Legal Services Agency v W HC Wellington CIV 2009-485-2191
[2010] NZHC 1294
•11 June 2010
IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY
CIV 2009-485-002191
BETWEEN LEGAL SERVICES AGENCY Appellant
AND W Respondent
CIV 2010-404-000078
AND BETWEEN LEGAL SERVICES AGENCY Appellant
ANDB Respondent
Hearing: 11 June 2010
Counsel: S M Cooper and A T S Benton for the Respondent W in support
G D S Taylor and R Taylor for the Appellant to oppose
Judgment: 11 June 2010
ORAL JUDGMENT OF WILD J: RECALL APPLICATION
[1] I gave a judgment on these two appeals on 21 April. By Notice on 4 May W, the respondent to the first appeal, applies for an order that I recall my judgment. The application is pursuant to r 11.9. As Ms Cooper and Mr Benton succinctly put it in their written submissions:
The essential submission is that the Court was in error to consider and discuss the evidence of Professor Graham Mellsop in paragraphs [48] to [52] of the judgment.
LEGAL SERVICES AGENCY V W HC WN CIV 2009-485-002191 11 June 2010
[2] Recall, if it were to facilitate any ‘re-writing of the judgment’, is opposed by the appellant, the Legal Services Agency (LSA). Mr Taylor contended that the stark options for the Court were to reject the application, or to grant it and re-issue the judgment without paragraphs [48]-[52].
[3] W’s submissions in support were largely presented by Mr Benton. In answer to a question from me, he said that W invoked the third ground for recall identified by Wild CJ in his leading statement on recall principles in Horowhenua County v Nash (No. 2) [1968] NZLR 632 at 633:
... where for some other very special reason justice requires that the judgment be recalled.
[4] The nature and outcome of these two proceedings can be gleaned from my judgment. As I said in [1]:
The correctness of the approach of the Legal Aid Review Panel (the LARP) in reviewing decisions of the Legal Services Agency (LSA) in historic abuse claims is the overall issue in these two appeals by the LSA.
[5] To test the correctness of that approach, the LSA appealed against two decisions of the LARP. One of those decisions was in W’s proceeding against the Crown seeking damages for an incident of sexual abuse while he was serving in the Royal New Zealand Navy in February 1984. When I heard and when I gave judgment in these proceedings, W’s case had been tried, but Mallon J’s judgment was reserved. That remains the position. Despite that, W’s counsel did not raise any concerns about the LSA using W’s case as one of the vehicles for bringing the issue I mentioned before the Court.
[6] I dismissed the LSA’s appeal against the LARP’s decision setting aside the LSAs decision to withdraw legal aid from W. I said (and I have this morning made a small correction to this):
[47] I reiterate that this type of analysis was not carried out by either the LSA or the LARP. It is the sort of scrutiny that is required. Had it carried it out, I do not consider that the LSA could reasonably have assessed W’s prospects of success in overcoming the limitation defence as so low that the continuation of legal aid was not justified. That conclusion does not overlook – but nor do I intend embarking upon – the other issues in W’s case eg W’s likely net recovery from any claim. Suffice it to say that W alleges
that the incident of sexual abuse he complains of brought to an end his planned career of 20 years in the Navy.
[7] An unusual feature of W’s case was that both the LSA and the LARP had, as a basis for their respective decisions, a psychiatric opinion only from a psychiatrist to be called by W. I made that point in [48] of my judgment:
Both the LSA and the LARP needed to base their respective decisions on the opinion of Dr Huthwaite, since that was the only one available to them. I have already noted (in [29] above) that in every decided case except Hurring, the Judge had the benefit of psychiatric opinions offered by the opposing parties.
[8] I was aware from this Court’s record in W’s proceeding against the Crown that that position changed markedly at trial. W’s counsel were obviously also aware of that, but I thought it unlikely that the LSA’s counsel were. I considered my judgment, aimed as it was at providing guidance to the LARP (and also to the LSA), should point out that the position changed at trial, and summarise the nature of the expert psychiatric evidence the Crown called at trial.
[9] I did that in paragraphs [48]-[52] of my judgment. It is those paragraphs that W seeks to have excised from the judgment once it is recalled, for five reasons to which I now turn.
[10] First, W submits paragraphs [48]-[52] are irrelevant to the judgment, or were material that “is not within context”. In response to a question from me, Ms Cooper, in replying, explained that the latter phrase meant in the context of all the other expert evidence heard at the trial of W’s case, in particular evidence as to whether post traumatic stress disorder (PTSD) was a recognised or recognisable disability in terms of the Limitation Act 1950. I do not accept this first submission. The LSA’s position in opposing recall, beyond to excise paragraphs [48]-[52], is that W was obliged to provide Professor Mellsop’s opinion to the LARP immediately the Crown supplied it to W. As W received the opinion on 15 September 2009, the LARP could and should have had the opinion in good time to factor it in to its decision, which it gave on 2 October 2009. Replying, Ms Cooper said that the LARP had directed the parties that it would not consider any new material. She added that she had never been asked to provide the defendant’s (invariably the Crown’s), expert
briefs to the LSA at any time since she started acting for historic abuse claimants back in the 1990s. I need not decide what the correct position is. The point I was making in my judgment was the lesser, or certainly more general, one that there was not a satisfactory basis for the LSA’s and the LARP’s decisions. They really needed to have the Crown’s expert psychiatric opinions which were subsequently offered at trial.
[11] At Mr Taylor’s request, I make it clear that what I have just said does not cut across anything Dobson J said in Legal Services Agency v LAE & Ors HC Wellington, CIV 2009-404-3399, 6 August 2000, particularly at [76] and following. My point is that the psychiatric expert opinion as to whether the claimant suffered from a disability in terms of the Limitation Act is of fundamental importance in each historic abuse claim. Every reasonable endeavour should be made by the parties to the claim to ensure that the LSA and the LARP have the expert psychiatric opinion(s) that are to be the basis of that part of the evidence at trial when they make decisions about legal aid for the claimant, certainly at the leave application and/or preparation for trial stages.
[12] Second, W argues that the inclusion of paragraphs [48]-[52] without recourse to counsel breached natural justice. The submissions I have heard this morning leave me still not really understanding that submission. Although there are two basic principles of natural justice, the one invoked here is the audi alteram partem. Literally this means “hear the other side”. It is generally expressed as the principle that no-one shall be condemned unheard. I was not in any way engaged in making judgments about the merits of W’s case, and in particular the merits of the view(s) of the expert psychiatrist W called. I was pointing out that different psychiatric opinions about the state of W’s mental health, and in particular whether it disabled him from claiming over the relevant period, were offered at the trial of his claim. As I have already said, the LSA and the LARP really needed to have those differing opinions to provide a proper basis for assessing whether legal aid should be granted to W for his case.
[13] I certainly made the reinforcing point that one of the Crown’s expert psychiatrists suggested there was a gap in the information that had been provided to
W’s expert psychiatrist. I made that point because any opinion is only as good as the completeness and accuracy of the information on which it is based. It would be quite wrong if legal aid were granted or continued, or for that matter withdrawn, on the basis of an opinion flawed by incomplete or inaccurate facts.
[14] Third, it is contended that the content of paragraphs [48]-[52] is “unduly prejudicial”, as W’s case awaits judgment from Mallon J. Indeed, W’s counsel even ventured to suggest that “the judgment may influence the trial Judge in her decision on this matter”. In their oral submissions counsel for W retreated somewhat from that position. It is one that I stoutly reject. I regard the suggestion as bordering on the contemptuous, in that it implies that Mallon J might decide W’s case on other than the evidence she heard. If there is one thing I am certain of, it is that she will not.
[15] Fourth, it is suggested that the references to the Crown’s psychiatric evidence are selective to the point of being “objectionable”. This is a two-pronged challenge. First, complaint is made that I enlarged on the evidence of one of the Crown’s expert psychiatrists, but not the other. The second objection is that I failed to point out that the other Crown expert psychiatrist, Professor Mellsop, accepted in the course of answering questions that PTSD is both a recognisable mental disorder, and one which is recognised in both the ICD 10 and the DSM IV.
[16] Reconciling this complaint as best I can with the previous ones, I do not accept it either. It was the fact of a contrary opinion at trial – and thus the potential for that at the time the LSA and the LARP made their respective decisions, that I wished to point up. I had read the transcript of the expert psychiatric evidence given at trial. I was thus aware of Professor Mellsop’s confirmation, in the course of questioning, that PTSD is recognised in both the diagnostic tools referred to (the ICD-10 and the DSM-IV). My understanding was that the question Professor Mellsop was raising was: should PTSD be so recognised? And my understanding was that the point the Professor was making was that the answer to that question is a very live current issue in psychiatry. That emerges from a careful reading of the passage from the Professor’s opinion that I quoted in [51] of my judgment.
[17] The fifth point is that the LSA is relying on my judgment “as a specific additional obstacle for plaintiffs to overcome the Limitation Act”. Without real objection from counsel for the LSA, Ms Cooper handed me a letter she has received from the LSA advising that legal aid had been withdrawn from another of her clients who had brought a claim for damages in respect of historic sexual and physical abuse. The letter refers to paragraphs [51] and [52] of my judgment, in particular citing the latter with this emphasis:
[52] To summarise, not only does Professor Mellsop reject the diagnosis of PTSD in relation to W, but he queries its validity as “a diagnostic entity”.
[18] I reiterate that my understanding of Professor Mellsop’s evidence is that the Professor does indeed query the validity of PTSD as a diagnostic entity. If that is correct, then the LSA is entitled now to raise that in the manner it is. Indeed, it is only proper that it does so if it is considering withdrawing legal aid from any particular claimant(s), so that that claimant’s advisers are afforded an opportunity to meet the point. Now that is a demonstration of the requirement for natural justice, audi alteram partem.
[19] Nothing advanced for W constitutes a very special reason(s) why justice requires that I recall my judgment. The application is accordingly dismissed.
[20] In relation to costs, I voiced to Ms Cooper and Mr Benton a concern that this recall application was prompted by concerns they hold that have little or nothing to do with W’s case, but everything to do with the many other historic abuse claimants that Ms Cooper’s firm is acting for. However, counsel for the LSA does not seek any order for costs that might reflect such concerns. Accordingly, as it seems that all costs of this application will fall on the LSA, there will be no order as to the costs of this application.
Solicitors:
Bartlett Partners, Wellington for the Appellants
Cooper Legal, Wellington for the Respondents
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