Henry v Secretary for Justice

Colin Samuel Henry brought an application for review of a decision by the Registrar of the High Court of New Zealand to decline his application for a waiver of court fees. The plaintiff sought to enforce the terms of a Deed of Settlement entered into between the plaintiff and the Legal Services Agency. The plaintiff had fulfilled all conditions of the Deed except for one, which required him to undertake a certain number of matters before the Refugee Status Branch or its successor under the Immigration Act 2009 to fulfil the requirements of listing as a lead provider on refugee matters. The plaintiff re-applied for legal aid approval upon the coming into force of the Legal Services Act 2001 and was given approval for all the matters sought except refugee matters. The plaintiff pleaded that in declining to grant him a continuing conditional approval on refugee matters until the remaining condition has been met, the Deed has been breached.

The court had to determine whether the proceeding was intended to determine a question of law that was of significant interest to the public or a substantial section of the public and whether the proceeding was unlikely to be commenced or continued unless the fee was waived. The court found that the proceeding was unlikely to be commenced unless the fee was waived, as the plaintiff had made that clear in his statutory declaration verifying his application for waiver. However, the court did not accept that the proceeding was intended to determine a question of law that was of significant interest to the public or a substantial section of the public. The court declined the plaintiff's application for review of the Registrar's decision.

The court found that the Legal Services Act 2001 made it clear that the Ministry of Justice inherited the liabilities of the Agency. If the proceeding were to go ahead it would focus on the proper construction of the Deed and the actions taken by the parties to comply with their obligations under it. The outcome would be of personal interest to the plaintiff. It might also be of interest to any other lawyers who have settlement agreements with the Agency not yet fulfilled. But that interest would be in the construction of the Deed, not whether the Deed is binding on the defendants. The court declined the plaintiff's application for review of the Registrar's decision.