Jeremy James Mcguire v Secretary for Justice

JurisdictionNew Zealand
CourtSupreme Court
JudgeElias CJ,William Young,Glazebrook,O'Regan JJ,William Young J,Ellen France J
Judgment Date27 November 2018
Neutral Citation[2018] NZSC 116
Date27 November 2018
Docket NumberSC 22/2018

[2018] NZSC 116

IN THE SUPREME COURT OF NEW ZEALAND

I TE KŌTI MANA NUI

Court:

Elias CJ, William Young, Glazebrook, O'Regan and Ellen France JJ

SC 22/2018

Between
Jeremy James Mcguire
Appellant
and
Secretary for Justice
Respondent
Counsel:

Appellant in person

U R Jagose QC and G L Melvin for Respondent

P N Collins for New Zealand Law Society as Intervener

S W B Foote and T J Mackenzie for New Zealand Bar Association as Intervener

Civil Procedure, Law Practitioners — appeal against a Court of Appeal (“CA”) decision which allowed a cross-appeal by the respondent to strike out the appellant's judicial review claim — respondent declined appellant's application for approval to provide legal aid services as a lead provider in family law — appellant had failed to seek review under s82 LSA (review of decisions of Secretary regarding approvals) before seeking a judicial review under s83 LSA (judicial review) — whether self-represented lawyer should be awarded costs

The Court held that 83 LSA was a channelling provision which operated privatively by deferring judicial review until the statutory review process had been completed. Where a s82 LSA review had not been sought and, by reason of s82(3) LSA (3 month time limit), could no longer be sought, the apparent effect of s83 LSA was to exclude judicial review.

The fact that M had pleaded guilty to a disciplinary charge associated with his dealings with a legally aided client was material to whether he should be granted approval. As was his general complaints history. There were also other reasons why approval was declined. It may well be that the prospects of success of a s82 LSA review were as limited as he feared. However he was entitled to have all of the issues reassessed by the Review Authority. Because s83 LSA operated primarily by deferring the right to seek judicial review, the principal issue was whether it was impracticable for M to exercise his statutory review rights first and then issue judicial review proceedings later.

M had not exercised his statutory review rights at the time and there was no justification for him now being permitted to challenge the 2013 decision so long outside the time limits provided by s82(3) LSA. It followed that his application for judicial review failed.

Joint Action Funding Ltd v Eichelbaum [2018] 2 NZLR 70 decided that lawyers who appeared in person were not entitled to costs if successful. If the employed lawyer rule was to continue to apply, the invoice required approach on which Joint Action Funding was based was unsustainable. The lawyer in person exception and the employed lawyer rule were to be applied. If there was to be reform to the law as it stood before Joint Action Funding, it should be effected otherwise than by the courts. The Court considered that Joint Action Funding was wrongly decided but it was inappropriate to award costs.

JUDGMENT OF THE COURT
  • A The appeal is dismissed.

  • B There is no order for costs.

JUDGMENT OF THE COURT
REASONS

Elias CJ, William Young, Glazebrook and O'Regan JJ

[1]

Ellen France J

[90]

Elias CJ, William Young, Glazebrook AND O'Regan JJ (Given by William Young J)

Table of Contents

Para No.

The appeal

[1]

The legislative scheme

[6]

The background to Mr McGuire's application for approval

[13]

The 2013 decision

[19]

Subsequent events

[23]

Challenges to the result of the disciplinary proceedings

[23]

The 2015 decision

[25]

Mr McGuire's claim against the New Zealand Law Society

[26]

Mr McGuire's later interactions with the Ministry of Justice

[28]

The grounds upon which the 2013 decision is challenged

[29]

The High Court judgment

[33]

The Court of Appeal judgment

[37]

Our approach

[41]

The process provided for by s 83

[41]

The privative effect of ss 82(3) and 83

[43]

The application for review of the 2013 decision is misconceived

[46]

Costs

[52]

How the issue arose

[52]

The position as it was understood to be before Joint Action Funding

[55]

The costs rules

[62]

Controversies over the primary rule and the lawyer in person exception

[68]

Joint Action Funding

[71]

The approach of the Court of Appeal in the present case

[74]

Commissioner of Inland Revenue v New Orleans Hotel (2011) Ltd

[75]

The arguments before us

[77]

Our position

[82]

Disposition

[89]

The appeal
1

In issue in this appeal is a decision by the respondent, the Secretary for Justice,

to decline an application by the appellant, Mr Jeremy McGuire, for approval to provide legal aid services as a lead provider in family law. This decision was made on 7 November 2013 (the 2013 decision).

2

On 19 September 2016, Mr McGuire, representing himself, issued judicial review proceedings in the High Court in respect of the 2013 decision and also a certificate of standing issued by the New Zealand Law Society (the Law Society). 1 He subsequently amended his statement of claim to include a challenge to another decision made by the Secretary in 2015 (the 2015 decision) to refuse him approval to provide legal aid services as a lead provider in criminal law and as a duty solicitor. Mr McGuire's challenges to the certificate of standing and the 2015 decision are not in issue in this appeal.

3

The Secretary applied to strike out the claim in respect of the 2013 decision. This was on the basis of s 83 of the Legal Services Act 2011 (the Act) which provides:

83 Judicial review

A person may not apply for judicial review of any decision made under this subpart until the person has sought and obtained a review of the Secretary's decision under section 82.

As we will explain, Mr McGuire had a statutory right under s 82 of the Act to seek a review of the 2013 decision, a right which he did not exercise. The position of the Secretary is that as Mr McGuire has not sought and obtained a review under s 82, he is not entitled to apply for judicial review of the 2013 decision.

4

The Secretary's application was dismissed by Cull J 2 but a cross-appeal against her decision was allowed by the Court of Appeal. 3

5

The primary question for this Court on appeal is whether the Court of Appeal was correct to allow the cross-appeal. As will become apparent, however, the case has also given rise to important and controversial issues as to costs which merit consideration.

The legislative scheme
6

Section 75 of the Act provides that a person must not provide a legal aid service unless approved by the Secretary to do so. Applications for approval are made under

s 76. Under s 77(1) approval can only be granted “if the Secretary is satisfied that the person meets the criteria prescribed in regulations”. 4 Section 77(4) requires the Secretary to provide reasons for his or her decision to give or decline approval
7

Section 78(1) provides for the establishment of selection committees to assess applications for approval to provide legal aid services and to advise the Secretary of the suitability of applicants.

8

As noted above, s 82 allows for review of a decision of the Secretary regarding approval. It provides:

The right of review under s 82 extends to decisions imposing conditions on approvals to provide legal aid services, 5 interim restrictions 6 (imposed under s 101), sanctions 7 (imposed under s 102) and cancellations 8 (made under s 103). This subpart also includes s 83 which we have set out above.

  • (1) A person may apply to the Review Authority for a review of a decision of the Secretary in respect of that person–

    (a) declining the person's application for approval to provide 1 or more legal aid services or specified legal services:

  • (2) An application for review must be lodged with the Review Authority within 20 working days from the date of notice of the Secretary's decision.

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

9

The Review Authority is established by s 84 of the Act. Section 84(2) requires the Minister of Justice to appoint one person to be the Review Authority and empowers the Minister to appoint one or more Deputy Review Authorities. Such persons must

be enrolled as barristers and solicitors of the High Court, and have at least seven years' legal experience. 9
10

The Review Authority determines a review by confirming, modifying, or reversing the decision under review. 10 It must provide reasons for its decision 11 and its decision is binding on the Secretary and the person to whom the decision applies. 12

11

Regulation 27 of the Legal Services (Quality Assurance) Regulations 2011 provides:

27 Conduct of review

(1) In conducting a review, the Review Authority–

  • (a) must consider the application and any written submissions made by the person seeking the review; and

  • (b) must consider any written submissions made by the Secretary; and

  • (c) may consider any statement, document, information, or matter that in the Review Authority's opinion may assist the Authority to deal effectively with the subject of the review, whether or not it would be admissible in a court of law.

(2) The Review Authority may–

  • (a) request further information from the Secretary or the person seeking the review; and

  • (b) have regard to that information; and

  • (c) specify a date by which the information must be provided; and

  • (d) refuse to consider any information provided after that date.

12

Part 3 of sch 3 to the Act contains further provisions applying to the Review Authority. 13 Clause 19(1) and (2) of that schedule provide that the Review Authority must...

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