Kim v Legal Services Agency HC Auckland CIV 2011-404-65
[2011] NZHC 2131
•13 June 2011
IN THE HIGH COURT OF NEW ZEALAND
AUCKLAND REGISTRY
CIV 2011-404-000065 UNDER the Judicature Amendment Act 1972 New Zealand Bill of Rights Act 1990 Legal Services Act 2000
BETWEEN JOSEPH DONGWOO KIM
Plaintiff
AND THE LEGAL SERVICES AGENCY
First Defendant
AND HUMAN RIGHTS COMMISSIONER
Second Defendant
AND RACE RELATIONS COMMISSIONER
Third Defendant
Hearing: 6 May 2011
Appearances: B Castelino for the Plaintiff
P Gunn for the First Defendant
Judgment: 13 June 2011
(RESERVED) JUDGMENT OF ANDREWS J
This judgment is delivered by me on 13 June 2011at 2:30pm pursuant to r 11.5 of the High Court Rules.
.....................................................
Registrar / Deputy Registrar
Solicitors:Castlefinn Law Limited, PO Box 76234, Manukau City [email protected] Crown Law, PO Box 2858, Wellington 6140 [email protected]
KIM V THE LEGAL SERVICES AGENCY HC AK CIV 2011-404-000065 [13 June 2011]
Introduction
[1] The plaintiff, Mr Kim is applying for judicial review of a decision by the first defendant, the Legal Services Agency (“the Agency”), not to appoint him to the duty solicitor roster (“the roster”) at the Manukau District Court.1
[2] The second and third defendants abide the decision of the Court and were not represented at the hearing. The New Zealand Law Society and Victoria University of Wellington were originally named as fourth and fifth defendants, respectively. They were struck out of the proceeding, by consent, on 2 March 2011.
Background
Mr Kim’s background and legal experience
[3] Mr Kim was born in South Korea and immigrated to New Zealand in 1995. He attended primary, intermediate, and secondary school in Christchurch, then Victoria University, Wellington, graduating with a Bachelor of Laws Degree in 2006. He subsequently completed advanced legal study and advanced torts papers. He completed the Institute of Professional Legal Studies professional legal training course in 2006 and was admitted as a barrister and solicitor that year.
[4] Between February 2008 and May 2009, Mr Kim was employed as a lawyer, and has since been practising as a barrister sole, focusing mainly on criminal defence. During his time of employment, Mr Kim attended a variety of Continuing Legal Education courses including (as particularly relevant to the duty lawyer role) Introduction to Criminal Law (2008), Duty Solicitor Training Programme (2008), Limited Licence Applications (2009), Criminal Appellate Advocacy (2009), and Effective Use of Advocacy (2009). He also gained a certificate for teaching English as a second language in August 2010 (“the TESL certificate”).
1 The term “duty solicitor” is used in the Legal Services Act 2000, and is used throughout this judgment. The term “duty lawyer” is used by the Agency, and (on occasion) the parties to this proceeding.
[5] Mr Kim is a “listed provider” under Part 4 of the Legal Services Act 2000 (“the Act”).2 He has listing approvals as a secondary provider in the civil-general, criminal, family and refugee areas of law, and had been appointed to the duty solicitor roster under previous rules of legal aid.
[6] In his affidavit supporting the present application for judicial review, Mr Kim said that he was appointed to the duty solicitor roster in June 2009. He said he had carried out approximately 60 duty solicitor shifts, either as part of a team or individually, at the Manukau and Papakura District Courts. He covered extra shifts for fellow lawyers who were unable to attend for various reasons, often at short notice. He was not aware of any adverse comments made by judges, clients, court staff, or the Agency.
[7] Mr Kim also said that he had, as a secondary provider, made regular appearances at the Manukau and Auckland District Courts, and had done legal aid work for other listed providers. He said that he was not aware of any complaints having been made by any judge, other party, lead provider, or the Agency about his work.
Mr Kim’s first application for judicial review
[8] This is Mr Kim’s second application for judicial review of an Agency decision. In proceedings issued in June 2010,3 Mr Kim sought judicial review of an earlier decision by the Agency not to appoint him to the roster. That proceeding was settled on terms recorded in a Minute of Woodhouse J dated 14 September 2010. I summarise the agreed terms on which Mr Kim’s first application for judicial review was settled, as they provide a useful reference point: 4
(a)Mr Kim could make a fresh application for appointment to the roster, save that information acquired during the course of his first application could be taken into account.
2 “listed provider” is defined in s 4 of the Act.
3 Kim v The Legal Services Agency HC Auckland CIV-2010-404-3644, 14 September 2010.
4 See Kim v The Legal Services Agency HC Auckland CIV-2010-404-3644, 14 September 2010 at [3]–[8].
(b)The Agency was to advise Mr Kim, in writing, of all matters of concern to it in respect of his application, and to cover all matters, not just those dealt with in the earlier application. Full particulars were to be provided so that Mr Kim had a full opportunity to respond.
(c)Mr Kim was then entitled to respond fully, in writing, and provide such information he considered necessary and appropriate.
(d)The particulars of the Agency’s concerns, and Mr Kim’s response, were then to be referred to a new “adjudicator”, who was not to be anyone who had been a member of the Panel considering Mr Kim’s first application, or Ms A Hill (who had given affidavit evidence on behalf of the Agency in relation to Mr Kim’s first application for judicial review). The adjudicator was to be a senior Agency manager with experience in assessing the qualifications of lawyers seeking Agency approval for any relevant reason under the Act.
(e)The adjudicator had discretion as to the manner in which he or she then came to a decision. It was for the adjudicator to determine, amongst other things, whether further information was required, and whether he or she wished to interview any person, including Mr Kim.
(f)Both parties were to proceed as expeditiously as possible.
Mr Kim’s applications to be appointed to the roster
[9] With the recent introduction of new rules of legal aid, Mr Kim, along with other lawyers, was required to re-apply to be appointed to the roster, which was to take effect from 12 July 2010. Mr Kim applied (“the first application”), and, as noted earlier, his application was declined.
[10] Mr Kim’s second application was submitted on 23 September 2010. He attached references from two practising lawyers, Mr Colin Amery and Mr Ted Falelauto, and nominated his counsel, Mr Castelino, and Ms Lorraine Smith as
referees. Mr Kim’s second application was considered by Ms J M Matthews, manager of the Agency’s Provider Services Team in Wellington, as adjudicator. Ms Matthews has LLB and BA degrees from Victoria University and an LLM degree from Suffolk University in Boston. She has practised as a lawyer. She manages a team of 11 employees who deal with the process of listing lawyers as providers, auditing listing providers, and dealing with complaints against listed providers. She had had no involvement with Mr Kim’s first application, or with Mr Kim.
[11] Ms Matthews received the file for Mr Kim’s first application and a letter from Mr Kim annexing his application form, a letter of reference from four people who had supervised Mr Kim when he had previously worked as a duty solicitor, the references from Mr Faleauto and Mr Amery, an email from Ms Letele, a barrister, and Mr Kim’s CV.
[12] The Manager of Policy and Development of the Agency, Ms Hill, wrote to Mr Kim on 27 September 2010. This letter appears to be in accordance with the direction in the Minute of Woodhouse J, which noted that the Agency was to advise Mr Kim, in writing, of all matters of concern it had in respect of his application.
[13] Ms Hill’s letter first set out the three broad criteria for selection to the roster as being (in summary) reliability in attendance and providing services expected by the Agency, the ability to provide a sound legal service to defendants and the court, and good interpersonal skills with clients together with good working relationships with the court and agencies working at the court. Ms Hill then set out the Agency’s concerns, noting that they arose from information said to have been provided in confidence from members of the earlier Panel who had knowledge of the Manukau Bar, the Manukau judiciary, and Police prosecutions.
[14] The Agency’s concerns, as set out in Ms Hill’s letter, were as to Mr Kim’s ability to communicate clearly in English with clients and court staff, his knowledge of the law and of court processes, and his level of awareness about when he needed to seek advice or take guidance from an experienced and competent lawyer. Ms Hill enclosed an evaluation form (developed for use by duty solicitor supervisors and co- ordinators for assessing applicants for appointment to the roster), and suggested it
would assist any person providing a statement on behalf Mr Kim to address matters of particular interest to the Agency.
[15] On 28 September 2010, Mr Castelino, on behalf of Mr Kim, sent Ms Matthews three affidavits sworn by Mr Kim on 15 June, 9 August, and 6 September 2010, in relation to his earlier judicial review proceeding. Between 1 and 11 October 2010, there was correspondence between Mr Castelino and Ms Matthews, concerning Mr Kim’s application, particularly the provision of duty solicitor supervisor’s evaluation forms. Evaluation forms completed by Ms R Turner (dated 1 July 2010) and Ms V Charan (dated 9 July 2010) were provided by Mr Castelino on 9 October 2010, and an evaluation form completed by Ms E Bruen (dated 6 October 2010) was provided on 11 October 2010 (“the original evaluations”).
[16] On 1 November 2010, Ms Matthews sent Mr Castelino a draft decision, indicating her view that Mr Kim’s application should be refused (“the draft decision”). She invited Mr Kim to make any comments she might take into account before finalising her decision. On 1 December 2010, Mr Castelino wrote to Ms Matthews, challenging the draft decision on the grounds that it was not based on true facts (in particular relating to the duty solicitor supervisor’s evaluations), and that her conclusions were without evidential foundation and were unreasonable, illogical, and smacked of vindictiveness. He sent Ms Matthews further duty solicitor supervisor evaluations completed by each of Ms Turner, Ms Bruen, and Ms Charan (“the later evaluations”), letters from Mr Faleauto and Ms Letele, a copy of the TESL certificate, further copies of Mr Kim’s affidavits of 9 August and 6 September 2010, and a copy of an article about the New Zealand Law Society’s submissions relating to the legal aid framework.
The final decision on Mr Kim’s second application for appointment to the roster
[17] Ms Matthews sent Mr Kim her decision refusing his application on 23 December 2010 (“the final decision”). After setting out the information she had considered, and the three broad criteria against which she had assessed Mr Kim’s application, Ms Matthews set out her assessment of Mr Kim against the three criteria.
[18] Regarding reliability, Ms Matthews noted that Mr Kim had illustrated a good history of attendance on the roster, and that there were no recorded complaints as to the services he had provided. She said that neither, alone, satisfied the criteria. Ms Matthews also noted the comments from Mr Kim’s referees that he asked a lot of questions of other lawyers and (after referring to a point raised in Mr Castelino’s letter of 1 December 2010) accepted that this was neither positive nor negative, and said that it had not influenced the decision either way.
[19] Regarding ability to provide a sound legal service to defendants and the court, Ms Matthews referred first to the evaluations of the duty solicitor supervisors. She noted that their earlier evaluations weighed against Mr Kim’s application. She noted that the later evaluations (provided with Mr Castelino’s letter of 1 December 2010) supported his appointment to the roster, but there were comments which implied that there was still a way to go before Mr Kim gained competence.
[20] Ms Matthews also noted that as he was not currently employed by a law firm, Mr Kim’s ability to receive ongoing mentoring and supervision was limited, as the obligation was heavier on a barrister sole to seek out supervision, which might often be difficult depending on the availability of senior lawyers. Ms Matthews referred to information provided by Mr Kim that Mr Faleauto and Ms Letele were mentoring him. While commending Mr Kim for ensuring that he had support networks in place, Ms Matthews said that her assessment related to Mr Kim’s present circumstances. She also noted that Mr Faleauto had not indicated that he would be mentoring Mr Kim on an ongoing basis, and that Ms Letele was listed as a “level 1” provider (the lowest category level) herself.
[21] Regarding interpersonal skills, Ms Matthews noted that Mr Kim’s duty solicitor supervisors had expressed concern in their original evaluations as to Mr Kim’s ability to communicate effectively in English, which raised issues as to his ability to advocate effectively for his clients. She recorded that Mr Kim had obtained the TESL certificate, but noted that the later evaluations had not indicated whether that had resulted in an improvement in Mr Kim’s English communication.
[22] Ms Matthews concluded by saying that, in light of all the information before her, considering Mr Kim’s application against the relevant criteria and weighing up the factors, she decided that he did not meet the criteria for assignment to the roster. She encouraged Mr Kim to re-apply for appointment to the roster when his communication had improved sufficiently to facilitate effective legal advice.
Application for judicial review
[23] Mr Kim’s application for judicial review of the Agency’s final decision was filed on 10 January 2011. Mr Kim alleged three broad grounds for review: illegality, procedural impropriety, and irrationality/unreasonableness. Under each broad heading, he identified a range of particulars of the grounds for review.
[24] Under the heading “Illegality”, Mr Kim listed 20 particulars, which may be summarised as alleging:
(a)that the Agency took irrelevant matters into account and failed to take relevant matters into account;
(b)errors of law as to the Agency’s “statutory scope” and in applying its policy;
(c)pre-determination, bad faith, and bias;
(d)that the Agency had failed to take into account the Human Rights Act 1993; and
(e)that the decision was an affront to Mr Kim’s human dignity, was “ethnic cleansing”, discriminatory, and deprived him of the right of equal opportunity on the basis of his ethnicity.
[25] The particulars under the heading “Procedural Impropriety” included allegations of a breach of Mr Kim’s “legitimate expectation arising from regular practice”, failure to recognise Mr Kim’s interest in preserving his livelihood or
reputation, failure to grant Mr Kim an oral hearing, and that the decision not to appoint Mr Kim to the roster was an unfair dismissal and grossly disproportionate.
[26] Under the heading “Irrationality/Unreasonableness”, Mr Kim alleged that the Agency did not proceed on the basis of indicated criteria, failed to take into account evidence of the effect of declining to continue his appointment to the roster, engaged in contradictory reasoning, and that its decision was one which no reasonable body of persons could have arrived at, and was unjust.
[27] It is clear from the summary set out above that many of the alleged grounds for judicial review cannot found an application for review, and that there is some overlap within them. At the hearing, Mr Castelino advised that the pleadings alleging human rights breaches were not pursued as grounds for judicial review, and also that the pleadings of ethnic cleansing and discrimination on the grounds of ethnicity were no longer being pursued. It is, therefore, necessary for me to address only those grounds which were pursued.
[28] Although not specified as a ground for review, there was comment in Mr Castelino’s submissions on behalf of Mr Kim about Ms Matthews’s qualification for appointment as an adjudicator. On the evidence before me at the hearing, I am satisfied that Ms Matthews is a senior Agency manager, is qualified to assess the qualifications of lawyers seeking Agency approval under the Act and has experience in doing so, and was not a member of the Panel which considered Mr Kim’s first application for appointment to the roster. Further, I am satisfied that Ms Matthews had had no previous involvement with Mr Kim, himself. Accordingly, I am satisfied that the appointment of Ms Matthews as adjudicator complied with the intent of the parties’ agreed terms of settlement, as recorded by Woodhouse J, that the adjudicator considering Mr Kim’s second application for appointment to the roster should be a senior Agency employee, but independent of the consideration of his first application.
The duty solicitor scheme
[29] Before addressing the grounds, it is appropriate to refer, first, to certain provisions of the Act, as they are relevant to the duty solicitor scheme. Section 3 sets out the Act’s purpose:
3 Purpose of Act
The purpose of this Act is to promote access to justice by—
(a)providing a legal aid scheme that assists people who have insufficient means to pay for legal services to none the less have access to them; and
(b)providing other schemes of legal assistance; and
(c)supporting community legal services by funding community law centres, education, and research.
[30]The functions of the Agency are set out in s 92, which provides:
92 Functions of Agency
The functions of the Agency are as follows:
(a)to administer schemes in as consistent, accountable, inexpensive, and efficient a manner as is consistent with the purpose of this Act;
(b)to fund, provide, and support community legal services for the public or any section of the public, as provided for in Part 5;
(c)to investigate and advise on any matter that is referred to it by the Minister and that relates to schemes or community legal services;
(d)to carry out any other functions that are conferred on it by this Act or any other enactment.
[31] The provisions relating to the duty solicitor scheme are in Part 2 of the Act. Section 46 provides that the duty solicitor scheme established, under s 156 of the Legal Services Act 1991, continues as if it were established under the Legal Services Act 2000. Section 46(2) provides:
...
(2) The Agency must administer the duty solicitor scheme in accordance with this Act and any regulations made under it, and in particular must determine the conditions under which listed providers provide services under the scheme.
[32]The object of the duty solicitor scheme is set out in s 47:
47Object of duty solicitor scheme
The object of the duty solicitor scheme is to ensure that there is available in each District Court a sufficient number of lawyers for the purpose of assisting, advising, and representing unrepresented defendants charged with an offence.
[33]The duties of lawyers who act as duty solicitors are set out in s 48:
48Duties of duty solicitors
The duties of lawyers who act as duty solicitors include—
(a)advising unrepresented defendants as to plea, the possibility of a remand without plea, and, where appropriate, the right to elect to elect to be tried by a jury;
(b)advising unrepresented defendants on how to arrange private legal representation or to apply for legal aid, and assisting such defendants to make those arrangements or applications;
(c)advising unrepresented defendants as to bail;
(d)carrying out any other duties specified by the Agency.
[34] Having set out those provisions, I turn to consider Mr Kim’s application for judicial review under the following headings: illegality (incorporating alleged errors of law and fact), irrelevant/relevant factors (that is, whether Ms Matthews took irrelevant factors into account or failed to take relevant factors into account), procedural unfairness, substantive unfairness, and unreasonableness/irrationality.
Errors of law and fact
A: “Erroneous evaluations”
[35] A major focus of Mr Castelino’s submissions (both oral and written) was on Ms Matthews’s consideration of the duty solicitor supervisors’ evaluation forms. When Mr Kim submitted his second application for appointment to the roster on 23 September 2010, he included with it a joint letter signed by four Duty Solicitor Supervisors: Ms Bruen, Ms Newton, Ms Turner, and Ms Charan. They said:5
We confirm that we have had the opportunity to supervise Mr Joseph Kim during the time that he was a duty solicitor prior to the current regime.
5 Letter from E Bruen, C Newton, R Turner, and V Charan regarding Joseph Kim (undated).
We confirm that Mr Kim was always punctual, polite, keen and hard- working.
Under close supervision, Mr Kim performed his duties well, and with more experience and mentoring he would have progressed.
Given the obstacles he faces (both cultural and lingual), his efforts should be encouraged.
Mr Kim always took instructions well and consulted Supervisors when unsure.
In this regard, he is no different from any recent graduate starting out in the legal profession and reporting for work as a duty solicitor.
We have no hesitation that with proper mentoring, supervision and ongoing training, Mr Kim has the potential to do well.
[36] On 1 October 2010, Ms Matthews emailed Mr Castelino, as counsel for Mr Kim, inviting him to arrange for evaluation forms to be completed by the duty solicitor supervisors. As noted earlier, on 9 October 2010, Mr Castelino sent Ms Matthews copies of Ms Turner’s and Ms Charan’s original evaluations, and on 11 October he sent her a copy of Ms Bruen’s original evaluation.
[37] The evaluation forms are in a table form which invites the supervisor to tick or cross a box relating to various matters arising under the general headings of “General conduct”, “Client relationship”, “Knowledge of law and court processes”, “Instruction sheets”, “In Court”, “General matters”, and “Overall assessment”. For each of the general headings, there is a space for the supervisor to enter any “Comments”. The form concludes with an area where the supervisor can enter any “Additional comment”.
[38] In her original evaluation, Ms Bruen made the following “Additional comment” as to Mr Kim:
With adequate supervision could well become highly competent. Handicapped by lack of confidence and English not being his first language.
[39] In her original evaluation, Ms Charan noted, alongside the heading “In Court”:
Does the best he can in accordance with his ability.
In the “Additional comment” box, Ms Charan said:
Have found him to be a very keen learner. Seeks advice when unsure. Takes instructions from Senior Managers. Given the opportunity he will become capable and competent as a duty solicitor. As a lawyer, one never stops learning.
[40] In her original evaluation, Ms Bruen commented, alongside the heading “In Court”:
I have reservations about Mr Kim’s ability to communicate and advocate effectively, given his current command of English but I expect, given his determination and willingness to learn, that his abilities in this regard will improve steadily.
Ms Bruen added as an “Additional comment”:
With supervision and mentoring and further work on his command of English, I expect Mr Kim will become a very competent duty lawyer.
[41] After Ms Matthews had provided Mr Kim and Mr Castelino with the draft decision, Mr Castelino responded on 2 November 2010 that he and Mr Kim had reservations about the basis for her decision. On 23 November, Mr Castelino said that he was “still trying to cure some procedural defects in the case”. On 25 November Mr Castelino advised Ms Matthews that “the defect was not in the judicial process but in some document supplied because unknown to me proper procedure was not followed”.
[42] On 1 December 2010, Mr Castelino sent Ms Matthews a letter responding to the draft decision. Attached to the response were (amongst other things) the later evaluations by Ms Bruen (dated 5 November 2010), Ms Turner (dated 29 November 2010), and Ms Charan (dated, as was the original evaluation, 9 July 2010). In his letter Mr Castelino said that the original evaluations were “unfair and tainted by illegality” and that they had been “corrected”.
[43] In her later evaluation, Ms Bruen commented, under the headings “Overall assessment” and “Additional comment”:
I have noted a marked improvement in Mr Kim’s presence and delivery in Court since my last assessments.
I am aware he has recently obtained a Certificate for teaching English as a second language. I confirm that given Mr Kim’s determination and willingness to learn ... I believe with supervision and mentoring, he will become a very competent duty lawyer.
[44] In her later evaluation, Ms Turner said under the heading “Additional comment”:
Mr Kim has improved over the months and years I have been able to observe him at work and he will continue to do so given the opportunity, in my view.
[45] Ms Charan’s later evaluation differs from her original evaluation in that there are no “comments” under any of the headings. The only other difference is that Mr Kim is assessed as having an “adequate ... pace of work” in the later evaluation, when he was assessed as having a “good ... pace of work” in the original evaluation.
[46] Mr Castelino submitted that Ms Matthews erred in her consideration of the evaluations, when assessing whether Mr Kim met the second of the criteria for selection (that is, Mr Kim’s “ability to provide a sound legal service to defendants and the court”). He submitted that the “unfairness” and “illegality” of Ms Turner’s and Ms Bruen’s evaluations lay in the fact that Mr Kim had not appeared in the Manukau District Court on the date of the evaluation form, so neither could have evaluated him. He further submitted that both had, for the purposes of the later evaluations, evaluated Mr Kim for the first time in open court, and in the presence of other senior lawyers, resulting in an unbiased and transparent evaluation. He submitted that the original evaluations were erroneous, and that Ms Matthews had erred in referring to and relying on them. With respect to Ms Charan’s evaluation, he submitted that Ms Matthews had misconstrued one of Ms Charan’s comments, indicating an element of bias against Mr Kim, and that Ms Matthews should have referred to, and relied on, the later evaluation only.
[47] Mr Gunn submitted that there was no error; Ms Matthews was entitled to have regard to all of the evaluations and had taken both the original and later evaluations into account. Further, he submitted that Ms Matthews was entitled to conclude that Mr Kim did not satisfy the requirement regarding his ability to provide a sound legal service.
[48] I do not accept Mr Castelino’s submission that the dates of Ms Turner’s and Ms Bruen’s evaluation forms must be taken as a statement that the evaluation of Mr Kim’s performance as duty solicitor was done in court on that particular day. Indeed, the matters required to be addressed indicate that the evaluation is intended to be made from observations over a period of time. There is no evidence before me to suggest that the date written on the forms is anything other than the date on which each supervisor completed it. Accordingly, there are no grounds on which I could conclude that the original evaluations were wrong, or were based on speculation or conjecture, or that either Ms Turner or Ms Bruen had not evaluated Mr Kim when they prepared the original evaluation forms.
[49] Further, I do not accept Mr Castelino’s submission that Ms Matthews erred in referring to any of the original evaluations. Each evaluation was submitted to her by Mr Castelino on behalf of Mr Kim. All three supervisors ticked the box for “recommended for admission to the roster” and all three added comments in the appropriate parts of the forms. Although Mr Castelino submitted that the later evaluations corrected or cured the errors of the original forms, there was no evidence from any of the supervisors that they retracted any of the comments made in the original forms.
[50] To the contrary, the later evaluations of Ms Turner and Ms Bruen are, as could be expected given the later dates on which they were completed, clearly no more than an update of the original evaluations, indicating any developments noted during the intervening period. The later version of Ms Charan’s form differs only in the removal of the comments, and in the box ticked for “pace of work”. There is no evidence from Ms Charan as to why the comments have been removed, or what comment she considered (as Mr Castelino submitted) was misconstrued.
[51] I accept Mr Gunn’s submission that Ms Matthews’ consideration of Mr Kim’s application for appointment to the roster was an evaluative process. Ms Matthews was entitled to, and did, consider all of the evaluative material before her, including the original and later evaluations. What weight she put on the boxes ticked and the additional comments was a matter for her. While the later evaluations by Ms Turner and Ms Bruen indicate an improvement in Mr Kim’s performance, I am not satisfied
that, having considered all three later evaluations, Ms Matthews erred in confirming her decision that Mr Kim did not meet the second of the criteria for admission to the roster, that is, he was not able to provide a sound legal service.
B: “Standard too high”
[52] Mr Castelino submitted that in confirming her decision that Mr Kim did not meet the criteria to provide a sound legal service, Ms Matthews had acted contrary to the concept of a young practising lawyer, and had attempted to use terminology of a perfect lawyer without being aware that no student of law ever masters it, but is always learning. He submitted that Ms Matthews had erred in interpreting a comment that “with supervision and mentoring [Mr Kim] will become a competent duty solicitor”6 as meaning that “there is still a way to go before competence is gained”.7 Mr Castelino submitted that Ms Matthews’ interpretation was illogical.
[53] I do not accept Mr Castelino’s submissions. First, I do not accept that Ms Matthews has set a standard of perfection. She was considering whether Mr Kim met the requirement of being able to provide a sound legal service, so that he could carry out the duties of duty solicitors, as set out in s 48 of the Act, in accordance with the object of the duty solicitor scheme (s 47) and the purposes of the Act (s 3). Secondly, I can find no error, or illogicality, in Ms Matthews’ conclusion that Mr Kim had a way to go before competence was gained. That is clearly an available inference from the terms of Ms Turner’s comment.
C: “No complaints”
[54]Mr Castelino submitted that Ms Matthews erred in saying:8
I note that while there are no recorded complaints to the Agency as to the services you have been providing while on the roster, this is not indicative of a good service in itself.
6 Ms Bruen’s evaluation, 5 November 2010.
7 Letter from J M Matthews to J Kim regarding Mr Kim’s duty lawyer roster application (23 December 2010) at 3, under heading “Ability to provide sound legal service”.
8 At 3, under heading “Reliability”.
Mr Castelino submitted that:9
The decision-maker has wrongly held that the law that having complaint against someone indicates good service. In fact no client has ever complained about [his] services.
[55] The intent of Mr Castelino’s submission is not clear. If he intended to submit that Ms Matthews “held” that “having complaint ... indicates good service”, then that is incorrect. She did not. Ms Matthews said that the absence of complaints does not, in and of itself, indicate good service. If Mr Castelino intended to submit that Ms Matthews was wrong in saying that the absence of complaints is not in and of itself indicative of good service, then I do not accept the submission. Ms Matthews’ comment is a statement of the obvious. Mr Castelino did not specify any other respect in which Ms Matthews’ statement was in error. He did not, and could not, submit that the absence of any complaints was determinative as to the service Mr Kim had provided.
D: “Asking questions”
[56] Mr Castelino submitted that Ms Matthews erred in her interpretation of the supervisors’ comments that “[Mr Kim asks] a lot of questions of other lawyers”.10 This submission appears to be addressed at Ms Matthews’ consideration of the following supervisors’ comments:
Seeks help of necessary ... Seeks help if unsure.11
He also seeks help when he is unsure ... Always seeks assistance whenever he needs to do so ... Seeks advice when unsure, takes instructions from senior lawyers.12
Always asks if he is unsure as far as a case is concerned.13
[57] In its decision on Mr Kim’s first application for appointment to the roster, the Agency said that Mr Kim needed:14
9 Mr Castelino’s written submissions (20 April 2011) at [13.5].
10 Letter from J M Matthews to J Kim regarding Mr Kim’s duty lawyer roster application (23 December 2010) at 3, under heading “Reliability”.
11 Ms Turner’s evaluation, 1 July 2010.
12 Ms Charan’s evaluation, 9 July 2010.
13 Ms Turner’s evaluation, 29 November 2010.
14 Letter from A Hill to J Kim regarding the Manukau duty roster (2 June 2010).
... to develop an awareness of when you need to seek advice from an experienced and competent lawyer. Knowing when to seek advice is one of the key factors considered by duty lawyer supervisors when assessing inexperienced lawyers who are seeking entry to the duty lawyer roster ...
[58] In her final decision, Ms Matthews said that the duty solicitor supervisors’ comments (as to Mr Kim’s asking questions):15
... go some way to addressing the concern of the panel about your ability to ask appropriate questions.
I acknowledge your point raised on 1 December 2010 about the number of questions and accept that it can be difficult to assess whether asking questions of senior counsel is a positive, or a negative as it can be related to the circumstances in each situation. As a factor to weigh up, this has not influenced the decision in either way.
[59] I do not accept that Ms Matthews erred. She noted that the supervisors had addressed the earlier Panel’s concern as to whether Mr Kim was aware of when he needed to seek advice. There are no grounds on which I could conclude that Ms Matthews decided that Mr Kim asked too many questions; she expressly acknowledged that it was difficult to assess whether this was a “positive” or a “negative”. Further, she stated clearly that “asking questions” did not influence her decision as to Mr Kim’s application one way or another.
E: “Mr Kim’s ability to communicate”
[60] Mr Castelino submitted that Ms Matthews erred in expressing concern as to Mr Kim’s ability to advocate effectively for his clients. Ms Matthews said:16
Your referees originally commented that you do “the best [you] can in accordance with [your] ability” and that was after you had completed the English as a Second Language Teaching Course. This raises some fundamental issues raised in relation to your ability to advocate effectively for your clients. I note that in the second batch of evaluation forms, no mention was made of your English speaking ability, although one did note that “I am aware that he has recently obtained a Certificate for teaching English as a second language” but did not indicate whether that had resulted in an improvement in your English communication.
15 Letter from J M Matthews to J Kim regarding Mr Kim’s duty lawyer roster application (23 December 2010) at 3, under heading “Reliability”.
16 At 4, under heading “Interpersonal skills”.
[61] Mr Castelino submitted that Ms Matthews’ comments were incorrect, in the light of Mr Kim’s having had all of his education in New Zealand, and his having obtained a certificate which enabled him to teach English to persons for whom English is their second language. He submitted that there was no evidence to show that Mr Kim does not know English, and that Ms Matthews’ reasoning was based on flawed and biased evaluation forms.
[62] In her affidavit sworn on 1 April 2011 and filed in this proceeding, Ms Matthews said that she was mindful of the duty solicitors’ comments expressing reservations about Mr Kim’s communication skills. Ms Turner said in her original evaluation that Mr Kim was “handicapped by lack of confidence and English not being his first language” and Ms Bruen had said in her original evaluation that “I have reservations about Mr Kim’s ability to communicate and advocate effectively given his current command of English ...”. Ms Matthews said that:17
In considering my discretion, I was also mindful of the criticisms that had been made of Mr Kim’s communication skills and I specifically considered the fact that acting as a duty solicitor requires the ability to communicate well with clients who are often in difficult circumstances, have poor communication skills themselves and are under additional stress from their legal situation. I therefore considered that communication skills are especially important for the duty solicitor role.
[63] I have said earlier that I do not accept Mr Castelino’s submissions that the original evaluations should be rejected as having been wrong, based on speculation or conjecture, or not based on actual evaluations. Similarly, I do not accept his submission that the earlier evaluations were flawed or biased. I am satisfied that Ms Matthews took into account the later evaluations as well as the original evaluations. Ms Turner’s later evaluation noted that “Mr Kim has improved over the months I have observed him”. Ms Bruen’s later evaluation includes the comment that: “I have noted a marked improvement in Mr Kim’s presence and delivery in Court since my last assessments. I am aware he has recently obtained a Certificate for teaching English as a second language”. I am not satisfied that Ms Matthews erred in concluding that, in the absence of any specific comment that Mr Kim’s English communication had improved, his communication skills were still problematic for
17 Affidavit of J M Matthews, 1 April 2011 at [37].
the role of a duty solicitor, and undermined his ability to show good interpersonal skills.
Irrelevant/relevant considerations
A: “Ongoing mentoring”
[64] Mr Castelino submitted that Ms Matthews erred in taking into account as a factor in her decision not appoint Mr Kim to the roster, her concern that he did not have ongoing mentoring. He submitted that there is no requirement for appointees to the roster to have ongoing mentoring.
[65]In her draft decision Ms Matthews said:18
I note that you are not currently employed by a firm, which means your ability to receive ongoing mentoring and supervision is limited. Mentoring and supervision would provide a more formal basis for knowledge development rather than relying on other duty lawyers in the court. I consider that the combined concerns relating to lack of support and limited communication abilities mean that your ability to provide sound legal service to defendants and the court is compromised.
[66] Included with Mr Castelino’s letter responding to the draft decision were letters from Mr Faleauto and Ms Letele. Mr Faleauto said that he was “always happy to help assist and mentor [Mr Kim]”. Ms Letele said, after describing matters in which Mr Kim had assisted her, “I am happy to mentor Mr Kim on matters he may require assistance on”.
[67] In her final decision, Ms Matthews added the following paragraphs after the paragraph set out at [65], above:19
I note that you have provided information from Mr Faleauto and Ms Letele stating that they are “mentoring” you. I commend you for ensuring that moving forward you have support networks in place, but mentoring and skill improvement takes time, and at this point in time the assessment relates to where you are currently and it does not create enough in the balance to weigh against other Agency concerns.
18 Letter from J M Matthews to J Kim regarding Mr Kim’s duty lawyer roster application (1 November 2010) at 3, under heading “Ability to provide a sound legal service”.
19 Letter from J M Matthews to J Kim regarding Mr Kim’s duty lawyer roster application (23 December 2010) at 4, under heading “Ability to provide sound legal service”.
I also note that Mr Faleauto who is a PC3 lawyer has not indicated that he is actually going to be mentoring you on an ongoing basis. Ms Letele has indicated that she [is] happy to mentor you, but she is listed as a PC1 level lawyer only, which means that she is still operating at the lowest category level herself.
[68] In her affidavit, Ms Matthews said that she thought that Mr Kim’s ability to provide sound a legal service would be a key issue, because he had been a barrister sole since May 2009, and as such would have had less ability to obtain appropriate mentoring from senior counsel than would a junior lawyer working in a firm. She said, further, that Mr Faleauto had not indicated any plans for future mentoring, and that Ms Letele was herself listed in the lowest provider category. Accordingly, she did not consider that there was a satisfactory assurance of consistent future mentoring.
[69] I accept that the criteria for appointment to the roster do not include an express requirement that lawyers appointed to the roster have ongoing mentoring. However, the criteria are designed to assist the Agency to assess whether a candidate is able to carry out the duties of duty solicitors in accordance with the object of the duty solicitor scheme and the purposes of the Act. I do not accept that the presence or absence of an ongoing mentoring arrangement with a senior lawyer was an irrelevant consideration. The ability for any junior lawyer to be mentored will enhance the lawyer’s performance of his or her duties, and further the object of the duty solicitor scheme and the purposes of the Act.
B: “Mr Kim’s employment”
[70] Related to the above submission, Mr Castelino submitted that Ms Matthews took into account, as an irrelevant factor, that Mr Kim was not employed in a firm. Again, I accept that it is not one of the criteria for appointment to the roster that an applicant is employed in a firm. Ms Matthews was not saying that it was. What she was saying was that as Mr Kim was not employed by a firm, but was a barrister sole, his ability to obtain ongoing mentoring and supervision was more limited. It can be expected that in a firm (or barristers working in shared chambers) there is readier and easier access to more experienced practitioners for mentoring and supervision than there is for a barrister sole working on his or her own. Accordingly, I am not
satisfied that Ms Matthews’ reference to the greater difficulty Mr Kim would face in obtaining ongoing mentoring as a barrister sole was an irrelevant factor.
C: “Mr Kim’s accent”
[71] Mr Castelino submitted that Mr Kim’s accent was a further irrelevant factor taken into account by Ms Matthews. He submitted that she had misconstrued his accent as an inability to communicate in English effectively.
[72] I observe, first, that Ms Matthews makes no reference to Mr Kim’s accent in either her draft or her final decision. There was a reference to Mr Kim’s accent in a letter from Mr Faleauto dated 22 September 2010, as follows:
He does have an accent but as Manukau has South African, Indian, Fijian- Indian, other Korean, English, Samoan, Tongan etc lawyers from around the world appearing on a daily basis, his is not unusual. Attacks on his competence therefore due to his accent is anti-cultural and I believe breaches our Bill of Rights. He is able to competently speak English, but obviously it is his second language as with a large number of other counsel.
[73] On the evidence before me, I am not satisfied that Ms Matthews took Mr Kim’s accent into account as a factor relevant to her decision. There is simply no evidence that she considered his accent as an independent factor. I accept that the ability to communicate effectively with clients and the court is a relevant factor in the assessment of a candidate for appointment to the roster. I am satisfied that in assessing Mr Kim’s ability to communicate, Ms Matthews considered the material before her, all of which was relevant to that assessment.
D: “Evidence as to Mr Kim’s linguistic skills”
[74] Referring specifically to Mr Kim’s TESL certificate, Mr Castelino submitted that Ms Matthews was required, but failed to take into account evidence as to Ms Kim’s linguistic skills. Mr Gunn submitted that there was no evidential basis for this submission, and that the evidence was that Ms Matthews did consider Mr Kim’s linguistic skills.
[75] Ms Matthews said in her affidavit that she took into account the fact that Mr Kim had obtained a TESL certificate, but that she had concluded, on balance, that communication was a problem, and that there was evidence that this problem affected both Mr Kim’s ability to provide sound legal services, and his ability to demonstrate good interpersonal skills with clients and court staff.20 Ms Matthews also said that she had reviewed all the references and evaluation forms placed before her.21 As recorded in the final decision, these included the original and later evaluations, and the references and affidavits submitted on behalf of Mr Kim in response to the draft decision.22 I am satisfied that Ms Matthews took into account evidence as to Mr Kim’s linguistic skills. What weight she gave to that evidence was a matter for her.
E: “Positive comments”
[76] Mr Castelino submitted that Ms Matthews was required to take into account positive comments about Mr Kim in the duty solicitor supervisor evaluations, and the affidavits and references submitted to her, but failed to do so. The comments I have made under the previous heading apply equally to this submission. It is not necessary to repeat them. I am satisfied that Ms Matthews took the positive comments about Mr Kim into account. Again, what weight she gave to them was a matter for her.
Procedural unfairness
A: “Refusal to interview Mr Kim”
[77]
Mr Castelino submitted that Ms Matthews had refused to interview Mr Kim, leading to procedural unfairness. This submission cannot be sustained. As recorded in the Minute of Woodhouse J,23 Mr Kim and the Agency agreed that the adjudicator, Ms Matthews, had discretion as to the manner in which she would proceed to come to her decision, and that it was for her to decide whether she wished to obtain any20 Affidavit of J M Matthews, 1 April 2011 at [38].
21 At [39].
22 Letter from J M Matthews to J Kim regarding Mr Kim’s duty lawyer roster application (23 December 2010) at 2 and 4.
23 Kim v Legal Services Agency HC Auckland CIV-2010-404-3644 14 September 2010, at [7].
further information, or interview any person including, and in particular, Mr Kim. It cannot be said that there was procedural unfairness as a result of Ms Matthews’ adherence to the agreed procedure.
B: “Negative attitude, bias, vindictiveness”
[78] Mr Castelino submitted that Ms Matthews approached her task with a negative attitude, was biased, and vindictive towards Mr Kim for having sought judicial review of the Agency’s decision on his first application for appointment to the roster. He submitted that this was demonstrated by the fact that she did not interview Mr Kim, or anyone who gave information, as (he submitted) she would not get to hear the answers that she wanted.
[79] I do not accept this submission. There is nothing in the evidence before me that supports a finding that Ms Matthews had a negative attitude towards Mr Kim, or was biased or vindictive. To the contrary, Ms Matthews’ communications with Mr Kim and Mr Castelino, and her draft and final decisions, show that she approached her assessment with an open mind, and made her decision after considering the criteria and all of the material put before her.
C: “Legitimate expectation”
[80] Mr Castelino submitted that a reason for Ms Matthews being vindictive towards Mr Kim was that he had approached the court seeking redress of his “legitimate expectation”. Mr Castelino did not clarify what it was that Mr Kim had a “legitimate expectation” of. If it was intended that Mr Kim had a “legitimate expectation” that he would be appointed to the roster, then the submission cannot be sustained. All persons who were formerly on the duty solicitor roster were required to re-apply for appointment to the roster. All had to be evaluated and considered. Mr Kim could not have had a “legitimate expectation” that he would be appointed because he, like all other lawyers, was required to go through the process of applying and being considered. If it was intended that Mr Kim had a “legitimate expectation” as to the process to be followed by Ms Matthews, then, again, the submission cannot be sustained. The parties agreed as to the procedure, and Ms Matthews followed it.
Substantive unfairness
[81] Mr Castelino submitted that the decision not to appoint Mr Kim to the roster was a “disproportionate sanction” and “a penalty out of proportion to the objective sought to be achieved”. That submission might have been appropriate had the Court been considering a penalty imposed after, for example, professional disciplinary proceedings. That is not the case here. What was being considered was Mr Kim’s suitability to be appointed to the roster. The refusal to appoint him, on the grounds that he was not suitable, cannot be construed as a penalty. Likewise, the submission that, as a “penalty” the decision not to appoint him to the roster was “out of proportion to the objective sought to be achieved” cannot be sustained. The objective sought to be achieved is the appointment to the roster of lawyers who are able to carry out the duties of duty solicitors, in accordance with the object of the duty solicitor scheme and the purposes of the Act. A decision that a candidate is not suitable for appointment cannot be said to be out of proportion to the objective sought to be achieved.
Unreasonableness/irrationality
[82] Mr Castelino submitted that Ms Matthews’ decision was outrageous and one which no reasonable person could have reached.24 In support of this submission, he referred to matters on which he had already made submissions, under other headings. As none of those submissions have been accepted, his submission that Ms Matthews’ decision was one which no reasonable person could have reached cannot be sustained.
Result
[83]The application for judicial review is dismissed.
[84] In his written submissions, Mr Gunn sought costs on a 2B basis. If costs are pursued, and the parties are unable to reach agreement, then memoranda are to be
24 See Associated Provincial Picture Houses Ltd v Wednesbury Corporation [1948] 1 KB 223 (HL) and Wellington City Council v Woolworths NZ Ltd [1996] 2 NZLR 537 (CA).
filed: that on behalf of the Agency within 20 days of the date of this judgment, and that on behalf of Mr Kim within a further ten days.
Andrews J
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