Criminal Bar Association of New Zealand Incorporated v Attorney-General

JurisdictionNew Zealand
CourtHigh Court
JudgeMackenzie J
Judgment Date12 Mar 2012
Neutral Citation[2012] NZHC 400
Docket NumberCIV-2012-404-00992

[2012] NZHC 400




Under Legal Services Act 2011 and the Judicature Amendment Act 1972, the Declaratory Judgments Act 1908 and/or Parts 18 and 30 of the High Court Rules

In the Matter of certain actions and proposed actions of the New Zealand Cabinet, the Minister of Justice, the Ministry of Justice, the Secretary for Justice and the Legal Services Commissioner, including past, proposed or purported exercises of statutory power under the Legal Services Act 2011 by the Secretary for Justice and the Legal Services Commissioner

Criminal Bar Association of New Zealand Incorporated
First Defendant


Legal Services Commissioner
Second Defendant

R E Harrison QC, G M Illingworth QC and K H Cook for Plaintiff

C R Gwyn and T J Warburton for Defendants

Application by plaintiff for interim relief to prohibit the implementation of the fixed fees regime for legal aid providers pending hearing of the substantive judicial review proceeding — application by defendant to transfer proceedings to Wellington — whether the plaintiff was affected by implementation of regime as it was not a legal aid provider or representing a recipient — whether plaintiff had position to preserve pursuant to s8 Judicature Amendment Act 1972 (Interim orders — necessary to preserve position of applicant) or r30.4 High Court Rules (“HCR”) (Court may make any interim order considered just) — what was the proper registry under r5.1(1)(c) HCR (Identification of proper registry — when Crown defendant, the registry nearest to the place where the cause of action or a material part of it arose).

Held: The CBA had brought the proceedings representing its members. It was appropriate to take into account the effect of the introduction of the fixed fees regime on legal aid providers who were members of the CBA, not just its effect on the CBA itself.

There would be a financial effect on legal aid providers from the introduction of the different basis for calculating fees payable to them. However, that was not sufficient to render interim relief reasonably necessary. If interim relief was not granted then all legal aid assignments from 5 March 2012 would be under the new regime. If the regime was set aside at the substantive hearing, the previous regime would have to be reinstated, which would potentially result in some delay in receiving any increased payment under the correct regime and would result in an additional administrative burden in dealing with the recalculation of fees. The delay to the introduction of the regime would apply to providers who were not members of the CBA and could not be bound by any order made in the proceeding.

There was no evidence that the financial position of any practitioner was so dire as to justify interim relief. The position of persons to whom legal aid was granted did not require protection in the interim period. Their right to a legal aid grant was unaffected by the changes. There was no evidence to justify a conclusion that there could be difficulty in criminal defendants being assigned a provider, either from the private profession or from the public defender service. The balance of convenience fell in favour of refusing interim relief and the CBA had not demonstrated that interim relief was necessary to protect its positions under s8 JAA.

The discretion under r30.4 HCR had to be exercised in a principled way, which could be done by applying the s8 JAA test or the balance of convenience test. If that test was used the same conclusion would have been reached.

Pursuant to s9(7) JAA (application for review shall be in accordance with rules of Court), the relevant provision for determining the proper registry was r5.1(1)(c) HCR (Identification of proper registry — when Crown defendant, the registry nearest to the place where the cause of action or a material part of it arose). The challenge was to decisions made by the Ministry of Justice. Those decisions were taken in Wellington and applied generally to all legal aid providers. They were not geographically confined. The cause of action for judicial review arose in Wellington. The challenge was to the policies applied in considering applications, not the applications themselves. The proposed application of the policy in individual cases was not sufficient to constitute a material part of the cause of action. No decision made in Auckland was challenged and no decision which had effect only in Auckland was challenged. The fact that most of the CBA's members were Auckland based was not a special circumstance that warranted a departure from r5.1(1)(c) JAA. The proper registry under r5.1(1)(c) JAA was Wellington.

Application for interim relief declined. Application for transfer of proceedings granted.


Table of Contents



The legal aid changes


The application for judicial review


The application for interim relief




Transfer of proceedings



The Secretary for Justice has introduced changes to the Criminal Legal Aid Scheme, changing the basis upon which fees payable to legal aid providers are calculated. The changes apply to all applications for criminal legal aid received on or after 5 March 2012. They involve a new method of payment to legal aid providers. Instead of paying providers an hourly rate, fixed fees are to be paid for completing specific activities. That fixed fees regime is expected to apply to about 95 per cent of criminal legal aid cases. Complex cases, expected to comprise approximately five per cent of all criminal cases, may be managed outside of the fixed fee schedules.


The plaintiff has commenced these proceedings seeking judicial review of:

  • (a) The decision to introduce a fixed fees regime for remuneration of criminal legal aid services provided by legal aid practitioners in private practice, announced in December 2011;

  • (b) The administrative policy implementing the fixed fees regime decision published by the Ministry on or about 24 February 2012; and

  • (c) Proposed or purported future exercises by the Legal Services Commissioner of his powers under the Legal Services Act 2011 in obedience, to or implementation of, the Fixed Fees policy.


The proceedings were filed on 27 February 2012. The plaintiff also filed an application for interim relief, prohibiting the implementation of the challenged decisions pending the substantive hearing of the plaintiff's judicial review challenge. The defendants were not willing to agree to a delay in the implementation of the fixed fees regime beyond the advised start date of 5 March. The plaintiff sought an urgent hearing of the interim relief application.


Also before the Court at this stage are two other interlocutory applications:

  • (a) An application by the plaintiff for an order directing that the plaintiff represent the interests in relation to this proceeding of its members who are providers of criminal legal aid services in private practice; and

  • (b) An application by the defendants for the transfer of the proceedings to Wellington.

The legal aid changes

I describe briefly the changes which have led to the challenged decisions. I do so only to provide background to the discussion in this judgment. The description is not comprehensive, and it does not constitute factual findings.


In 2009, the Government commissioned a review of the New Zealand legal aid system, chaired by Dame Margaret Bazley. The review identified a number of issues within the legal aid system. It led to the introduction in 2010 of the Legal Services Bill, to replace the Legal Services Act 2000. The explanatory note to the Bill described the reforms as follows:

The Bill will reform the legal aid system in the following ways:

  • • transferring the administration of publicly funded legal services to the Ministry of Justice and providing that the Secretary for Justice will be responsible for establishing and delivering different legal services; and

  • • disestablishing the Legal Services Agency and establishing a new statutory officer within the Ministry of Justice, the Legal Services Commissioner, who will be responsible for the granting of legal aid; and

  • • introducing a new quality assurance and performance management system for those providing publicly funded legal services under the Bill; and

  • • enabling the development of streamlined processes for assessing applications for certain low-cost criminal cases; and

  • • replacing the current Legal Aid Review Panel with a new Legal Aid Tribunal; and

  • • clarifying that legal aid is available for Waitangi Tribunal proceedings, but not negotiations with the Crown to achieve a settlement of a claim, as this process is funded by the Office of Treaty Settlements within the Ministry of Justice; and

  • • making administrative improvements.


The Bill was enacted, and came into force, as the Legal Services Act 2011, on 1 July 2011. The purpose of the Act is set out in s 3:

The purpose of this Act is to promote access to justice by establishing a system that—

  • (a) provides legal services to people of insufficient means; and

  • (b) delivers those services in the most effective and efficient manner.


Under s 8, criminal legal aid is granted by the Legal Services Commissioner, an employee of the Ministry of Justice appointed under s 70. When granting legal aid, the Commissioner, under s 16:

  • (a) Must specify the conditions under which the legally aided person must make a contribution by way of repayment of legal aid;

  • (b) Must identify the lead provider;

  • (c) May specify a maximum grant. Either the aided person or the provider may apply to the...

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