WALLACE v LEGAL SERVICES COMMISSIONER [2017] NZCA 114

WALLACE v LEGAL SERVICES COMMISSIONER [2017] NZCA 114 [7 April 2017]IN THE COURT OF APPEAL OF NEW ZEALANDCA19/2017[2017] NZCA 114BETWEEN JAMES HIMONA WALLACE ASADMINISTRATOR OF ESTATE OFSTEVEN WALLACE (DECEASED)ApplicantAND LEGAL SERVICES COMMISSIONERRespondentHearing: 20 March 2017Court: French, Miller and Winkelmann JJCounsel: G E Minchin and S J Fraser for ApplicantL M Hansen for RespondentJudgment: 7 April 2017 at 3.30 pmJUDGMENT OF THE COURTA The application for leave to appeal is declined.B There is no order for costs.____________________________________________________________________REASONS OF THE COURT(Given by French J)Introduction[1] The applicant was the administrator of the estate of Steven Wallace.1Mr Steven Wallace was fatally shot by police in 2000. The applicant wants to obtain a grant of legal aid in order to pursue civil proceedings against the police over the shooting. The proceedings have been filed in the High Court.[2] The Legal Services Commissioner and subsequently the Legal Aid Tribunal refused to grant legal aid.2 The applicant then appealed to the High Court under s 59 of the Legal Services Act 2011 alleging the Tribunal made various errors. At the same time the Crown on behalf of the Commissioner of Police applied for the civil proceedings to be struck out. In a decision issued on 20 June 2016, Brown J declined to strike out the claim, but noted the applicant's willingness to amend thestatement of claim in order to meet some of the criticisms levelled at the claim as pleaded.3[3] In light of Brown J's decision and the applicant's intention to amend theclaim, the Judge hearing the legal aid appeal held the appeal was now moot. Justice Ellis considered that, even if she were to allow the appeal and refer the matter back to the Tribunal, the Tribunal would be confronted with a claim that was materially different from that which it had previously considered and which the Commissioner of Legal Services had had no opportunity to assess. The Judge further held she did not have jurisdiction under the High Court Rules to direct theCommissioner to "consider some materially different and as yet unpleaded claim, themerits of which, from a legal aid perspective, have not yet been considered byanyone".4 The Judge therefore dismissed the appeal on 26 July 2016.[4] Dissatisfied with this outcome, the applicant seeks leave from this Court to appeal the decision of Ellis J. Leave is required because the proposed appeal would be a second appeal.51 We were advised that since the proceedings were filed, the applicant has died and that under his will the rights to the claim passed to his daughter Ms Kelly Wallace.2 Wallace v Legal Services Commissioner [2014] NZLAT 070.3 Wallace v Commissioner of Police [2016] NZHC 1338.4 Wallace v Legal Services Commissioner [2016] NZHC 1706 at [8].5 See Legal Services Act 2011, ss 59 and 60; Criminal Procedure Act 2011, pt 6 subpt 8; andFoodstuffs South Island Ltd v Queenstown Lakes District Council [2013] NZCA 458, (2013) 17 ELRNZ 367 at [11].Grounds of application for leave to appeal[5] The grounds of the proposed appeal are that Ellis J erred in holding the Commissioner needed to consider the claim in its new iteration when:(a) the amended statement of claim was not materially different from the original;(b) a statement of claim is not a prerequisite of obtaining legal aid; and(c) any subsequent reconsideration would be vitiated by the same errors that beset the first consideration.[6] The applicant has filed an amended statement of claim. When asked why the applicant was persisting with the appeal process instead of simply making a fresh application to the Commissioner based on the amended claim, Mr Michin told us he was concerned about the delay involved in doing that and also concerned it would be a waste of time. In his submission, unless a court corrected the errors made by the Commissioner and the Tribunal in their first decision, the answer from the Commissioner and the Tribunal would be the same flawed decision as before.Analysis[7] In our view, the proposed appeal lacks merit and the issues at stake in the appeal (as opposed to those raised in the substantive claim) are case-specific and not of sufficient general or public importance to warrant a second appeal.[8] Under s 10 of the Legal Services Act, the Commissioner may refuse to grant legal aid if satisfied that the claim in respect of which funding is sought does not have sufficient prospects of success or is not justified having regard to the likely costof the proceedings and the applicant's interest in them.[9] The claim which the applicant in this case has filed against the police is a novel one, involving as it does an alleged breach of s 8 of the New Zealand Bill of Rights Act 1990 (the right not to be deprived of life) and an argument that s 8includes an obligation to conduct a proper investigation into a death caused by a state agency. Having regard to the novelty of the arguments, it was in our view particularly important for the applicant to clearly articulate the claim so that the Commissioner could assess it against the statutory criteria for legal aid.[10] As Mr Minchin himself conceded, the original pleading was "highly irregular" and "deficient". The lack of clarity was such that in the High CourtBrown J was required to seek further submissions on the nature of the claim and in particular confirmation as to whether what was being alleged was a systemic failure by the police at large.[11] There are significant differences between the original statement of claim and the amended statement of claim. The latter pleads three causes of action instead of the single cause of action pleaded in the original claim. The remedies sought have been amended. Although there is still a claim for compensatory damages, a plainly untenable claim for special damages has been withdrawn and an application for declarations added. The amended claim also clarifies that the central issue in the proceeding is systemic failure.[12] In those circumstances, we agree with Ellis J that the appeal was moot and referring the matter back to the Tribunal would be highly problematic. Like Ellis J, this Court is not in a position to direct the Commissioner to grant the applicant legal aid. The most the applicant could hope to achieve from the proposed appeal would be an order directing the Tribunal to reconsider the matter and to do so on the basis of the claim as amended and clarified. It follows that the appeal will not serve any useful purpose.[13] We note further that of the six errors said to have been made by the Tribunal,6the two which were determinative have been acknowledged by the Tribunal, one is no longer relevant as a result of the amendments to the claim and one has been discounted (in our view correctly) by Ellis J as not amounting to error. The remaining alleged errors consist of an alleged mistake of fact — which if it was6 Seven alleged errors were identified but two of the seven involved duplication: see Wallace, above n 4, at [2].made can be easily corrected — and a finding about the scope of s 8, an issue which has since been discussed by Brown J in his judgment.[14] In those circumstances and in the absence of any evidence of bias on the part of the Tribunal, we consider there is no justification for contending a fresh application will not receive proper consideration.Outcome[15] The application for leave to appeal is dismissed.[16] Counsel for the respondent abided the Court's decision on costs. We havedecided no order should be made.Solicitors:Thomas & Co, Auckland for ApplicantMinistry of Justice, Wellington for Respondent