Rangi v Legal Services Commissioner - [2019] NZHC 2117

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…

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: [2019] NZHC 2117
Decision Date: 27 August 2019

CaseChat Overview and Summary

The High Court of New Zealand was asked to review a decision by the Legal Aid Tribunal upholding the Legal Services Commissioner's refusal to grant legal aid to Jon Rangi for a complaint to the United Nations Human Rights Committee. Rangi sought legal aid to pursue a complaint against Australia for failing to protect him from sexual abuse while he was in its care and for failing to provide him with a remedy. The Commissioner declined aid on the basis that the UN Human Rights Committee was not an administrative tribunal or judicial authority for the purposes of the Legal Services Act 2011. The Tribunal upheld the Commissioner's decision, holding that the UN Human Rights Committee was not a judicial authority within the meaning of the Act, and that the Commissioner's decision was neither manifestly unreasonable nor wrong in law.

The central issue before the Court was whether the Tribunal erred in law in affirming the Commissioner's decision to deny legal aid to Rangi. The Court had to determine whether the Tribunal had correctly interpreted the relevant provisions of the Legal Services Act 2011 and whether the Tribunal's decision was consistent with the established legal principles. The Court examined whether the UN Human Rights Committee qualified as a "judicial authority" under the Act, considering the historical context provided by the Privy Council's decision in Tangiora v Wellington District Legal Services Committee. The Court also had to assess if there had been any changes in the legal landscape that might warrant a departure from the established precedent.

The Court found that the Tribunal had not erred in law. It held that the Tribunal was correct in applying the principles from Tangiora, which held that the UN Human Rights Committee was not a judicial authority for the purposes of the Legal Services Act. The Court emphasised that the New Zealand courts, including the High Court, are bound by decisions of the Privy Council unless and until the Supreme Court decides otherwise. The Court further held that the Tribunal's decision was neither manifestly unreasonable nor wrong in law, as it was based on the unchanged legislative criteria and the established interpretation of the Act. Consequently, the Court dismissed Rangi's appeal, upholding the Tribunal's decision to deny legal aid.

Orders