Criminal Bar Association of New Zealand Inc v Attorney-General

[2012] NZHC 400

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CIV-2012-404-00992 [2012] NZHC 400

UNDER  Legal Services Act 2011 and the Judicature Amendment Act 1972, the Declaratory Judgments Act 1908 and/or Parts 18 and 30 of the High Court Rules

IN THE MATTER OF     certain actions and proposed actions of the New Zealand Cabinet, the Minister of Justice, the Ministry of Justice, the Secretary for Justice and the Legal Services Commissioner, including past, proposed or purported exercises of statutory power

under the Legal Services Act 2011 by the Secretary for Justice and the Legal Services Commissioner

BETWEEN  CRIMINAL BAR ASSOCIATION OF NEW ZEALAND INCORPORATED Plaintiff

ANDATTORNEY-GENERAL First Defendant

ANDLEGAL SERVICES COMMISSIONER Second Defendant

Hearing:         6-7 March 2012

Counsel:         R E Harrison QC, G M Illingworth QC and K H Cook for Plaintiff

C R Gwyn and T J Warburton for Defendants

Judgment:      12 March 2012

I direct the Registrar to endorse this judgment with a delivery time of 3.30pm on the

12th day of March 2012.

RESERVED JUDGMENT OF MACKENZIE J

CRIMINAL BAR ASSOCIATION OF NEW ZEALAND INCORPORATED V ATTORNEY-GENERAL HC AK CIV-2012-404-00992 [12 March 2012]

Table of Contents

Introduction  [1] The legal aid changes  [5] The application for judicial review  [17] The application for interim relief  [18] Representation  [40] Transfer of proceedings  [43]

Introduction

[1]      The Secretary for Justice has introduced changes to the Criminal Legal Aid Scheme, changing the basis upon which fees payable to legal aid providers are calculated.  The changes apply to all applications for criminal legal aid received on or  after  5 March 2012.    They  involve  a  new  method  of  payment  to  legal  aid providers.  Instead of paying providers an hourly rate, fixed fees are to be paid for completing specific activities.  That fixed fees regime is expected to apply to about

95 per cent  of  criminal  legal  aid  cases.    Complex  cases,  expected  to  comprise approximately five per cent of all criminal cases, may be managed outside of the fixed fee schedules.

[2]      The plaintiff has commenced these proceedings seeking judicial review of:

(a)      The decision to introduce a fixed fees regime for remuneration of criminal  legal  aid  services  provided  by  legal  aid  practitioners  in private practice, announced in December 2011;

(b)The  administrative  policy  implementing  the   fixed   fees   regime decision published by the Ministry on or about 24 February 2012; and

(c)     Proposed or purported future exercises by the Legal Services Commissioner of his powers under the Legal Services Act 2011 in obedience, to or implementation of, the Fixed Fees policy.

[3]      The proceedings were filed on 27 February 2012.  The plaintiff also filed an application for interim relief, prohibiting the implementation of the challenged decisions pending the substantive hearing of the plaintiff’s judicial review challenge. The defendants were not willing to agree to a delay in the implementation of the fixed fees regime beyond the advised start date of 5 March.  The plaintiff sought an urgent hearing of the interim relief application.

[4]      Also before the Court at this stage are two other interlocutory applications:

(a)      An application by the plaintiff for an order directing that the plaintiff represent the interests in relation to this proceeding of its members who are providers of criminal legal aid services in private practice; and

(b)      An application by the defendants for the transfer of the proceedings to

Wellington.

The legal aid changes

[5]      I describe briefly the changes which have led to the challenged decisions.  I do so only to provide background to the discussion in this judgment. The description is not comprehensive, and it does not constitute factual findings.

[6]      In 2009, the Government commissioned a review of the New Zealand legal aid system, chaired by Dame Margaret Bazley.  The review identified a number of issues within the legal aid system.   It led to the introduction in 2010 of the Legal Services Bill, to replace the Legal Services Act 2000.  The explanatory note to the Bill described the reforms as follows:

The Bill will reform the legal aid system in the following ways:

•   transferring the administration of publicly funded legal services to the Ministry of Justice and providing that the Secretary for Justice will be responsible for establishing and delivering different legal services; and

•   disestablishing  the  Legal  Services  Agency  and  establishing  a  new statutory officer within the Ministry of Justice, the Legal Services Commissioner, who will be responsible for the granting of legal aid; and

•   introducing  a  new  quality  assurance  and  performance  management system for those providing publicly funded legal services under the Bill; and

• enabling the development of streamlined processes for assessing applications for certain low-cost criminal cases; and

•   replacing the current Legal Aid Review Panel with a new Legal Aid

Tribunal; and

•   clarifying that legal aid is available for Waitangi Tribunal proceedings, but not negotiations with the Crown to achieve a settlement of a claim, as this process is funded by the Office of Treaty Settlements within the Ministry of Justice; and

•    making administrative improvements.

[7]      The Bill was enacted, and came into force, as the Legal Services Act 2011, on

1 July 2011. The purpose of the Act is set out in s 3:

The purpose of this Act is to promote access to justice by establishing a system that—

(a)       provides legal services to people of insufficient means; and

(b)      delivers those services in the most effective and efficient manner.

[8]      Under s 8, criminal legal aid is granted by the Legal Services Commissioner, an employee of the Ministry of Justice appointed under s 70.  When granting legal aid, the Commissioner, under s 16:

(a)      Must specify the conditions  under which the legally aided person must make a contribution by way of repayment of legal aid;

(b)      Must identify the lead provider;

(c)      May  specify  a  maximum  grant.    Either  the  aided  person  or  the provider  may  apply  to  the  Commissioner,  under  s 28,  for  an amendment to the grant.

[9]      The functions of the Secretary for Justice are set out in ss 68 and 69 which provide:

(1)      The functions of the Secretary under this Act are—

(a)       to  establish,  maintain,  and  purchase  high-quality  legal services in accordance with this Act:

(b)       to perform any functions that are conferred or imposed on the Secretary by or under this Act:

(c)       to perform any other functions relating to legal services that are conferred or imposed on the Secretary by or under any other Act.

(2)      For the purposes of performing his or her functions, the Secretary may—

(a)       assess and determine the need for legal services by people with insufficient means; and

(b)      specify legal services to which subpart 2 applies; and

(c)       determine the method or methods for the delivery of legal services; and

(d)      determine the allocation of legal services—

(i)        on the basis of the method or methods of delivery that the Secretary considers appropriate for the type of legal service to be provided; or

(ii)      in any other manner that the Secretary considers appropriate; and

(e)       subject to this Act, disestablish any legal services established under this Act; and

(f)       deliver any legal services established under this Act; and

(g)      undertake or fund law-related research and education; and

(h)      exercise any other power conferred on the Secretary by this

Act or any other enactment.

Without limiting section 68(2)(c), the methods of delivery of legal services may include—

(a)       making arrangements, subject to the Lawyers and Conveyancers Act

2006, for the services of non-lawyers to be made available:

(b)      entering into agreements with individual lawyers, groups of lawyers, or law firms for the provision of legal services:

(c)       employing salaried lawyers to provide legal services:

(d)      entering  into  contracts  with  community  law  centres  to  provide community legal services.

[10]     The functions of the Commissioner are set out in s 71 which provides:

(1)      The Commissioner has the following functions:

(a)       to  grant  legal  aid  in  accordance  with  this  Act  and  the regulations:

(b)      to determine legal aid repayments where legal aid is granted: (c)    to assign a provider of legal aid services or specified legal

services to an aided person:

(d)      in relation to salaried lawyers,—

(i)       to  decide  the  allocation  of  cases  among  salaried lawyers:

(ii)      to   oversee   the   conduct   of   legal   proceedings conducted by salaried lawyers:

(iii)     to manage the performance of salaried lawyers:

(e)       to   carry   out   any   other   function   conferred   on   the Commissioner by the Minister, by the Secretary, or by or under this Act or any other enactment.

(2)       The Commissioner must act independently when performing any function stated in subsection (1)(a) to (d).

[11]     Both the 2011 Act, and the 2000 Act, provide for the approval of legal aid providers.  Providers approved under the 2000 Act entered into a contract for service with  the then  Legal  Services Agency,  setting  out  the terms  on  which  the legal services to be provided to an aided person were to be provided.   The 2011 Act contains a transitional provision for providers listed under the 2000 Act.  Section 135 provides:

(1)       A person who, immediately before the commencement of this Act, was a listed provider within the meaning of the former Act is, on the commencement of this Act, approved to provide the services that he or she was listed as approved to provide under the former Act for a period of 6 months after the commencement of this Act.

(2)       If the person makes an application within that 6-month period for approval to provide legal aid services or specified legal services, the approval conferred by subsection (1) continues until the Secretary decides the application.

(3)       An approval conferred by subsection (1) is subject to the provisions of this Act as if the approval had been granted under this Act.

(4)       If,  immediately  before  the  commencement  of  this  Act,  a  listed provider's approval is cancelled or temporarily suspended under the

former Act, sections 72A and 73 of the former Act continue, despite the repeal of the former Act, to apply to that approval.

(5)       A contract between a listed provider and the Legal Services Agency that is in force immediately before the commencement of this Act is deemed to be a contract between the provider and the Secretary.

[12]     Some listed providers under the 2000 Act have not made an application for approval under the 2011 Act.   For such persons, the six month approval period in s 135 has now expired.  Existing providers who have applied for approval under the new Act have continued approval under subs (2).   It appears that the majority of providers currently fall within this transitional provision.   For such providers, the previous contract remains in force under subs (5).

[13]     The previous basis for payment to criminal legal aid providers, established under the 2000 Act and continued under the 2011 Act, includes some fixed fees for matters such as guilty pleas in the summary jurisdiction, but generally providers are paid an hourly rate determined by both the seriousness of the charge and the experience level of the provider.  Guideline hours for defined steps are prescribed. Those guideline hours, and hourly rates, are used to determine a maximum grant.  If a provider considers a particular case exceeds the guideline hours the provider may apply for an amendment to the maximum grant.   There are provisions for reconsideration, review and appeal of such decisions.

[14]     In February 2011, while the 2011 Act was still before Parliament, Cabinet made a number of decisions, including the following:

14.      Agreed to establish a new purchase approach that will:

14.1establish fixed fees for cases that have more standard cost structures, with prices set to reduce the cost per grant;

14.2establish high cost case management for the most expensive cases, with prices set to reduce the cost per grant;

14.3reduce fee-for-service payments for remaining cases, so that payments are comparable with rates in the new purchase regime;

[15]     In accordance with that direction, work was undertaken within the Ministry, with  the  assistance  of  consultants.     Following  discussions  with  organisations

representing providers, the Ministry issued a consultation paper on a fixed fees framework for criminal legal aid in September 2011.  Submissions were invited and a further paper “Criminal legal aid fixed fees – Summary of submissions, response and final decisions” was issued in December 2011.  The changes were summarised in the Introduction to that paper in these terms:

The Ministry of Justice is introducing changes to how legal aid services are funded  to  better  manage  and  reduce  expenditure  on  legal  aid.  The introduction of a fixed fees framework for criminal legal aid is part of these changes. The framework is designed to set the fees for cases that have relatively standard costs. It is intended to provide greater certainty for government, legally aided clients and providers around payments for legal services, as well as be more administratively efficient and provide a more sustainable base for legal aid.

The fixed fees approach recognises that while few cases are identical, they all progress through well-defined stages of preparation – although some may require additional specific activities. Under the proposed framework, fixed fee payments will be made for an activity or group of activities according to schedules of fixed fees covering each of the criminal legal aid proceedings categories.

It   is   anticipated   that   the   fixed   fees   schedules   will   accommodate approximately 95% of criminal legal aid cases, with the remaining 5% being “complex”. The 5% does not reflect a rigid quota, but an assessment of the number of cases that would require amendment according to our published amendment policy. When a case becomes complex, it would be managed through a mixture of fixed fees and guideline hourly rates, or through the high cost case management system.

The government has directed the Ministry to make savings from the implementation of fixed fees of 10%. This is based on setting a level of fixed fee that is 10% below the averages costs for similar cases in 2010/11. The government requires cost savings to be made across the board, and similar reductions and cost savings also apply to complex and high cost criminal cases, though these will be managed outside the fixed fees system.

[16]     The  Ministry  subsequently  issued  a  document  in  February 2012  entitled “Criminal Fixed Fee and Complex Cases - Policy and Procedures”.   That set out detailed procedures for administering the fixed fee regime.  The fixed fees regime has now come into force, from 5 March 2012.

The application for judicial review

[17]     The   plaintiff   seeks   judicial   review   of   the   decision   recorded   in   the

December 2011 document to introduce a fixed fees regime, which it refers to as “The

Fixed Fees  Regime Decision”.    It  also  challenges  the Ministry’s Administrative Policy published in the 24 February 2012 document, which the plaintiff refers to as “The Fixed Fees Policy”.   In addition, it seeks relief in relation to decisions to be made by the Commissioner in the exercise of his powers and functions, where those decisions are given in obedience to, or implementation of, the Fixed Fees Policy. There are three alternative grounds for review set out in detail in the statement of claim.   In his submissions Mr Harrison QC summarised these causes of action in these terms:

(a)      The Fixed Fees Regime, which involves a slashing of criminal legal aid remuneration rates and allowances overall by (at least) 10%, has been unlawfully introduced by the Ministry and/or its officials under (unlawful)  Cabinet  direction,  despite  the  Ministry decision-makers being required by law to apply their own independent judgment and discretion in terms of the 2011 Act.

(b)More fundamentally and in any event, the Fixed Fees Regime and/or the Fixed Fees Policy are, in specified major respects, contrary to the provisions and overall scheme and purpose of the 2011 Act.

(c)      The Fixed Fees Regime and/or the Fixed Fees Policy are unlawful and unreasonable in terms of their content and effect, particularly given that the relevant statutory goal is one of establishing, maintaining and purchasing “high-quality legal services in accordance with” the 2011

Act, and that the Regime and Policy can only subvert that goal, not advance it.

The application for interim relief

[18]     The  application  for  interim  relief  is  founded  on  s 8  of  the  Judicature

Amendment Act 1972 and r 30.4 of the High Court Rules.

[19]     I deal first with s 8 of the Judicature Amendment Act 1972.  Subsection (1)

provides as follows:

Subject to subsection (2) of this section, at any time before the final determination of an application for review, and on the application of any party, the Court may, if in its opinion it is necessary to do so for the purpose of preserving the position of the applicant, make an interim order for all or any of the following purposes:

(a)       Prohibiting any respondent to the application for review from taking any further action that is or would be consequential on the exercise of the statutory power:

(b)       Prohibiting  or   staying  any  proceedings,  civil  or  criminal,  in connection with any matter to which the application for review relates:

(c)       Declaring any licence that has been revoked or suspended in the exercise of the statutory power, or that will expire by effluxion of time before the final determination of the application for review, to continue and, where necessary, to be deemed to have continued in force.

[20]     The principles to be applied on an application for interim relief under s 8 are those  set  out  in  Carlton  &  United  Breweries  Limited  v  Minister  of  Customs.1

Cooke J said:2

Section 8 of the Judicature Amendment Act 1972 gives a valuable power to make interim orders, a power which should not, it seems to me, be restricted by any such formulation as is to be found in the well-known English case about interim injunctions, American Cyanamid Co v Ethicon Ltd [1975] AC

396. It is not in dispute in this case that there are serious questions to be tried. But, in considering whether a bond from an exporter for dumping duty should be permitted under s 8, I think that the court should require the exporter applying for interim relief to show prospects of ultimate success in the review proceedings better than might be merely consistent with saying that there is a serious  question to be tried.  In  the special class of case concerning  dumping  duties  a  serious  question  test  would  be  too  light, bearing in mind the scheme of Part VA. At least a prima facie case should be shown. In my opinion such a case is shown here; which is not to say that it will not eventually be fully answered.

Of course I am not suggesting that there should be any general rule that a prima facie case is necessary before interim relief can be granted under s 8. In general the Court must be satisfied that the order sought is necessary to preserve the position of the applicant for interim relief — which must mean reasonably necessary. If that condition is satisfied, as the Chief Justice was entitled to find that it was here, the court has a wide discretion to consider all the circumstances of the case, including the apparent strength or weakness of the claim of the applicant for review, and all the repercussions, public or private,  of  granting  interim  relief.  The  Chief  Justice's  judgment  was  in accord with that general approach.

1      Carlton & United Breweries Limited v Minister of Customs [1986] 1 NZLR 423 (CA).

2      At 430.

[21]     In this case, counsel made extensive submissions directed to the strength of its case on the substantive application for judicial review.   I do not address those submissions in detail.  I do not consider that it is advisable to enter into any more detailed discussion of the merits on the application than is necessary for the limited purposes for which the merits are relevant to interim relief.  The merits will have to be the subject of argument at the substantive hearing. At this interim relief stage, the plaintiff must show prospects of ultimate success in the review proceedings better than might be merely consistent with saying that there is a serious question to be tried. At least a prima facie case should be shown.  I proceed on the assumption that a prima facie case is shown, and say nothing about the strength or otherwise of the plaintiff’s prospects of success at the substantive hearing.

[22]     In applying s 8, the Court must be satisfied that the relief sought is reasonably necessary to preserve the position of the applicant.

[23]     There  are  in  this  case  two  questions  in  considering  the  position  of  the applicant. These are:

(a)       Who is to be considered as ‘the applicant’;  and

(b)      What is the position which may require protection.

[24]     As  to  the  first  question,  Ms Gwyn  submits  that  the Association  is  itself unaffected by the implementation of the Fixed Fees Regime because it is not a legal aid provider and does not represent legal aid recipients.  She submits that at most, the plaintiff can assert that some of its members may leave the bar and the loss of their membership  of  the  Association  may  result  in  a  decline  of  membership  fees. Ms Gwyn  does  not  take  any  issue,  on  the  issue  of  standing  to  bring  these proceedings,  as  to  the  status  of  the Association.    But  she  submits  that,  when considering this  interim  relief  application,  it  is  necessary to  have regard to  the limited effect of the legal aid changes on the plaintiff itself, as distinct from its members.

[25]     I do not think that it is appropriate to adopt that narrow view of who is the applicant.   The Association brings these proceedings representing its members.   It

seeks a formal order to that effect, as I later address in dealing with the application for a representation order.  Whether or not a representation order is made, I consider that it is appropriate to take into account the effect of the introduction of the fixed fees regime on legal aid providers who are members of the Association, not just its effect on the Association itself.

[26]     The second question is:  What is the position which may require protection. Because the effect on members of the Association will be, in general, no different from that on other criminal legal aid providers who are not members of the Association,  the  position  to  be  considered  is  essentially  that  of  private  sector criminal legal aid providers in general.  Mr Harrison submits that it would be wrong to equate “the position of the applicant” with the kinds of interest which might entitle the plaintiff to injunctive relief under a private law cause of action.   He submits that the position at issue may be no more than the entirely intangible and non-material one of not having been consulted in advance, or potentially facing an unlawful  or  unreasonable  decision.     He  refers  to:     New  Zealand  Society  of

Physiotherapists v Accident Compensation Corporation (No 1);3    Northland Milk

Vendors  Association  Inc.  v  Northern  Milk  Ltd;4      and  Clee  and  Jayanandan  v Attorney-General.5   He submits that to the extent that the judgment of Ellis J in Clee suggests otherwise, that goes too far.

[27]     I do not consider that this is a case which requires consideration of some intangible and non-material position on the part of legal aid providers, of the type referred  to  by  Mr Harrison.    A  position  of  that  type  may  sometimes  require consideration, on an interim relief basis.   That will usually be so only where the decision in issue is a statutory power of decision directly affecting individuals.  That is not so here.   The decisions challenged in this case are decisions taken in the implementation of a general Government policy.  The decision maker is not subject to explicit statutory obligations of consultation, or of consideration of the positions

of individuals affected, in a way which might give rise to a need to consider such an

3      New Zealand Society of Physiotherapists v Accident Compensation Corporation (No 1) [1983] NZACR 731 at 734, 735.

4      Northland Milk Vendors Association Inc. v Northern Milk Ltd [1988] 1 NZLR 530 at 542-543.

5      Clee and Jayanandan v Attorney-General HC Auckland CIV-2010-404-7101,

12 November 2010.

intangible position.   This case is in that respect analogous to that in Clee, where Ellis J held that legal aid providers did not have a position to preserve in respect of changes to the method of assigning legal aid providers.

[28]     There will be a financial effect on legal aid providers from the introduction of the different basis for calculating fees payable to them.  The plaintiff submits that the changes  will  have  the  effect  of  reducing  legal  aid  fees.    I  accept,  for  present purposes, that the changes may result in a reduction of income to practitioners from criminal legal aid work.

[29]     However, in my view, this is not sufficient to render interim relief reasonably necessary.    If interim  relief is  not  granted, then  all  legal  aid  assignments  from

5 March 2012 will be under the new regime.  If, at the substantive hearing, the fixed fees regime were set aside, the previous regime would have to be reinstated.  Legal aid providers would be entitled, under their contract of service, to payment in accordance with the correct regime.  Ms Gwyn accepted that an exercise of this sort would be necessary if the fixed fees regime was set aside.  The consequences for an individual  legal  aid  provider  would  potentially  be  some  delay in  receiving  any increased payment under the correct regime, and some additional administrative burden in dealing with the recalculation of the fees which the Ministry would have to undertake.    Neither that  potential  delay in  payment  nor the potential  additional administrative burden on practitioners is such as to justify the grant of interim relief to protect the position of the legal aid providers.  An early fixture for the substantive application for review can be given.

[30]     Mr Harrison also raises as a matter of possible concern the interim effect of the lower fixed fees on criminal legal aid providers whose practices are, for one reason or another, marginal in terms of their financial viability.  To justify a grant of interim relief on that account, it would be necessary for the plaintiff to demonstrate a real and serious risk that some practitioners may be unable to carry on in practice until the decision on the substantive judicial review proceeding, and the readjustment of fees which would then take place, as I have described, if the application for judicial  review  were  successful.     There  is  no  evidence  which  supports  the proposition that the financial position of any practitioner is so dire as to justify

interim relief on that account.   If there were any practitioner in that situation, any interim relief would have to be tailored to the needs of that practitioner.  It could not justify a delay in implementing the fixed fees regime across the board.

[31]     A further relevant consideration in considering the financial implications is the effect on the defendants of the granting of interim relief.   Any interim relief granted would need to address the possibility that the plaintiff might be unsuccessful. The plaintiff’s contention is that the fixed fees regime will produce lower fees than the previous regime.  If the fixed fee regime were delayed pending the substantive hearing, and if the plaintiff was then unsuccessful, there will have been additional costs  incurred  by the legal  aid  scheme.   The  mechanism  ordinarily adopted, to address the possibility that a defendant who is ultimately successful may suffer a loss from the granting of interim relief, is an undertaking as to damages.  That is not a viable mechanism here.  Any relief granted would need to provide for the converse exercise to that which I have described above, by way of recalculation of legal aid fees paid in the meantime, if interim relief were granted but the plaintiff was ultimately unsuccessful.  That is not feasible here.  The delay to the introduction of the fixed fee regime which is sought would apply to providers who are not members of the Association, and could not be bound by any order made in this proceeding.

[32]     This means that there are in essence two options:

(a)       To refuse interim relief, with a subsequent adjustment of fees payable to legal aid providers if the plaintiff is ultimately successful;  or

(b)To grant interim relief, on terms which require a readjustment to fees paid in the interim period if the plaintiff is ultimately unsuccessful.

[33]     Weighing  the  balance  of  convenience  between  these  two  alternatives,  I

consider that the balance falls decisively in favour of the first.

[34]     Mr Harrison also raises for consideration the interim position of those facing criminal charges who are the recipient of grants of legal aid under the fixed regime. He submits that they will be significantly prejudiced because they will, in a substantial number of cases, be receiving, if the plaintiff’s challenge is upheld, less

than their statutory entitlements as grantees of legal aid.  He submits that they will in practical terms receive significantly under-resourced legal representation.

[35]     Such considerations do not go directly to the preservation of the position of the applicant.  However, given the role of the criminal bar in protecting the rights of those charged with criminal offences, I consider that it is appropriate to address this aspect, in considering whether interim relief is necessary.  I do not consider that the position of persons to whom legal aid is granted requires protection in the interim period.  Their right to a grant of legal aid is unaffected by the changes.  There is no evidence to justify a conclusion that there may be difficulty in criminal defendants being assigned a provider, either from the private profession or from the public defender service.   The defendants are statutorily responsible for making the assignments.  All of those providers have professional, as well as contractual, obligations  to  perform  all  the  services  necessary  to  carry  out  the  assignment. Section 81 of the 2011 Act makes that quite clear.  Accordingly, I do not consider that there is any necessity to preserve the position of the recipients of legal aid grants in the interim.

[36]     For these reasons, considering the matter in the light of the test in s 8 of the Judicature Amendment Act 1972, as discussed in Carlton, I consider that the plaintiff has not demonstrated that the grant of interim relief is necessary to protect the position of the applicant.6

[37]     The plaintiff also relies on r 30.4 of the High Court Rules which provides:

(1)       When an application is made for an extraordinary remedy under this Part, the court may make an interim order on whatever terms and conditions the court thinks just.

(2)       An applicant who applies for an interim order must, if ordered by the court, file a signed undertaking to the effect that the applicant will abide by any order that the court may make in respect of damages—

(a)      that are sustained by any other party through the making of the interim order; and

(b)      that the court decides the applicant ought to pay.

(3)      The undertaking must be referred to in the order and is part of it.

[38]     I do not, at this stage, deal with the question of whether the relief sought does properly fall within the scope of the extraordinary remedies defined in r 30.2, as distinct from the application for judicial review.  For present purposes, I assume that it may.   The discretion in r 30.4 to grant an interim order must be exercised in a principled way.  That might be done by applying, by analogy, either the s 8 test, or the balance of convenience test used on an application for an interlocutory injunction under  r 7.5(3).    That  involves  the  two  stage  approach  described  in  American Cyanamid Co v Ethicon Ltd.7      If I were to apply that test, I would reach the same conclusion as that which I have reached under the s 8 analysis.  Balancing the two options described in [32], the balance of convenience falls decisively in favour of the first option.

[39]     For these reasons, the application for interim relief must be refused.

Representation

[40]     The plaintiff seeks an order under r 4.27(g) of the High Court Rules directing that the plaintiff represent the interests in relation to this proceeding of its members who are providers of criminal legal aid services in private practice.

[41]     I do not think that it is appropriate to make such an order.  As I have noted above, counsel for the defendants takes no formal point as to the standing of the Association to seek judicial review of the relevant decisions.  In considering interim relief, I have felt able to have regard to the position of the members of the Association, and indeed of legal aid providers more generally, without the need for a representation order.  Mr Harrison did not identify any issues which might arise on the substantive application for judicial review which would make the order sought necessary.  I consider that there is no need to add procedural complexity by making such an order.

[42]     The application for an order under r 4.27(g) is refused.

Transfer of proceedings

[43]     This proceeding was commenced in Auckland.   That was supported by an affidavit of Mr Anderson as to the place where the cause of action arose under r 5.1(3) of the High Court Rules which read:

I am the acting president of the plaintiff and am authorised to make this affidavit on its behalf.

This application for judicial review and related relief concerns actions taken and decisions made by the New Zealand Cabinet, the Minister of Justice, the Ministry of Justice, the Secretary for Justice and the Legal Services Commissioner.  The Fixed Fees Regime and Fixed Fees Policy (to use terminology employed in the statement of claim) will be implemented New Zealand wide, but as to the greatest extent in the Auckland region, where the plaintiff has its registered office and the majority of it members who are affected by the decisions, actions and policies the subject of the proceedings reside and practice law.  An aspect of the plaintiff’s proceedings is that it seeks to restrain not only past purported exercises of statutory power, but also proposed exercises of statutory power in relation to applications for and grant of criminal legal aid which are to occur in the Auckland region – and also elsewhere in New Zealand – as from 5 March 2012.

Accordingly I believe that the place where a material part of the plaintiff’s judicial review causes of action arises (namely Auckland) is nearest the place where the plaintiff resides (namely Auckland) than to the place where the first defendant resides.  (That is, if the first defendant can be said to reside anywhere, given that he is sued by virtue of his office rather than in any personal capacity.)

[44]     The defendants have applied for an order transferring the proceedings to Wellington.  They submit that the proper registry is Wellington, as that is where the cause of action arose.

[45]     The  plaintiff’s  application  is  for  judicial  review  under  the  Judicature

Amendment Act 1972.  Section 9(7) of that Act provides:

Subject to this Part of this Act, the procedure in respect of any application for review shall be in accordance with rules of Court.

[46]     The rules of Court, namely the High Court Rules, set out the criteria for determining  the  proper  registry  for  commencing  proceedings.     The  relevant provision in this case is r 5.1(1)(c) which provides that the proper registry is:

when the Crown is a defendant, the registry nearest to the place where the cause of action or a material part of it arose:

[47]     Section 10(2)(g)  of  the  Judicature  Amendment  Act  1972   enables  the presiding judge, at a pre-hearing conference, to “fix a time and place for the hearing of the application for review”.  The inter-relationship between those provisions has been considered in a number of cases.  The principles were summarised by Asher J in K v Chief Executive of the Department of Labour where he said:8

The requirement of s 9(7) that the procedure shall be in accordance with rules of Court, requires the Court to treat r 5.1(1)(c) as a guideline which is to be taken into account when the Court exercises its open discretion under s

10(2)(g) of the Judicature Amendment Act 1972. It is not determinative as to the  place  of  filing  in  a  judicial  review  application  where  there  may  be

particular circumstances that warrant a departure from the rule.

The relationship was considered by Thorp J in Auckland Harbour Board v

Belgrave 14/8/87, Thorp J, HC Auckland CP423/87, where he stated:

I am inclined to the view that the power given in Section 10(2)(g) to determine the place for hearing of an application for review was intended to recognise the shortcomings of Rule 107 [r 5.1] as a basis for determining the appropriate place of hearing of review applications, and to permit the Court to take a somewhat broader approach to that issue than that historically made in respect of interparty disputes determined pursuant to the other jurisdictions of the Court. [P 10]

A similar view was reached by Randerson J in NZ Assn for Migration & Investment v A-G 3/3/03, Randerson J, HC Auckland M1700/02, at para 17, where he observed that as a general rule the High Court Rule was a guide but must give way to the general statutory objective set out in s 10(1) of the Judicature Amendment Act 1972.

The special circumstances that might warrant a departure from r 5.1(1)(c) could include particular regional public interest in the subject matter of the judicial review application (Auckland Harbour Board v Belgrave 14/8/87, Thorp J, HC Auckland CP423/87, Thorp J, at p 10). So too might a delay in obtaining a hearing date in the registry of filing, which would not meet the object of s 10(1) to determine applications in a convenient and expeditious manner.

[48]     There  are  accordingly  two  questions  to  be  addressed  in  determining  the

Crown’s application for transfer. These are:

(a)      What is the proper registry under r 5.1(1)(c) of the High Court Rules?

and

8      K v Chief Executive of the Department of Labour (2009) 19 PRNZ 222 (HC) at [6]-[9].

(b)Are  there  circumstances  which  might  warrant  a  departure  from r 5.1(1)(c), under s 10(2)(g) of the Judicature Amendment Act 1972?

[49]     The term “cause of action” means every fact which it will be necessary for the plaintiff to  prove,  if  traversed,  in  order to  support  the plaintiff’s  right  to  a judgment.9    The challenge is to decisions made by the Ministry of Justice.  Those decisions were taken in Wellington.  The decisions apply generally to all legal aid grants, and to all legal aid providers.  They are not geographically confined in any way.  There is no basis for a finding that a material part of the cause of action arose at every place where any of the decisions challenged may have practical effect or application.    The  cause  of  action  for  judicial  review  of  the  decisions  arose  in

Wellington.

[50]     Mr Anderson’s affidavit says that the plaintiff’s proceeding seeks to restrain all proposed exercises of statutory power in relation to applications for, and grants of, criminal legal aid which are to occur in the Auckland region as well as elsewhere in New Zealand as from 5 March 2012.   I do not consider that that aspect of the plaintiff’s claim is sufficient to support the proposition that a material part of the cause of action arose in Auckland.  Grants of legal aid will be made administratively, applying the relevant policies.  The challenge here is to the policies which are to be applied  in  considering  applications,  not  to  the  applications  themselves.     The statement of claim does not challenge individual decisions on grants of legal aid.  It seeks relief in respect of future decisions, which is consequential on its challenge to the policy decisions.

[51]     A similar point was considered by Asher J in K v Chief Executive.  There, the applicant sought to challenge an immigration decision on three grounds:

(a)       Error of law by the Minister of Immigration;

(b)That the decision of the Minister was unfair and unreasonable and based on inadequate advice;  and

(c)       A decision to issue a deportation notice but to keep the plaintiff “in limbo”, in custody in Auckland prison.

[52]     Asher J noted that the first two causes of action focused on a decision made in Wellington.  He said:10

In judicial review the focus is on the procedures of the decision-maker and the lawfulness of the decision itself. Here the causes of action do not focus on the lead-up procedures, but rather on the lawfulness of the Minister’s decision. Indeed, the procedures leading up to that decision are not criticised, and there is no criticism of any step taken in Auckland. Therefore, no step or circumstance in Auckland will be of key pertinence in considering the first two causes of action. If there were only the two causes of action, it would be difficult to say that a material part of them arose in Auckland, although it is not necessary for me to express a firm conclusion on this point.

[53]     Asher J, however, took a different view with regard to the third cause of action.    He  held  that  the  plaintiff’s  residence  in  a  prison  in Auckland  was  an important fact which it would be necessary for the plaintiff to prove to establish the third cause of action.  He held that that was sufficient to constitute a material part of the cause of action so that the proceedings were properly commenced in Auckland.

[54]     The present case is analogous to the first two causes of action in that case. For the reasons I have given, the proposed application of the policy in individual cases is not sufficient to constitute a material part of the cause of action.  There are no facts which the plaintiff must prove, to establish any of the claims in this proceeding, which are Auckland-related.   The policies to be taken into account in considering grants of legal aid, and the assignment and payment of providers, will be of uniform application throughout the country.   No decision made in Auckland is challenged in the proceedings.  No decision which has effect only in Auckland, or in which the presence of any person in Auckland is a material fact which must be proved, is challenged.

[55]     Accordingly, I answer the first question in [48] by determining that the proper registry under r 5.1(1)(c) is Wellington.

[56]     The second question is whether there are special circumstances which would justify a direction under s 10(2)(g) to alter that prima facie position.   In my view there are not.  Mr Anderson, in a reply affidavit, says that the financial consequences of a transfer to Wellington would be particularly onerous for the plaintiff given that it is represented by two Auckland-based senior counsel.   He submits that if the proceedings were to be transferred the plaintiff may well lose the services of one of its senior counsel.  He submits that the majority of the plaintiff’s members are based in Auckland and an Auckland hearing would enable more members to attend the hearing if they should wish to do so.  Neither of those factors are, in my view, special circumstances that might warrant a departure from r 5.1(1)(c).  The need for counsel for the plaintiff to travel if the proceedings are transferred is counter-balanced by the need for counsel for the defendant to travel if it is not.   That is a commonplace feature of litigation, not a special circumstance.  The membership of the Association does not constitute a particular regional public interest in the subject matter of the proceedings which might support a submission that the case should be heard where the decision will have effect.   It will have effect throughout New Zealand.   The nature of the proceedings is such that they will be of interest to all private legal aid providers, not just members of the Association.

[57]     For these reasons, the application for a transfer of proceeding is allowed.  The proceedings are to be transferred to the Wellington registry.

“A D MacKenzie J”

Solicitors:         Richard Wood, Auckland for Plaintiff

Crown Law, Wellington for Defendants