Hartley v Attorney-General
[2018] NZHC 2639
•10 October 2018
IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY
I TE KŌTI MATUA O AOTEAROA TE WHANGANUI-A-TARA ROHE
CIV-2018-485-409
[2018] NZHC 2639
UNDER the Judicial Review Procedure Act 2016 IN THE MATTER
of an application for judicial review on the grounds of unreasonableness, and the breach of the New Zealand Bill of Rights Act 1990 and the Corrections Regulations 2005
BETWEEN
PETER JOHN HARTLEY
Applicant
AND
THE ATTORNEY-GENERAL
First Respondent
PRISON DIRECTOR OF RIMUTAKA PRISON
Second Respondent
Hearing: On the papers Appearances:
Applicant in person
R S May and E M Light for the Respondent
Judgment:
10 October 2018
JUDGMENT OF CLARK J
This judgment was delivered by me on 10 October 2018 at 11:30 a.m. pursuant to r 11.5 of the High Court Rules 2016.
Registrar/Deputy Registrar
……………………………………
Parties / Solicitors:
The applicant
Mr R S May and Ms E M Light, Luke Cunningham & Clere, Office of the Crown Solicitor, Wellington
HARTLEY v ATTORNEY-GENERAL [2018] NZHC 2639 [10 October 2018]
[1] Mr Hartley is a sentenced prisoner at Christchurch Men’s Prison. He has filed an application for judicial review. Mr Hartley claims he has been wrongfully convicted. He intends to prepare appeals against his 1995 and 2011 convictions although at this point no notices of appeal have been filed.
[2] Mr Hartley is self-represented. He pleads in his application for judicial review that, since early 2011, the Department of Corrections has systematically denied his rights under the New Zealand Bill of Rights Act 1990 to access adequate facilities by which to prepare his appeals.
Application
[3] Mr Hartley has been denied legal aid for his civil proceeding. On 24 September 2018 Mr Fraser, counsel for Mr Hartley, filed a memorandum seeking to be appointed in an “amicus type” role to assist the Court.
[4] Mr Fraser has knowledge of Mr Hartley and the matters which are the subject of Mr Hartley’s proceeding. Mr Hartley would like Mr Fraser to represent him in his judicial review proceeding but legal aid has been twice denied. Mr Fraser considers the matter would benefit from submissions from counsel rather than from Mr Hartley.
[5] The Crown does not oppose appointment of an amicus should the Court consider it would be assisted by such an appointment. The Crown cautions that the terms of appointment should make clear the role of counsel, that is, whether Mr Fraser is to assist the Court or assist Mr Hartley.
Jurisdiction to appoint an amicus
[6] An “amicus curiae” means “a friend of the Court”. In recent years the term “counsel assisting” has become the preferred term. That is the term used in the Senior Courts Act 2016 and in other contemporary legislation, including the High Court Rules 2016.
[7] Counsel assisting the Court is not a party to the proceedings but assists the Court on matters of law and fact, particularly where there is a risk the parties will not
address important matters or opposing argument is needed.1 At the request of the Court, the Solicitor-General must appoint counsel to appear and be heard as counsel assisting the Court.2 Where counsel assisting is appointed, the Court may order payment of counsel’s costs from public funds, or by any party to the proceeding.3
[8] In Erwood v Holmes Moore J observed that, while the categories of cases in which an amicus is appointed are not closed, the following examples emphasise that the core nature of the role and its primary purpose is to assist the Court rather than the parties to the litigation:4
(a)Counsel assisting has been appointed in litigation where important issues arise for determination but a party to the proceeding has chosen not to participate. Appointment of counsel to assist ensures there is an effective contradictor.
(b)Where the case raises issues, the determination of which is likely to significantly affect the interests of a sector of society which is not a party to the proceedings, counsel assisting may be appointed.
(c)Counsel assisting has been appointed in cases involving complex issues of human rights or international law.
(d)Where a case involves confidential information which cannot be disclosed to a defendant, or her or his counsel, counsel assisting has been appointed.
[9] An appointment should not be made “where the primary purpose is to assist a party in the presentation of their case in circumstances where legal aid may have been refused” or a party is otherwise unable or unwilling to access a lawyer.5
1 Matthew Casey QC and Ors Sim’s Court Practice (looseleaf ed, LexisNexis) at [SEN178.5].
2 High Court Rules 2016, r 10.22.
3 Senior Courts Act 2016, s 178(2).
4 Erwood v Holmes [2017] NZHC 1278, [2017] NZAR 971 at [39].
5 At [40].
[10] The distinction between amicus and standby counsel was recently discussed by the Court of Appeal in Fahey v R in the context of self-represented defendants in criminal proceedings.6 The role of an amicus is usually confined to the traditional function of assisting the Court, usually on points of law, when it appears the parties may not do so.7 By contrast, standby counsel are appointed:8
to assist a self-represented defendant to the extent he or she is willing to accept it, and to stand by to assume conduct of the defence if the defendant so decides. The role is that of an advocate for the defence and counsel accordingly takes instructions from the defendant.
[11] Appointments of standby counsel are exceptional.9 Routine appointments tend to undermine the legal aid regime.10
Assessment
[12] For the following reasons I do not consider it is appropriate to appoint an amicus:
(a)Appointment is only to be made in exceptional circumstances. While Mr Hartley’s right to present a defence is an ancillary issue in the proceeding, as the judicial review relates to facilities to allow him to do so, the proceeding is a judicial review not directly engaging Mr Hartley’s criminal responsibility.
(b)Legal aid has been declined to Mr Hartley twice. Appointment should not be made for counsel to assist where legal aid has been declined.
(c)I have considered Mr Hartley’s statement of claim. Mr Hartley has articulated clearly his grounds of review and the relief he seeks. His statement of claim is focussed. The document itself suggests Mr
6 Fahey v R [2017] NZCA 596, [2018] 2 NZLR 392. The Court of Appeal restricted is comments to the criminal jurisdiction but observations are of general principle.
7 At [80].
8 At [81]. In respect of self-represented defendants, standby counsel are appointed to “relieve the judge of the need to explain and enforce basic rules of courtroom protocol or assist a defendant in overcoming routine obstacles”: [73].
9 At [85].
10 At [85](e).
Hartley has matters in hand and is capable of identifying and articulating the relevant factual and legal matters.
(d)There is no need to appoint counsel to assist in order to ensure the presence of a contradictor before the court. From the detailed statement of defence it is apparent the Crown will assume a full opposing role.
(e)The pleadings do not give rise to an important point of law on which the Court will require the assistance of an amicus. The issue of the rights or entitlements of prisoners to access facilities has been litigated and determined in a number of cases. I note that many of the claimants were self-represented.11
[13] At this stage of the proceeding there does not appear to be any sufficient basis for the appointment of an amicus.
Result
[14]The application for appointment of amicus is declined.
Karen Clark J
11 See, for example, Genge v Chief Executive, Department of Corrections [2017] NZHC 305 (judicial review); Greer v Prison Manager at Rimutaka Prison HC Wellington CIV-2008-485-1603, 18 December 2008 (judicial review); Greer v Chief Executive, Department of Corrections [2018] NZHC 1240 (interim orders); R v Greer CA197/01, 4 June 2003 (criminal context); Taylor v District Court at North Shore HC Auckland CIV-2009-404-2350, 24 March 2010 (declaratory decision).
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