WALLACE v LEGAL SERVICES COMMISSIONER [2016] NZHC 1706

WALLACE v LEGAL SERVICES COMMISSIONER [2016] NZHC 1706 [26 July 2016]IN THE HIGH COURT OF NEW ZEALANDWELLINGTON REGISTRYCIV-2015-485-715[2016] NZHC 1706IN THE MATTER OF an application for leave to appeal out oftime against a decision to decline legal aidBETWEEN JAMES HIMONA WALLACEAppellantAND LEGAL SERVICES COMMISSIONERRespondentHearing: On the papersCounsel: G E Minchin for AppellantL Hansen for RespondentJudgment: 26 July 2016JUDGMENT OF ELLIS JI direct that the delivery time of this judgment is4.00 pm on the 26th day of July 2016[1] In February this year I heard an appeal by Mr Wallace against a decision by the Legal Aid Tribunal upholding a decision of the Legal Services Commissioner declining him legal aid. Legal aid had been sought for the purposes of proposed civil proceedings relating to Steven Wallace's death during an encounter with the Police some years ago. The claim was based principally on the right to life enshrined in s 8 of the New Zealand Bill of Rights Act 1990 (the NZBORA).[2] The following errors in the Tribunal's analysis were alleged:(a) not "following" an earlier decision of the Legal Aid Review Panel(LARP 153/06);(b) the finding that the limitation period for tort claims applied to the claim under s 8 of the NZBORA (and that the claim was therefore statute barred);(c) the observation that there had been no suggestion in the various other fora in which the Wallace case has been reviewed that the Police were at fault;(d) the observation that there had been no suggestion in the various other fora in which the Wallace case has been reviewed that the Police investigation into the shooting was deficient;(e) the finding that the claim under s 8 of the NZBORA was barred by the accident compensation legislation;(f) the finding that s 8 of the NZBORA does not include (in circumstances of a death at the hands of the Police) a right to a proper investigation; and(g) the finding that the Costs in Criminal Cases Act is a code (this was relevant to the claim for special damages).[3] Appeals against a decision by the Tribunal are governed by s 59 of the Legal Services Act 2011 (the LSA). Such appeals are confined to matters of law.[4] Soon after the hearing of the appeal and before I had delivered judgment in relation to the appeal, Brown J heard an application to strike out the claim. For obvious reasons, it made sense to await delivery of his judgment before determining the appeal; if the claim was struck out the appeal would be otiose.[5] As things transpired, Brown J did not strike out the claim.1 I nonetheless formed the view that his judgment was very relevant to the appeal. I issued a minute to the parties stating:[2] I have read Brown J's judgment, which was delivered yesterday.While the claim has not been struck out, the judgment may well give the plaintiff pause for thought. But as regards the legal aid appeal, the following points may be noted:(a) the claim for special damages (which was the subject of an appeal point) has been abandoned (see [4]);(b) the claim under s 8 of NZBORA is now much more clearly to be advanced as a claim based on allegations of systemic failure rather than individual fault;2(c) some very considerable legal complexities in the claim have been identified, not just in relation to the novel s 8 issues but in relation to the way in which the issue of self defence might play out at any trial; and(d) plaintiff's counsel is recorded as accepting that significant repleading is required (at [65]).[3] As well, other matters which formed part of the Tribunal's decision(Limitation Act, any bar operating as a result of the ACC regime) have now fallen by the wayside.[4] In any event, it seems to me that Brown J's judgment and theconsequent undisputed need for substantial repleading effectively renders this legal aid appeal moot. Even were I to allow the appeal and refer the matter back, the Tribunal would be confronted with a claim that was materially different from that which it had previously considered. And the Tribunal is, of course, itself a second instance decision maker; its decisions are predicated on an attack on a prior decision by the Commissioner. Here the Commissioner has not had an opportunity to consider the claim in its1 Wallace v Commissioner of Police [2016] NZHC 1338.2 Brown J left open the question of whether the s 8 right includes a right to a proper investigationbut commented (at [88]) that "Short of a full commission of inquiry it is difficult to envisagewhat further investigating steps could have been undertaken." (footnote in original).new (yet to be pleaded) iteration. Accordingly it seems to me that the only realistic option is for the Court to dismiss the appeal.[5] If, after considering Brown J's judgment, the plaintiff considers thatan amended claim should be pursued, it seems to me that the appropriate course is to replead and then to make a fresh application for legal aid, armed(or disarmed) by Brown J's judgment. In formal terms the present appealwould be dismissed. I am unable to see how any issue for costs could arise.[6] I sought counsel's response to this minute within 10 working days. Memoranda were duly filed. The respondent agreed that the proceedings were effectively moot and should be dismissed. The applicant did not.[7] More particularly, Mr Minchin submitted that I should allow the appeal andrefer the matter back to the Legal Services Commissioner "for it to consider an amended statement of claim". He also said:(a) the provision of a proper statement of claim is not a prerequisite to obtaining legal aid;(b) to dismiss the appeal would be to endorse a Tribunal decision which is flawed;(c) in the absence of a reversal the Tribunal may (wrongly) rely on the impugned decision as a precedent; and(d) the appeal needs to be determined to provide "guidance" for theTribunal.[8] But I consider that there is a jurisdictional problem with this position. I accept that on a successful appeal from the Tribunal this Court does, ordinarily, have the power to refer the matter back to the Commissioner for reconsideration in lightof the Court's findings. Under HCR 20.19 the Court may do anything that the Tribunal itself could have done, which includes a referral back pursuant to s 57 of the LSA. But I cannot see how r 20.19 permits the Court to direct the Commissioner to consider some materially different, and as yet unpleaded, claim the merits of which, from a legal aid perspective, have not yet been considered by anyone. That point alone may suffice to determine the matter.[9] In addition, however, there is the specific issue of mootness, which Mr Minchin's submissions did not squarely address. As Ms Hansen submitted, an appellate court will not in general determine an appeal where there is no longer a live issue between the parties; advisory opinions are not favoured.3[10] For the reasons just given, I do not propose formally to determine the appeal. But I acknowledge that it may be helpful if I nonetheless record in general terms the position reached in relation to the appeal points I have set out above. I take each in turn.[11] As to the first, it is true that in broad terms a consistent approach to the determination of applications for legal aid is desirable, insofar as that is possible. But I do not consider that the Tribunal was bound by LARP 153/06. Each application for legal aid necessarily turns on its own facts and circumstances.[12] As to the second, it is now accepted by the Commissioner that the Tribunal'sfinding that the limitation period for tort claims applied to claims under the NZBORA (and that the claim was therefore statute barred) was wrong.[13] As to the third and fourth, the Tribunal's observations about those factual matters can be reassessed in light of Brown J's judgment.[14] As to the fifth, it is accepted by the Commissioner that a claim for damages under s 8 of the NZBORA is not barred by s 317 of the Accident Compensation Act 2001 insofar as the claim relates to a failure properly to investigate (as to which see the following paragraph).[15] As to the sixth, the question of whether s 8 of the NZBORA does include the right to a proper investigation in circumstances such as the present was the subject of extensive discussion by Brown J, but was not resolved. His judgment on that critical issue speaks for itself and will, no doubt, be carefully considered by the Commissioner if and when he considers a new application for legal aid.3 Hutchinson v A [2015] NZCA 214, [2015] NZAR 1273.[16] And lastly, the Costs in Criminal Cases Act point is no longer in issue because the claim for special damages is not pursued.[17] As to whether or not the two acknowledged, and admittedly material, errorsin the Tribunal's decision would mean that the appeal would have been allowed Imake no comment. It would be entirely artificial for me to express a view on that.[18] But in formal terms, the appeal is dismissed. There is no order as to costs."Rebecca Ellis J"Solicitors: Thomas & Co, New Lynn West, for ApplicantMinistry of Justice, Wellington, for Respondent