Reekie v Legal Services Commissioner

[2017] NZHC 2677

IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY

CIV 2016-404-2223 [2017] NZHC 2677

UNDER	the Judicature Amendment Act 1972
IN THE MATTER	of an application for Judicial Review
BETWEEN	NICHOLAS PAUL ALFRED REEKIE Applicant
AND	LEGAL SERVICES COMMISSIONER First Respondent
AND	LEGAL AID TRIBUNAL Second Respondent
AND	ATTORNEY GENERAL (FOR THE DEPARTMENT OF CORRECTIONS) Third Respondent

Hearing:	On Papers
Counsel:	Applicant in Person K M Laurenson for Third Respondent Other Respondents abide
Judgment:	1 November 2017

JUDGMENT OF SIMON FRANCE J

[1]      By  agreement  this  matter  is  being  dealt  with  on  the  papers.  Written submissions have been filed.

[2]      Mr Reekie seeks judicial review of the decision of the Legal Aid Tribunal to accept an application to review a decision of the Legal Services Commissioner.  In that decision, the Commissioner declined an application for legal aid to pursue an

appeal in the Court of Appeal.

REEKIE v LEGAL SERVICES COMMISSIONER [2017] NZHC 2677 [1 November 2017]

[3]      The relevant dates (ignoring for the moment Mr Reekie’s unsuccessful efforts

to comply with them) are:

(a)       14 January 2016, decision of Legal Services Commissioner; (b)        20 January 2016, Mr Reekie receives notice of decision;

(c)       18 February 2016,  expiry  of  20  day  period  available  for  review

(s 53(1) Legal Services Act 2011);

(d)20 April 2016, expiry of period within which Legal Aid Tribunal may accept late applications for review if exceptional circumstances prevented the application being filed in time (s 53(2) of the Act);

(e)       19 May 2016,    the    Legal    Aid    Tribunal    receives     Mr Reekie’s

application.

[4]      Mr Reekie has deposed that he made efforts to file the review earlier, but was hindered by the third respondent.  His timeframe which is accepted for the purposes of the decision is:

(a)      on 15 February 2016 (three days before initial 20 day deadline) he asked  prison  officers  for  a  form  to  make  the  application.     On

5 March 2016 he was given an application for review to the Legal Aid Review Panel and an address.   He sent that on 21 March 2016.   In fact,  this  body had  ceased  to  exist  with the passing of the  Legal Services Act 2011;

(b)      on  21 April  2016,  the  form  was  returned  to  the  Department  of

Corrections but was not passed on to Mr Reekie until 4 May 2016;

(c)      on  8 May 2016  Mr Reekie applied  to  the correct  body but  on  the wrong form.  The application was rejected and returned to him, but appended was the correct form;

(d)on  19 May 2016,  Mr Reekie  sent  in  a  further  application  on  the correct  form.    This  was  received  and  accepted  on  30 May 2016. However, in a decision dated 26 July 2016, the Legal Aid Tribunal noted it was received out of time and there was no power to extend the three month period.  Accordingly, the application was dismissed for lack of jurisdiction.

[5]      It is this decision Mr Reekie challenges.  He asks that the three month period be treated by the Court as suspended for the period that he had the incorrect form and address provided by the third respondent.  He also asks the Court to put itself in the place of the Tribunal and determine his application.

[6]      The burden  of  defending the proceeding  has  been  accepted by the third respondent.

Issue one – can the three month time frame be extended?

[7]      Section 53 of the Legal Services Act 2011 provides:

53  Application for review

(1)       An application for review must, subject to subsection (2), be made in the prescribed manner to the chairperson of the Tribunal within 20 working days after the date on which notice of the relevant decision is given to the applicant.

(2)       The chairperson of the Tribunal may accept a late application no later than 3 months after the date on which notice of the relevant decision was given to the applicant if the chairperson is satisfied that exceptional  circumstances  prevented  the  application  from  being made within 20 working days after the date on which notice was given.

(3)       In deciding whether to accept a late application for review under subsection  (2),  the  chairperson  must  have  regard to  whether  the applicant made a late application for reconsideration of the original decision, and the applicant's reasons for that late application.

[8]      It can be seen the core period is 20 days, with subs (2) providing limited relief by the way of a three month grace period.  The Act is silent on whether that three month period is itself capable of further extension.  That silence, when coupled

with a scheme such as that established by s 53, has traditionally been taken as an indication that there is no power to extend the period.

[9]      In Steinborn v Minister of Immigration, Blanchard J observed that legislation usually makes it plain if there is power to extend time.1    This comment reflected a similar  earlier  statement  by  Richardson J  in  Hawkes  Bay  Hide  Processors  of Hastings v Commissioner of Inland Revenue.2

[10]     These authorities, and others were noted in Vukomanovic v Residence Review Board.3    There the provision in question was s 115(2) of the Immigration Act 1987 which provided:

Every appeal under this section shall be brought within 28 days after the date on which the decision of the Board to which the appeal relates was notified to the party appealing, or within such further time as the High Court may allow an application made before the expiry of that 28-day period.

[11]     It can be seen that this section provides a different structure whereby there is a broad power to extend the time, but only if an application for that power to be exercised is itself made within the 28 day period.  In holding that latter limit cannot be extended, the Court of Appeal observed:4

… First, the text of the statute could not be plainer.  It is in mandatory terms. Second,  there  is  authority  in  this  Court  (some  of  it  by  analogy)  which strongly supports this proposition.  In Attorney-General v Howard this Court held,  in  the  context  of  the  Human  Rights Act  1993,  that  extensions  of statutory timeframes can only be granted where the statute itself so allows. In that decision a number of authorities across various statutory contexts were cited by the Court to that effect.

[12]     The same analysis applies to the Legal Services Act.   The extent of the discretion to vary the 20 day review period is contained in s 53(2) which allows the Chairperson to extend it by up to three months, but only if exceptional circumstances exist.   Consistent with the authorities referred to, there is no power to extend the

period beyond that three month period from the date on which notice of the initial

1      Steinborn v Minister of Immigration [2002] 1 NZLR 639 (CA) at [34].

2      Hawkes  Bay  Hide  Processors  of  Hastings  v  Commissioner  of  Inland  Revenue  [1990]  3

NZLR 313 (CA) at 320.

3      Vukomanovic v Residence Review Board [2010] NZCA 542 at [7]–[8].

4      At [7] (footnotes omitted).

decision was received.  The final date for Mr Reekie (if exceptional circumstances existed) was 20 April 2016.

Issue two – do Mr Reekie’s actions amount to filing a review application?

[13]     The Act establishes the Legal Aid Tribunal which is the body referred to in s 53.  At the time of Mr Reekie’s initial actions the Tribunal had existed for more than four years, and conversely the body to which he initially applied had not existed for  that  period.    There  is  no  analytical  process  that  can  legitimately  translate Mr Reekie’s undoubted desire to seek a review, and his sending of an out of date form to a non-existent body, into an application made in time to the Legal Aid Tribunal.

[14]     It is not necessary to consider whether the third respondent was at fault, nor the sufficiency of the form initially filed.5   The problem lies in the failure to apply in time to the body which holds the jurisdiction.   I note in this regard that the mail delay within Corrections would appear irrelevant.  The initial invalid application was only received back by Corrections after the expiry of the three month period.  How long it took Corrections to pass the mail on was therefore irrelevant to the problem Mr Reekie faces.

Conclusion

[15]     The application for review is dismissed.  The Tribunal was correct to hold it had no jurisdiction to receive the application.

Simon France J

5      I am advised the form previously used for the Legal Aid Panel is quite similar to the Tribunal’s

form.