Edwards v Legal Services Agency
[2002] NZCA 273
•1 October 2002
| IN THE COURT OF APPEAL OF NEW ZEALAND | CA256/01 |
| BETWEEN | RIMA EDWARDS |
| Appellant |
| AND | LEGAL SERVICES AGENCY |
| Respondent |
| AND | CA267/01 |
| BETWEEN | RAPAI TE HAU |
| Appellant |
| AND | LEGAL SERVICES AGENCY |
| Respondent |
| Hearing: | 2 September 2002 |
| Coram: | Gault P Blanchard J Tipping J McGrath J Glazebrook J |
| Appearances: | J M Dawson and C Law for Mr Edwards D L Mathieson QC and L Watson for Ms Te Hau G D S Taylor, P Ryder-Lewis and R Taylor for Respondent I R Millard QC for New Zealand Maori Council – leave to intervene refused |
| Judgment: | 1 October 2002 |
| JUDGMENT OF THE COURT DELIVERED BY BLANCHARD J |
Legal aid for a “body of persons”?
Mr Edwards and Ms Te Hau have brought separate proceedings in the High Court seeking relief against decisions of the Treaty of Waitangi Fisheries Commission – Te Ohu Kai Moana (the Commission). Mr Edwards is a kaumatua of Muriwhenua, a grouping of five iwi in the far North (Ngati Kahu, Te Rarawa, Te Aupouri, Ngati Kuri and Ngai Takoto). He sues “on behalf of himself and on behalf of his tribe”. He and 12 other plaintiffs, including Te Rununga O Muriwhenua Inc, are seeking to prevent allocation of fishing quota according to a method proposed by the Commission. (That proposal has actually been superseded but Mr Edwards contemplates a challenge to a new proposal from the Commission and for that reason the legal aid issue is still live.) Ms Te Hau sues as a registered member of Te Whanau O Rongomaiwahine Trust Inc, which is a co-plaintiff, and as mokopuna of her grandfather, Huitau Te Hau, who filed a petition in Parliament in 1943 seeking recognition and protection of Rongomaiwahine fishing rights and interests. Her proceeding contests the Commission’s refusal to treat Rongomaiwahine as an iwi in the fisheries allocation process.
In their separate cases, a District Legal Services Subcommittee acting under s33 of the Legal Services Act 1991 (the Act) refused legal aid. The Legal Aid Review Authority (the Authority), acting under s132 of the Act, confirmed that decision. Each appellant, being dissatisfied with the Authority’s decision, appealed to the High Court under s136 on a question of law. The appeals were heard together by a Full Court (Wild and Ronald Young JJ) which dismissed them in a reserved judgment delivered on 20 September 2001 in the High Court at Wellington, reported as Edwards v North Auckland District Legal Services Subcommittee [2002] 1 NZLR 706. Leave to appeal to this Court was subsequently granted by Durie J.
Central to the refusal of legal aid was s27, and particularly subs(1):
27 Corporate and unincorporate bodies not eligible for civil legal aid except in certain circumstances
(1) Subject to subsections (2) and (3) of this section, civil legal aid shall not be available to any body of persons whether corporate or unincorporate.
(2) Notwithstanding anything in subsection (1) of this section, where a trustee corporation (as defined in section 2(1) of the Administration Act 1969) applies for civil legal aid in connection with any proceedings in which it is concerned in a representative, fiduciary, or official capacity, nothing in subsection (1) of this section prevents civil legal aid being made available to that corporation for the purposes of the proceedings to which that application relates.
(3) Notwithstanding anything in subsection (1) of this section, where,—
(a) In connection with any proceedings to which section 19(1)(f) of this Act applies [proceedings before the Waitangi Tribunal] any application for civil legal aid is made by a Maori; and
(b) The claim to which the application relates is submitted, or is to be submitted, by that Maori for the benefit of a group of Maori of which the applicant is a member,—
nothing in subsection (1) of this section prevents civil legal aid being made available to that Maori, in accordance with sections 72 to 76 of this Act, for the purposes of the proceedings to which the application relates.
(The equivalent provisions in the Legal Services Act 2000, which has replaced the 1991 Act, are s9(6) and s9(1)(a)(i) and s42(1).)
The issue in the case is whether a grant of civil legal aid to the appellants would in each case make it available to a “body of persons…corporate or unincorporate.”
The proposed intervention
Long after a fixture had been made and after the written submissions of the parties had been received, the New Zealand Maori Council, without leave, filed a memorandum setting forth its views. At the commencement of the hearing Mr Millard QC, on behalf of the Council, for the first time sought leave to intervene. Mr Millard explained that the Council had been under the impression that the appeal would be argued in the following week. But even if that had been the position the attempt to intervene would still have been made far too late. Some of the argument sought to be introduced went well beyond anything in the material already before the Court. If the intervention had been permitted, fairness to the respondent would have required the hearing to be adjourned. It would then have been unlikely that the present Court could have been reassembled this year.
We took the view that it was therefore quite inappropriate to permit a belated intervention and refused leave.
The High Court judgment
As the proceedings below the High Court level, including the decision of the Authority, are described in the reported High Court judgment, which was in turn the focus of the argument in this Court, it is convenient to begin with that judgment.
The High Court rejected the argument for the appellants that the Authority had wrongly conflated them with their iwi. (As the very question to be determined in Ms Te Hau’s substantive proceeding is whether Rongomaiwahine is an iwi, she naturally contends that it has the necessary characteristics of an iwi. It is therefore only proper to examine her argument upon the assumption that what she says about Rongomaiwahine’s characteristics will be accepted when that proceeding comes to trial and that Rongomaiwahine will be found to be an iwi. We should not however be taken to have reached any conclusion on that matter.)
The High Court said that the proceeding in which Mr Edwards is a plaintiff would remain intact without him. It was “essentially a proceeding by Muriwhenua”. Nothing in the complaint about the Commission’s proposed method of allocation nor any of the relief sought was “personal” to Mr Edwards. Ms Te Hau’s motivation was said to be “a combination of the trampling upon her personal mana and her descent from Huitau Te Hau.” But, said the Court, she was suing “essentially as a member of Rongomaiwahine and her interests are identical to those of Rongomaiwahine”. It had been pointed out by Mr Mathieson QC, for Ms Te Hau, that she had not been formally appointed, either by Rongomaiwahine or the Court, to represent Rongomaiwahine. (Mr Edwards’ position is the same in this respect vis-à-vis Muriwhenua.) But the s27 inquiry was “as to whether Ms Te Hau really brings the proceeding for the benefit of Rongomaiwahine, or whether she is genuinely pursuing some separate, distinct personal right or interest”.
The High Court took the view that each of the proceedings was “essentially brought by and for the benefit of a ‘body of persons’ dissatisfied with some aspect of the Commission’s proposed allocation of commercial Maori fisheries assets”. The purpose of s27(1) was “unmistakably” to make any body of persons unincorporate ineligible for legal aid. The words “body of persons” had their ordinary everyday meaning.
The Court referred to the Chambers Dictionary (1993) meaning of “a number of persons united by something they have in common”, saying that this seemed exactly to describe Muriwhenua and Rongomaiwahine in the context of their respective proceedings and the appellants’ applications for legal aid for those proceedings. The arguments for the appellants, if correct, would have the result that any member of a body could avoid s27(1) simply by suing in their own name, even if they were only suing as a member of the body and had no interest distinct from or greater than other members of the body. That would defeat “the obvious purpose of s27(1)”.
Section 27(3) did not assist the argument. It was expressly stated to be an exception to s27(1). It made legal aid available to groups or bodies of Maori only for proceedings in the Waitangi Tribunal.
Rejecting an argument from Mr Dawson, for Mr Edwards, that legal aid was only “available” to Muriwhenua if it was at its disposal, the Court said that if, as it thought, the Authority had not erred in conflating Mr Edwards with his iwi – he was applying for Muriwhenua – then to grant him legal aid was to make it available to Muriwhenua, which was not eligible to be aided.
Submissions for appellants
Counsel for both appellants accepted that their client was not asserting any personal right greater than any other member of the iwi to which they respectively belonged. As Mr Dawson said, his client’s personal right depended on his collective right. Mr Mathieson QC very properly conceded that any member of Rongomaiwahine could bring the same proceeding as Ms Te Hau and it would be inappropriate to press too far her special personal status as mokopuna. She sought no remedy peculiar to her. She was bringing the proceeding for the benefit of Rongomaiwahine.
But that did not mean, Mr Mathieson said, that s27(1) barred her from receiving legal aid. Both counsel submitted that the fact that one claimant (the iwi) would benefit indirectly from the success of another was not the test. The proper test under s27(1) was simply whether the applicant for aid was an individual. In the subsection, “body of persons” was not preceded by words such as “for the benefit of”. The subsection made no reference, Mr Mathieson said, to the necessity of pursuing a personal right or interest.
Both counsel submitted that a grant of aid to their client would not lead to any abuse because the situation would still be controlled by s71(1):
71 Multiple applications
(1) Where an application for civil legal aid is made by or on behalf of a person in connection with a cause or matter in which numerous persons have the same interest and, in accordance with rules of Court, one or more persons may sue or be sued, or may be authorised to defend any such cause or matter on behalf of or for the benefit of all persons so interested, the District Subcommittee shall refuse to grant the application if it is satisfied—
(a) That the refusal would not seriously prejudice the right of the applicant; or
(b) That it would be reasonable and proper for the other persons having the same interest in the matter as the applicant to defray so much of the amount as would be payable on behalf of the applicant by the Board in respect of the proceedings if aid were granted.
Because of the existence of the control in s71(1), it was argued, s27(1) does not require an expansive construction; nor on access to justice principles should it receive one. The intention of the Act was said to be that the question whether or not aid should be granted to an individual when a body or class of which he or she is a member will benefit was to be dealt with under s71, not s27.
Mr Mathieson further submitted that if the High Court’s construction of s27(1) were correct there would be anomalous results. For example, one of several beneficiaries with like interests under a trust or will, or one of several residents with the same concern about a matter affecting their separate properties, or even one of a number common owners of the same property, would be ineligible for legal aid because as a group they would be treated as a “body of persons”.
Mr Mathieson also laid some stress on the fact that there is no evidence that Ms Te Hau has any formal appointment, expressed in a hui, to represent Rongomaiwahine in the proceeding. She is not their agent. The most she has is “a loose mandate” for the members of the Rongomaiwahine Trust. It was submitted that a self-appointed agent is not barred from a grant of aid by s27.
Mr Mathieson’s second principal argument, supported by Mr Dawson, was that there is a fundamental distinction between a mere collection of people and a “body unincorporate”. He submitted that the fact that various individuals share a common interest can never be sufficient by itself to constitute them as such a body. What s27(1) was intended to catch, counsel said, was entities which resemble corporate bodies but happen not to have been incorporated, nevertheless having officers, rules, financial members, accounts and assets. An example would be an unincorporated tennis club. Counsel said that an iwi has none of these characteristics, describing it in his written submissions as having an “amorphous and fluctuating membership”, the adjectives used in Kibby v Registrar of Titles [1999] 1 VR 861, 872. Drawing upon a dictum of Lawton LJ in Conservative and Unionist Central Office v Burrell (Inspector of Taxes) [1982] 2 All ER 1, 4, a case about a British political party, Mr Mathieson suggested that an essential ingredient of an unincorporated body in this context is a contractual bond, which does not exist between members of an iwi. All that binds them together, it was said, are “loose moral obligations” deriving from kinship (convergent whakapapa). Membership of an iwi is involuntary – as a result of birth – which was said to support the view that an iwi was a class of persons rather than a body of persons.
In rebuttal of the suggestion that s27(3) was against his arguments, Mr Mathieson said that the use there of the word “group” was simply to fit with the Treaty of Waitangi Act 1975 which uses the same expression. If a group of Maori happen to be a “body of persons”, s27(3) precludes the bar in s27(1) in the circumstances to which s27(3) relates. If, on the other hand, the group is not a body, s27(1) would not apply in any event and s27(3) is not needed. A “group” is not necessarily a body of persons.
For Mr Edwards, Mr Dawson referred the Court to the Long Title of the Act:
An Act to make legal assistance and legal services more readily available to persons of insufficient means…
Counsel said that it was not disputed that Mr Edwards is a person of insufficient means. He also drew attention to ss20 and 28(1):
20 Nature of civil legal aid
Civil legal aid consists of representation, on the terms provided for by this Act, by a solicitor, and, so far as necessary, by counsel, including all assistance usually given by a solicitor or counsel in the steps preliminary or incidental to any proceedings or in arriving at or giving effect to a compromise to avoid or bring to an end any proceedings.
28 Eligibility for civil Legal Aid
(1) Subject to this Act, civil legal aid shall be available for any person, whether resident in New Zealand or not, whose disposable income does not exceed such amount as is prescribed for the purposes of this subsection, or such greater amount as a District Subcommittee may in any special circumstances approve.
Mr Dawson emphasised the words “any person” in s28(1) and argued from s20 that civil legal aid relates to the funding of assistance from a legal practitioner – a professional relationship personal to the individual applicant and not available to the class or body of persons of whom that applicant happens to be a member, even if his interest is held in common with the class or body. It was Mr Edwards who instructed his solicitor and applied for aid. While the runanga and iwi were likely to benefit from Mr Edwards’ action if successful, they did not have the ability to instruct the solicitor in the conduct of the proceedings, nor might the solicitor act on instructions other than those of Mr Edwards, the grantee of aid. The aid was therefore not “available” to them in terms of s27(1).
Discussion
In fairness to the appellants we have set out at some length the major points of their counsel’s arguments but, with the benefit of Mr Taylor’s written submissions, we were not persuaded by them and did not find it necessary to call upon the respondent, being left in no doubt that s27(1) denies legal aid to the appellants in the present circumstances.
Because of the quite specific language of s27(1) we have found no support for the appellants’ position in the language of the Long Title and in their generalised appeal to principles of access to justice. There can be no doubting that the Act is intended to assist litigants in their right to resort to the courts in order to resolve their differences over their legal rights and duties, but the statute plainly expresses limits on the right to have legal aid. The Long Title and s28(1), which is the principal eligibility section, have to be read subject to the explicit limitation in s27(1), which is qualified only by subs(2) and (3). Section 28 is part of the immediate context in which s27 is to be read but is expressed to be subject to all other provisions of the Act.
Section 27(1) denies legal aid to a “body of persons”. The addition of the words “whether corporate or unincorporate” simply makes it clear that the disqualification of bodies is not restricted to those which have been incorporated. It is to extend also to persons who together are properly to be regarded as a body rather than as a number of individuals. Subject to the exceptions in subs(2) and (3), legal aid is to be available only to one or more individuals. It would therefore be incongruous, and contrary to the evident parliamentary intention, if an individual who had no right in the matter greater than is derived from the fact of membership of a body of persons could obtain a grant of legal aid. It would not be aid for that individual’s claim. The benefit would then, impermissibly, be extended to the body. An applicant therefore cannot avoid the bar in s27(1) by saying that he or she is a natural person if the right asserted in the proceeding for which aid is sought is no greater than that of membership of a body and the proceeding is in substance for the benefit of that body, even if there is no formal agency and the member has taken it upon him or herself to bring the proceeding. It is of no moment that were legal aid to be granted the self-appointed claimant would not be under the control of the body and that he or she alone could give instructions to the legal representatives. The test must be whether their work would be directly for the benefit of the applicant or whether the direct benefit – the damages or other relief granted – would accrue to the body, with the applicant participating only through membership. (In contrast, an individual would not be barred from a grant of legal aid where he or she had a personal claim not derived through membership of the body even though the body might itself benefit, but that situation might well fall within s71 to which reference is made below.)
Section 27(3) – the exception relating to applications to the Waitangi Tribunal – supports the view that subs(1) bars legal aid from claims made in the name of an individual but in substance for the benefit of a body of persons. It enables legal aid to be granted notwithstanding subs(1) where the claim is “for the benefit” of a group of Maori of which the applicant is a member. Such a group must include an unincorporated body, for otherwise subs(3) would achieve nothing. Mr Mathieson may very well be right when he says that the word “group” – a wider term than “body of persons” – has been used for consistency with the 1975 Act. But the use of the term in connection with a carefully limited exception does not suggest that Parliament was intending thereby to indicate that an unnaturally restricted meaning is to be given to “body of persons”.
The real question raised in this case is therefore whether the respective iwi of the appellants (assuming Ms Te Hau were to succeed in her objective of having Rongomaiwahine so regarded) is each a body of persons, rather than merely a number or group of individuals. In our view, they must be regarded as a body if there is such regulation of their internal affairs that there can be said to be a structure by which they can be recognised as a collective entity – the unincorporated equivalent of a body corporate.
The dividing line between a body and a number of individuals may in particular cases be difficult to draw. Clearly on one side, as simply a number of individuals with a common interest, are a class of beneficiaries under a typical will or trust or a number of individuals who together own land or other assets, unless in either case Parliament has intervened and incorporated them, as, for example, in the instance of land owning under the Unit Titles Act 1972. Mr Mathieson’s example of a group of residents battling against a local authority is instructive. Each has a separate residential property. Their personal interests are distinct. They may have formed a body with rules – perhaps even incorporated it – to represent their point of view. But a body like a ratepayers’ association does not own the land of its members and does not claim the benefit of their personal rights. Their individual rights would not be dependent on their membership of the body. Subject to s28 and other provisions of the Act, such as s71, each resident may qualify for legal aid.
In our view, an iwi falls clearly on the other side of the line. It has its own traditional takiwa (tribal territory) with associated rights, such as fishing rights. It has a membership and a means of ascertaining whether a particular individual is or is not a member (whakapapa). And it has a structure – division into hapu, with their distinct marae. There are rules concerning the use of land and other taonga, and rules concerning speaking rights on the various marae and when the iwi assembles as such. Ms Te Hau asserts as much in her statement of claim and supporting affidavits. Indeed her position as a kuia and her claim to represent Rongomaiwahine, like that of Mr Edwards to represent his people as a kaumatua, must be dependant upon customary rules which are accepted by the members of the iwi.
The adoption of a corporate structure for the conduct of the affairs of the iwi is founded upon and confirms these underlying bases of the common relationship. It is to be doubted that agreement could ever have been reached upon the creation of such corporate bodies were it not for the existence of underlying rules and structures. How else, for example, could an iwi arrive at a register of its members? (It is accepted that the incorporated bodies, Te Runanga O Muriwhenua and the Rongomaiwahine Trust, are not themselves the iwi and possess no fisheries rights, although they may with the consent of the people of the iwi hold tribal assets either presently or in future. In other words, they represent a response to the need in a modern society to have an incorporated body to hold property and to enter into transactions but they are not to be confused with the iwi, which is the people.)
We are not impressed by the invocation by counsel for the appellants of statements in offshore case law suggesting the need for a “body” to have further characteristics, such as the existence of a bank account or ties of a contractual nature. We recently pointed out in Latimer v Commissioner of Inland Revenue [2002] 3 NZLR 195, at para [38], that it was not appropriate to assess Maori tribal groups by reference to English family relationships. We see it as no more appropriate to form a judgment on whether an iwi is a body by applying tests which have been utilised in relation to voluntarily associations such as a political party (as in Burrell) or a religio-philosophical cult (as in Kibby), to refer to two of the cases cited. Nor do we see that the fact that membership of an iwi is acquired by birth, and that there may be a necessity to demonstrate it by whakapapa, is any basis for an argument that the iwi does not have sufficient structure or organisation to be a body. By birth a Maori is a member of an iwi and is bound in custom by the tribal protocols. They may not be enforceable in a court of law like contractual obligations, but they nonetheless powerfully govern that Maori’s relationship with other tribal members.
Some reliance was placed for the appellants on the existence of an alternative means of controlling parallel claims by s71(1). But the plain meaning of s27(1) is such that the appellants fail to overcome that hurdle. Section 71, in our opinion, is concerned with the possible existence of a claim or claims running parallel to that of someone who is not barred from receiving legal aid by s27(1). It enables the District Subcommittee to ensure that the cost of litigation is properly apportioned where there are multiple claimants and where one of those persons is otherwise qualified to receive legal aid. Section 71 is not concerned with eligibility for legal aid, as are ss27 to 32. It is one of a number of sections (ss64 to 76) dealing with special types of applications.
Result
For these reasons, the appeals are dismissed. If any question of costs in this Court arises the parties may submit memoranda.
Solicitors:
Russell McVeagh, Wellington for Mr Edwards
Hanning Connor, Wellington for Ms Te Hau
Bartlett Partners, Wellington for Respondent
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