Legal Services Agency v Brown HC Wellington CIV 2003-404-7065

[2005] NZHC 1252

IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY

CIV 2003-404-7065

UNDER

IN THE MATTER OF

the Legal Services Act 2000

a decision of the Legal Aid Review Panel dated 14 November 2003

BETWEEN

LEGAL SERVICES AGENCY

Appellant

AND

EDWIN CHRISTOHPER BROWN

Respondent

Hearing:

10 August 2004

Appearances: G D S Taylor for Appellant

A Shaw & G Edgeler for Respondent Judgment:  7 April 2005

RESERVED JUDGMENT OF MILLER J

Factual background Legal Services Act 2000 The appeal

CONTENTS

[4]
[21]
[28]

Meaning of manifestly unreasonable or wrong in law Grounds of appeal

(a)Substitution of view

(b)Prospects of success

(c)Reference to ‘a’ grant of aid

Approach to be taken to appellate aid in NZBORA claims Failure to give adequate reasons

Decision

[31]

[38]
[39]
[42]
[51]
[54]
[66]
[70]

[1]                 The Legal Services Agency appeals from a decision of the Legal Aid Review Panel, which reversed the Agency’s decision to decline Mr Brown legal aid for purposes of an appeal to the Court of Appeal.

LEGAL SERVICES AGENCY V EDWIN CHRISTOHPER BROWN HC WN CIV 2003-404-7065 [7 April 2005]

[2]                 The appeal finds its context in a civil proceeding brought by Mr Brown against the Crown arising out of Mr Brown’s trial on a charge of aggravated robbery. Mr Brown complained that the Auckland District Legal Aid Sub-Committee refused on several occasions to grant his requests to have DNA tests carried out on a t-shirt found in his flat. He was convicted, but the conviction was set aside on appeal and a retrial ordered. Ultimately tests were carried out on the t - shirt, and as a result the Crown did not oppose an application for discharge under s.347 of the Crimes Act.

[3]                 Mr Brown sued for compensation under the New Zealand Bill of Rights Act 1990, but failed in the High Court. The application for legal aid that I am concerned with relates to his appeal to the Court of Appeal.

Factual background

[4]                 Following a robbery of a North Shore service station, Mr Brown was charged with attempted murder, aggravated robbery, and wounding with intent to cause grievous bodily harm.

[5]                 Mr Brown sought legal aid to pay for forensic tests on a long-sleeved black t- shirt found at Mr Brown’s flat. The Crown had conducted tests on the t-shirt, which concluded that blood on it had almost certainly come from a victim of the robbery. Mr Brown wished to have tests conducted on sweat on the t-shirt to eliminate him as its wearer. Legal aid was declined on several occasions. It appears that the tests required were both novel and costly.

[6]                 On 15 December 1995, after trial, Mr Brown was convicted of aggravated robbery and wounding with intent. He was sentenced to nine years imprisonment on each charge, to be served concurrently. An appeal against conviction was allowed and a new trial ordered.

[7]                 Forensic tests were carried out before the retrial. They indicated that another person had worn the t-shirt at some time since it had last been laundered. The  Crown did not oppose an application for discharge under s.347.

[8]                 Mr Brown brought proceedings against the Crown seeking compensation for breaches of the New Zealand Bill of Rights Act 1990 and a declaration that his trial, conviction, and sentence took place in breach of the provisions of that Act.

[9]                 In the High Court, Glazebrook J dismissed the claim. She found that the refusal of aid was not unreasonable under either the Legal Services Act or the New Zealand Bill of Rights Act 1990. The case for Mr Brown being granted aid was, at best, finely balanced whenever cost was taken into account, given the very high cost and the novelty of the testing required. Glazebrook J also held that the jurisdiction to award compensation under the New Zealand Bill of Rights Act was limited to exceptional cases. Although compensation is, in principle, available for breaches of the Act during a criminal trial, there were grounds clearly justifying the laying of the charges, any breach related to only one aspect of the trial process, and it was not clear that Mr Brown would have been acquitted in any event had the tests been conducted. In addition, Mr Brown had already obtained a remedy in the quashing of his conviction and his subsequent s.347 discharge. She concluded that even if compensation were available, she would have exercised her discretion against an award.

[10]             On 15 April 2003 Mr Shaw, counsel for Mr Brown, wrote to the Legal Services Agency in support of Mr Brown’s application for legal aid for an appeal to the Court of Appeal. He advised that, in his opinion, the High Court had erred in its interpretation and application of the New Zealand Bill of Rights Act and the Legal Services Act, failed to correctly apply existing decisions of the Court of Appeal and relevant international case law, and was in breach of New Zealand’s international obligations under the International Covenant on Civil and Political Rights. The High Court decision was plainly wrong in that the principle of “equality of arms” was not complied with at the criminal trial. Mr Shaw concluded that the prospects of success were “more than reasonable to strong”. He recorded that the Registrar of the Court  of Appeal had waived payment of Court fees, inter alia, on the ground that the appeal concerned a matter of general and public importance.

[11]             Mr Brown applied to the High Court for waiver of security of costs on the appeal to the Court of Appeal. In a judgment dated 12 May 2003, Salmon J granted

the application. He held that it was not his task to decide whether the very careful and extensive judgment of Glazebrook J was wrong. It did seem to him, however, that the issues before the Court were not so clear as to allow only one obvious and definitive answer. Further, the issues were undoubtedly important, both to the appellant and in a wider sense.

[12]             Mr Shaw drew the decision of Salmon J to the attention of the Legal Services Agency in a letter dated 10 June 2003, in which he requested that the grant of legal aid be extended to cover the reasonable costs and disbursements of Mr Illingworth, who appeared as counsel in support of the application for waiver of security for costs, together with the reasonable costs and disbursements of Mr Thompson, who acted as instructing solicitor. Mr Shaw indicated that the total sum he sought as lead provider was $21,790, and that for Mr Thompson was $6,950.

[13]             As Mr Shaw acknowledged in argument, the Agency may have baulked at the costs. By letter of 20 June 2003, the Agency asked two questions. The first was whether the Agency would have first priority on any proceeds of the proceedings, or whether counsel would do so. The second was whether any award, if made, would  be consumed almost wholly by legal costs. Mr Shaw responded in the affirmative to the first question and, in relation to the second, pointed out that the claim was for several million dollars. He did not remind the Agency that the points on appeal contested Glazebrook J’s finding that the Baigent remedy is an exceptional one.

[14]             By letter of 22 July 2003, the Agency advised that aid was declined under s.9(4)(e) of the Legal Services Act 2000, which provides:

(4) The Agency may also refuse legal aid to an applicant in any of the following circumstances:

(e) in the case of an appeal (whether or not in respect of proceedings in which the applicant has received legal aid), the Agency considers that for any reason the grant of aid or further aid is not justified.

[15]The Agency recorded its reasons as follows:

The High Court’s decision is a careful thorough exploration of the legal issues raised and argued. It notes that compensation is a discretionary remedy and the fact that compensation was awarded in Baigent’s case, does not mean that every breach of NZBORA rights will be compensable.

The decision notes that the applicant achieved a remedy through the appeal process. It further notes that the applicant is essentially seeking compensation for a failure to pursue the issue of the DNA testing by review of the decision to refuse aid, and that this was a matter within the control of both counsel and the applicant.

The Agency for these reasons, does not accept that the prospects of success – if success is measured in terms of an award of compensation equal to or greater than the legal costs incurred in obtaining that remedy – are sufficient to justify a grant of aid.

[16]             Mr Brown applied for a review of the agency decision under s.54 of the Legal Services Act 2000. The Legal Aid Review Panel allowed the application in a decision dated 14 November 2003. It held that the decision of the Agency to decline to make any grant of legal aid was manifestly unreasonable and wrong in law, and it reversed the decision.

[17]             The Panel summarised the background, and noted that Glazebrook J had traversed the facts and law at great length and ultimately determined that the claim to compensation failed. It quoted the reasoning of Salmon J on the application for waiver of security for costs. It held that there had been confusion between two separate but related aspects of the decision; the first was whether a grant of aid should be made, and the second was the amount to be fixed as a maximum grant. Dealing with the first of these aspects, the Panel held that if the decision were directed only to the question whether or not aid should be granted, the panel would find that the decision of the agency was manifestly unreasonable and wrong in law. The Agency had failed to give appropriate weight to comments by the High Court on the application for waiver of security. The Agency was required to give appropriate consideration to the High Court’s concerns about the serious civil rights issues raised by the case. The Panel also attached significance to the Agency’s reference to prospects of success sufficient to justify “a” grant of aid rather than “the” grant of aid as provided in s.9(4)(d)(i).

[18]             Turning to the second aspect, the Panel considered the question whether the likely award of damages relative to costs of bringing the appeal justified a decision to decline aid. It held that the Agency was entitled, if not obliged, to consider this question, and that there was some merit in the Agency’s contention that any award of damages would be taken up almost wholly by legal costs. It is implicit in the Panel’s

decision, however, that this consideration was not sufficient to justify the Agency’s decision to decline aid, in circumstances where the case raised serious civil rights issues and Salmon J had evidently considered the appeal was both arguable and important.

[19]             Mr Brown’s substantive appeal to the Court of Appeal had been heard at the time of argument, and counsel agreed that I ought reserve my decision pending delivery of the judgment, Brown v Attorney-General (CA 39/03, 3 March 2005).  The Court dismissed the appeal. It did not find it necessary to deal with the claim that Mr Brown’s rights under the New Zealand Bill of Rights Act had been breached. His application for legal aid for the forensic tests was properly declined under the former Legal Services Act 1991.

Legal Services Act 2000

[20]             The purpose of the Act is to promote access to justice by, inter alia, providing a legal aid scheme that assists people who have insufficient means to pay for legal services to nonetheless have access to them.

[21]             Decisions to grant or refuse aid are made by the Legal Services Agency. The Agency operates through eleven local offices. Appellate aid applications are dealt with in the Wellington office. Its head office is occupied with policy issues and management of the Agency’s operation. There are 42 grants officers and 14 senior grants officers. I was told that each officer determines around 16 applications each day. Grants officers are assisted in making decisions by the Agency’s service practice manual and by “specialist advisors”, being practitioners who provide advice and recommendations on applications. The Agency also has a committee that meets with one of its legal advisors twice monthly to review panel and Court decisions and determine what changes, if any, ought to be made to improve Agency decision- making.

[22]             Under s.9, civil legal aid is available to an applicant whose disposable  income does not exceed the prescribed amount. Section 9(3) provides that the Agency must refuse to grant legal aid if the applicant has not shown that he or she

has reasonable grounds for taking or defending the proceedings or being a party to the proceedings. Section 9(4) provides:

The Agency may also refuse legal aid to an applicant in any of the following circumstances:

(d)    in the case of original proceedings,—

(i)     the applicant's prospects of success are not sufficient to justify the grant of aid; or

(ii)     the grant is not justified, having regard to the nature of the proceedings and the applicant's interest in them  (financial or otherwise), in relation to the likely cost of the proceedings; or

(iii)   for any other cause it appears unreasonable or undesirable that the applicant should receive aid in the particular circumstances of the case:

(e)    in the case of an appeal (whether or not in respect of proceedings in which the applicant has received legal aid), the Agency considers that for any reason the grant of aid or further aid is not justified.

[23]             Section 14 provides that when granting legal aid, the Agency must specify any conditions attaching to the grant, must identify the lead provider and any other listed provider who may provide services under the grant, and may specify a maximum grant.

[24]             Applications for review of Agency decisions are made to the Legal Aid Review Panel. The convenor of the Panel must be a lawyer who has held  a practising certificate for at least seven years. Members of the Panel include lawyers with experience in a range of legal areas and types of proceedings and non-lawyers with relevant knowledge, experience, and skill. An application for review may be made on the grounds that the decision of the Agency was manifestly unreasonable or wrong in law: s.54(1) of the Act.

[25]             On receipt of an application, the convenor of the Panel may require the Agency or any person to provide information and must appoint a team of one, two, or three members of the Panel to review the decision. The team may require the Agency to provide all information that it holds relating to the decision and a written report setting out the considerations to which the Agency had regard in coming to its

decision.    The review is conducted on the papers “with all reasonable speed”: s.56(5).

[26]             Under s.57, the Panel may determine a review by confirming, modifying, or reversing the decision under review. The section provides that every determination of the Review Panel must be accompanied by a brief summary of the reasons for it. The Review Panel may, instead of determining a review, direct the Agency to reconsider all or any part of the decision to which the review relates.

[27]Under s.59, an appeal lies to this Court on a question of law.

The appeal

[28]             This appeal is one of a number in which the Agency has raised what it describes as issues of principle concerning the way in which the Legal Aid Review Panel goes about its work. The others include Legal Services Agency v Fainu (HC Auckland, AP 68/02, 19 November 2002, Randerson J), Legal Services Agency v Tana (HC Whangarei, AP 26/02, 9 December 2002, O’Regan J), and Legal Services Agency v A, (HC Christchurch, CIV 2003-409-587, 22 May 2003, John Hansen J). The Agency considers that the Panel is too ready to substitute its own decisions for those of the Agency and frequently fails to give an adequate summary of its reasons.

[29]             As I have already mentioned, Mr Brown’s appeal had been argued in the Court of Appeal at the time of the argument before me. Pursuant to the Panel decision he was granted aid for purposes of the appeal. It might be contended that  the present appeal is moot but Mr Shaw did not press that point, recognising that the course adopted sensibly allowed his client to get on with the substantive appeal instead of awaiting the outcome of the Agency’s appeal to this Court. Of course, no question arises of remitting the matter to the Panel.

[30]             Mr Taylor reminded me that the Court’s role in an appeal of this kind is to determine whether the Panel had erred in law, and not to determine whether the decision of the Agency was correct: F v The Medical Practitioners Disciplinary Tribunal (HC Auckland, AP 21-SW01, 5 December 2001, Laurenson J) at para 22.

That said, the question whether the Panel erred in law is ordinarily answered by inquiring whether the Panel was right to conclude that the Agency erred in law or was manifestly unreasonable, since that is the test that must be satisfied in law before the Agency’s decision may be reviewed.

Meaning of manifestly unreasonable or wrong in law

[31]             The meaning to be attached to “manifestly unreasonable” in this context has been considered in several decisions. In Legal Services Agency v G (HC Wellington, AP 190/01, 30 April 2002), Doogue J held:

The words “manifestly unreasonable” are common words in common use, and there is no reason to suspect that the Legislature meant that they were to be read other than in their ordinary dictionary meaning. There was no dispute that in ordinary parlance the word “manifestly” could be readily interchangeable with such terms as “plainly”, “clearly”, “evidently”, “obviously” or “unmistakably”: see, for example, The New Shorter Oxford Dictionary (1993 edition), volume 1, 1686. The very use of the term “manifestly” makes clear the Legislature does not expect the Review Panel to intervene where a decision was arguably open to the Agency unless wrong in law.

Nor was there any particular dispute about the meaning of the word “unreasonable” as going beyond what is reasonable or being irrational or similar: see, for example, The New Shorter Oxford Dictionary (above), 3503.

[32]             In Legal Services Agency v Fainu (above), Randerson J rejected a submission that “manifestly unreasonable” should mean “that the facts found are such that no person acting judicially and properly instructed as to the relevant law could have come to the determination under appeal”. He was reluctant to impose undue refinement on the approach of the Panel, which has to deal with many and varied circumstances and has a very substantial workload. He held that the “manifestly unreasonable” ground is made out where it is shown, clearly and unmistakably, that the decision made by the Agency went beyond what was reasonable, or was irrational or logically flawed.

[33]             In Legal Services Agency v Tana (above), O’Regan J also held at para 22 that it is inappropriate to refine the test of manifest unreasonableness by introducing

complexities about what a reasonable person in the same role would have done. He held that:

The use of the term “manifestly unreasonable” requires not only that the decision is found to be unreasonable, but that the Panel forms the view that the decision is so clearly unreasonable that the intervention of the Panel is called for.

[34]             Accordingly, it is not open to the Panel to approach the matter afresh and substitute its own view for that of the Agency. The statutory requirement that the Panel should intervene only where the decision is clearly and unmistakably unreasonable precludes any such approach: Legal Services Agency v Tana (above at paras 23-24).

[35]             In Legal Services Agency v Fainu (above) Randerson J held that “manifestly unreasonable” is something different from a decision that is “wrong in law”.  He  held that:

… A decision may be “wrong in law” for a variety of reasons. It is undesirable to suggest any exhaustive list but a decision may be wrong in law if it derives from an incorrect application or interpretation of the statute; or if it is wrong in principle; or if the decision-maker has failed to take into account some relevant matter; or has taken account of an irrelevant matter; or if it depends upon findings which are unsupported by the evidence.

[36]             Mr Taylor contended that the concepts of manifest unreasonableness and error of law, as used in the Legal Services Agency, are conceptually distinct. The significance of this submission is that, if Mr Taylor is right, it would not be possible for the Panel to justify a review of the Agency’s decision by saying that any given reason was manifestly unreasonable and wrong in law, as it did in this case. It would have to explain which ground of review was relied upon, and why.

[37]             I consider that this submission is another in a series of attempts by the Agency to curtail the discretion available to the Panel by introducing refinements to the language of the statute. The legislature must have meant different things by “manifestly unreasonable” and “wrong in law”: Legal Services Agency v Fainu (above at para 28). However, it does not follow that the two are mutually exclusive.  I see no reason why an egregious error of law may not also be described as

manifestly unreasonable. As Mr Taylor acknowledged, the two concepts overlap in the judicial review arena.

Grounds of appeal

[38]             The grounds of appeal focused on two issues; substitution of the Panel’s view for that of the Agency, and failure to give adequate reasons.

(a)     Substitution of view

[39]             Mr Taylor began with the Panel’s observation that the Agency failed to give appropriate weight to Salmon J’s reasoning. He contended that use of the phrase “appropriate weight” necessarily means the Panel made its own decision regarding the appropriate weight to be given to the Judge’s reasoning, and substituted its view for that of the Agency.

[40]             I accept that it would be an error of law for the Panel to substitute its view for that of the Agency without first establishing that the Agency’s decision was manifestly unreasonable or wrong in law. However, it is not possible to resolve this appeal by determining in the abstract that the Panel’s use of the phrase “appropriate weight” necessarily involved an error of law. The phrase certainly signifies recognition that other considerations had to be weighed against those identified by Salmon J. So it may be inferred that the Panel had not reached the view that the combination of an arguable appeal and important civil rights issues trumped all other considerations that the Agency was required to take into account. However, the Agency’s decision might still be manifestly unreasonable or wrong in law. As Mr Taylor properly conceded, failure to give appropriate weight to a relevant factor may render a decision manifestly unreasonable or even amount to an error of law. It follows that questions of degree and judgment are involved.

[41]             Accordingly, it is necessary to examine the Panel’s decision in more detail. I turn to the particulars that were advanced for and against the contention that the Panel substituted its decision for that of the Agency.

(b)   Prospects of success

[42]             The Agency correctly determined the application under s.9(4)(e) of the Act, which provides the Agency with a wide discretion to refuse aid appellate if it considers for any reason that the grant of aid is not justified. There was no dispute that the Agency acted properly in taking prospects of success, and the likely amount of any award, into account in the exercise of its discretion. The question is whether the Panel concluded that the Agency’s decision took too narrow a view of prospects of success and, if so, whether the Panel was correct in law to conclude that the Agency erred in law and was manifestly unreasonable in so deciding.

[43]             The Agency found that the prospects of success – if success is measured in terms of an award of compensation equal to or greater than the legal costs incurred in obtaining that – were insufficient to justify a grant of aid. That might suggest that  the Agency focused its analysis exclusively on financial considerations. If so, Mr Taylor accepted that would be an error. Under s.9(4)(d)(ii) the applicant’s interest in a proceeding (financial or otherwise) must be weighed against the likely cost of the proceeding. While that subsection deals with first instance proceedings, it illustrates that non-financial considerations are relevant to the grant of aid.

[44]             In Timmins v Legal Aid Review Panel [2004] 1 NZLR 708, Wild J examined the meaning of the phrase “prospects of success” in s.9(4)(d)(i) of the Legal Services Act. He held that:

“Prospects of success”, in my view, refers to the prospects of achieving a successful outcome. Those prospects need to be assessed in a pragmatic way and, somewhat obviously, in the circumstances of the particular case. After all, no two cases are the same. The assessment invited by the words in s 9(4)(d)(i) “sufficient to justify the grant of aid”, involves weighing the likely benefits against the likely costs. Whilst the benefits in some cases will be measurable mainly, and perhaps even wholly, in dollar terms, in other situations that will not be so. Examples might include obtaining an injunction restraining the destruction of an area of native bush, or the closing of a road or access track or some other facility, or a judgment upholding the reputation of a person or a product (even if unaccompanied by significant damages), or vindicating some important point of principle.

Because assessing “prospects of success” may involve assessing non- pecuniary benefits, the assessment for a particular plaintiff or claimant can obviously be difficult.

[45]             In this case, the Agency reached its decision after recording that Mr Brown had already achieved a remedy through the appeal process. That was a reference to Glazebrook J’s decision to refuse a declaration that the appellant’s rights under the New Zealand Bill of Rights Act had been breached. The Judge had made no definitive finding that his rights were breached, but she observed that he had already obtained a remedy for such breaches in his successful appeal and ultimate discharge. I conclude that the Agency did have regard to the fact that the appellant sought a declaration but, following Glazebrook J’s reasoning, concluded that all that was left was the claim for compensation.

[46]             Mr Shaw pointed out that the declaration was to the forefront of the argument before the Court of Appeal. He emphasised that a declaration that an appellant’s rights under the New Zealand Bill of Rights Act were breached is a different thing from the order for a retrial and his subsequent s.347 discharge. I accept that submission. It follows that it was open to the Panel to conclude that the Agency  erred in law by discounting the non-financial interest of the appellant in the appeal on the basis that he had already obtained a remedy. Whether a s.347 discharge was a substitute for the declaration sought was an issue to be resolved by the Court of Appeal (which, in the result, did not find it necessary to consider the point).

[47]             In its decision, the Panel focused on the decision of Salmon J. He held that the issues were undoubtedly important, both to the appellant and in a wider sense. The Panel emphasised that the Court’s concerns about the “serious civil rights issues” raised by the case must be given appropriate consideration by the Agency. It went on to recognise the possibility that compensation might not exceed the costs of obtaining the award, but nonetheless held that that factor did not alter its conclusion that the Agency’s decision was manifestly unreasonable and wrong in law. What is not clear is whether the Panel based its reasoning on the nature of the proceeding generally, or the appellant’s interest in obtaining a declaration that his civil rights were breached. But although the Panel’s reasons are ambiguous to that extent, there was justification for a conclusion that the Agency had erred in law and its reasons may have been addressed to that point.

[48]             I conclude that the Panel was entitled to conclude that the Agency had erred in law, and its reasoning, while ambiguous, is consistent with that conclusion. The error I have identified would still result in dismissal of the appeal; in re Fehling (Wellington High Court, AP 24/94, 25 July 1997, McGechan J, at p11). That is sufficient to dispose of the first ground of appeal.

[49]             Mr Shaw also pointed out that an issue in the appeal, which was initially drawn to the attention of the Agency, was whether Glazebrook J was right to find that public law compensation is confined to exceptional cases. She added that that proposition must be even more true where the alleged breaches concern the trial process. Mr Shaw contended that the Agency erred in apparently concluding that such compensation would be available only in an exceptional case, or that compensation would not exceed costs. I observe that the Agency did take prospects of obtaining compensation into account. The mere fact that the appellant put the scope of the Baigent remedy in issue on appeal does not preclude the Agency from reaching the conclusion that it did: it was for the Agency to decide whether the point had prospects of success. As matters turned out, the Court of Appeal did not need to resolve the point, although in a separate judgment William Young J held that compensation ought not be awarded for unfair trial process.

[50]             In any event, it is not necessary to consider Mr Shaw’s point. The issue for me is not whether the Agency erred but whether the Panel did so. The Panel seems  to have accepted the Agency’s view that compensation, if awarded, might not exceed the costs extended in obtaining it. It nonetheless held that aid should have been granted. Accordingly, the only relevance of the point is that it offers an alternative justification for the Panel’s decision.

(c)   Reference to ‘a’ grant of aid

[51]             The Panel attached significance to the fact that the Agency referred to ‘a’ grant of aid rather than ‘the’ grant as provided by s.9(4)(e). Mr Taylor contended  that the distinction was not meaningful and that the Panel therefore erred in law in identifying it as an error by the Agency.

[52]             I accept that the distinction identified by the Panel is without substance. It does not indicate that the Agency applied a wrong test because, in the context of a specific application, there is no relevant distinction between ‘a’ grant and ‘the’ grant.

[53]             It does not follow that the Panel’s error was material, however. It simply noted the distinction in relation to s.9(4)(d)(i) of the test, which the Agency had relied on by analogy when discussing prospects of success for purposes of its decision under s.9(4)(e). It appears to be a point made in passing. I am not prepared to allow the appeal on this ground.

Approach to be taken to appellate aid in NZBORA claims

[54]             Mr Shaw also contended that where litigation for which aid is sought involves alleged breaches of the New Zealand Bill of Rights Act 1990, the Agency is required to have ‘particularly cogent grounds’ for declining aid. He based this submission on the proposition that both the Agency and the Panel are required to interpret and exercise their powers in a manner that is consistent with the New Zealand Bill of Rights Act, referring to Moonen v Film and Literature Board of Review [2000] 2 NZLR 9.

[55]             Before the Panel, Mr Shaw advanced the argument that the Agency had failed to take an NZBORA-consistent approach to its decision, and that the Agency’s failure to do so was an error of law. In its decision, the Panel referred to significant civil rights issues, but it focused on Salmon J’s reasoning, which was of course directed to the merits of the substantive appeal. I conclude that the Panel did not rely on the proposition that the Agency had failed to consider the New Zealand Bill of Rights Act when reaching its own decision.

[56]             Accordingly, Mr Shaw’s submissions under this head amounted to a contention that the Panel’s decision can be supported on other grounds. Given my conclusions above it is not necessary to address the argument, but I will do so briefly in deference to the careful submissions of both counsel.

[57]             The right in issue in this civil proceeding was said to be the right to a fair criminal trial that is protected by s.24 of the New Zealand Bill of Rights Act. Plainly the appellant is not now at risk of conviction, but Mr Shaw contended that the proceeding was brought to vindicate his right to a fair trial.

[58]             Mr Taylor contended that there is no room for application of the New Zealand Bill of Rights Act in relation to decisions of the Agency to grant or decline legal aid. There is no right in that Act to legal aid for civil proceedings, in contrast  to the position with respect to criminal proceedings. He also relied  on  Legal Services Agency v A (above), in which John Hansen J held that the Panel erred by deciding two appeals on a class approach. The two matters with which John Hansen J was concerned involved applications for legal aid to oppose a decision by CYFS to remove a child. The Panel had taken the view that the Agency was required to grant aid subject to financial eligibility, on the ground that the loss of a parent’s rights in respect of a child is plainly a matter of fundamental importance to that parent. The judgment of Chisholm J in Legal Services Agency v Minchington [2003] 1 NZLR 263, a criminal legal aid case, is to similar effect. In that case, the Panel had relied on the presumption of innocence to conclude that it is difficult to refuse legal aid in summary proceedings.

[59]             Section 6 of the New Zealand Bill of Rights Act provides that whenever an enactment can be given a meaning that is consistent with the rights and freedoms contained in the Bill of Rights, that meaning shall be preferred to any other meaning. The Act undoubtedly applies to actions of the Agency, pursuant to s.3. Section 5 provides that the rights and freedoms in the Bill of Rights shall be subject only to such reasonable limits as can be demonstrably justified in a free and democratic society.

[60]             In Moonen v Film & Literature Board of Review (above) the Court of Appeal held (at para 17) that:

… those concerned with the necessary analysis and application of ss 4, 5 and 6 of the Bill of Rights may in practice find the following approach helpful when it is said that the provisions of another Act abrogate or limit the rights and freedoms affirmed by the Bill of Rights. After determining the scope of the relevant right or freedom, the first step is to identify the different

interpretations of the words of the other Act which are properly open. If only one meaning is properly open that meaning must be adopted. If more than one meaning is available, the second step is to identify the meaning which constitutes the least possible limitation on the right or freedom in question. It is that meaning which s 6 of the Bill of Rights, aided by s 5, requires the Court to adopt. Having adopted the appropriate meaning, the third step is to identify the extent, if any, to which that meaning limits the relevant right or freedom.

[61]             Approaching the matter in that way, I note firstly that the New Zealand Bill of Rights Act creates no entitlement to legal aid in civil proceedings that are brought to vindicate a right contained in the Act. Rather, s.24(f) provides that a person charged with an offence shall have the right to receive legal assistance without cost if the interests of justice so require and the person does not have sufficient means to provide for that assistance. Mr Shaw did not demonstrate how s.9 of the Legal Services Act, dealing with civil legal aid, abrogates or limits that right. A civil proceeding might be said to vindicate the right, but s.9 does not preclude such proceedings. It merely establishes criteria for the grant of aid.

[62]             In Bailey v Whangarei District Court (1995) 2 HRNZ 275, 284, a case argued under the Legal Services Act 1991, Cartwright J considered s.24(f) and held:

By contrast, if a litigant in a civil case is unrepresented, the State will not intervene. When civil legal aid is provided, there is in fact a minimal degree of monitoring by the State. Section 34 of the Legal Services Act provides  for the grant of legal aid only where the applicant demonstrates reasonable grounds for taking or defending the proceedings, and aid may also be refused if the applicant’s chances of success do not justify it. That, however, is the extent of the State’s inquiry into the merits of a civil case. The State  assumes no obligation to ensure that litigants receive a fair trial.

[63]             In Wellington District Legal Services Committee v Tangiora [1998] 1 NZLR 129, the Court of Appeal was concerned with an application for legal aid to fund a complaint with the United Nations Human Rights Committee. The Court of Appeal held that there was no right to aid. It held (at 138) that civil proceedings are not the subject of any explicit obligation to provide legal aid at the national level, let alone the international.

[64]             It is also necessary to consider how the New Zealand Bill of Rights Act  might affect the construction of s.9(4)(e) of the Legal Services Act. There was no dispute before me that the Agency exercises its discretion in a principled way. It

must have regard to relevant considerations that may include the applicant’s interest in the proceedings, the prospects of success, and the costs that will be incurred. A Bill of Rights – consistent interpretation requires the Agency to recognise that the rights concerned are important, but it does not necessarily follow that the applicant’s interest in the particular proceedings that is to be the subject of legal aid is substantial or that there are reasonable grounds for taking or defending the proceedings. As Wild J noted in Timmins (above), it is helpful to ask whether a reasonable person would pursue the claim or defence if funding the litigation himself or herself. That approach emphasises that it is the applicant’s private interest in the proceeding that is to the forefront. The breach alleged in a given case may or may not be of a serious nature. The available remedies are relevant, as are the appellant’s prospects of success, the costs of the litigation, and any other relevant  considerations. It would not be appropriate to conclude, having regard to the range  of considerations that the Agency may take into account in any given case, that cases in which the New Zealand Bill of Rights Act is invoked fall into a unique class that ordinarily justify a grant of aid, let alone to require the Agency to identify particularly cogent reasons before aid may be declined. The Legal Services Act does not permit the Agency to take a class approach; Legal Services Agency v A (above), Legal Services Agency v Minchington (above).

[65]             In this case, the Agency’s attention was drawn to the civil rights issues raised by Mr Brown’s proceeding. It did not deny their importance. Rather, it focused on Mr Brown’s prospects of success. I conclude that the Agency did not err in its approach to the New Zealand Bill of Rights Act. I observe that the Court of Appeal held (at 116) that the starting point in Mr Brown’s substantive appeal must be the Legal Services Act 1991 and its subsidiary legislation. The same point is true of the application for civil legal aid under the Legal Services Act 2000.

Failure to give adequate reasons

[66]             Section 57(3) of the Act provides that Panel decisions must be accompanied by a brief summary of the Panel’s reasons for its decision. Mr Taylor contended that the Panel failed adequately to state its reasons for reversing the Agency’s decision.

He referred me to Legal Services Agency v A (above), in which John Hansen J held that the Panel’s decision must enable the appellate Court to understand how the Panel reached its decision and that, given the limited grounds upon which the Panel can review Agency decisions, something of a reasoning process is to be expected.

[67]             Mr Taylor accepted that the reasons given by the Panel in this case  were more comprehensive than those of the Panel in Legal Services Agency v A. He submitted that it was nonetheless difficult to determine just what the Panel’s reasons were.

[68]             It is implicit in the Panel’s reasoning that the considerations outlined by Salmon J were sufficiently important to outweigh the risk that compensation would be exceeded by legal costs and justify the grant of aid. The reasoning is ambiguous. But as I have already indicated, the Panel may also have identified an error of law in that the Agency appears to have attached no weight to the declaration that was sought, and that error of law is sufficient to resolve the present appeal against the Agency.

[69]             However, I respectfully agree with John Hansen J that this Court must be  able to determine whether the Panel erred in law in finding that the Agency’s decision was manifestly unreasonable or wrong in law. That requires that the Panel identify, even if briefly, those aspects of the Agency decision that led it to such a conclusion, and why. The essence of the Panel’s reasoning in this case was that the Agency had failed to attach sufficient weight to the findings of Salmon J to the effect that the appeal was arguable and raised important issues. Mr Taylor conceded that a failure to give adequate weight to a relevant consideration may amount to manifest unreasonableness or even an error of law. But I accept his submission that the Panel’s reasoning should spell out why failure to give adequate weight to something amounts to manifest unreasonableness or error of law. In a case in which the Panel decided to reverse the Agency’s decision and grant aid, that may call for reasons  why the error is so substantial that it could not be outweighed by competing considerations that the Agency has also taken into account. Failure to spell out the Panel’s reasons in such a case invites a conclusion that the Panel is simply substituting its own decision for that of the Agency.

Decision

[70]             The appeal against the Panel’s decision to reverse the Agency decision fails. There were grounds on which the Panel might have concluded that the Agency had erred in law. I find, however, that the reasons given by the Panel did not sufficiently explain its conclusion that the Agency had given inadequate weight to the considerations identified by Salmon J.

[71]             The respondent was not legally aided on this appeal, apparently by choice, and is entitled to costs on a 2B basis. Counsel may file memoranda if costs cannot  be agreed. Any memorandum from Mr Shaw should be filed by 29 April 2005, and any memorandum in response by 13 May 2005.

Delivered at 11.45 am this 7^th day of April 2005.

F Miller J

Solicitors:

Bartlett Partners, Wellington for Appellant Wayne Thompson, Auckland for Respondent