Act removed legal aid decision-making from the legal profession and the Courts to the Agency. The new decision-makers were and are public servants, few if any legally qualified. They lack the legal knowledge, and the experience of legal practice, which the former decision-makers had.

[7] The Agency filled this gap in its institutional legal knowledge and experience by appointing Specialist Advisers. Three of these are internal Specialist Advisers (ISAs) on the Agency’s staff, and about 30 are external Specialist Advisers (ESAs), drawn from the practising legal profession throughout New Zealand.

[8] These ISAs and ESAs have no statutory recognition, but their role is outlined in Part 17 – Specialist Advisers, of the Agency’s Service Practice…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

AGLC: Convenor, Legal Aid Review Panel v Legal Services Agency HC Auckland CIV 2006 485 1877 [2007] NZHC 1689
Case: [2007] NZHC 1689
Decision Date: 5 March 2007

CaseChat Overview and Summary

This case was brought before the Court by the Convenor of the Legal Aid Review Panel (LARP), who sought an opinion on whether LARP is entitled to reports provided by Specialist Advisers to the Legal Services Agency (the Agency). The Applicant argued that the reports are necessary for the LARP to review the Agency's decisions on applications for legal aid and to enable the LARP to perform its statutory role. The Agency argued that the reports are protected by legal advice privilege and that the provisions of the Legal Services Act 2000 do not override this privilege.

The court found that the Specialist Advisers' advice does not fall within the scope of legal advice privilege. This conclusion was reached by determining that the advice did not have a relevant legal context and that it was not reasonable to expect the privilege to apply. The court also found that the Legal Services Act 2000 provisions do override legal advice privilege, as the disclosure of the Specialist Advisers' reports is necessary to enable the LARP to review the Agency's decisions and to perform its statutory role.

In summary, the Court found that the Convenor of the LARP is entitled to require the Agency to provide copies of specialist advisers' reports obtained in relation to a decision which is subject to review by the Panel, and that a team assigned to a review of a decision by the Legal Services Agency is entitled to require the Agency to provide copies of specialist advisers' reports obtained in relation to a decision which is subject to review by the Panel.

Orders