Wallace v Legal Services Commissioner

[2016] NZHC 2870

IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY

CIV-2015-485-715 [2016] NZHC 2870

IN THE MATTER OF	a decision to withdraw legal aid
BETWEEN	JAMES HIMONA WALLACE Appellant
AND	LEGAL SERVICES COMMISSIONER Respondent

Hearing:	On the papers
Counsel:	G E Minchin for Appellant L Hansen for Respondent
Judgment:	30 November 2016

JUDGMENT OF ELLIS J

I direct that the delivery time of this judgment is

11 am on the 30th day of November 2016

WALLACE v LEGAL SERVICES COMMISSIONER [2016] NZHC 2870 [30 November 2016]

[1]      The estate of  James Wallace  (the  estate)  applies  for leave  to  appeal  my judgment dated 26 July 2016.1    Leave may only be granted if the proposed appeal raises  a  matter  of  general  or  public  importance.2      It  is  implicit  in  the  relevant statutory provisions that the matter raised by a proposed appeal must be a question of law.3

Background

[2]      On 17 November 2014 the Legal Services Commissioner (the Commissioner) declined to grant legal aid to the estate to bring a claim for compensation for breach of the right to life in relation to the shooting of Steven Wallace.  The Commissioner determined that the claim had insufficient prospects of success.

[3]     The  Legal Aid  Tribunal  (the Tribunal)  subsequently upheld  the Commissioner’s decision.   The estate’s appeal to this Court was heard by me in February this year.

[4]      In the meantime, the Crown had sought to strike out the estate’s substantive claim for compensation.   In a decision dated 20 June 2016 Brown J declined the strike out but noted that substantial re-pleading of the claim was required.4

[5]      I formed the preliminary view that Brown J’s decision rendered the appeal from the Tribunal’s decision effectively moot.  I set that view out in a minute and sought  further  submissions  from  counsel  on  the  issue.     After  taking  those submissions into consideration I issued a decision confirming my preliminary view. I said that even if the appeal were to have succeeded, in light of the requirement to re-plead, it was not jurisdictionally possible to direct the Commissioner to consider a

materially different claim “the merits of which, from a legal aid perspective, have

1      Wallace v Legal Services Commissioner [2016] NZHC 1706.

2      Leave is required under s 60 of the Legal Services Act 2011 (LSA).  Section 60 provides that, subject to any necessary modifications, sub-pt 8 of pt 6 of the Criminal Procedure Act 2011 (the

CPA) applies to a decision of the High Court on an appeal under s 59 as if the decision had been

made under s 300 of that Act.   In turn, s 303 of the CPA (which is contained in sub-pt 8) relevantly provides that leave must not be given unless the appeal raises an issue of general or public importance (or a miscarriage of justice may have occurred).

3      Because sub-pt 8 of the CPA is concerned only with appeals on questions of law.

4      Wallace v Commissioner of Police [2016] NZHC 1338.

not yet been considered by anyone”.5   I also recorded in general terms the position as I saw it in relation to each of the original appeal points.  I said that although there were “two acknowledged, and admittedly material, errors in the Tribunal's decision” I would not express a view about whether they would have led to the appeal succeeding because it would be artificial to do so.6    I nonetheless recorded, for the benefit of the parties, the position that had been reached in relation to the various appeal grounds.   I concluded that the appropriate course was for the estate to re- plead and then to make a fresh application for a grant of legal aid.

The application for leave

[6]      The stated grounds in the application for leave are:

1.	This is a matter of general public interest as it is in regard to the threshold required for a grant of legal aid.
2.	The learned High Court judge erred in upholding the withdrawal of legal  aid,  on  the  basis  that  the  application  for  legal  aid  was materially altered by the outcome of the unsuccessful strike out application in the substantive proceeding.
3.	The learned High Court judge erred in not upholding the appeal when the appeal succeeded on a number of grounds.
4.	The learned High Court judge erred in finding that the Tribunal was not obliged to follow Susan Ann Goodyer LARP No 153/06 when the appeal point before the High Court was that the Tribunal was required to follow or distinguish Goodyer.
[7]	An	amended  statement  of  claim  was  appended  to  the  estate’s	leave

submissions.    Mr Minchin  acknowledged  in  those  submissions  that  the original pleadings were “highly irregular” but said that the new pleadings clarify that the central issue in the proceeding is “systemic failure”.7

[8]      Mr Minchin also said that the application for leave is being pursued because the Crown would not accept $20,000 as security for costs.  There is an inference to be drawn that legal aid is pursued in order that no security will be required.

[9]      But I turn now to the merits of the application for leave itself.

5 At [8].

6 At [17].

7      This issue is canvassed at length in Brown J’s judgment.

Discussion

[10]     The first  ground  stated  in  the leave application  (quoted  at  [6]  above)  is conclusory in nature and requires no further consideration.

[11]     The proposition encapsulated in the second ground appears to be that I was wrong to dismiss the appeal on the basis that “the application for legal aid” had been materially affected by Brown J’s judgment.

[12]     In my view this ground does not involve a question of law of general or public importance.   The Tribunal’s decision was very squarely based on its assessment of the merits of the claim as originally pleaded.   Mr Minchin has acknowledged that that pleading was poorly articulated and has now been significantly clarified.

[13]     More importantly, Mr Minchin’s submission did not address the conundrum upon which my judgment was principally based.  The powers of this Court on appeal are as set out in r 20.19(1).  Relevantly, it can:

(a)       make any decision it thinks should have been made: (b)         direct the Tribunal:

(i)       to rehear the proceedings concerned; or

(ii)      to consider or determine (whether for the first time or again)

any matters the court directs.

[14]     Mr Minchin was unable to say how any of these courses were tenable in light of the fact that the whole basis for the application for legal aid (namely the claim as originally articulated) has now changed.   This Court could not grant legal aid in relation to a claim that is no longer pursued.  Nor could it sensibly direct the Tribunal to reconsider its decision in relation to that (now superseded) claim.  I am unable to see how either the Court or the Commissioner could properly grant an application for

legal aid that is predicated on a proposed claim that is never now going to be advanced.

[15]     With respect, Mr Minchin’s submission that the fact that Brown J did not strike out the original claim means that the threshold for legal aid must be met seems facile.  The question now is whether the re-pleaded claim justifies a grant of legal aid.  That question (which needs to be considered in light of the statutory criteria and Brown J’s judgment) has not been considered at all, by anybody.

[16]     Nor am I able to see material prejudice to the estate in what I consider to be the proper course.  Making a fresh application based on the amended claim, and in light  of  the  very  clear  points  made  in  my  judgment  about  previous  errors  in approach, is more likely to yield a positive outcome for the estate than a referral back.

[17]     The third proposed ground for the estate’s proposed appeal is that some of the matters raised by its appeal to this Court have been conceded by the Commissioner. But in my view this ground founders on the same rocks as the second.  How can the Court properly allow an appeal in relation to a denial of legal aid where the claim sought to be pursued has since materially changed?

[18]     But even if that were not the case, the conceded errors are clearly recorded in my judgment.   There can be no realistic prospect that the Commissioner or the Tribunal, when considering a fresh application, will make the same mistakes again. Again, it is difficult to see any useful, practical, result that might be achieved by permitting a further appeal.

[19]     The  fourth  proposed  ground  of  appeal  relates  to  the Tribunal’s  Goodyer decision.   In that decision the Legal Aid Review Panel (LARP) warned against taking an unduly restrictive or conservative approach when considering applications for legal aid in relation  to novel claims under the  New Zealand Bill of Rights Act 1990.   As in Mr Wallace’s case it was s 8 (right to life) that was in issue. Mr Minchin’s contention is that the decision was somehow binding on the Tribunal and required it to grant legal aid to the estate.

[20]     All I said in my judgment about that decision:8

… it is true that in broad terms a consistent approach to the determination of applications for legal aid is desirable, insofar as that is possible.  But I do not consider that the Tribunal was bound by LARP 153/06. Each application for legal aid necessarily turns on its own facts and circumstances.

[21]     Mr Minchin does not appear in his submissions to contend that this statement is  wrong.    Nonetheless  he  continues  to  argue  that  the  Tribunal  ought  to  have followed (or distinguished) Goodyer.9

[22]     I am unable to see that this ground raises an arguable issue of general or public importance.  My statement appears to me to be both anodyne and orthodox. The dicta relied on by Mr Minchin are not statements of law or principle of a kind that could be binding on future Panels or Tribunals.  Rather they are indicative of an approach which might or might not be applied depending on the particular case.  Nor do the principles of stare decisis ordinarily require a Court or Tribunal to follow a decision of another Court or Tribunal which is not superior to it.  And lastly, as the Commissioner pointed out, there is now and in any event, High Court authority that “the Agency and the Review Panel are not charged with responsibility for overseeing

the development of the law”.10

Conclusion

[23]     The issues sought to be pursued on appeal do not in my view constitute matters  of  general  or  public  importance.    Nor,  in  my  view,  are  they  seriously

arguable. The application for leave to appeal is dismissed accordingly.

Solicitors:           Thomas & Co, New Lynn West, for Applicant

Ministry of Justice, Wellington, for Respondent

“Rebecca Ellis J”

8 At [11].

9      Although Mr Minchin says that I misapprehended the original Goodyer appeal point by omitting reference to the possibility of distinguishing the decision, any requirement to distinguish is merely the  flip  side of the  requirement to  follow.   In other words, both requirements are predicated on the decision being binding on the Tribunal.

10     Legal Services Agency v A (2008) 19 PRNZ 1 at [46] and MA v Legal Services Agency HC Auckland ClV-2008-404-6803, 11 December 2009 at [57].