Mailley v Legal Services Commissioner - [2024] NZHC 2316

IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY

I TE KŌTI MATUA O AOTEAROA TE WHANGANUI-A-TARA ROHE

CIV-2023-485-000605

[2024] NZHC 2316

UNDER the Legal Services Act 2011

IN THE MATTER OF

an appeal under the Legal Services Act 2011

BETWEEN

MARTIN MAILLEY

Appellant

AND

LEGAL SERVICES COMMISSIONER

Respondent

CIV-2024-485-000158

UNDER

the Legal Services Act 2011

IN THE MATTER OF

an appeal under the Legal Services Act 2011

BETWEEN

MARTIN MAILLEY

Appellant

AND

LEGAL SERVICES COMMISSIONER

Respondent

Hearing: (On the papers)

Counsel:

Appellant in person

L M Hansen for Respondent

Judgment:

19 August 2024

JUDGMENT OF LA HOOD J

MAILLEY v LEGAL SERVICES COMMISSIONER [2024] NZHC 2316 [19 August 2024]

Introduction and summary

[1] Martin Mailley brings two appeals against decisions of the Legal Aid Tribunal (the Tribunal). The first appeal is against the Tribunal’s decision to uphold the Commissioner’s first decision not to write off Mr Mailley’s legal aid debt. The second appeal is against the Tribunal’s decision to strike out Mr Mailley’s application for review of the Commissioner’s second decision not to write off his legal aid debt on alternative grounds.

[2] For the reasons that follow, I conclude that the Tribunal made no error of law in its interpretation of the relevant provisions. In the absence of a payment arrangement between Mr Mailley and the Commissioner under s 34(3), the principles of timely recovery under s 34(4)–(5) do not apply directly and in any event are not invariable rules. Further, the definition of “overdue amount” under s 41A of the Act, for the purpose of deduction notices (the method by which the Commissioner seeks to recover Mr Mailley’s debt) ousts the application of the Limitation Act. Nor was it manifestly unreasonable for the Tribunal to uphold the Commissioner’s decision not to write off the debt in circumstances where Mr Mailley has not been prejudiced by the delay.

[3] In respect of the second appeal, I conclude that the Tribunal did not err in law in declining to substantively determine the further grounds of review Mr Mailley raised. In any case, I have considered the alternative grounds Mr Mailley raised in the second review and concluded that they do not establish an error of law in either of the Tribunal’s decisions.

Background

[4] On 9 January 2015, Mr Mailley was granted legal aid to pursue an appeal to the Court of Appeal against a decision to extradite him to Australia.1 Legal aid of
$8,293.25 was paid to Mr Mailley’s lawyer, and the repayment obligation on Mr Mailley was set at $2,860.

[5] By letter dated 29 February 2016, the Legal Aid Commissioner (the Commissioner) advised Mr Mailley he was required to repay $2,860. Unsuccessful attempts were made to contact Mr Mailley to recover the debt in 2016, including through a debt collection agency. Mr Mailley’s extradition to Australia hampered those attempts at recovery.

[6] On 6 April 2021, Mr Mailley wrote to the Legal Aid grants team “requesting the files and costings” of the proceedings, namely the cost…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2024] NZHC 2316
Decision Date: 19 August 2024

CaseChat Overview and Summary

Martin Mailley has appealed against two decisions of the Legal Aid Tribunal which upheld decisions of the Legal Services Commissioner not to write off his legal aid debt. The first appeal is against the Tribunal’s decision to uphold the Commissioner’s first decision not to write off Mr Mailley’s legal aid debt. The second appeal is against the Tribunal’s decision to strike out Mr Mailley’s application for review of the Commissioner’s second decision not to write off his legal aid debt on alternative grounds. The Commissioner argued that there was no error in law in the Tribunal’s decisions and that the appeal should be dismissed. The court found that the Tribunal made no error of law in its interpretation of the relevant provisions. In the absence of a payment arrangement between Mr Mailley and the Commissioner under s 34(3), the principles of timely recovery under s 34(4)–(5) do not apply directly and in any event are not invariable rules. Further, the definition of “overdue amount” under s 41A of the Act, for the purpose of deduction notices (the method by which the Commissioner seeks to recover Mr Mailley’s debt) ousts the application of the Limitation Act. Nor was it manifestly unreasonable for the Tribunal to uphold the Commissioner’s decision not to write off the debt in circumstances where Mr Mailley has not been prejudiced by the delay. In respect of the second appeal, the court concluded that the Tribunal did not err in law in declining to substantively determine the further grounds of review Mr Mailley raised. The appeal was dismissed.

Orders