Griggs v Legal Services Commissioner - [2022] NZHC 3001

IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY

I TE KŌTI MATUA O AOTEAROA TE WHANGANUI-A-TARA ROHE

CIV-2022-485-264

[2022] NZHC 3001

BETWEEN
RYSHELL GRIGGS

Appellant

AND

LEGAL SERVICES COMMISSIONER

Respondent

Hearing: 1 November 2022

Counsel:

F Geiringer for Appellant C F J Reid for Respondent

Judgment:

16 November 2022

JUDGMENT OF CHURCHMAN J

[1] This matter is an appeal by Ms Ryshell Griggs against a decision of the Legal Aid Tribunal, confirming decisions of the Legal Services Commissioner (the Commissioner), declining Ms Griggs legal aid.

[2] Ms Griggs appeals on the ground that the Legal Aid Tribunal (the LAT) erred in law by concluding that s 47 of the Legal Services Act 2011 (the Act) applies only to proceedings in the Waitangi Tribunal, as opposed to proceedings in other Courts that arise from, and directly relate to, proceedings before the Waitangi Tribunal. She seeks an order that her applications for legal aid in respect of proceedings before the Court of Appeal and the Supreme Court, that followed a High Court judicial review challenge to a decision of the Waitangi Tribunal, be granted. The sole issue in this matter is the proper interpretation of s 47.

[3] The Commissioner opposes the appeal, and submits that the Tribunal made no error of law.

GRIGGS v LEGAL SERVICES COMMISSIONER [2022] NZHC 3001 [16 November 2022]

Factual background

[4] Ms Griggs is currently in receipt of legal aid for a representative claim before the Waitangi Tribunal, on behalf of Ngāi Tūmapūhia-ā-Rangi Hapū (Wai 429). Ngāi Tūmapūhia-ā-Rangi Hapū are a hapū of Ngāti Kahungunu ki Wairarapa. Part of the claim is an unresolved application for resumption1 of two blocks of land: the Ngāumu Forest, which is located in the centre of their traditional rohe, and the Pouākani Lands. Legal aid is available for representative claims before the Waitangi Tribunal pursuant to s 47 of the Act. This claim is a legally significant one as the Tribunal’s resumption jurisdiction has seldom been exercised and there is much at stake for a number of parties.

[5] Mercury NZ Ltd, the Crown, and the Raukawa Settlement Trust sought judicial review of preliminary determinations of the Waitangi Tribunal relating to Ngāi Tūmapūhia-ā-Rangi’s claim. Various parties appealed the High Court’s judicial review decision, and Ms Griggs sought legal aid so as to be able to participate in those appeal proceedings. The reason that the three entities were involved in the judicial review proceedings is that one of the blocks of land in respect of which resumption was sought (the Pouākani Lands) was not in the traditional rohe of Ngāi Tūmapūhia- ā-Rangi Hapū, but is located in the central North Island and was in the traditional rohe of Ngāti Raukawa and Ngāti Tūwharetoa.2

[6] In the 1880s, the Crown had acquired legal ownership of the Pouākani Lands and in 1915, gifted the Lands to Wairarapa Māori in compensation for having taken ownership of Lake Wairarapa.

[7] In 1949, the Crown compulsorily acquired 787 acres of the Pouākani land under the…

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

Case: [2022] NZHC 3001
Decision Date: 16 November 2022

CaseChat Overview and Summary

In the High Court of New Zealand, Ms. Ryshell Griggs appealed a decision by the Legal Aid Tribunal (LAT) to decline her application for legal aid for proceedings before the Court of Appeal and the Supreme Court, which followed a High Court judicial review of a decision by the Waitangi Tribunal. The sole issue was the interpretation of s 47 of the Legal Services Act 2011. The Court held that the LAT erred in law by concluding that s 47 applies only to proceedings in the Waitangi Tribunal, as opposed to proceedings in other Courts that arise from, and directly relate to, proceedings before the Waitangi Tribunal. The Court found that the Commissioner’s interpretation of s 47 had the effect of denying access to justice and curtailing the ability of legally-aided Māori to protect and/or advance their interests when Waitangi Tribunal decisions were challenged in the Courts. Accordingly, the appeal was allowed; the decision of the Commissioner was quashed, and the matter was remitted to the Commissioner for determination in light of this decision.

The final orders were that the appeal is allowed; the decision of the Commissioner is quashed, and the decision relating to Ms Griggs’ legal aid is remitted back to the Commissioner for determination in light of this decision, pursuant to r 20.19 of the High Court Rules 2016. The Court held that Ms Griggs is entitled to costs on a 2B basis. In the event the parties are unable to resolve costs between themselves, they may file memoranda with the respondent having 14 days to file and serve his memorandum and the appellant having 14 days to reply, after which the Court will determine costs on the papers.

Orders