Criminal Bar Association of New Zealand Incorporated v Attorney-General

• Jurisdiction: New Zealand
• Judge: Mackenzie J
• Judgment Date: 12 March 2012
• Neutral Citation: [2012] NZHC 400
• Docket Number: CIV-2012-404-00992
• Court: High Court
• Date: 12 March 2012

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

Between

Criminal Bar Association of New Zealand Incorporated

Plaintiff

and

Attorney-General

First Defendant

and

Legal Services Commissioner

Second Defendant

[2012] NZHC 400

CIV-2012-404-00992

IN THE HIGH COURT OF NEW ZEALAND

AUCKLAND REGISTRY

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).

Counsel:

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

C R Gwyn and T J Warburton for Defendants

RESERVED JUDGMENT OF Mackenzie J

Table of Contents

Introduction	[1]
The legal aid changes	[5]
The application for judicial review	[17]
The application for interim relief	[18]
Representation	[40]
Transfer of proceedings	[43]

Introduction

1 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.

2 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.

3 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.

4 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

5 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.

6 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.

7 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.

8 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 Commissioner, under s 28, for an amendment to the grant.

9 The functions of the Secretary for Justice are set out in ss 68 and 69 which provide:

• (1) The functions of the Secretary under this Act are—

  • (a) to establish, maintain, and purchase high-quality legal services in accordance with this Act:

  • (b) to perform any functions that are conferred or imposed on the Secretary by or under this Act:

  • (c) to perform any other functions relating to legal services that are conferred or imposed on the Secretary by or under any other Act.

• (2) For the purposes of performing his or her functions, the Secretary may—

  • (a) assess and determine the need for legal services by people with insufficient means; and

  • (b) specify legal services to which subpart 2 applies; and

  • (c) determine the method or methods for the delivery of legal services; and

  • (d) determine the allocation of legal services—

    • (i) on the basis of the method or methods of delivery that the Secretary considers appropriate for the type of legal service to be provided; or

    • (ii) in any other manner that the Secretary considers appropriate; and

  • (e) subject to this Act, disestablish any legal services established under this Act; and

  • (f) deliver any legal services established under this Act; and

  • (g) undertake or fund law-related research and education; and

  • (h) exercise any other power conferred on the Secretary by this Act or any other enactment.

  Without limiting section 68(2)(c), the methods of delivery of legal services may include—

  • (a) making arrangements, subject to the Lawyers and Conveyancers Act 2006, for the services of non-lawyers to be made available:

  • (b) entering into agreements with individual lawyers, groups of lawyers, or law firms for the provision of legal services:

  • (c) employing salaried lawyers to provide legal services:

  • (d) entering into contracts with community law centres to provide community legal services.

10 The functions of the Commissioner are set out in s 71 which provides:

• (1) The Commissioner has the following functions:

  • (a) to grant legal aid in accordance with this Act and the regulations:

  • (b) to determine legal aid repayments where legal aid is granted:

  • (c) to assign a provider of legal aid services or specified legal services to an aided person:

  • (d) in relation to salaried lawyers,—

    • (i) to decide the allocation of cases among salaried lawyers:

    • (ii) to oversee the conduct of legal proceedings conducted by salaried lawyers:

    • (iii) to manage the performance of salaried lawyers:

  • (e) to carry out any other function conferred on the Commissioner by the Minister, by the Secretary, or by or under this Act or any other enactment.

• (2) The Commissioner must act independently when performing any function stated in subsection (1)(a) to (d).

11 Both the 2011 Act, and the 2000 Act, provide for the approval of legal aid providers. Providers approved under the 2000 Act entered into a contract for service with the then Legal Services Agency, setting out the terms on which the legal services to be provided to an aided person were to be provided. The 2011 Act contains a...