Moir v IHC New Zealand Inc

[2017] NZHC 2189

IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY

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

CIV 2017-485-463 [2017] NZHC 2189

UNDER

the Judicature Amendment Act 1972 and

the Declaratory Judgments Act 1908

IN THE MATTER OF

an application for judicial review

BETWEEN

JULIE MOIR Plaintiff

AND

IHC NEW ZEALAND INC First Defendant

PAUL WILSON Second Defendant

On the papers
Judgment:	8 September 2017

JUDGMENT OF MALLON J

[1]      The plaintiff applies for leave to appeal to the Court of Appeal my decision of

20  June  2017.1      That  decision  declined  to  rescind  my  earlier  decision  which dismissed the plaintiff’s application to review a decision of the Registrar.2     The Registrar’s decision was to  require that the plaintiff provide  a copy of a Legal Services Agency letter granting legal aid before granting the plaintiff’s fee waiver

application.

[2]      The background is as follows:

1      Moir v IHC New Zealand Inc HC Wellington CIV-2017-485-463, 20 June 2017.

2      Moir v IHC New Zealand Inc HC Wellington CIV-2017-485-463, 26 May 2017.

MOIR v IHC NEW ZEALAND INC [2017] NZHC 2189 [8 September 2017]

(a)      On  27  April  2017  the  plaintiff  filed  a  notice  of  proceeding  and statement of claim.  The notice of proceeding, signed by counsel for the  plaintiff,  stated  in  the  accompanying  memorandum  that  the plaintiff has been granted legal aid.

(b)At the same time, the plaintiff applied, on a Ministry of Justice form, for a fee waiver.3   The basis for this application was that the plaintiff had been granted legal aid.  The form asked the plaintiff to attach a copy of the letter from the Legal Aid Services Agency granting legal aid. This letter was not attached to the plaintiff’s application.

(c)      On 2 May 2017 the plaintiff’s counsel corresponded by email with the Registrar over the requirement to provide the letter.  He relied on s 24 of the Legal Services Act 2011.   This requires the provider under a grant of legal aid to notify every other party to the proceeding and the Registrar.   Counsel said this notice was given in the notice of proceeding.    He  confirmed  in  his  email  that  legal  aid  had  been granted.  He asserted there was no requirement to provide the letter from  the  Legal  Services Agency  and  noted  this  was  a  privileged document.   He asserted that the fee waiver form could not require what the legislation does not.  He asked for the matter to be referred to the registry officer’s manager.  This was done and on 15 May 2017 the Registrar (and Court Manager) repeated the requirement for the letter in accordance with the form.

(d)On 16 May 2017 the plaintiff sought review of this decision.   This application was dismissed in a judgment given on 26 May 2017.4

(e)       On 1 June 2017 the plaintiff applied for an order rescinding the 26

May 2017 judgment.   This application was dismissed in a decision given on 20 June 2017.5

3      The form was signed on 16 March 2017 but was filed with the claim.

4      Moir v IHC New Zealand Inc above n 2.

5      Moir v IHC New Zealand Inc above n 1.

(f)       On 17 July 2017 the plaintiff applied for leave to appeal to the Court of Appeal.

[3]      I am not satisfied this is a matter which warrants consideration by the Court of Appeal. This is for two reasons.

[4]      First, having reviewed the matter for a third time, I am unable to see any merit in the position advanced by counsel for the plaintiff.   As I understand it, counsel for the plaintiff submits that, provided a lawyer has advised the Registrar that legal aid has been granted for their client in compliance with the obligation under s 24 of the Legal Services Act, the Registrar is not legally entitled to require a letter from the Legal Services Agency as proof of a grant of legal aid when considering an application for a fee waiver.   As I understand it, this is on the basis that once legal aid is granted the fee waiver must be granted.

[5]      That argument is contrary to the provision under which fee waivers may be granted.  Specifically, reg 18(1) of the High Court Fees Regulations 2013 provides that  a  person  may apply  for  a  fee  waiver.    Regulation  18(2)  provides  that  the Registrar “may” waive a fee “if satisfied … on the basis of one of the criteria specified in regulation 19, that the person is unable to pay the fee”.   One of the criteria in reg 19 is that “the person has been granted legal aid in respect of the matter for which the fee is payable”.  Regulation 18(3) provides that an application under reg 18(1) “must” be made in a form approved by the chief executive of the Ministry of Justice unless, in a particular case, the Registrar considers an application in that form is not necessary.  In light of these provisions, the Registrar might have dispensed with the form if she considered it was not necessary in the circumstances. She was  not,  however,  required  to.    She  was  entitled  to  adhere to  the manner specified in the form, as authorised under reg 18(3), as to how an applicant for a fee waiver is to satisfy the Registrar of the legal aid grant.

[6]      This is not contrary to any other provision in regs 18 and 19 and nor is it contrary to s 24 of the Legal Services Act.  There may be matters of administrative efficiency in having a standard method of proof of a grant of legal aid for fee waiver

applications.   Regulation 18(3) properly leaves open the possibility of dispensing with this requirement in individual cases.

[7]      Secondly, I am unable to see any practical point in the appeal.  It has not been suggested  that  the requested  letter cannot  be provided  to  the Registry.    Rather, counsel has taken the view that the Registry is not entitled to insist on the letter and so has refused to provide it.  As noted in my decision of 20 June 2017, if there is in fact some practical difficulty in providing the letter, counsel can let the Registry

know.6      In  that  case  the  Registrar  can  consider  whether  to  dispense  with  the

requirement.    In  the  meantime  there  is  no  prejudice  to  the  prosecution  of  the plaintiff’s proceeding.  The statement of claim was accepted for filing and the notice of proceeding has issued, and the proceeding is underway.   If the plaintiff or her counsel wishes to raise concerns about the requirement for proof of the grant of legal aid in considering fee waiver applications, there are presumably other avenues through which that can be done.

[8]      Accordingly the application for leave to appeal is dismissed.

Mallon J

6      Moir v IHC New Zealand Inc above n 1.