Weal v Legal Services Commissioner Hc Wn
| Jurisdiction | New Zealand |
| Judge | Collins J |
| Judgment Date | 12 April 2013 |
| Neutral Citation | [2013] NZHC 744 |
| Docket Number | CIV-2012-485-002602 |
| Court | High Court |
| Date | 12 April 2013 |
In the Matter of an appeal under s 59 of the Legal Services Act 2011
[2013] NZHC 744
CIV-2012-485-002602
IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY
Appeal against determination of the Legal Aid Tribunal determining legal aid for a grant, by reference to a standard hourly rate specified in policy was a “lawful” fettering of discretion by the Legal Services Commissioner (“Commissioner”) — appellant's barrister was very experienced (level 3) and review was complex — however hearing was to take place in a category one forum before ACC reviewer, for which rate was calculated at $124 per hour — appellant's lawyer argued he was entitled to the District Court rate of $134 per hour — Commissioner said had allowed for complexity by allocating an extra 12 hours above what was normally approved — whether the Tribunal erred in concluding that the rate could only be calculated by reference to a particular “standard hourly rate” fixed in the policy relied on by the Commissioner.
A C Beck for Appellant
R Groot for Respondent
RESERVED JUDGMENT OF Collins J
The issues raised in this proceeding can be distilled to the following questions:
(1) Did the Legal Aid Tribunal (Tribunal) make an error of law when it concluded a grant of legal aid could only be calculated by reference to a particular “standard hourly rate” fixed in a policy relied upon by the Legal Services Commissioner (Commissioner)?
(2) If so, should Mr Weal's appeal be allowed?
The questions posed in paragraph [1] arise in the context of an appeal by Mr Weal from a decision of the Tribunal. In its decision the Tribunal confirmed the Commissioner's determination that Mr Weal's lawyer would be paid legal aid calculated on the basis of an hourly rate of $124 (exclusive of GST) for a hearing that is to be conducted before an ACC reviewer.
Mr Weal's appeal is brought under s 59 of the Legal Services Act 2011 (the Act). His appeal is therefore confined to a question of law.
It appears to be accepted that the hearing before the ACC reviewer is unusual because of the case's procedural history and because of the complex nature of the hearing.
Mr Weal's case has had a protracted history. In summary:
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(1) On 13 December 2004 Mr Weal was granted ACC cover in relation to a tropical disease he contracted on a trip to Fiji in April 2003. ACC revoked cover on 11 October 2006.
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(2) Mr Weal applied to have ACC's decision reviewed by an ACC reviewer. Because of an administrative oversight his application was not processed within the statutory timeframes and accordingly Mr Weal's application for a review was “deemed” to be allowed. ACC appealed the “deemed” decision to the District Court.
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(3) Mr Weal then lodged an application for judicial review in the High Court against the District Court's decision to hear the appeal in the absence of an ACC review decision. That application was dismissed on 29 September 2011. 1
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(4) When the matter was returned to the District Court, Judge Beattie directed by consent that the case be remitted to an ACC reviewer for hearing. That ruling was made on 1 December 2011.
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(5) The directions order of Judge Beattie makes it clear that the hearing before the ACC reviewer is being conducted in that forum in order to preserve Mr Weal's appeal options. The hearing could just as easily have taken place in the District Court.
The Crown Solicitor in Timaru has been appointed to be the ACC reviewer. Another Crown Solicitor's office will represent ACC at the hearing. The hearing before the ACC reviewer is scheduled to take two days and will involve a number of witnesses. ACC review hearings normally take one to two hours and are often determined without evidence being called.
In this case the standard legal aid hourly rate for a District Court hearing would have been $134 (exclusive of GST). That is the hourly rate which Mr Weal's lawyer says should be paid when appearing before the ACC reviewer in this case. However, the Commissioner says that in this instance the complexities of the case have been catered for by an allocation of 30 hours to prepare for and conduct the hearing. This represents an increase of 12 hours above what would normally be approved by the Commissioner in relation to this case. 2
Section 23(1) of the Act provides that a grant of legal aid may specify the maximum that is authorised by the grant.
Section 23(2) of the Act says:
A maximum grant may be expressed in any way. For example, it may refer to a total dollar amount, or a maximum number of hours, or a period within which the aid must be provided, or any combination of these or any other specifications.
Parliament has used the word “may” in s 23(1) and (2) of the Act as an auxiliary verb. The language of s 23(1) and (2) of the Act has been carefully chosen so as to permit the Commissioner, in appropriate circumstances, to change the maximum grant in an individual case from that which might ordinarily apply. 3
It is also clear the language of s 23(1) and (2) of the Act does not expressly provide that a maximum grant is to be set by reference to an hourly rate. 4 However, an hourly rate would be encompassed within the words “any other specifications” in s 23(2) of the Act.
The Ministry of Justice has produced a “Provider Grants Manual” and issued policies which explain how maximum grants are set. These policies are an essential mechanism to cope with the vast number of claims for legal aid that are made each year. It would be unrealistic to think that the Commissioner could properly discharge his functions under the Act without recourse to policies and guidelines which, if adhered to, will produce unimpeachable outcomes in the vast majority of cases.
Invariably, the maximum grant under s 23(2) of the Act is calculated by multiplying the number of hours allocated for a particular type of case, with the “standard rate of pay”. In this case the standard rate of pay is set in a policy document called “Family or Civil Fee Rates”.
The “Family or Civil Fee Rates” identifies four categories of fora, ranging from tribunals (forum 1) through to the Court of Appeal/Supreme Court (forum 4). Three levels of standard hourly rates are set in relation to each category of fora. Thus, 12 categories of standard hourly rates are prescribed. The standard hourly rates are set by reference to the experience of a legal aid provider. Level 1 is the least experienced category of lawyers. Level 3 is the most experienced category of lawyers. Level 1 lawyers conducting hearings in a category one forum are eligible to be paid a grant of legal aid calculated on the basis of a maximum hourly rate of $92 (exclusive of GST). Level 3 lawyers conducting a hearing in a category four forum are eligible to be paid a maximum grant based upon an hourly rate of $159 (exclusive of GST).
In the present case, Mr Weal's senior lawyer is Mr Beck who is a very experienced barrister. He is classed as a level 3 lawyer. However, because the hearing is to take place in a category one forum the grant of legal aid has been calculated by reference to a standard rate of $124 per hour. If the hearing were conducted in the District Court (forum 2) a standard hourly rate of $134 would be used to calculate the legal aid grant.
Mr Weal applied for legal aid on 29 March 2012. On 15 June 2012 a specialist advisor recommended that the complexities of the hearing be addressed through an allocation of 30 hours and the approval of a second counsel when setting the maximum grant.
On 21 June 2012 the Ministry of Justice, writing on behalf of the Commissioner wrote to Mr Weal's solicitor and explained:
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Weal v Legal Services Commissioner HC Wn
...HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY CIV-2012-485-002602 [2013] NZHC 744 IN THE MATTER OF an appeal under s 59 of the Legal Services Act 2011 BETWEEN DOUGLAS JAMES WEAL Appellant AND LEGAL SERVICES COMMISSIONER Respondent Hearing: 10 April 2013 Counsel: A C Beck for Appellant R Gro......