FAWCETT v LEGAL SERVICES COMMISSIONER [2022] NZHC 3366

FAWCETT v LEGAL SERVICES COMMISSIONER [2022] NZHC 3366 [13 December 2022]IN THE HIGH COURT OF NEW ZEALANDWELLINGTON REGISTRYI TE KŌTI MATUA O AOTEAROATE WHANGANUI-A-TARA ROHECIV-2020-485-540[2022] NZHC 3366UNDER the Legal Services Act 2011, s 59BETWEEN MAUHA HUATAHI FAWCETTAppellantAND LEGAL SERVICES COMMISSIONERRespondentNEW ZEALAND BAR ASSOCIATIONIntervenerDEFENCE LAWYERS ASSOCIATIONNEW ZEALANDIntervenerAUCKLAND DISTRICT LAW SOCIETYIntervenerHearing: 30 November 2022Counsel: C W J Stevenson and K Cook for AppellantL M Hansen and D Stevens for RespondentR M Lithgow KC for Defence Lawyers Association New ZealandF Geiringer for New Zealand Bar AssociationE P Priest for Auckland District Law Society bywritten submissions onlyJudgment: 13 December 2022JUDGMENT OF CHURCHMAN JIntroduction[1] Mr Mauha Fawcett appeals a decision of the Legal Aid Tribunal (the Tribunal),in relation to the grant of legal aid that he received for his retrial.1 He alleges that theTribunal was wrong in fact and law in finding that the statutory definition of 'legal aidservices' does not accommodate the administrative tasks undertaken in managing agrant of legal aid. He seeks:(a) a declaration that the administration of a legal aid grant by a provideris a legal aid service under s 4 of the Legal Services Act 2011 (the Act);and(b) an order that the legal aid administration hours sought for that purposebe granted by the Legal Services Commissioner.[2] The sole issue on appeal is whether legal aid administration falls within thedefinition of "legal services" in s 4 of the Act. Particularly, whether that definitionincludes the time spent by a provider interacting with the Commissioner, submittingapplications for amendments to grants, and submitting invoices.[3] The appeal is opposed by the Legal Services Commissioner (theCommissioner), who submits that the Tribunal did not err in fact or in law.[4] The Auckland District Law Society (ADLS), the New Zealand Bar Association(NZBA), and the Defence Lawyers Association of New Zealand (DLANZ), appear asintervening parties. These parties were granted leave to intervene by Johnston AJ, onthe basis that they would be able to assist the Court.2[5] For the reasons identified below, I am of the view that the appeal should beallowed.1 Re Fawcett [2020] NZLAT 010.2 Fawcett v Legal Services Commissioner [2021] NZHC 1436.BackgroundMurder charges[6] In 2014, Mr Fawcett was charged, convicted, and sentenced for the murder ofChristchurch sex worker Mellory Manning, who was found dead in the Avon River in2008. His conviction was overturned by the Court of Appeal,3 which said the case hadsimilarities with Pora v R.4[7] The Crown conceded two points on appeal. The safety of Mr Fawcett'sconviction was called into question following a diagnosis of foetal alcohol spectrumdisorder, and the degree to which confessions Mr Fawcett had made to the Police couldthen be said to be reliable. Secondly, the amicus curiae appointed to assist Mr Fawcettat trial put forward inconsistent defences, against Mr Fawcett's wishes. As a result,Mr Fawcett's conviction was quashed, and a re-trial ordered.[8] In addressing the conviction appeal, the Court of Appeal did not address theadmissibility of the statements Mr Fawcett had made to the Police, saying that wasinstead an issue for retrial. As a result, that issue came before Dunningham J in 2020and 2021. She excluded Mr Fawcett's statements to the Police pursuant to s 28 of theEvidence Act 2006, on the ground that they were unreliable.5[9] Subsequently, in November 2021, Dunningham J dismissed the charge ofmurder against Mr Fawcett pursuant to s 147 of the Criminal Procedure Act 2011.6Therefore, the substantive criminal proceedings have come to an end. The dismissalof a charge pursuant to s 147 is deemed to be an acquittal. This matter comes fordetermination following the disposition of the criminal proceedings.Legal aid applications[10] Mr Fawcett's present counsel, Mr Stevenson, acted for him in the Court ofAppeal and before Dunningham J. Mr Stevenson was assisted by Mr Cook and3 Fawcett v R [2017] NZCA 597 at [24].4 Pora v R [2015] UKPC 9, [2016] 1 NZLR 277.5 R v Fawcett [2021] NZHC 2406.6 R v Fawcett [2021] NZHC 2969.Ms Kane. Mr Fawcett was legally aided throughout the proceedings. It is commonground between the parties that Mr Fawcett's case was complex and involved intensivelegal efforts. There were at least 10 applications by counsel for amendments to thegrant of legal aid, and in response, multiple requests by the Commissioner for furtherinformation. Mr Fawcett's case is not paradigmatic of applications for grants of legalaid.[11] On 4 December 2019, Mr Fawcett's counsel made an application for anamendment to the grant of legal aid. This application sought a further 90 hours oflegal aid for the purpose of junior counsel administering the legal aid grant. Counselsubmitted that the work required for the management of the legal aid grant was of sucha magnitude, that it distracted from the provision of services directed to theproceedings. Counsel sought to employ another lawyer for the purpose of managingthat work. On 8 January 2020, the Commissioner declined that application, on thebasis that time spent on administration of a grant of legal aid did not fall within theprovision of legal services to Mr Fawcett.[12] Counsel then sought a reconsideration of the 8 January 2020 decision, allegingthat in the past, time spent administering a grant of legal aid had been treated by theCommissioner as being recoverable. Mr Stevenson in particular alleged that legal aidhad been granted to him for administration in previous cases, and that it wasappropriate in the present case. He said that this was so because of the significant,complex, and time-consuming nature of the administration necessary to manageMr Fawcett's legal aid.[13] On 21 February 2020, the Commissioner confirmed the previous decision of8 January 2020. In doing so, the Commissioner acknowledged that Mr Stevenson hadpreviously received funding for legal aid administration, but took the view that thishad been provided incorrectly. The Commissioner stated:[Section] 4 of the Legal Services Act 2011 (the Act) defines the meaning of'legal aid services' and 'legal services'. For aid to be granted, both requirethere to be "legal advice and representation". Legal Aid administration doesnot involve the provision of legal advice and representation. It is purely anadministrative task. Accordingly, we will not grant the 90 hours you seek forthis task.We view the decision in [suppressed] as being an incorrect interpretation ofthe Act which, fortuitously, benefitted you.[14] Mr Stevenson then appealed to the Tribunal.The Tribunal's decision[15] Before the Tribunal, Mr Stevenson argued that the administration of legal aidamounts to representation of a client and can be seen as preliminary or incidental tothe proceedings. The Commissioner reiterated the view that such work is notrepresentation, or work that is preliminary or incidental to the proceedings.[16] The Tribunal noted that:7It has been the long-standing practise of the Commissioner under this statute,if not earlier ones, not to grant aid for the paperwork involved in obtaining agrant or subsequently administering it. In the context of pre-grant work (workrequired to satisfy the Commissioner that a grant should be made), theTribunal has previously found that there is no policy to fund such work.8[17] The Tribunal then adopted the Commissioner's view, taking the position thatadministrative work is not representation of the client in the substantive proceeding,or assistance preliminary or incidental to any future or existing proceeding. It stated:9There is a fundamental difference between the work of advising andadvocating for the client in the substantive legal process, including work donebefore charges are laid or proceedings are issued, and the work required toseek funding for that substantive work.I also agree with the Commissioner's contention that the complexity of thesubstantive case and the magnitude of the legal aid administration work areirrelevant. Such work is either "legal aid services" for all cases or it is not.[18] The Tribunal considered that the fact that such funding has been awarded toMr Stevenson in the past "tends to show that there is no practise to permit suchfunding", and that funding "may have been made by sympathetic grant officers".10 Italso noted that the fact that the Commissioner funds administration for duty lawyers7 Above n 1, at [62].8 Re DJ (Historic Abuse) [2012] NZLAT 055 at [30].9 Above n 1, at [63]–[64].10 At [65].for certain tasks, does not change whether such activities fall within the statutorydefinition of "legal services".[19] The Tribunal ultimately concluded that administration of a grant of legal aiddoes not fall within the definition of legal services within the Act, and that theCommissioner's decision was not wrong in law.Positions of the partiesMr Fawcett[20] Mr Cook submits that the Tribunal's decision was wrong in law. He says thatthe proper interpretation of 'legal services' includes legal aid administration, whenconsidering the Act's context, plain meaning, and taking a rights-consistentinterpretation.[21] Mr Cook submits that the Act confirms that the obligations of a provider oflegal aid are no different to the obligations on lawyers performing other kinds ofpractise under the rules and codes of the legal profession. He says the LawyersConduct and Client Care Rules 2008 are applicable, and that therefore a provider mustcomply with those rules. That includes obligations to justify the number of hours,expenditure, and invoices, as well as fully disclosing any dealing with or expenditureof client funds. He says that the duties of defence lawyers are wide and varied,constituting a heavy burden.[22] Mr Cook says that the plain meaning of 'legal services' which includes'assistance with taking steps that are preliminary or incidental to any proceeding',encompasses legal aid administration. He says that securing legal aid is a necessaryand imperative aspect of a proceeding, in that if a provider does not have the funding,they cannot provide services. He says that the work involved in High Cost Casematters, particularly making applications, submissions on why more funding isneeded, and justifying expenditure, is inextricably linked to the provision of legalservices, in that it is preliminary or incidental to those services. He says that counselmay be required to prepare an entire synopsis of their defence, simply for the purposeof renumeration. He says:legal aid administration is a pre-requisite for a defendant who has to rely onlegal aid. In a case such as this, Dunningham J's ruling that the evidence wasinadmissible, and the dismissal of the charge may well never have occurredwithout the grant extensions. In essence, true justice would not have prevailedhad counsel not made such requests. They were, therefore, imperative in MrFawcett's access to justice and must be considered as part of the legal servicethat was provided to him.[23] Mr Cook submits that the purpose of the Act supports his interpretation of s 4.He says that access to justice is meaningless without providing a defendant withsufficient resources to exercise it. He says that access to justice necessitates access tocounsel and where appropriate, expert evidence, which requires funding. He says thatthe Act is the vehicle through which the fundamental rights of defendants pursuant tothe New Zealand Bill of Rights Act 1990 (NZBORA) are given effect. He submitsthat it is in the interests of justice that there is little hindrance placed on counselpreparing an effective defence, because otherwise there is a serious risk of appeal,which would be more costly in terms of delay and funding. He says further that theexclusion of some legal aid costs means counsel must either work for free, or spendhours that ought to be spent on representation performing administrative tasks. Hesubmits this is not consistent with the purpose of the Act.[24] Mr Cook submits that the interpretation of s 4 that is most consistent withNZBORA is one that includes funding for legal aid administration. He says that aposition by which counsel is forced to work for free or neglect a client's defence is nota rights consistent interpretation. He submits that if Parliament intended this to be thecase, they should have expressly said so. He says that NZBORA should be given agenerous interpretation, and that a particular policy consideration or concern for fiscalrestraint should not impinge on these rights[25] Mr Cook again refers to the fact that certain aspects of legal aid administrationare funded for duty lawyers pursuant to the Duty Lawyer Service Operational PolicyAugust 2019 (the Operational Policy). He says that:The responsibilities of duty lawyers are set out on pp 5-6 of the OperationalPolicy. This explicitly notes that "Duty lawyers" responsibilities includehelping defendants complete a legal aid application forms and submit them toa Legal Aid office as soon as possible. Further the Operational Policy confirmsthat a duty lawyer will be paid for the time it takes to provide these services.[26] Mr Cook submits that this is inconsistent with the Tribunal's view that "Suchwork is either "legal aid services" in all cases or it is not". He says that there is noprincipled justification to discriminate between duty lawyers and ordinary legal aidadministration by providers. He says that providers should be paid for the legal workthat is necessary to comply with the requirements of the legal aid regime. He submitsthat the administrative requirements of legal aid have resulted in the exit ofpractitioners from the legal aid system, thereby compromising the quality ofrepresentation provided to legally aided clients. He says that legally aided clients withcomplex cases are entitled to expect the same quality of legal representation as thosewho can afford private representation.The Commissioner[27] Counsel for the Commissioner, Ms Hansen, submits the Commissioner usesthe term 'legal aid administration' (which is not defined by the Act) to describe thetime spent by providers interacting with the Commissioner for the purposes of givingeffect to and managing the legal aid scheme.[28] Ms Hansen and the Commissioner accept that the time spent by a provider priorto the preparation and submission of an amendment application may be fundedpreparation work. However, she says that neither the act of filling out and submittingthe amendment applications, or an invoice are legal services. She says these actionsand interactions are not legal advice to, or representation of, or assistance provided to,a legally aided person to take steps in respect of a proceeding. Like the Tribunal, shemaintains that there is a difference between advice and advocacy, and the workrequired to seek funding for substantive representation.[29] Ms Hansen submits that the Commissioner's interpretation is consistent withthe Act's legislative history, in that legal aid services have always been anchored inadvice and representation in respect of a proceeding. She says that legal aid has onlyever applied to matters within a substantive proceeding. She says that the term'representation' was used in previous legislation, and that 'legal services' as a termshould be regarded as identical in meaning.[30] Ms Hansen submits that legal aid administration cannot be described as stepsthat are preliminary or incidental to a substantive proceeding. She says the Courtshave described the term 'incidental' as meaning 'naturally attaching' or 'following onas a subordinate circumstance' to a proceeding.11 She says that legal aidadministration is not work that naturally attaches to, or which follows as a subordinateconsequence of a proceeding. She submits that legal aid administration does notinvolve actions preceding or preparatory to a proceeding. She says:In a general sense, applications for amendments to grant may be preliminaryto the delivery of legal services by a provider. Invoicing may be incidental tolegal services that have been delivered. But they are not advice andrepresentation in respect of proceedings or assistance with taking steps thatare preliminary to, or incidental to the proceedings for which legal aid hasbeen granted.The Commissioner has already accepted that the preparatory work will belegal services. But the separate and distinct act of applying to theCommissioner for funding is neither advice or representation in respect of theproceeding or a step distinct from and following the proceeding.[31] Ms Hansen says that s 28 of the Act supports the Commissioner'sinterpretation, as it provides that an aided person or a provider may make anapplication for amendments to a grant of legal aid. She submits that this reinforcesthe fact that making such an application is not legal services. She says that if anapplication for an amendment is legal services then there would be no provision for alegally-aided person to make it, because a legally-aided person cannot provide legalservices to themselves.[32] Ms Hansen submits that the Commissioner's interpretation is consistent withNZBORA. She says that in Mr Fawcett's case, his right of access to justice wasupheld. He was provided with high quality representation, and received 2729 hoursof legal aid plus substantial disbursements. On that basis, Ms Hansen says thatMr Fawcett was not denied access to justice by the Commissioner's interpretation, onthe contrary, as a result of his counsel's efforts, he was acquitted. Ms Hansencomments that the Commissioner is concerned that this appeal is being used to11 See Yash v Legal Services Agency (2006) 18 PRNZ 320 (HC).collaterally criticise the adequacy of legal aid funding. She says that any issue offunding and eligibility is a matter for Parliament.[33] Ms Hansen disagrees with Mr Cook's submissions on the Operational Policy.She submits that services provided by duty lawyers do not concern legal aid, and dutylawyer representation is not provided under a grant of legal aid. She says that dutylawyer services are a 'specified legal service' as defined in s 4 of the Act.ADLS[34] Counsel for ADLS, Ms Priest, in her written submissions, supports Mr Cook'ssubmissions, and submits that the appeal should be allowed. She says that ordinarilya fixed legal aid fee would be sufficient to cover administration time. However, forcomplex and High Cost Cases, applications for amendments are necessary to obtainsufficient funding for legal counsel to fulfil their duties to their client and to the Court.This is an issue because the legal aid regime requires providers to apply for legal aidin advance of the work that needs to be undertaken.[35] Ms Priest reiterates Mr Cook's submission that:The refusal to fund work, experts or travel where counsel believe is it essentialto the preparation of an effective defence for their client places them in aconflicted position. Reconsideration of the ATG (or working withoutpayment) are the only options available.[36] Ms Priest submits that s 28 of the Act supports Mr Cook's interpretation. Shesays the statutory requirements in that provision mean that any work performed toprepare and submit an application for amendment must be incidental to anyproceedings, and that it is administrative work that fits within the definition of legalaid services. She further says that the purpose of the Act supports Mr Stevenson'sinterpretation.NZBA[37] Counsel for NZBA, Mr Geiringer supports Mr Cook's submissions, andsubmits that the appeal should be allowed. He says that the work in question in thisappeal is both preliminary and incidental to proceedings, and that it is legal advice andrepresentation. He says that the purpose of the Act and an analysis of the equivalentcircumstances in a privately funded case supports this conclusion, in that:7.1. equivalent work undertaken in a privately funded case would beconsidered part of the provision of legal services and billedaccordingly;7.2. the purpose of the Act is to establish an effective and efficient legalaid system;7.3. the background to this case is a legal aid system in crisis;7.4. the Commission's interpretation of this definition is, in and of itself, asignificant factor contributing to that crisis;7.5. were the Commissioner's interpretation to be upheld it would applyto all legal aid work;7.6. the Commissioner is taking an inconsistent approach by funding thesame work when it is undertaken in different contexts; and7.7 accordingly, the Commissioner's interpretation undermines thepurposes of the Act.[38] Mr Geiringer submits that the work of devising a litigation strategy, advisingon the need for an expert, and the work of providing a client a detailed opinionexplaining the need for an expense, would all appear on a lawyer's bill as part of theirlegal services. However, the equivalent work in a legal aid matter is not included.Mr Geiringer says that the provision of those services to a client is the provision oflegal services. He says:In order to be able to offer such advice, the lawyer needs to have anunderstanding of the relevant legal test. They need to have the legalknowledge or experience to know what evidence might be effective to assistthe client to meet that legal test (or to undermine an opponent's evidenceseeking to meet such a test). They need to have sufficient knowledge of therelevant legal field to understand the scope of expert assistance that isavailable. And they would need the legal skill of explaining all of this to a layclient in a way that the client can understand. In short, all of this work – notjust devising the strategy, but explaining to the client why their money shouldbe spent pursuing it - calls on a lawyer to use their core legal skills.As an aside, such an opinion would appear to involve "giving legal advice toany other person in relation to the direction or management of" a proceeding.As such, it falls within the definition of "reserved areas of work" and therefore"legal work" under the Lawyers and Conveyancers Act 2006.1212 Section 6.[39] Mr Geiringer submits that that the appellant's interpretation is available on theterms of s 4 and that a purposive interpretation supports that interpretation. He saysthat the present issue bears on the protection of fundamental constitutional rights,protected by NZBORA.[40] In addition to the issue noted above by Mr Cook as to the Operational Policy,Mr Geiringer submits that the inconsistency identified is broader than just that for dutylawyers. He says that guidance produced for civil and family practitioners shows thatthey are generally told that administrative work is recoverable. He says that there isan inconsistency in the Commissioner's application of its interpretation, and that ifthat interpretation is to be preferred, then its inconsistent application means that otheraspects of the legal aid scheme are unlawful.[41] Mr Geiringer submits that the question of whether the legal aid system is incrisis is a matter which has been commented upon by both Winkelmann CJ and thePresident of the New Zealand Law Society.13 He properly accepts that this is not atissue in the proceeding, and that it is not the role of the Court to redesign the system.However, he says that the Commissioner's interpretation undermines the efficacy ofthe legal aid system, and the Court is required to consider that impact.[42] Finally, Mr Geiringer submits that from work undertaken by the ADLS andNZBA, involving the surveying of legal aid providers, the following matters areknown:30.1. roughly half of the work of lawyers on legal aid cases isunremunerated;30.2. the issue of work on applications for amendments to grant on high endcases has been identified as an area of particular concern;30.3. overall, the requirement for lawyers to complete a large quantity ofwork that is characterised as administration, and thereforeunremunerated, is driving lawyers away from the legal aid system andpreventing them from entering the legal aid system; and13 Farah Hancock "Legal aid system 'broken and may collapse' – Chief Justice" (12 October2021), Radio New Zealand https://www.rnz.co.nz/news/is-this-justice/453369/legal-aid-system-broken-and-may-collapse-chief-justice.30.4. the lack of availability of legal aid providers generally, andexperienced practitioners in particular, has contributed to a crisiswhere the system is not functioning well and is in danger of collapse.DLANZ[43] Counsel for DLANZ, Mr Lithgow KC, supports Mr Cook's submissions, andsubmits that the appeal should be allowed. He says that work associated with securingappropriate legal aid funding is properly regarded as a legal aid service under the Act.He submits that the use of the word 'administrative' minimises the true nature of thework involved and its importance, which requires close application of law andevidence. He says applications for amendment are essentially the provision of a legalopinion to the funding body.[44] Mr Lithgow agrees that this appeal engages NZBORA. He says that the Actshould be given a rights-consistent interpretation, and that the Supreme Court'scomments on NZBORA in Fitzgerald require this. He submits that had Parliamentintended to exclude the work in question from the ambit of funding then it would havedone so explicitly.[45] Mr Lithgow submits that the work in issue falls within the definition in s 4because:(a) seeking and securing funding is an integral part of legal advice andrepresentation;(b) administrative tasks are assistance that a practitioner provides a legallyaided person for matters included in the Act; and(c) the definition of legal services in the Act is non-exhaustive.[46] He says:The process of seeking funding requires the legal aid provider to provideadvice to the client about what would be helpful to advance their defence, setabout and then represent those interests to the Commissioner. The process ofseeking funding (either for the practitioner or for experts or otherdisbursements) is to advance the case for the legally aided person. It is notwork completed for the benefit of the practitioner – but for the benefit of thelegally aided person. The legislation envisages within its definition that legalservice includes advice and representation.[47] Mr Lithgow submits that the 'fixed fee schedules' include work that isassociated with managing funding, reporting to legal aid and invoicing, and that thesematters are paid as part of the fixed fee. He says that the Commissioner acknowledgesthat these matters are paid as part of the fixed fee. Like the issue in relation to theOperational Policy, he says this is inconsistent with the Commissioner's position inthis appeal. He notes a number of other legal aid guidelines in which the work in issuein this appeal is included within eligible funding tasks. He says:With this litigation underway [it] appears the [Commissioner's] response is tobe, when this was pointed out, to remove identified "administrative" tasksfrom the fixed fee/steps schedule to respond to the argument that these tasksare not "legal aid services".The argument that LSA is entitled to view differently "administrative tasks"as payable in some areas and not others as a reflection of their ability to make"policy decisions" is not tenable on a clear and proper reading of the LegalServices Act 2011 nor having regard to the proper foundation of the purposefor the provision of legal aid. It also does not accurately reflect what is actuallyinvolved in the task of seeking funding for experts and proper preparationtime.Approach to appeal[48] This appeal is brought pursuant to s 59 of the Act, which may only be on a"question of law". The standard to be applied is whether the LAT and theCommissioner have made an error of law, rather than whether their decisions arecorrect.14[49] As to what constitutes an error of law, Randerson J has noted:15It is undesirable to suggest any exhaustive list but a decision may be wrong[in law] if it derives from an incorrect application or interpretation of thestatute; or if it is wrong in principle; or if the decision-maker has failed to takeinto account some relevant matter; or has taken account of an irrelevantmatter; or if it depends upon findings which are unsupported by the evidence.14 R v Legal Services Commissioner [2019] NZHC 2117; citing Legal Services Agency v Brown(2005) 17 PRNZ 523 (HC) at [30].15 Legal Services Agency v Fainu (2002) 17 PRNZ 433 (HC) at [27].AnalysisPreliminary matters[50] I record that at the outset of the hearing there was the consideration of an issueregarding the filing of an affidavit by the Acting Commissioner, Ms Baguley.Mr Stevenson sought to cross-examine Ms Baguley on her evidence. At that time, Igranted Ms Hansen leave to withdraw that affidavit, as she had sought to do, and toamend her submissions removing reference to Ms Baguley's evidence. I declinedMr Stevenson's application to cross-examine Ms Baguley, and also his application toadjourn the hearing to require Ms Baguley to attend.The Act[51] As noted, the issue on appeal is whether legal aid administration falls withinthe definition of "legal services" in s 4 of the Act, so as to be the subject of a legal aidgrant. The appeal involves a contest between the Commissioner's narrowinterpretation of that definition, and the remaining parties' wider interpretation. Aconsideration of that issue requires an assessment of the purpose of the Act.[52] The purpose of the Act is to promote access to justice by providing legalservices to people of insufficient means, and delivering them in the most effective andefficient manner possible.16 The meaning of a provision must be ascertained from itstext and in the light of its purpose and context.17 The following definitions arerelevant:legal aid services means legal advice and representation (in relation to legalaid) described in paragraph (a) of the definition of legal serviceslegal services,—(a) in relation to legal aid, means legal advice and representation and,subject to subsection (2), includes assistance—(i) with resolving disputes other than by legal proceedings; and(ii) with taking steps that are preliminary to any proceedings; and(iii) with taking steps that are incidental to any proceedings; and16 Section 3.17 Legislation Act 2019, s 10(1).(iv) in arriving at or giving effect to any out-of-court settlementthat avoids or brings to an end any proceedings:(b) in relation to anything other than legal aid, includes—(i) legal advice and representation (including the kinds ofassistance described in subparagraphs (i) to (iv) of paragraph(a)); and(ii) the provision of legal information and law-related education[53] The exception referred to in s 4(2) relates to legal aid for proceedings beforethe Waitangi Tribunal, and is not relevant to the present matter.[54] Legal aid may be granted for either criminal or civil matters, as set out in ss 6to 13. Applications are required to comply with s 14. There are conditions that applyto a grant of legal aid, as provided by s 18. A person must not provide a legal aidservice unless they are an approved provider, and comply with the conditions ofapproval.18[55] Section 28 provides for when an amendment to a grant of legal aid is sought.Such an application must be made by an aided person or the provider in a mannerprescribed by the Commissioner prior to the final disposition. An application for anamendment may be made after the final disposition if the requirements in s 28(2) aremet. Final disposition means "the final disposition of the matter to which theapplication relates, by a court, tribunal, or any other means".19[56] Applications for legal aid, or amendments to a grant of legal aid are to begranted by the Commissioner, who may delegate her powers.20 The Commissionerhas the following functions:21(a) to grant legal aid in accordance with this Act and the regulations(b) to determine legal aid repayments where legal aid is granted:(c) to assign a provider of legal aid services or specified legal services toan aided person:18 Section 75.19 Section 28(6).20 Sections 71 and 72.21 Section 71(1).(d) in relation to salaried lawyers,—(i) to decide the allocation of cases among salaried lawyers:(ii) to oversee the conduct of legal proceedings conducted bysalaried lawyers:(iii) to manage the performance of salaried lawyers:(e) to carry out any other function conferred on the Commissioner by theMinister, by the Secretary, or by or under this Act or any otherenactment.[57] In carrying out her functions pursuant to s 71(1)(a) to 71(1)(d), theCommissioner must act independently.[58] The Secretary of Justice also has functions under the Act. These are:22(a) to establish, maintain, and purchase high-quality legal services inaccordance with this Act:(b) to perform any functions that are conferred or imposed on theSecretary by or under this Act:(c) to perform any other functions relating to legal services that areconferred or imposed on the Secretary by or under any other Act.[59] For the purpose of performing their functions, the Secretary may amongst otherthings, specify legal services to which the legal aid regime applies, determine themethods of delivery for legal services, and determine the allocation of legal services.23Broader considerations[60] Underlying this appeal is the contention that legally aided lawyers are under-renumerated by the legal aid regime, particularly in relation to complex criminalmatters like those of Mr Fawcett. However, that issue is not before the Court, and norcan the matter turn on the views presented by the intervening parties as to whether thelegal aid regime is in crisis. If that is so, the remediation of that issue is a matter forParliament. The matter turns on the Act's definition of 'legal services'. Appeals ofthis kind may only be on a question of law.22 Section 68(1).23 Section 68(2).[61] Certain rights analyses can support the statutory interpretation exercise.However, the focus of the present appeal is solely on that exercise. It cannot be avehicle for the appellant and the intervening parties to argue via a side-wind that theoperation of the legal aid regime is inconsistent generally with NZBORA. Such anargument would properly be the subject of judicial review proceedings.Definition of 'legal services'[62] I agree with the submission made by Mr Lithgow that the use of the phrase'legal aid administration' in relation to this appeal is unhelpful without a cleardefinition of what that includes. Indeed, Mr Cook at the hearing, also adopted thatposition, preferring to describe the work in question as representative work necessaryto advance or ensure that a client's rights are upheld, specifically the right to a fairtrial. It appeared to me that at some points counsel were talking past each other, andneeded a clear list of matters that were agreed to be 'legal aid administration'.[63] However, I note Ms Hansen's acceptance that time "spent by the provider priorto preparation and submission of [an] amendment application may be deemedpreparation work that is funded under the grant". It appears to me to be difficult todistinguish between time 'spent prior to the preparation and submission' of anapplication, as described by Ms Hansen, and the making of an application for anamendment to a funding grant. I am not satisfied that it is appropriate to considerthese two things to be in reality, entirely separate activities, unless the Commissioneronly seeks to exclude eligibility for the filling out of forms. I was not advised that wasthe case.[64] Nonetheless, I am ultimately of the view that each of the kinds of work listedabove are capable of coming within the definition of legal aid services on its ordinaryplain meaning, as submitted by Mr Cook and Mr Geiringer. Legal aid services meanslegal advice and representation, and includes assistance with the matters listed inparagraphs (i) to (iv). The matters described by Mr Cook and counsel for theintervening parties can, in my view, properly be described as steps that are eitherpreliminary or incidental to any proceeding. I can see nothing in the Act whichpositively excludes this interpretation, or that which requires the Commissioner'sinterpretation to be adopted.[65] Further, there is clearly a difference between advice and representation, andthe provision of services that are directed to securing or administering legal aid.However, that difference is irrelevant, given the question is simply whether the workin question falls within the definition of legal services. That definition includesprovision of assistance with taking steps that are either preliminary or incidental to aproceeding. I am of the view that the work in question falls within that definition.[66] I am also drawn to this conclusion that were Mr Fawcett able to afford privaterepresentation, the matters the Commissioner alleges are not legal services wouldindeed form part of the costs that Mr Fawcett would be required to pay. That, to me,implies that upon an "ordinary meaning" assessment of the term legal services, suchwork would be included. For all intents and purposes, those matters are indeedincidental to the provision of advice and representation, and are properly described aslegal services, or matters that 'naturally attach' to the provision of legal services. Ialso accept Mr Geiringer's submission that such work falls within the definition of"reserved areas of work" and therefore "legal work" under the Lawyers andConveyancers Act 2006. Again, this would seem to suggest that the work in questionfalls within the definition of legal services.[67] Nor am I of the view that s 28 assists the Commissioner's interpretation. Thefact that a legally aided person may themselves make an application for an amendmentto their grant of legal aid does not appear to bear upon the issue of whether when apractitioner makes that application, they are providing legal services. A legally aidedperson cannot provide legal services to themselves with the support of legal aid. Aprovider is required to be a registered practitioner, and approved by the Secretary.However, the fact that a legally aided person may make an application for anamendment does not change the character of the work involved in that applicationitself. The evidence also supported the conclusion that, on the facts of this case, therewas no way that Mr Fawcett could himself have provided the information sought –given its nature and complexity.[68] Turning to the purpose of the Act, where two interpretations are reasonablyopen as to the meaning of a provision, the words of that provision should be given theone that best accords with the purpose of the legislation.24 As noted, the purpose ofthe Act is to promote access to justice by establishing a system that provides legalservices to people of insufficient means, in the most effective and efficient manner.That is not only in relation to criminal matters, but civil and family matters also. Thatpurpose is also coloured by the functions of the Secretary, who is required to establish,maintain, and purchase high-quality legal services.[69] The appellant alleges that the purpose supports his interpretation, given thefundamental importance of access to justice, and because the Commissioner'sinterpretation reduces the quality of representation received by legally-aided clients.In response, the Commissioner submits that Mr Fawcett received 2729 hours of legalaid, and that there is no room for a conclusion that the legal aid he received wasinadequate. With respect, it is at this point that the parties have invited the Court towade into muddy waters beyond the scope of the present appeal. What legal aidMr Fawcett received, and its adequacy, is not in issue. This is an appeal on a questionof law, specifically regarding the definition of legal services. There is no basis for theCourt in the context of this appeal to enter into any analysis regarding adequacy, orthe overall merits of the legal aid regime.[70] However, it is also axiomatic that a provision is to be interpreted in light of itspurpose, and that a rights-consistent interpretation is to be preferred.25 I have recentlysaid that access to justice "is a fundamental requirement of any legal system thatpurports to uphold the rule of law".26 I note also Winkelman CJ's comment thatNZBORA is to be given:27an interpretation suitable to give individuals the full measure of the enactedfundamental rights and freedoms,28 and one which renders the rights practical24 Northland Milk Vendors Association Inc v Northern Milk Ltd [1988] 1 NZLR 530 (CA) at 538.25 New Zealand Bill of Rights Act 1990, s 6.26 Griggs v Legal Services Commissioner [2022] NZHC 3001 at [34].27 Fitzgerald v R [2021] NZSC 131 at [41].28 Minister of Home Affairs v Fisher [1980] AC 319 (PC) at 328 per Lord Wilberforce, cited withapproval in R v Mist [2005] NZSC 77, [2006] 3 NZLR 145 at [45] per Elias CJ and Keith J; andMinistry of Transport v Noort [1992] 3 NZLR 260 (CA) at 268 per Cooke P.and effective, comprehensible beyond the ranks of judges and human rightsacademics.29[71] Accordingly, on the basis that the purpose of the Act is to advance access tojustice, and the general requirement to give practical effect to rights contained inNZBORA, I acknowledge that there is support for the interpretation proposed by theappellant in those sources. A rights consistent interpretation is to be preferred.[72] That is no more than a conclusion that the Act itself is to be interpreted inaccordance with law, and in a manner that gives practical effect to fundamental rights.The most rights and purpose consistent interpretation is one in which the work inquestion in this appeal is considered legal services, for the purpose of allowingproviders to provide the highest-quality legal services possible.Inconsistencies in practice[73] It is common ground as between the parties that previously, grants have beenmade for administrative work. That was touched on by the Tribunal in its decision,and also in the correspondence between Mr Stevenson and the Commissioner prior tothe decision under appeal. The Commissioner alleges that these grants have beenmade in error. Mr Stevenson alleges that these grants illustrate that legal aid isavailable for the work in question. In my view nothing turns on this. I acknowledgethat there is a recorded inconsistency in practice by the Commissioner, and that theCommissioner's view throughout these proceedings has been unchanging. That doessuggest to me that awards of legal aid for administrative matters in practice have beenthe exception, not the rule. Nevertheless, my view is that this inconsistency is simplyevidence of the fact that the interpretation advanced by Mr Stevenson is available onthe terms of the statute, and that the Commissioner's interpretation is necessarily oneof practice, rather than law.[74] As to the arguments made by the parties regarding duty lawyers, the fact thatduty lawyers are enabled to support people to apply for legal aid does suggest thatsuch work is legal services. Nor can I see why the fact that a duty lawyer provides a29 Morgan v Superintendent, Rimutaka Prison [2005] NZSC 26, [2005] 3 NZLR 1 at [25] perElias CJ and [103] per Tipping J.'specified legal service' makes any difference to that matter. Specified legal servicesmeans legal services specified by the Secretary under s 68(2)(b), and are simply legalservices to which sub-part 2 of pt 3 of the Act applies. That sub-part is directed toquality assurance and review of the providers of specified legal services. It appears tohave no bearing on whether administrative work can be considered to fall within thedefinition of legal services. I note also that sub-part applies equally to "every providerof legal aid services".30 As such, legal aid services are also specified legal services.[75] I also consider that the fact that duty lawyers are providing legal services "inrelation to anything other than legal aid" is irrelevant. The distinction between (a) and(b) of the definition of legal services does not appear to me to exclude the serviceswhich Mr Stevenson alleges fall within (a). Those paragraphs effectively are:(a) 'legal services in relation to legal aid, means legal advice andrepresentation and includes assistance with the matters noted in(i)–(iv)'; and(b) 'legal services in relation to anything other than legal aid includes legaladvice and representation (including the kinds of assistance describedin subparagraphs (i) to (iv)), and the provision of legal information andlaw-related education.[76] The clearest reading of that distinction appears to me to be that the provisionof legal information and law-related education are not matters that a grant of legal aidis available for. Other than that factor, the distinction does not appear to be capable ofcarrying the meaning alleged by the Commissioner. I am not prepared to adopt theCommissioner's interpretation without a clear indication that it is appropriate. Thedistinction between (a) and (b) does not provide that indication.[77] Further, as submitted by Mr Cook, in relation to the criminal fixed feeschedules, it is clearly recorded that:30 Section 74(a).InvoicingReporting to Legal Aid and invoicing in line with fees under the applicableschedule are tasks deemed to be included in every fixed fee. Additionalpayment cannot be claimed for these tasks.[78] That goes to establishing that such work, being interactions with theCommissioner in the management of a grant of legal aid and submitting invoices, iswork that is properly included within the definition of legal services. That is becausepayment for such work is included within a fixed fee that a provider received inrelation to legal aid matters. Providers are already being paid for such work wherethey are provided with a fixed fee. It is also a factor that is recorded in similar termsin the fixed fee schedules relating to Family Court matters.[79] I am told that the Commissioner intends to review the schedules and removeadministration tasks. However, this inconsistency effectively places the Court in theposition where to adopt the Commissioner's interpretation would also require arecognition of the fact that the Commissioner has been applying her interpretation bothinconsistently, and unlawfully. I am instead drawn to the view that the appellant'sinterpretation is correct, and that further clarification is required from theCommissioner as to when administrative matters may be subject to a grant of legal aidas a matter of policy, rather than law.[80] The conclusions that I have reached in this case are based on the facts of thiscase. The case was clearly not typical of many criminal matters. That is particularlyso in relation to the quantity and quality of information that it was necessary forcounsel to provide to the Commissioner in relation to the application for amendmentof the grant and billing. That work involved could not realistically be described asjust involving "form filling". Obviously, in cases where the work concerned involvesnothing more than filling in a simple form or forms, there is a less compellingargument that the work falls within the definition of the provision of providing legalservices.Result[81] Accordingly, I am of the view that the Commissioner has made an error of law.I make a declaration that in the circumstances of this case, which involved work thatwas significant, complex and time-consuming, the administration of the legal aid grantby the preparation of the application for an amended grant, correspondence with theCommissioner in respect of same and the work related to invoicing that goes beyondform filling may amount to the provision of a legal aid service.[82] I decline to make a declaration that the administration hours sought are all theprovision of a legal service. It is for the Commissioner to consider that in light of thisjudgment. It is appropriate to remit the decision back to the Commissioner toreconsider in light of this judgment. If costs are sought, the parties may filememoranda in the usual way.Churchman JSolicitors:Tompkins Wake, Hamilton for RespondentCopy to:Pipitea Chambers, Wellington for AppellantCapital Chambers, Wellington for DLANZLambton Chambers, Wellington for NZBABlackstone Chambers, Auckland for ADLS