Rangi v Legal Services Commissioner
[2019] NZHC 2117
•27 August 2019
IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY
I TE KŌTI MATUA O AOTEAROA TE WHANGANUI-A-TARA ROHE
CIV 2019-485-254
[2019] NZHC 2117
BETWEEN JON RANGI
Appellant
AND
LEGAL SERVICES COMMISSIONER
Respondent
Hearing: 27 August 2019 Counsel:
C G Tuck for Appellant
L M Hansen for Respondent
Judgment:
27 August 2019
JUDGMENT OF DOOGUE J
Introduction
[1] The appellant, Jon Rangi, appeals a decision of the Legal Aid Tribunal (“the Tribunal”) confirming a decision of the Legal Services Commissioner (“the Commissioner”) to decline the appellant a grant of legal aid to pursue proceedings before the United Nations Human Rights Committee (“UNHRC”).1
[2] The Tribunal upheld the Commissioner’s decision on the ground the UNHRC is not an “administrative tribunal or judicial authority” for the purposes of s 7(1)(e) of the Legal Services Act 2011 (“the Act”). The issue on appeal is whether the Tribunal made an error in law in coming to its decision.
1 Rangi v Legal Services Commissioner [2019] NZLAT 001.
JON RANGI v LEGAL SERVICES COMMISSIONER [2019] NZHC 2117 [27 August 2019]
Background
[3]The background to this appeal is succinctly set out in the Tribunal’s decision:
[4]The applicant is a New Zealand citizen, aged 49.
[5] At the age of seven, the applicant moved with his mother and siblings to Australia where he became a permanent resident. He was placed in a boys’ home there and made a ward of the Australian state. During this time, the applicant was sexually abused by one of the wardens. There followed drug abuse, drug related offences and imprisonment in Australia. He failed the Australian character test and was deported to New Zealand.
[6] Since the applicant has been deported, he is precluded from obtaining compensation under the Australian scheme for the sexual abuse. Nor can he obtain legal aid through the Australian government as he is no longer resident there.
[7] The applicant is a beneficiary in New Zealand, so he does not have the financial means to pay for a lawyer privately.
[8] An application for legal aid to make a complaint to the UNHRC arising out of the sexual abuse suffered in Australia was made to the Commissioner in September 2018. The applicant claimed that Australia had a duty to protect him as a child and failed to do so. It has also failed to provide him with a remedy for that failure.
[9] The Commissioner declined aid on 18 October 2018. In the letter to the applicant, the Commissioner stated that it was implicit from s 7 of the Legal Services Act 2011 (the Act) that aid could only be granted for a cause of action arising in New Zealand and where the judicial or administrative entity sought to be engaged was based in New Zealand (apart from the Privy Council). The Commissioner also relied on other grounds to decline aid.
[10] On 6 November 2018, the applicant sought reconsideration by the Commissioner of the decline of aid.
[11] The Commissioner confirmed the decision to decline aid on 29 November 2018. He stated that the Privy Council in Tangiora v Wellington District Legal Services Committee [2000] 1 NZLR 17 (PC) had held that the UNHRC was not a judicial authority under the then applicable Legal Services Act 1991. It was held that legal aid was only available for proceedings in courts and tribunals forming part of the adjudicative functions of New Zealand. The UNHRC was not an organ of a sovereign state but the creation of an international convention and did not exercise adjudicative functions in respect of New Zealand.
[4] The appellant appealed the Commissioner’s decision under s 52 of the Act, on the grounds it was both manifestly unreasonable and wrong in law.
The Tribunal’s Decision
[5] The Tribunal noted that in his decision of 18 October 2018, the Commissioner relied on four grounds for declining the appellant’s application: the cause of action did not arise in New Zealand; the UNHRC was not an administrative body or judicial authority in respect of New Zealand; no proceedings had been commenced; and the criteria for legal aid in civil cases in s 7(1)(e) of the Act had not been made out. In his subsequent decision of 29 November 2018, the Commissioner relied solely ― and correctly in the Tribunal’s view ― on the second ground.2 It is this ground on which the Tribunal devoted much of its decision.
[6] The Tribunal noted that in Tangiora, the Privy Council held that “any administrative tribunal or judicial authority” in the relevant legislation at the time did not refer to any such body in the world; its scope had to be limited to bodies forming part of the legal system in New Zealand.3
[7] The Tribunal declined to find that the UNHRC was a judicial authority for the purposes of the Act, and held that the Commissioner’s decision, which followed the principles set in Tangiora, was neither manifestly unreasonable or wrong in law. The Tribunal noted the “UNHRC had been created by international convention and was not an organ of the state, nor did it exercise adjudicative functions of New Zealand.”4 It’s independent source of jurisdiction meant it could not be considered part of New Zealand’s legal system.
[8] The Tribunal also declined to state a case for this Court — as it was entitled to do under s 61 of the Act — on whether Tangiora remained good law in New Zealand. The Tribunal considered this unnecessary given two versions of legal services legislation enacted since Tangiora had retained almost identical provisions to the one considered by the Privy Council.5
2 At [21].
3 At [29]
4 At [30].
5 At [32].
Approach on Appeal
[9] The appeal to this Court is brought under s 59 of the Act. This provision allows either the Commissioner or applicant for legal aid to appeal to the High Court on a question of law. The appeal must be dealt with in accordance with the relevant rules of court being the High Court Rules 2016.
[10] The role of this Court is to determine whether the Tribunal has made an error in law, not whether the Commissioner's original decision was correct.6
[11] Whether there has been an error in law was considered by Miller J in Legal Services Agency v Brown under the materially-identical predecessor to s 59. Miller J noted (with reference to the Legal Services Agency and the Legal Services Panel, predecessor bodies to the Commissioner and Tribunal respectively) that whether there has been an error in law for the purposes of an appeal to the High Court is:7
…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.
[12] Miller J was therefore referring to the test for appealing the Commissioner’s decision under the then-equivalent provision to s 52 of the Act.
[13] The meaning of “erred in law” (or “wrong in law” as it is more commonly referred to) for the purposes of s 52 was discussed by Randerson J in Legal Services Agency v Fainu,8 and subsequently approved by the Court of Appeal in JMM v Legal Services Agency.9 Randerson J noted:10
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. There may be other grounds upon which the decision may be wrong in law
6 Legal Services Agency v Brown (2005) 17 PRNZ 523 (HC) at [30], citing F v The Medical Practitioners Disciplinary Tribunal HC Auckland AP21-SW01, 5 December 2001.
7 At [30].
8 Legal Services Agency v Fainu (2002) 17 PRNZ 433 (HC).
9 JMM v Legal Services Agency [2012] NZCA 573, [2013] 1 NZLR 517 at [103]–[111].
10 Legal Services Agency v Fainu, above n 8, at [27].
but this short recitation of possible grounds shows that the legislature must have meant that the “manifestly unreasonable” ground was something different from a decision which was “wrong in law” on all or any of those grounds.
[14] The meaning of “manifestly unreasonable”, again approved by the Court of Appeal in JMM v Legal Services Agency, was outlined by O’Regan J in Legal Services Agency v Tana:11
[23] This is a different statutory formulation from the “plainly wrong” formation often used in relation to appeals from the exercise of a discretion, where the appeal body focuses on whether a decision is correct or incorrect, and has to form the view it is not only incorrect but plainly so. In this case the focus is not on whether the decision is incorrect, but whether it is unreasonable, and the legislature has stipulated that the Panel should intervene only where the decision is not only unreasonable, but is clearly and unmistakably unreasonable.
[24] That formulation rules out completely an approach on the part of the Panel that it considers matters afresh and substitutes its own view. It also rules out the approach taken by the Panel in this case, that “manifestly unreasonable” simply means unreasonable on the face of the papers presented to the Panel ... that approach fails to recognise that the statutory test requires not only a finding that the Agency’s decision is unreasonable, but that it is manifestly so. It is only when the degree of unreasonableness has reached a clear and unmistakable level (or to use the statutory term “manifest”), that the Panel is permitted to intervene.
[25] That means the Panel is required to exercise a considerable degree of restraint in determining review applications based on the “manifestly unreasonable” ground. It is clear from a review of the statutory history ... that the legislature has deliberately imposed a high threshold for intervention by the Panel. That implies that the legislature intended there should be a degree of tolerance about decisions of the Agency which would not be appropriate where there was a full right of appeal, on the basis the Agency was exercising a discretion.
[15] Therefore, I can only allow the appeal only if I find the Tribunal’s decision was either wrong in law or manifestly unreasonable.
The Appellant’s Submissions
[16] The appellant’s position is that the Tribunal made an error in law in following Tangiora and declining to grant him legal aid on the basis the UNHRC is not a “judicial authority” for the purposes of s 7(1)(e)(v) of the Act.
11 Legal Services Agency v Tana HC Whangarei AP26/02, 9 December 2002.
[17]The appellant advanced the following arguments in support of his appeal:
(a)the UNHRC is a judicial authority in general terms, evidenced by New Zealand’s jurisprudential and political engagement with it;
(b)New Zealand’s engagement with the UNHRC is demonstrative of the changing legal landscape since Tangiora;
(c)the New Zealand Bill of Rights Act 1990 contains implicit recognition of the right of an individual to make a complaint to the UNHRC; and
(d)there is a legitimate expectation that the applicant be supported in his communication to the UNHRC.
[18] The appellant concedes that because Tangiora is a decision of the Privy Council, it can only be overturned by the Supreme Court. However, he submits that in light of the above arguments and given 20 years have passed since the Privy Council’s decision, Tangiora is no longer “good law” in New Zealand.
The Commissioner’s Submissions
[19] The Commissioner has confined his submissions to the interpretation of s 7(1)(e)(v) of the Act and submits that the appeal should be dismissed on the ground that Tangiora remains authoritative.
[20] While Tangiora may have been decided 20 years ago, the Commissioner submits that the Privy Council’s reasoning has not changed despite two updates to the Legal Services Act 1991, which was operative at the time. In particular, the Commissioner submits that nothing has occurred since Tangiora to “transmogrif[y] it into a ‘judicial authority’ for the purposes of the [Act]”.
[21] In light of the Commissioner’s view on Tangiora, he submits that this Court is obliged to follow the Privy Council’s decision.
Law
[22] The provision at the heart of these proceedings is s 7 of the Act, which lists civil proceedings for which legal aid may be granted. The list in s 7 is exhaustive, except for subs (1)(e)(v) which states:
7 Proceedings for which legal aid may be granted: civil matters
(1) Legal aid may be granted in respect of the following civil matters:
...
(e)in any case where the Commissioner considers that the case is one that requires legal representation (having regard to the nature of the proceedings and to the applicant’s personal interest) and considers that the applicant would suffer substantial hardship if aid were not granted, proceedings in—
...
(v) any administrative tribunal or judicial authority (not being a tribunal or an authority in respect of any decision from which an appeal lies to any of the bodies referred to in any of paragraphs (f) to (j)):
[23] The provision has had two predecessors since Tangiora was decided, being s 19(1)(e)(v) of the Legal services Act 1991 and s 7(1)(e)(v) of the Legal Services Act 2000. Both provisions are materially identical to s 7(1)(e)(v) of the Act.
Discussion
[24] Whether the UNHRC is a “judicial authority” for the purposes of s 7(1)(e)(v) of the Act is, as the Privy Council noted in Tangiora, a “narrow question of statutory interpretation”.12
[25] Tangiora involved an application for legal aid to pursue a complaint in the UNHRC claiming that the Treaty of Waitangi (Fisheries Claims) Settlement Act 1992 breached the appellant’s rights under the International Covenant on Civil and Political Rights. The respondent refused to grant the application. The appellant appealed to the High Court which granted a declaration that the refusal of legal aid was unlawful.
12 Tangiora v Wellington District Legal Services Committee [2000] 1 NZLR 17 (PC) at 18.
This decision was reversed by the Court of Appeal. Leave was granted to appeal to the Privy Council.
[26] The issue in the Privy Council was, as it is now before this Court, whether the UNHRC was a “judicial authority” for the purposes of s 19(1)(e)(v) of the Legal Services Act 1991. The Privy Council held that it was not.13 Judicial authorities that fell under s 19 exercised a coercive rather than consensual adjudicative authority, which was derived from and exercised in the name of the State.14 The UNHRC did not satisfy these criteria.
[27] Given the Commissioner’s decision of 29 November 2018 was based solely on Tangiora, the Tribunal rightfully engaged its appellate function by discussing whether the Commissioner was wrong in law or manifestly unreasonable in following the Privy Council’s decision.
[28] It cannot be said that the Tribunal decision was wrong in law on the basis it considered the Commissioner, as well as itself, bound by Tangiora. The Tribunal discussed the direct applicability of Tangiora to the appellant’s situation and correctly observed that despite two revisions to the applicable legislation since the Privy Council’s decision, there had been no material alterations to the substance of s 7(1)(e)(v). The principles established in Tangiora were relevant to the Tribunal’s decision-making function, and its findings were supported by the evidence before it.
[29] Nor can it be said the Tribunal’s decision was manifestly unreasonable. While the Tribunal commented it was “self-evident that the appellant’s case will require legal aid”15 and acknowledged the appellant is “stuck between two legal systems...left without a remedy for the wrong he alleges”,16 I do not view these comments as invalidating the Tribunal’s ultimate decision. On the contrary, the Tribunal went on to explain why the New Zealand legal aid system could not provide a remedy for the alleged wrong the appellant has experienced. This was neither based on the UNHRC’s location outside New Zealand, nor the fact the alleged wrong had occurred in
13 At 21–22.
14 At 22.
15 Rangi v Legal Services Commissioner, above n 1, at [25].
16 At [34].
Australia. Rather it was reasonably based on the fact the appellant had not satisfied the legislative criteria which the Commissioner is bound follow.
[30] The appellant is asking this Court to depart from the Privy Council’s decision on the basis the legal landscape in New Zealand has changed since Tangiora was decided. This is simply not possible. Our judicial system is such that each court is bound by those above it in the court structure. The High Court is therefore bound by decisions of the Court of Appeal and Supreme Court. It is, as has been observed by both of those courts, also bound by decisions of the Privy Council hearing appeals from New Zealand, unless and until the Supreme Court decides otherwise.17 This is expressly recognised by the appellant.
[31] While I acknowledge the appellant’s submissions and have sympathy for his position, this Court is bound by both the Privy Council’s decision in Tangiora, as well as the scope of its appellate function pursuant to s 59 of the Act. Accordingly, I see no error in law in the Tribunal’s decision for the purposes of that provision.
Result
[32]The appeal is dismissed.
Doogue J
17 Shannon v Shannon (2005) 17 PRNZ 587 (CA) at [40]; R v Chilton [2006] 2 NZLR 341 (CA) at [111]; Couch v Attorney-General (No 2) [2010] NZSC 27, [2010] 3 NZLR 149 at [32] per Elias CJ, at [51] per Blanchard J, at [82] per Tipping J, at [210] per McGrath J and at [251] per Wilson J.
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