Legal Services Agency v MA HC Auckland CIV 2008-404-001838
[2008] NZHC 2398
•4 July 2008
IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY
CIV 2008-404-001838
BETWEEN LEGAL SERVICES AGENCY Appellant
ANDMA Respondent
Hearing: 2 July 2008
Appearances: Mr G Taylor for the Appellant
Mr R Hooker and Ms T Holmes for the Respondent
Judgment: 4 July 2008 at 3.00pm
JUDGMENT OF WYLIE J
This judgment was delivered by Justice Wylie on 4 July 2008 at 3pm pursuant to
r 540(4) of the High Court Rules
Registrar/Deputy Registrar
Date:
Solicitors/Counsel:
Bartlett Partners, P O Box 10, Wellington
Vallant Hooker & Partners, P O Box 47 088, Ponsonby, Auckland
Mr G Taylor, P O Box 5294, Lambton Quay, Wellington
LEGAL SERVICES AGENCY V MA HC AK CIV 2008-404-001838 4 July 2008
[1] This is an appeal brought by the Legal Services Agency (“the Agency”) against a decision of the Legal Aid Review Panel (“the Review Panel”) to grant the respondent legal aid in respect of an appeal to the Court of Appeal.
[2] The appeal is brought pursuant to s 59 of the Legal Services Act 2000 (“the
Act”).
Background
[3] Some understanding of the background to this matter is necessary to place this appeal in context. The following brief discussion is taken from the judgment of Priestley J in MA v Attorney General and another HC AK CIV 2006-404-1371
21 September 2007.
[4] MA was born in Afghanistan and arrived in New Zealand in July 1995. He made a spontaneous claim for refugee status and subsequently engaged immigration consultants to assist him to process his claim. In February 1996 he obtained refugee status. He thus became entitled to permanent residence in this country and he applied for and obtained a residence permit. He became a New Zealand citizen in
1997.
[5] In March 2000, the Police searched his home. The search was part of a wider operation involving a number of agencies. MA’s home was searched a second time a month later. A number of documents were seized by the Police during the searches. The seized documents fell into two categories – first those relating to MA’s 1995 refugee claim, and secondly, those which appeared inconsistent with the narrative advanced by MA when he applied for refugee status.
[6] As a result of the searches, MA was interviewed at length by the Police.
[7] Subsequently MA was charged indictably in the Auckland District Court. The charge alleged that in July 1995, MA, with intent to defraud, used his application for refugee status to obtain a benefit. MA was committed for trial but in
the event the Crown offered no evidence and MA was discharged under s 347 of the
Crimes Act 1961.
[8] The police investigations continued, and comprehensive documentation, comprising police job sheets, was prepared.
[9] At some stage in 2002, the documents seized, the transcripts of the interview and the police analysis comprising the job sheets was passed onto the Refugee Status Branch of the Immigration Service.
[10] In January 2006, MA was served with a Notice of Intended Determination concerning the loss of his refugee status. Service of that notice triggered the provisions of s 129L of the Immigration Act 1987. The notice listed a number of seized documents. Other documents in the possession of the Refugee Status Branch including the police job sheets were not listed.
[11] MA then sought various declarations from this Court. In broad terms, he sought declarations that the search, and the subsequent seizures by the Police, were invalid. He also sought a declaration that the provision of the documents by the Police to the Refugee Status Officer was unlawful, and a declaration that the Refugee Status Officer had breached natural justice by issuing the s 129L notice without disclosing to him that he was in possession of the police job sheets.
[12] The proceedings came before Priestley J on 21/22 May 2007, and he issued a reserved judgment on 21 September 2007. He concluded that each of MA’s causes of action failed, and he dismissed the proceeding.
[13] MA filed a notice of appeal against Priestley J’s decision. The appeal is dated 16 October 2007.
[14] On the same day, MA through his solicitors, wrote to the Agency applying for legal aid to cover the costs of the prospective appeal. This letter was accompanied by the requisite application form. It was acknowledged on 23 October
2007.
[15] The application was referred to a specialist advisor for recommendation. In a report dated 9 November 2007, it was recommended that legal aid be declined.
[16] This recommendation was accepted by Agency and in a letter of decision dated 14 November 2007, it advised that the application was declined under s 9(4)(e) of the Act.
[17] On 22 November 2007, MA through his solicitors sought a review of the decision of the Agency to decline the grant of legal aid. A comprehensive memorandum of submissions running to some 16 pages was filed in support. The Agency did not make any further submission.
[18] The Review Panel issued its decision on 6 March 2008. It reversed the decision of the Agency dated 14 November 2007, and granted legal aid to MA for the appeal.
[19] On 20 March 2008, the Agency filed its notice of appeal against the Review Panel’s decision. It challenged the whole of the decision of the Review Panel, upon the ground that the Review Panel had erred in law. In particular:
a) it referred to various paragraphs in the decision of the Review Panel, and asserted that the Review Panel had “unlawfully read down the provisions of s 9(4)(e) of the Legal Services Act 2000” to one element of “reasonable” or “good” grounds to appeal;
b)it alleged that the Review Panel had erred in law, when it held that whether the grounds of a proposed appeal for which aid is sought are of a “technical” nature is an irrelevant factor; and
c) it asserted that the Review Panel erred in law when it held that the Agency was wrong in law in holding that MA’s appeal comprised technical arguments that were merely attempts to impede the process of the Immigration Act 1987, and that it failed to take into account the
whole of the reasoning of the Agency and ask itself whether the
Agency erred in law in its determining that legal aid was not justified.
Jurisdictional arguments
[20] As noted above, the Agency has appealed under s 59 of the Act. That section provides as follows:
If the Agency or an applicant considers that the Review Panel's determination is wrong in law, the Agency or the applicant (as the case may be) may appeal to the High Court on the question of law, and the appeal must be dealt with in accordance with the rules of court.
[21] Mr Hooker appearing for MA submitted that the right of appeal can only arise if the Agency considers that the Review Panel’s determination is wrong in law, and that the right of appeal is confined to that question of law. While there can be no disagreement with these propositions he went on to emphasise the use of the words “the question of law” in the section. He referred to s 61 of the Act, which permits the Convenor of the Review Panel to state a case for the opinion of the High Court on any point of law that arises on a review of a decision of the Agency. He submitted that the words “the question of law” in s 59 refer to such question as the Convenor of a Review Panel raises in a case stated for the opinion of the Court. He submitted that there is no valid appeal before this Court, as the Convenor has not submitted a case for the opinion of the Court.
[22] I am unable to accept this argument. It confuses the two separate rights created by ss 59 and 61. Section 59 gives a right of appeal to the High Court to the Agency and to an applicant on a question of law, if either considers that the Review Panel’s determination is wrong in law. Section 61 gives a separate right to the Convenor of the Review Panel to state a case for the opinion of the High Court on any point of law that arises during a review of an Agency decision under ss 54-58 of the Act.
[23] All rights of appeal are created by statute. The Act confers a right of appeal on points of law to the Agency or to applicants by s 59. Section 61 is a quite separate procedure. A case stated under s 61 is in effect a right conferred by
Parliament on the Convenor of the Review Panel to consult with this Court, in order to obtain an answer on a point of law that arises during the course of the Review Panel’s deliberations. It is not expressed to be a right of appeal at all. Rather it is a separate right given to the Convenor of a Review Panel to seek the opinion of the High Court.
[24] I observe that the statutory scheme is rather odd. It could result in a situation where the High Court is asked to give an opinion on a point of law arising in the course of a review by the Convenor of the Review Panel, and then the High Court is later asked to consider the issue afresh pursuant to an appeal on a point of law by the Agency, or the applicant. While that situation is odd, it does appear to be a consequence of the statutory provisions.
[25] Mr Hooker also argued that Part 11 of the High Court Rules applies, and that the notice of appeal filed by the Agency does not comply with the relevant Rules.
[26] With respect to Mr Hooker, there is nothing in this argument. Part 11 of the High Court Rules deals with cases stated – r 719. An appeal on a point of law under s 59 is not by way of case stated. It is governed by Part 10 of the High Court Rules – r 701(1) and Yash v Legal Services Agency (2006) 18 PRNZ 238 at [10].
[27] Mr Hooker further submitted that the notice of appeal is defective, asserting that it contains no reference to any question, let alone any question of law.
[28] Again I reject this argument. Under Part 10, there is no form prescribed for appeals. Rather the content of a notice of appeal is detailed in r 709(1). Relevantly, paragraph (c) requires that the notice of appeal specify the grounds of the appeal in sufficient detail to fully inform the Court, the other parties to the appeal, and the decision maker of the issues in the appeal. While the notice of appeal filed by the Agency in the present is in some respects inelegant, I am satisfied that it complies with the relevant rule.
[29] I now turn to address the decision made by the Review Panel.
[30] On the review of the Agency’s decision before the Review Panel, MA submitted that the Agency’s decision was both manifestly unreasonable and wrong in law. The Agency did not make any further submissions.
[31] The Review Panel noted that the issue before it was whether the Agency’s decision to decline the grant of legal aid for the appeal was manifestly unreasonable or wrong in law. In this context it referred to the decisions of the High Court in Legal Services Agency v Fainu (2002) 17 PRNZ 433, and in Legal Services Agency v A (2003) 17 PRNZ 443.
[32] After considering a particular passage in the Agency’s decision of
14 November 2007 (see paragraph [51]), the Review Panel found that the Agency had taken into account an irrelevant consideration and that this was an error. It went onto identify the main issues which MA seeks to raise before the Court of Appeal, and analysed the Agency’s assessments in relation to each of those issues.
[33] The Review Panel determined that the Agency was wrong in law when it held that MA’s appeal comprised technical arguments that were merely attempts to impede the process under the Immigration Act 1987. It considered that the Agency’s view in this regard had resulted in the Agency taking a “dismissive attitude” when considering the grounds that MA wishes to raise on appeal, and prevented it identifying exactly what the appeal grounds were and how they were to be addressed in the Court of Appeal. It then concluded that MA does have reasonable grounds on which to bring the appeal, and that the matters he wishes to advance are significant to him, and in relation to two of the issues, are likely to be relevant to other individuals. It reversed the Agency’s decision, and granted aid for the appeal.
The statutory appeal scheme
[34] The Review Panel sits as an appellate body up over the Agency. An aided person or an applicant for legal aid may apply to the Review Panel for a review of a
decision of the Agency, but only on defined grounds – first, that the decision is manifestly unreasonable, or secondly, that it is wrong in law – s 54(1).
[35] The Review Panel can sit in panels of one, two or three members. There must be one lawyer in every team assigned to a review – s 55A. It may determine a review by confirming, modifying, or reversing the decision under review – s 57(2). Alternatively, the Review Panel may give a direction to the Agency that it must reconsider all or any part of the decision to which the review relates – s 58(1).
[36] I have already observed that there is one oddity in the statutory scheme – [24] above. In my view the statutory appeal scheme is also curious in that it confers a right of appeal on a question of law on the very body whose decision is subject to the initial review (but only if its decision was manifestly unreasonable or wrong in law). In a sense the statutory scheme creates a form of legal leapfrogging.
First ground of appeal
[37] The first ground of appeal stems from paragraph 17 of the Agency’s decision. That paragraph in the decision reads as follows:
It is accepted a more stringent test applies for appellate civil legal aid under section 9(4)(e) of the Act with there being a heavier onus on an aid applicant to satisfy the Agency, amongst other things, of his prospects of success. The obvious reason is that the merits of the Applicant’s case have already been the subject of judicial determination, and there is perhaps less concern with access to justice if the applicant has already “had one go at it”. By the same token, if good grounds are identified with reference to failings in the first judgment, then aid should be granted and the Agency should not try to second-guess the court.
[38] The Agency took issue in its notice of appeal with the Review Panel’s analysis contained in this paragraph – see paragraph [19(a)] above. Mr Taylor, appearing for the Agency, challenged the Review Panel’s acceptance that s 9(4)(e) of the Act imposes “a more stringent test” and a “heavier onus” on an aid applicant for appellate civil legal aid to satisfy the Agency, amongst other things, of his/her prospects of success. He asserted that the Review Panel was “heading down the wrong road” in the second sentence in paragraph 17, and that it reached the wrong destination in the final sentence in the paragraph.
(1) The Agency must, subject to this section and sections 10 and 11, grant legal aid to an applicant in respect of proceedings to which section 7 applies (civil proceedings) if the applicant is—
(a) a natural person, whether resident in New Zealand or not; or
(b) a trustee corporation (as defined in section 2(1) of the Administration Act 1969) that applies for legal aid in connection with proceedings in which it is concerned in a representative, fiduciary, or official capacity.
(2) The Agency must refuse to grant legal aid to an applicant whose income or disposable capital exceed the relevant thresholds prescribed in regulations made under this Act, unless the Agency is satisfied that there are special circumstances having regard to—
(a) the likely cost of the proceedings to the applicant; or
(b) the applicant's ability to fund the proceedings if legal aid is not granted.
(3) The Agency must refuse to grant legal aid if the applicant has not shown that the applicant has reasonable grounds for taking or defending the proceedings or being a party to the proceedings.
(4) The Agency may refuse to grant legal aid to an applicant in any of the following circumstances:
(a) the Agency is unable to obtain full information concerning the applicant's financial affairs because of the default or failure of the applicant:
(b) in the opinion of the Agency, the prescribed repayment amount will exceed the likely cost of the proceedings for which legal aid is sought:
(c) the applicant is not resident in New Zealand and the Agency considers that the proceedings might reasonably be brought in a jurisdiction other than New Zealand:
(d) in the case of original proceedings,—
(i) the applicant's prospects of success are not sufficient to justify the grant of legal aid; or
(ii) the grant of legal aid 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 where it appears unreasonable or undesirable that the applicant should receive legal 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 legal aid or further legal aid is not justified.
(5) The Agency may refuse to grant legal aid to an applicant in respect of any original proceeding under an enactment specified in Schedule 4, if the Agency considers that the grant of legal aid is not justified.
(6) In determining under subsection (5) whether a grant of legal aid is not justified, the Agency must have regard to—
(a) any previous proceedings in the matter to which the application relates; and
(b) any personal protection issues such as (without limitation) any orders relating to domestic violence, protection of personal property rights, compulsory treatment, or compulsory care; and
(c) the interests and welfare of any other person who may be affected by the outcome of the proceedings; and
(d) whether there are any complex factual, legal, or evidential matters that require the determination of a court; and
(e) whether it is in the public interest that legal aid be granted. (7) To avoid doubt, legal aid in respect of civil proceedings is not
available to any body of persons, whether corporate or unincorporate, except
as provided in subsection (1) and section 42.
(8) Subsections (2), (4)(a) and (b) do not apply to applications for legal aid in respect of victims' claims proceedings.
(9) Subsections (1), (2), and (4)(a) do not apply to applications for legal aid under section 42 in respect of certain proceedings before the Waitangi Tribunal.
(10) Subsection (4)(d)(i) does not apply to original proceedings under an enactment specified in Schedule 4.
[40] Section 9(1) places an obligation on the Agency to grant legal aid to certain applicants, in respect of those civil proceedings for which legal aid may be granted. It is is not however an unqualified obligation. It is subject to s 9 itself, and to ss 10 and 11. Section 9(2) requires the Agency to refuse aid to an applicant whose income or disposable capital exceeds relevant thresholds, unless it is satisfied that the special circumstances detailed in the subsection exist. Further, subsection (3) requires the Agency to refuse 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. Subsection (2) is mandatory, although subject to special circumstances; subsection
(3) is also mandatory. The Agency also has a discretion to refuse legal aid in the circumstances detailed in subsections (4) and (5). Subsection (4)(a) to (c) apply to all applications for a grant of legal aid; subsection (d) applies to original proceedings; subsection (e) applies to appeals. Subsection (5) applies to certain original proceedings.
[41] These various provisions (or the equivalent provisions in earlier legislation) have been considered in a number of decisions including Legal Services Agency v Hosseini & Ors (2006) 17 PRNZ 932, Edwards v Legal Services Agency [2003] 1
NZLR 145, Glancy v Legal Services Agency (2003) 17 PRNZ 168, and Gummer v Legal Services Board HC AK AP38-SW00 17 July 2000. Although Mr Taylor for the Agency took me through these in some detail, in my view it is not necessary to refer to particular parts of these judgments. To my mind the section is relatively well ordered. Subject to the specified sections, the starting point is the obligation to grant legal aid. There is then the obligation to refuse in defined circumstances, and then a more opened ended discretion to refuse in rather wider circumstances. That discretion is contained in s 9(4) and (5). I agree with the observation by Williams J in Gummer (at [15]) – in relation to earlier but equivalent provisions - that the test under s 9(3) is more stringent than that under s 9(4). The former requires applications to be declined unless applicants show reasonable grounds for taking or defending proceedings, whilst under s 9(4), there is a discretion to decline aid for various reasons.
[42] In my view s 9(4)(e) is quite clear. In the case of an appeal, the Agency may, in exercise of its discretion, refuse to grant legal aid if it considers that “for any reason” a grant of legal aid is not justified. It is difficult to see that the grounds for the exercise of the discretion could have been expressed more widely. The expression “for any reason” is open ended. Obviously the exercise of the discretion must be confined by its statutory context and it should not result in a decision which is manifestly unreasonable or wrong in law. Subject to these restrictions, the discretion can be exercised “for any reason” and this could embrace any of the factors identified in s 9(4)(a) to (d), or indeed other factors. In my view, the words permit consideration of whether the applicant’s prospects of success are sufficient to justify the grant of legal aid. That will require that some account be taken of the
merits of the decision it is so sought to challenge with a grant of legal aid. It could be appropriate in appropriate cases to consider whether the arguments the applicant wishes to advance on appeal are technical and devoid of substantive merit.
[43] I refer to Re Fehling HC WN AB24/94, 25 July 1997 at pp 8 to 9 and 11 to
12. I agree with McGechan J’s observation that the power to refuse a grant “for any reason” certainly includes an ability to decline where there is no prospect of success. I also note the observations of Wild J in Timmins v Legal Aid Review Panel [2004]
1 NZLR 708 at [30] to [41].
[44] There is nothing in the statute, or in the way it has been interpreted by the Courts, which suggests that there is a more stringent test for the grant of appellate civil legal aid under s 9(4)(e) of the Act than there is for the grant of legal aid in the case of original proceedings. Nor is there a “heavier onus” on an aid applicant to satisfy the Agency, amongst other things, of his or her prospects of success. I agree with Mr Taylor’s submission that “it is a mistake to read para 9(4)(e) as if it were para 9(4)(d) with the bar raised”. In my view, the Review Panel misconstrued the Act and erred in law when it accepted that a more stringent test applies to appellate civil legal aid under s 9(4)(e), and when it observed that there is a heavier onus on an aid applicant in such cases.
[45] Further, in my view it erred when it observed that “if good grounds are identified with reference to failings in the first judgment, then aid should be granted and the Agency should not try to second guess the Court”.
[46] Section 9(4)(e) is not constrained. The Agency may refuse to grant legal aid under that section “for any reason”. Even if good or reasonable grounds for an appeal are identified, there may nevertheless be other reasons which could justify the Agency in deciding in the exercise of its discretion to decline a grant of legal aid. For example a ground of appeal, while likely to succeed, may be of no substantive benefit to an applicant for legal aid. In those circumstances, the Agency could properly decide in the exercise of its discretion to refuse a grant of aid. The Agency and the Review Panel are not charged with responsibility for overseeing the development of the law. Rather they are charged with inter alia overseeing the
provision of funds from the public purse to assist people who have insufficient means to pay for legal services to nonetheless have access to them – s 3.
[47] In my view, the Review Panel misconstrued the Act and erred in law when it constrained the grounds which the Agency was entitled to consider in the exercise of its discretion, and when it stated that aid should be granted if good grounds for an appeal are identified. In effect, the Agency was saying that if there are reasonable or good prospects of success, aid should be granted. That is not what the section provides, and the discretion conferred on the Agency permits it to consider rather more than this.
[48] These errors are carried through to the Review Panel’s ultimate decision. In paragraph 29 it observed as follows:
The Applicant does have reasonable grounds on which to bring an appeal. The matters he wishes to advance to the Court of Appeal are clearly significant to him and Court of Appeal decisions on two of these issues (ambit of privilege and disclosure of information by police) are likely to be relevant to a large number of other individuals.
[49] It seems from the opening sentence of this paragraph that the Review Panel confined its consideration to whether or not MA had reasonable grounds on which to bring the appeal. In the result it substituted its views as the reasonableness or otherwise of the appeal grounds for those of the Agency. It did not confine its consideration to whether or not the Agency’s decision was manifestly unreasonable or wrong in law.
Second ground of appeal
[50] This ground of appeal derives from paragraph 19 of the Review Panel’s decision. That paragraph reads as follows:
In this case the statement “[w]e are not prepared to fund any further attempts to impede the process under the Immigration Act by raising technical arguments in the Courts”, which was included in the Agency’s decision of 14 November 2007 suggests strongly that the Agency took an irrelevant matter into account in its decision to decline a grant of aid. It is not appropriate for the Agency to decide to decline aid to an applicant through a desire to prevent any critique or consideration of any part of any
legislation. The Panel does not accept that “technical arguments” are inappropriate in any court. The Panel considers this statement of an irrelevant consideration to be an error of law.
[51] The language used by the Agency in its decision of 14 November 2007, and recorded in paragraph 19, is relatively strong and perhaps inappropriate. The Agency in its notice of appeal asserted that the Review Panel fell into error, when it held that this passage in the Agency’s decision meant that it took into account an irrelevant matter in declining to grant legal aid – see paragraph [19(b)].
[52] I start by observing that there are difficulties with the Review Panel’s analysis. The Review Panel quoted the Agency but then paraphrased what it thought it had said. It apparently considered that the Agency declined aid through a desire to prevent any critique or consideration of any part of any legislation. That is not what the Agency said. Nor did the Agency say in its decision that technical arguments are not appropriate in any court. Rather the Agency said that it was not prepared to fund what it considered to be technical arguments. Whether the arguments which MA seeks to advance are or are not technical is a question of judgment. If they are technical arguments that fact cannot be said to be a irrelevant matter. It is a factor which can properly be taken into account under s 9(4)(e).
[53] Because the Review Panel was focusing its attention on the issue of whether or not MA had good or reasonable grounds on which to bring his appeal, it considered that the Agency’s observation that they were technical arguments was an irrelevant consideration. This flowed through into the Review Panel’s conclusion in paragraph 28 of its decision – see [55] below – that the Agency was wrong in law in this regard. In my view the Review Panel has made an error of law, which follows from its failure to properly appreciate the width of the discretion conferred by s
9(4)(e). In my view the technical nature of grounds of an appeal could be a relevant factor in determining whether or not a grant of legal aid is appropriate.
Third ground of appeal
[54] The third ground of appeal (somewhat inelegantly) asserts that the Review
Panel failed to take into account the whole of the reasoning of the Agency, and failed
to ask itself whether the Agency erred in law in its determination that legal aid for the appeal was not justified – see paragraph [19(c)].
[55] The notice of appeal refers to paragraph 28 of the Review Panel’s decision in this regard. That paragraph reads as follows:
The Agency was wrong in law when it held that the Applicant’s appeal comprised of technical arguments that were merely attempts to impede the process under the Immigration Act 1987. This view resulted in the Agency taking a dismissive attitude when considering the grounds the Applicant wished to raise on appeal and prevented it identifying exactly what the appeal grounds were and how they were to be addressed in the Court of Appeal.
[56] For the reasons I have already noted, in my view it was not an irrelevant consideration for the Agency to take into account its view that MA’s arguments were technical arguments. It follows that the Agency cannot be accused of taking a dismissive attitude when it considered the grounds that MA wishes to raise on appeal.
[57] Mr Taylor in his submissions argued at some length that the Review Panel erred in the way in which it analysed the grounds which MA wishes to advance on appeal, but it seems to me that it is inappropriate for this Court to venture an opinion on those issues. The Agency considered the grounds of appeal. The Review Panel also considered the grounds of appeal. The Agency was entitled in the exercise of its discretion to consider the grounds of appeal, their merits, and the prospects of success. The Review Panel’s jurisdiction was limited. It could only interfere with the Agency’s decision if it was manifestly unreasonable, or wrong in law. The Review Panel has not found that the Agency’s decision was manifestly unreasonable. Rather it has found that it was wrong in law, because it considered that the Agency took into account an irrelevant consideration. In my view the Agency did not take into account an irrelevant consideration. It was entitled to take into account its view that MA’s proposed grounds for appeal were technical arguments, and it was entitled to say that it was not prepared to fund the same. Whether the grounds of appeal are or are not technical arguments is not a matter for this Court, unless there is a question of law arising from the way in which they have been considered by the Review Panel. The notice of appeal does not raise any question of law in this regard.
Result
[58] In my view each of the three grounds of appeal has been made out.
[59] I have the powers conferred on me under r 718A of the High Court Rules. Having considered the matter, in my view the most appropriate course is to direct the Review Panel to reconsider its review of the Agency’s decision. I am making that direction, because in my view the Review Panel has misconstrued the Act. It has failed to take into account the width of the discretion conferred by s 9(4)(e) and constrained its analysis to the single question of whether the grounds of appeal are good or reasonable. It ended up substituting its views in relation to that issue for those of the Agency and it failed to take into account other matters addressed by the Agency. As a consequence, the Review Panel failed to consider whether or not the Agency’s decision in its totality was manifestly unreasonable, or wrong in law. It is appropriate that it should do so.
Costs
[60] Mr Taylor did not seek costs. Further, I was advised by Mr Hooker that MA
has sought legal aid. In the circumstance, there will be no order for costs.
Wylie J
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