MCGUIRE v THE SECRETARY FOR JUSTICE [2018] NZCA 37

MCGUIRE v THE SECRETARY FOR JUSTICE [2018] NZCA 37 [9 March 2018]IN THE COURT OF APPEAL OF NEW ZEALANDCA118/2017[2018] NZCA 37BETWEEN JEREMY JAMES MCGUIREAppellantAND THE SECRETARY FOR JUSTICERespondentHearing: 15 August 2017Court: French, Miller, Cooper, Winkelmann and Clifford JJCounsel: Appellant in PersonG L Melvin and M J McKillop for RespondentP N Collins for New Zealand Law Society as IntervenerJudgment: 9 March 2018 at 11 amJUDGMENT OF THE COURTA The appeal is dismissed.B The cross-appeal is allowed.C The respondent's application for partial strike out of the appellant's firstamended statement of claim is granted to the extent that it challenges theselection committee's 2013 recommendation and the respondent's 2013decision declining approval for the appellant to provide legal aid services.D The High Court order that the respondent pay the appellant's disbursementsis set aside. Costs in the High Court are to be dealt with by that Court havingregard to the terms of this judgment.E The appellant must pay the respondent costs on the appeal, and costs on thecross-appeal, calculated for a standard appeal on a band A basis and usualdisbursements.____________________________________________________________________REASONS OF THE COURT(Given by Cooper J)Table of ContentsPara NoIntroduction [1]Background [7]The 2013 recommendation and decision [16]The High Court judgment [20]The cross-appeal [28]The issue on appeal [28]Analysis [31]The costs appeal [60]Result [75]Introduction[1] This appeal had its origins in the quality assurance provisions in pt 3 of theLegal Services Act 2011 (the Act), in particular as they apply to practitioners wishingto provide legal aid services.[2] The appellant, Mr McGuire, made an application for judicial review of adecision by the respondent Secretary for Justice declining his application for approvalas a provider of legal aid services. He also sought to review the recommendation of alegal aid selection committee that had preceded the Secretary's decision.1[3] The Secretary applied for an order striking out part of Mr McGuire's statementof claim. The Secretary's application was declined by the High Court.2 From thatdecision there is both an appeal and a cross-appeal. The appeal, by Mr McGuire,challenges the High Court decision not to award him costs on the Secretary'sunsuccessful application. The cross-appeal, by the Secretary, claims that the1 Although Mr McGuire's statement of claim described this as a decision, it is clear from the statutethat the selection committee makes a recommendation: Legal Services Act 2011, s 78(1).2 McGuire v The Secretary for Justice [2017] NZHC 365.High Court wrongly declined the strike-out application and seeks that the relevant partof the claim be struck out by this Court.[4] Mr McGuire's appeal raises the issue of his entitlement to costs as aself-represented solicitor and in effect seeks to challenge this Court's recent judgmentin Joint Action Funding Ltd v Eichelbaum in which it was held that the so-calledlawyer-litigant exception to the rule that unrepresented parties are not entitled to costsshould no longer apply.3 Mr McGuire considered there was a conflict between thejudgment in that case and an earlier decision of this Court in Brownie Wills vShrimpton.4 He sought that a Full Court be assembled to determine the appeal. Beingof the view that the issues raised were of considerable importance Harrison J directedthat should occur. He also directed that a copy of his minute be sent to theNew Zealand Law Society, which had been cited as a second defendant in theHigh Court but not named as a party to the appeal. The Law Society was given leaveto appear and be heard as an intervenor and we are grateful to Mr Collins for theassistance he was able to provide at the hearing. In the end, however, for reasons thatwill emerge, we do not consider there is any need to revisit the conclusion reached inJoint Action Funding, even if we were prepared to reconsider an issue so recentlydetermined by the Court.[5] The issue raised by the Secretary's cross-appeal is whether, in declining thestrike-out application, the High Court correctly applied s 83 of the Act. Section 83excludes applications for judicial review of decisions such as that made by theSecretary in this case until the practitioner concerned has sought and obtained, unders 82, a review of the decision by the Review Authority established by the Act. Thereis no dispute as to the approach to be taken to the strike-out application, which isadvanced on the basis that the claim discloses no reasonably arguable cause of action:the pleaded facts are assumed to be true, the cause of action must be clearly untenable,and the jurisdiction to strike out will only be exercised in clear cases.53 Joint Action Funding Ltd v Eichelbaum [2017] NZCA 249, [2018] 2 NZLR 70.4 Brownie Wills v Shrimpton [1998] 2 NZLR 320 (CA).5 Couch v Attorney-General [2008] NZSC 45, [2008] 3 NZLR 725 at [33]; and Attorney-General vPrince [1998] 1 NZLR 262 (CA) at 267.[6] Because any entitlement to costs turns on whether the High Court correctlydealt with the strike-out issue it is logical to begin with the latter. But first, we brieflyset out the background and summarise the High Court judgment.Background[7] Mr McGuire's application for judicial review challenged a decision of theSecretary declining his application for approval to provide legal aid services as a leadprovider in family law.6 The Secretary's decision, made on 7 November 2013 (the2013 decision), was in accordance with the recommendation of a selection committeedated 11 July 2013 (the 2013 recommendation). Mr McGuire had not challenged the2013 decision before the Review Authority established by s 84 of the Act, a right givento him by s 82.[8] Mr McGuire made a further application for approval in July 2015.On 12 October a selection committee again recommended that the Secretary declinethe application (the 2015 recommendation) and the Secretary did so on 27 October2015 (the 2015 decision). On this occasion Mr McGuire did apply to theReview Authority for a review. On 22 December 2015, the Review Authoritydismissed Mr McGuire's application for review.[9] Mr McGuire had previously issued separate proceedings against theLaw Society and the Manawatu Standards Committee based on the way complaintsagainst him had been handled. Those proceedings were subsequently settled followinga successful mediation. On 31 August 2016 the President of the Law Society wrote aletter to Mr McGuire apologising for "the stress, inconvenience and embarrassment"caused to McGuire by errors that resulted in three censure orders for unsatisfactoryconduct in 2012 and 2014. She also expressed the Law Society's regret for the "deepdistress" caused by the disciplinary prosecution in 2008–2011.[10] Mr McGuire was also issued with a new certificate of standing dated1 September 2016. The certificate recorded that Mr McGuire had been admitted as a6 Mr McGuire's application sought approval in respect of other legal aid services but his applicationfor review was confined to his application to be a lead provider in family law.barrister and solicitor on 4 September 1992, held a current practising certificate andwas entitled to practise on his own account. It also noted that on 20 October 2011 hehad pleaded guilty to a charge of unsatisfactory conduct, and referred to two "opencomplaints" before standards committees, and one complaint where there had been afinding of "no further action" by a standards committee that was currently "on reviewwith the [Legal Complaints Review Officer]". It concluded with the words: "TheNew Zealand Law Society considers Mr McGuire is of good standing."[11] Mr McGuire then engaged in correspondence with Ms Amy Davis, an advisorto the Ministry of Justice: they exchanged a series of emails on 15 September 2016.Mr McGuire attached a copy of the new certificate of standing and also the apologyhe had received from the Law Society. He asked whether these events had changedhis position with respect to obtaining a legal aid contract and continued:Is this certificate of standing sufficient for me to be considered for a contract?What do I need to do for this given I have applied twice before and beenunsuccessful largely because of the former certificates of standing that hasnow radically changed?[12] Ms Davis replied referring to other outstanding complaints still beingreviewed. She said they meant the Secretary would not be able to make an assessmentof whether or not Mr McGuire met the criteria for approval. She expressed the hopethe outstanding complaints could be resolved promptly. This elicited a furtherresponse from Mr McGuire, which included the following:I made it quite clear at mediation that the certificate of standing had to besufficient for me to be able to apply for a contract (I am not saying "andnecessarily get one"). If I can't even apply with this certificate then seriousquestions need to be asked.I look forward to hearing from you about this now crucial issue.[13] Ms Davis replied as follows:You are not prevented from applying.My advice is that any application from you, with that certificate of standing,will be premature and will likely be declined for the same reasons your firstapplication was declined. As I have stated before, it is impossible for theSecretary for Justice to assess whether or not anyone meets the fit and properperson requirements when complaint determinations are outstanding.[14] On 19 September 2016 (just under three years after the 2013 decision wasnotified) Mr McGuire commenced his application for judicial review. Initially hechallenged only the 2013 decision, and the certificate of standing of 1 September 2016.The Secretary applied to strike out the claim to the extent that it challenged the 2013decision. The basis of the strike-out application was that the statement of claimdisclosed no reasonable cause of action against the 2013 decision, and was frivolousand vexatious. The Secretary relied on s 83 of the Act and the fact that Mr McGuirehad not sought a review of the 2013 decision under s 82 of that Act.[15] Subsequently Mr McGuire amended the claim so as to add a challenge to theSecretary's 2015 decision. That part of the claim remains on foot and will beconsidered on its merits, Mr McGuire having made an unsuccessful application for areview under s 82 of the Act.The 2013 recommendation and decision[16] The relief sought in Mr McGuire's amended statement of claim included adeclaration that the Secretary for Justice's decision on the 2013 application wasunlawful and invalid, and an order setting aside that decision.7[17] The Secretary's decision was given in writing. It included a summary of thereasons for the decision, which was in the following terms:Does not meet the criteria for approval as a lead provider for Family for thefollowing reasons:• does not meet the Professional Entry Requirements;• does not have the Service Delivery Systems that support the applicantto provide and account for legal aid services or specified legal aidservices in an effective, efficient and ethical manner;• has not provided references that support the applicant's experienceand knowledge in the area of law and category of proceedings towhich the application relates; and• has not demonstrated experience and competence in Family.7 The same relief was sought in relation to the 2015 decision.[18] The statement of claim made various allegations against the members of theselection committee who made the 2013 recommendation. There were allegations ofbias, predetermination, conflict of interest, taking into account of irrelevantconsiderations and failure to take into account relevant considerations, as well asclaims that the decision was wrong in law and fact. These allegations were fullyparticularised in some 21 paragraphs, which we need not set out. Other allegationswere that the selection committee had applied the wrong legal test and misdirecteditself in making its decision that Mr McGuire lacked the necessary experience forapproval.[19] It was then alleged that the 2013 decision to refuse the application wasunreasonable and unfair because it was based on the unreasonable and unfair 2013recommendation. Other allegations were made that the Secretary had applied thewrong test, taken into account irrelevant considerations and was wrong in fact and law.The High Court judgment[20] Cull J considered that the principal issue was whether the statutory languagein s 83 of the Act ousted the right to judicial review in breach of s 27(2) of the NewZealand Bill of Rights Act 1990.[21] She was not prepared to read s 83 as a "mandatory requirement" that there mustbe an application for a review to the Review Authority before an application could bemade to the Court for judicial review.8[22] The Judge referred to s 27(2) of the New Zealand Bill of Rights Act, whichprovides as follows:(2) Every person whose rights, obligations, or interests protected orrecognised by law have been affected by a determination of anytribunal or other public authority has the right to apply, in accordancewith law, for judicial review of that determination.[23] She then referred to s 6 of the New Zealand Bill of Rights Act stating that:98 McGuire v The Secretary for Justice, above n 2, at [42].9 At [38].The interpretation of s 83 of the Act that is consistent with the rights andfreedoms of the NZBORA must be the preferred interpretation, as s 6NZBORA provides.10[24] She continued:11For this reason, I accept Mr McGuire's argument that the words in s 83 "aperson may not apply for judicial review" is permissible in circumstanceswhere a person has not met the strict time limits within the Act. If s 83 isinterpreted as a mandatory requirement, the statutory provision operates as aprivative clause, which purports to oust this Court from its judicial reviewfunction. Such an interpretation is inconsistent with the NZBORA.[25] We infer that when the Judge said that the relevant words were "permissible"that was a shorthand way of saying that in appropriate circumstances the Court wouldnot be bound to apply s 83 in its strict terms.[26] The Judge then referred to a submission made on behalf of the Secretary thatss 82 and 83 of the Act will operate to ensure the use of the statutory reviewmechanism before judicial review is undertaken. She considered that in the majorityof cases that objective would be met but, in the circumstances of this case, it wouldhave been futile for Mr McGuire to seek a review of the 2013 decision by theReview Authority. That finding was based on the correspondence set out abovebetween Mr McGuire and Ms Davis that took place in September 2016. The Judgethought the correspondence made it plain to Mr McGuire that there was no point inhim reapplying or seeking a review until outstanding client complaints against himhad been determined.12[27] The Judge continued:[41] I accept Mr McGuire's submission that in the face of that clearindication, seeking a review before the Review Authority would have been awaste of its and his time. For that reason, I am unable to accept the Secretary'ssubmission that the operation of the Act provisions, restricting or oustingjudicial review rights, could be ameliorated by Mr McGuire making a freshapplication, if he had failed to meet the time limits under s 82.10 This approach to interpretation is well-established: see for example Re Application by AMM andKJO to adopt a child [2010] NZFLR 629 (HC) at [49]; R v Hansen [2007] NZSC 7, [2007]3 NZLR 1 at [179]; R v Poumako [2000] 2 NZLR 695 (CA) at [37]; and Ministry of Transport vNoort [1992] 3 NZLR 260 (CA) at 272.11 McGuire v The Secretary for Justice, above n 2, at [38].12 At [40].[42] On these facts and in these circumstances, I am not prepared to reads 83 as a mandatory requirement that a person must apply for a review to theReview Authority, before taking the only other step available to him, tochallenge the 2013 decision, being judicial review.The cross-appealThe issue on appeal[28] We agree with the Judge that the principal issue is the proper interpretation ofs 83. The section provides:83 Judicial reviewA person may not apply for judicial review of any decision madeunder this subpart until the person has sought and obtained a reviewof the Secretary's decision under section 82.[29] In essence, the Secretary argued that unless the right to apply to theReview Authority is exercised, a person cannot apply for judicial review of theSecretary's decision. The legislative intention was to impose a justified limitation onthe right to bring judicial review, thereby promoting engagement with a speciallyconstituted administrative tribunal prior to resort to the High Court. There was norestriction on judicial review unless an applicant failed to comply with the statutoryreview process.[30] Mr McGuire contended, on the other hand, that an application for judicialreview may be made after the period limited for applications under s 82 has expired.He further submitted that, in any event, the requirements of s 82 need not be compliedwith in the case of allegations of breach of natural justice by what he described as "theadministrative body" (referring to the Standards Committee and the Secretary).Analysis[31] The Act is the result of a comprehensive review of the statutory provisionsaffecting the provision of legal aid. Its purposes are to promote access to justice byestablishing a system that provides legal services to people of insufficient means anddelivers those services in the most effective and efficient manner.13 Part 3 of the Actcontains provisions designed to ensure that providers of legal aid services and otherspecific legal services meet appropriate standards. The Secretary has a number offunctions under this part of the Act. They include establishing, maintaining andpurchasing high-quality legal services in accordance with the Act.14[32] Subpart 2 of pt 3 of the Act is headed "Quality assurance system for providers".Within that subpart is s 75, which provides that a person must not provide a legal aidservice or specified legal service unless the person is approved by the Secretary toprovide that service and the person complies with the conditions (if any) of thatapproval. Application must be made for approval to the Secretary under s 76 ofthe Act. Under s 77(1) the Secretary is empowered to give a person approval toprovide one or more legal services or specified legal services "if the Secretary issatisfied that the person meets the criteria prescribed in regulations".15 The approvalmust be in writing, and amongst other things state the particular legal aid services orspecified legal services that the provider is approved to provide.16 Section 77(4) statesthat the Secretary must provide reasons for his or her decision to give or declineapproval.[33] Section 78(1) provides that the Secretary may establish one or moreselection committees to assess applications for approval to provide legal aid servicesor specified legal services and to advise the Secretary of the suitability of applicants.The Secretary must appoint a representative from the Ministry of Justice as achairperson of a selection committee.17 The Secretary must also appoint to thecommittee a lawyer from a group of lawyers nominated by the Law Society as beingsuitable for appointment to the committee and who the Secretary is satisfied is suitablefor such appointment and has expertise in the areas of law relevant to the committee'swork.18 There is a discretionary power to appoint other suitably qualified people tothe committee as the Secretary thinks fit.19 The statutory role of selection committees13 Legal Services Act, s 3.14 Section 68(1)(a).15 The criteria are prescribed in the Legal Services (Quality Assurance) Regulations 2011.16 Legal Services Act, s 77(3)(d).17 Section 78(2)(a).18 Section 78(2)(b).19 Section 78(2).is clearly limited to giving advice to the Secretary about the suitability of applicantsfor approval. Such advice has no legal effect. The decision on any given applicationis for the Secretary to make. That is plain from reading s 77 together with s 78(1).[34] Consistently with that, the statute provides, as has been mentioned above, forthe review by a Review Authority established under the Act of a relevant decisionmade by the Secretary. The right to apply for a review is set out in s 82, which providesas follows:82 Review of decisions of Secretary regarding approvals(1) A person may apply to the Review Authority for a review of a decisionof the Secretary in respect of that person—(a) declining the person's application for approval to provide 1 ormore legal aid services or specified legal services:(b) imposing any condition on the person's approval to provide 1or more legal aid services or specified legal services:(c) imposing any interim restriction on the person undersection 101:(d) imposing any sanction on the person under section 102:(e) cancelling the person's approval under section 103.(2) An application for review must be lodged with the Review Authoritywithin 20 working days from the date of notice of the Secretary'sdecision.(3) The Review Authority may accept a late application no later than3 months after the date on which notice of the relevant decision wasgiven to the person, if the Review Authority is satisfied thatexceptional circumstances prevented the application from being madewithin 20 working days after the date on which notice is given.[35] The Review Authority is established by s 84 of the Act. Section 84(2) requiresthe Minister of Justice to appoint one person to be the Review Authority, andempowers the Minister to appoint one or more Deputy Review Authorities. Suchpersons must be enrolled as barristers and solicitors of the High Court, and have atleast seven years' legal experience.20 Under s 85(1), the function of the20 Section 84(3).Review Authority is to review decisions of the Secretary set out in s 82(1). It can doso only on the application of a person in respect of whom the decision is made.21[36] The Review Authority determines a review by confirming, modifying orreversing the decision under review.22 It must provide reasons for its decision23 andits decision is binding on the Secretary and the person to whom the decision applies.24In carrying out the review, the authority must comply with reg 27 of the Legal Services(Quality Assurance) Regulations 2011, which provides:27 Conduct of review(1) In conducting a review, the Review Authority—(a) must consider the application and any written submissionsmade 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, ormatter that in the Review Authority's opinion may assist theAuthority 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 personseeking 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.[37] The combination of s 86 and reg 27 shows that the Review Authority is set upwith all the powers it needs to make its own decision as to the appropriateness of thedecision under review. The intent is clearly that the Review Authority will make itsdecision after a full inquiry involving, if considered appropriate, the provision ofinformation additional to that which was considered by the Secretary, and that mayinclude information whether or not it would be admissible in a court of law. Although21 Section 85(2).22 Section 86(1).23 Section 86(2).24 Section 86(3).referred to as a review, the extensive powers of the Review Authority show that theprocess is effectively an appeal. As Mr Melvin submitted, the process allows for abroader consideration of the merits than would be permitted to a court in judicialreview proceedings: the Review Authority can effectively substitute its own decisionfor that of the Secretary.[38] It is appropriate also to refer to pt 3 of sch 3 to the Act, which contains furtherprovisions applying to the Review Authority.25 We note in particular cl 19(1) and (2).The former provides that the Review Authority must perform his or her functionsindependently of the Minister of Justice. The latter provides that the Minister cannotdirect the Review Authority in relation to its functions. So the Review Authorityfunctions as an independent body.26 We also mention cl 20, which provides that theAuthority must conduct a review on the papers, "with all reasonable speed". Clearly,the process is expected to be swift.[39] It is in this statutory context that s 83 must be construed.[40] In accordance with the approach required by s 5(1) of the Interpretation Act1999, the meaning of the section is to be ascertained from its text and in the light ofits purpose. Further, s 27(2) of the New Zealand Bill of Rights Act provides that everyperson whose rights or interests protected or recognised by law have been affected bya determination by any tribunal has "the right to apply, in accordance with law, forjudicial review of that determination". That right is affected by s 83 of the Act and itis necessary to take that into account in construing the section.[41] For present purposes, the proper approach can be taken as that described byBlanchard J in R v Hansen:27 when the natural meaning of a legislative provision and the obviousparliamentary intention coincide, the starting point for the application of theBill of Rights must be to examine that meaning against the relevant guaranteedright — in this case, s 25(c) — to see if it apparently curtails the right so as toengage the Bill of Rights' interpretive provisions (ss 4, 5 and 6). If these25 See s 87.26 There are equivalent provisions that establish the independence of a selection committee from theSecretary for Justice, and preventing the Secretary from giving any direction to a committee inrelation to its functions: see Legal Services Act sch 3, cl 11(1) and (2).27 R v Hansen, above n 10, at [57].provisions are engaged, the natural meaning may be adopted only in one oftwo circumstances. Either an application of s 5 may reveal that, because thelimit placed by the meaning upon the right is a "demonstrably justified" one,its adoption will not in fact result in inconsistency with the Bill of Rights or,failing that, the provision may not be reasonably capable of bearing any othermeaning.[42] Under s 5 of the New Zealand Bill of Rights Act the rights and freedomscontained in the Act "may be subject only to such reasonable limits prescribed by lawas can be demonstrably justified in a free and democratic society". And s 6 of theNew Zealand Bill of Rights Act provides:6 Interpretation consistent with Bill of Rights to be preferredWherever an enactment can be given a meaning that is consistent withthe rights and freedoms contained in this Bill of Rights, that meaningshall be preferred to any other meaning.[43] The judgments of Blanchard, Tipping and McGrath JJ in Hansen establish thatthe direction in s 6 is to be applied having regard to s 5. On this approach, where theplain meaning of a statutory provision affects a right or freedom, and the effectconstitutes a "reasonable limit" on the right or freedom that can be "demonstrablyjustified in a free and democratic society", application of the plain meaning will notbreach the New Zealand Bill of Rights Act.28 As Blanchard J put it: "it is only thosemeanings that unjustifiably limit guaranteed rights or freedoms that s 6 requires theCourt to discard, if the statutory language permits".29[44] We start with the natural and ordinary meaning of s 83. We think the meaningis clear. The section provides in straightforward terms that there can be no applicationfor judicial review until the applicant has sought and obtained a review of theSecretary's decision by application to the Review Authority under s 82. The result ofsuch a review might be favourable or unfavourable. Obviously, if favourable, therewould be no need to make an application for judicial review. It would only be if anadverse decision of the Secretary were upheld by the Review Authority that theapplicant would need to apply for judicial review. In other words, at the point when28 New Zealand Bill of Rights Act 1990, s 5.29 R v Hansen, above n 10, at [59]. See also at [60] per Blanchard J, [88]–[92] per Tipping J and[190]–[192] per McGrath J.any relevant rights or privileges had been affected, the practitioner would have theright to apply for judicial review.[45] Viewing s 83 in the context of the provisions of subpt 2 of pt 3 of the Act, itcan be seen as a deferral of the right to apply for judicial review while the specialstatutory process envisaged by the Act takes place. As cl 19 of pt 2 of sch 3 to the Actprovides, the Review Authority performs its functions independently of the Ministerof Justice. Its powers are coextensive with that of the Secretary, and it can substituteits own decision for that of the Secretary. It is effectively a right of appeal. Thestatutory scheme requires the review to be carried out expeditiously. A time limit isprovided within which an application for review must be lodged (20 working daysfrom the date of notice of the Secretary's decision),30 but the Review Authority mayaccept a late application no later than three months after the date of notice if there wereexceptional circumstances that prevented the application from being made within20 working days.31 Clause 20 of sch 3 requires the review to be completed with allreasonable speed.[46] There is nothing in this context that suggests that any interpretation other thanthe plain meaning would serve the statutory purpose. The preference is for thestatutory review process to be followed before resort is made to the High Court.[47] We think it implicit in the drafting of s 83 that if a person affected does notseek a review of the Secretary's decision under s 82, whether within 20 working daysor within a period of up to three months in the case of exceptional circumstances, thenthe right to apply for judicial review will be lost. Any other interpretation wouldsimply enable the statutory procedures to be bypassed. Once the statutory periodwithin which an application to the Review Authority could be made had passed, theperson affected would simply make application for judicial review, as Mr McGuiredid (albeit almost three years later). But we do not consider that would be an outcomeintended by the legislature, given the wording of s 83. This means s 83 impinges onthe right affirmed by s 27(2) of the New Zealand Bill of Rights Act.30 Legal Services Act, s 82(2).31 Section 82(3).[48] Having reached that position, the next question is whether the inconsistency isnevertheless a justified limit in terms of s 5 of the New Zealand Bill of Rights Act.We consider that it is demonstrably justified for a number of reasons. First, as alreadydiscussed, the right to make an application to the High Court is simply deferred, notabridged. If the Review Authority's decision is unacceptable, the applicant can applyto the High Court at that point. The right to do so is only lost where the applicant failsto participate in the statutory procedures set out in the Act. Second, theReview Authority has all the powers necessary to give relief in an appropriate case.The fact that it can substitute its decision on the merits and in a process not attendedby delay and cost, thereby providing an appropriate alternative to an immediateapplication for judicial review, is a further indication that the limits are justified. Thefact that there is a statutory process providing for a prompt and thoroughreconsideration of declined applications no doubt assists in achievement of the clearstatutory objective of ensuring that competent persons are contracted to provide legalaid services for members of the public.[49] In the result, we consider that the extent to which the right to apply for judicialreview is affected by s 83 is rationally connected to the objectives of the legislation.It affects the right to apply for judicial review simply by deferring it pendingcompletion of the statutory review process. It would only be if an applicant failed toengage in that process that the right of judicial review would be lost. In the context ofthis legislation, we are not persuaded that would be a disproportionate outcome. In ourview, the natural and ordinary meaning of s 83 results in reasonable limits,demonstrably justified in a free and democratic society, on the right to apply forjudicial review.[50] The consequence is that in terms of a Hansen analysis, the natural meaning ofthe provision must be adopted.[51] Although Cull J referred to Hansen, her analysis apparently proceeded on thebasis that because applying the apparent meaning of s 83 in some circumstances wouldhave the consequence of preventing an application for judicial review, s 6 of theNew Zealand Bill of Rights Act required her to consider whether s 83 could beinterpreted in a manner that was consistent with the right to apply for judicial review.That is contrary to the approach required by Hansen. However, even if s 6 were to beapplied in that way, we do not consider that the Judge identified a rights consistentmeaning of s 83 that it was reasonably capable of bearing.[52] As set out above, she considered that the words used in s 83 "a person may notapply for judicial review" were "permissible in circumstances where a person has notmet the strict time limits within the Act".32 We are unclear what she meant by thisother than, as we have suggested earlier, that she was intending to say that inappropriate circumstances the Court would not be bound to apply s 83 in its strictterms. We do not see how that meaning can be found in the statutory language.We consider there is no doubt that s 83 is intended to be prohibitive, and notpermissive. The words "may not" admit of no ambiguity, and there is nothing in thecontext in which they are used that suggests to the contrary.[53] Nor do we accept that the correspondence that passed between Mr McGuireand Ms Davis could be relevant to the proper interpretation of the statute, as the Judgeseemed to imply at one point.33 The Judge's conclusion based on Ms Davis's advicethat it would have been futile for Mr McGuire to seek a review before theReview Authority is really not the point. Such correspondence can hardly bear on themeaning of the statute. And there could be no basis, in any event, for assuming theReview Authority would do other than properly consider Mr McGuire's qualificationsto be a provider of legal aid. Ms Davis was not to be taken as speaking for theReview Authority.[54] We refer for completeness to the decision of the Supreme Court in TannadyceInvestments Ltd v Commissioner of Inland Revenue.34 This judgment was relied onboth by Mr Melvin and Mr McGuire. The case concerned the effect of s 109 of theTax Administration Act 1994, which provides that except in objection proceedingsunder pt 8 or in a challenge under pt 8A of that Act, no "disputable decision" (a termdefined in the Act) could be disputed in any court. The majority held that thisprevented disputable decisions being challenged by way of judicial review, unless the32 McGuire v The Secretary for Justice, above n 2, at [38].33 At [41]–[42]; quoted above at [27].34 Tannadyce Investments Ltd v Commissioner of Inland Revenue [2011] NZSC 158, [2012] 2 NZLR153.taxpayer could not practically invoke the relevant statutory procedure, or what was inissue was not the legality, correctness or validity of an assessment, but some suggestedflaw in a statutory process that needed to be addressed outside the statutory regimebecause it was not provided for in it. As an example of that kind of issue, Tipping J(who wrote also for Blanchard and Gault JJ) referred to a well-founded concern that aparticular Taxation Review Authority should for whatever reason be restrained fromconsidering a challenge.35 Tipping J gave as an example alleged bias on the part ofthe Authority. In such a case, it would not be the disputable decision that was beingimpugned in the Court, but rather the legality of the process by which the challenge tothat decision was to be determined. Tipping J observed:36This is a different matter from a challenge to the legality of the process whichled up to the making of the disputable decision. That process and anychallenge to it directly puts in issue the disputable decision. Hence thechallenge to that decision or its antecedents must follow the statutoryprocedure.[55] As mentioned earlier, it is part of Mr McGuire's pleaded case that the 2013recommendation of the selection committee was affected by bias, predeterminationand conflict of interest. He then claims that in some way the selection committee'sbias must have affected the 2013 decision. However, for a number of reasonsTannadyce is not authority for the proposition, sought to be advanced by Mr McGuire,that the 2013 decision may be the subject of judicial review when there has been noresort to the Review Authority under s 82 of the Act.[56] First, the judgment of the majority in Tannadyce is about potential bias in theTaxation Review Authority, that is, the body considering the objection that would beadvanced by the taxpayer in relation to the disputed assessment. The equivalent bodyhere is not the selection committee, or even the Secretary, but the Review Authority.There is no suggestion of any apprehended bias, predetermination or other indicationof any issue with the way the Review Authority would go about its task. In any event,Mr McGuire has chosen not to approach the Review Authority.35 At [59].36 At [59].[57] Second, the complaints that Mr McGuire has made about theselection committee and the suggestion the Secretary's decision had been affected bythe selection committee's bias could be put before the Review Authority, if in factrelevant. But the real issue in which the Review Authority would be interested wouldbe whether Mr McGuire was an appropriately qualified person to be approved as aprovider of legal aid services in the categories in which he sought to be approved.If the Review Authority was of that view Mr McGuire's concerns about the processwould have been resolved.[58] Third, and most importantly, s 109 of the Tax Administration Act differs froms 83 of the Legal Services Act in a crucial respect. Section 109 states that "nodisputable decision may be disputed in a court or in any proceedings on any groundwhatsoever," except in the objection proceedings or a challenge under the TaxAdministration Act. Section 83 simply defers judicial review pending completion ofthe statutory process. It is only when the practitioner declines to invoke the statutoryprocess that the prohibition on judicial review arises. This difference in the statutoryprocess is such as to remove the need to allow for the possibility of judicial review ina residual category of case such as was contemplated in Tannadyce.[59] For the reasons we have given, we are satisfied that the High Court erred bydeclining to strike out that part of Mr McGuire's claim that challenged the 2013decision and recommendation. Mr McGuire's claim cannot proceed in the face of s 83of the Act. It must be struck out accordingly.The costs appeal[60] Although Mr McGuire successfully opposed the Secretary's strike-outapplication in the High Court, the Court did not award him costs. Nor was there anydiscussion of why costs were not awarded. The Judge simply directed that: "TheSecretary is to pay Mr McGuire's reasonable disbursements for attending thishearing."3737 McGuire v The Secretary for Justice, above n 2, at [57].[61] The reason for this is unclear, given that this Court's decision in Joint ActionFunding was not delivered until after the High Court judgment.38 At the time theHigh Court judgment was delivered the usual practice, unless there was somedisqualifying consideration arising out of the way the litigation had been conducted,would have been to award costs to Mr McGuire as the successful party on thestrike-out application, notwithstanding that he was a litigant in person, on the basis ofthe so called lawyer-litigant exception.39[62] However, the conclusion reached on the cross-appeal means that Mr McGuirewould not be entitled to his costs in the High Court in any event. In the circumstances,it would be inappropriate for us to embark on any detailed discussion of thelawyer-litigant exception or the rejection of it in Joint Action Funding.[63] We make these limited observations. First, the cases in which thelawyer-litigant exception has been discussed in New Zealand prior to Joint ActionFunding have not analysed the reasons for the rule. Rather, they have simply appliedit, on the basis of the explanation given for it in The London Scottish Benefit Society vChorley.40 Further, although this Court applied the exception in Brownie Wills vShrimpton, it did so in a guarded way.41 Blanchard J, who delivered a judgment inwhich Gault J joined, referred to doubts that had been expressed about the exceptionby the High Court of Australia in Cachia v Haynes, but noted: "not having been askedto reconsider the question, we do not depart from the practice of allowing costs to asolicitor/litigant".42[64] As Mr Melvin pointed out, each Judge in Chorley emphasised a differentreason for the lawyer-litigant exception. Brett MR thought it significant that:43If a solicitor does by his clerk that which might be done by another solicitor,it is a loss of money, and not simply a loss of time, because it is work done bya person who is paid for doing it.38 Joint Action Funding Ltd v Eichelbaum, above n 3.39 See Brownie Wills v Shrimpton, above n 4, at 327.40 The London Scottish Benefit Society v Chorley (1884) 13 QBD 872 (CA).41 Brownie Wills v Shrimpton, above n 4.42 At 327, referring to Cachia v Haynes (1994) 179 CLR 403 at 412.43 The London Scottish Benefit Society v Chorley, above n 40, at 875.[65] For Bowen LJ, the important issue was the expenditure of professional skillthat could be quantified. He said: "Professional skill and labour are recognised andcan be measured by the law; private expenditure of labour and trouble by a laymancannot be measured."44[66] Finally, Fry LJ gave the following reason based on a perceived public benefit:45I think that the conclusion at which we have arrived will be beneficial to thepublic, because if the rule were otherwise a solicitor who is party to an actionwould always employ another solicitor, and whenever he is successful hewould recover full costs; whereas under the rule of practice laid down by us,a solicitor who sues or defends in person will be entitled, if he is successful,to full costs, subject to certain deductions, of which his unsuccessful opponentwill get the benefit.[67] The deductions contemplated by Fry LJ were in respect of matters that wouldnot justify an award of costs where the lawyer-litigant exception applies such as fortaking instructions.[68] However, in Cachia v Haynes, a majority of the High Court of Australiadescribed the lawyer-litigant exception as "somewhat anomalous" and described itsjustification as "somewhat dubious".46 The justifications were said to ignore the"questionable nature of a situation in which a successful litigant not only receives theamount of the verdict but actually profits from the conduct of the litigation".47The majority also pointed out that:48It has not been doubted since 1278, when the Statute of Gloucester introducedthe notion of costs to the common law, that costs are awarded by way ofindemnity (or, more accurately, partial indemnity) for professional legal costsactually incurred in the conduct of litigation.[69] It went on to say that if costs were to be awarded on the basis of compensatinga lawyer for the time spent acting for herself or himself, there could be no logicalreason for denying compensation to a litigant who was represented, for that litigant'sexpenditure, time and effort.4944 At 877.45 At 877–878.46 Cachia v Haynes, above n 42, at 411.47 At 412.48 At 410 (footnote omitted).49 At 414.[70] There is also, in our view, an inherent tension between policies allowinglawyers as one class of litigant in person to claim costs and denying it to all otherlitigants in person. Yet the rule denying costs to non-lawyers who self-represent hassurvived, and is in apparent conformity with the current wording of the High CourtRules. As this Court observed in Re Collier (A Bankrupt):50The general question as to whether a litigant in person should be paid for histime and trouble raises many important considerations of both policy andpractice, and as the High Court of Australia has observed, is not really a matterthat can be solved by a court.[71] We note that Mr Collins, appearing for the Law Society, advised us that theSociety agreed with the reasoning of the Court in Joint Action Funding. He submittedthat preserving the lawyer-litigant exception risked being seen as self-serving and asconferring favoured status to lawyers as opposed to other litigants in person, withoutprincipled justification. He submitted that would risk undermining public confidencein the legal profession and the administration of justice. The Law Society's viewswere not available to the Court that decided Joint Action Funding, but we think itdesirable to record the position taken in argument before us.[72] The decision in Joint Action Funding may be taken as reflecting the fact thatthe policy justification for the lawyer-litigant exception had clearly been doubted. Thecase afforded an opportunity, for the first time, for a comprehensive consideration ofthe proper interpretation of the relevant rules now in pt 14 of the High Court Rules.The position reached as a result of the analysis carried out was consonant with thefundamental idea, recognised for hundreds of years, that costs awards should be forprofessional legal costs actually incurred.[73] We note finally that counsel referred to provisions of the District Court Rules2014 and the Family Court Rules 2002, which appear to have been drafted on the basisthat the lawyer-litigant exception is part of the law. Rule 14.17 of the former, whichhas no equivalent in the High Court Rules, states that a solicitor who is a party to aproceeding and acts in person "is entitled to solicitors' costs". Rule 86 of theFamily Court Rules also provides that where a lawyer who is a party to Family Court50 Re Collier (A Bankrupt) [1996] 2 NZLR 438 (CA) at 441.proceedings acts in person, that person is entitled to lawyers' costs, but subject tothe Court's discretion and rr 14.2–14.12 of the District Court Rules. These provisionsmay well be now anomalous, having regard to this Court's decisions in Joint ActionFunding and in this case. We have not heard detailed argument on that issue and reachno firm conclusion on it. But those rules do not affect the outcome of this appeal.[74] For the reasons we have given, Mr McGuire's appeal must be dismissed.Result[75] The appeal is dismissed.[76] The cross-appeal is allowed. The Secretary's application for partial strike outof Mr McGuire's first amended statement of claim is granted to the extent that itchallenges the selection committee's 2013 recommendation and the Secretary's 2013decision declining approval for Mr McGuire to provide legal aid services.[77] The High Court order that the Secretary pay Mr McGuire's disbursements isset aside. Costs in the High Court are to be dealt with by that Court having regard tothe terms of this judgment.[78] Mr McGuire must pay the Secretary costs on the appeal, and costs onthe cross-appeal, calculated for a standard appeal on a band A basis and usualdisbursements.Solicitors:Crown Law Office, Wellington for Respondent