FAWCETT v LEGAL SERVICES COMMISSIONER [2021] NZHC 1436

FAWCETT v LEGAL SERVICES COMMISSIONER [2021] NZHC 1436 [17 June 2021]IN THE HIGH COURT OF NEW ZEALANDWELLINGTON REGISTRYI TE KŌTI MATUA O AOTEAROATE WHANGANUI-A-TARA ROHECIV-2020-485-540[2021] NZHC 1436UNDER the Legal Services Act 2011IN THE MATTER of an appeal against the decision of the Legal Aid TribunalBETWEEN MAUHA HUATAHI FAWCETTAppellantAND LEGAL SERVICES COMMISSIONERRespondentHearing: 17 June 2021Appearances: C Stevenson for appellant L Hansen for respondent No appearance (excused) for Auckland District Law Society (Intervener) F Geringer for New Zealand Bar Association (Intervener) R Lithgow QC and A Jeremich for Defence Lawyers Association (Intervener)Judgment: 17 June 2021EX TEMPORE JUDGMENT OF ASSOCIATE JUDGE JOHNSTON[1] The Crown has charged the appellant, Mauha Fawcett, with murder. In fact, Mr Fawcett has already faced one trial at the conclusion of which he was convicted by a jury. He appealed against that conviction and his conviction was overturned by the Court of Appeal. He now faces a second trial. I am informed by counsel that the case is an especially complex one. As I understand it the Crown's case is founded in large measure on alleged confessions, and the core issue will be their reliability and probative value.[2] Under the Legal Service Act 2011 a grant of legal aid has been made to Mr Fawcett. He has applied for an extension of this grant. One arm of his application if for funding the cost — or more realistically a proportion of the cost — of legal aid administration.[3] That aspect of Mr Fawcett's application was declined by the Legal Services Commissioner in a determination dated 21 February 2020. Mr Fawcett appealed against that determination to the Legal Aid Tribunal. In a decision dated 12 August 2020 the Tribunal dismissed his appeal in relation to that aspect of the Commissioner's determination. By notice of appeal dated 4 September 2020, Mr Fawcett appeals to this Court against the Tribunal's decision.[4] Before the Court for determination today are applications by the Auckland District Law Society, the New Zealand Bar Association and the Defence Lawyers Association of New Zealand for leave to intervene in this appeal.[5] The three applications by the ADLS, the NZBA and the DLANZ are supported by helpful affidavit evidence and submissions from counsel for which the Court is grateful.[6] I mean no disrespect to counsel in saying that I propose to deal with the three applicants together, and relatively briefly.[7] The Court's power to permit non-parties to involve themselves in proceedings, participation in which would otherwise be limited to the parties, is an inherent one.[8] The overarching question is whether the interests of justice will be enhanced by the involvement of the applicant or applicants. The cases suggest that the first question is whether the Court is likely to be assisted by an applicant's participation. If so then the Court is likely to grant the applicant leave — though sometimes of a qualified or restricted nature — unless the potential assistance that the Court may derive is outweighed by any negative impact on the interests of justice (for example delay).[9] Beyond those relatively general issues the enquiry becomes very fact specific, and the influential factors differ from case to case.[10] Legal aid — most particularly criminal legal aid – is a fraught issue in many common law jurisdictions. New Zealand is no exception. There is a tension between the broadly accepted view that everyone facing criminal charges is entitled to assistance should he or she wish, and that impecuniosity should not stand in the way of an accused securing such assistance, and understandable concerns about the costs of a funded legal aid system.[11] Not everyone would say that we have the balance right in this country.[12] Against that background, in my view, the scope of the entitlements pursuant to the Legal Services Act, and the consequences for access to justice, are of the first importance. It appears to me that the Court would be greatly assisted by the contributions of the ADLS, the NZBA and the DLANZ, who, obviously, can bring broader perspectives to bear on the matter than the appellant himself who is necessarily — and quite properly — focussed on his own case. I note that the appellant would welcome the intervention of the three organisations. The Respondent, through Ms Hansen, adopts a strictly neutral position, abiding the Court's determination. Ms Hansen, in her submission, expressed the respondent's concern as to the scope of the case and I will return to that issue.[13] I have no hesitation in concluding that the ADLS, the NZBA and the DLANZ, should have leave to intervene and make submissions in this matter.[14] Whilst it is possible to see that the three interveners may be able to bring subtly different perspectives to the matter, it seems to me almost inevitable that they are likely to wish to cover much the same ground. The judge hearing the case will not be assisted by repetitious submissions from all three organisations.[15] All three organisations are represented by senior practitioners, and I would expect them to confer in order to ensure that they do not all cover the same ground unnecessarily thereby potentially increasing the costs of the appeal for the parties whoare directly affected. I will not direct that they all brief the same counsel, but the Court expects that they will at least consider that possibility.[16] This appeal is of course governed by r 20 of the High Court Rules 2016 and the sixth schedule to the Rules. It strikes me that the rules offer sufficient protection against the sort of concerns Ms Hansen articulated and to which I referred earlier.[17] Having discussed the future path of the appeal with counsel, by consent I direct the Registrar to liaise with counsel to arrange a first, and I would expect last, case management conference for this matter not before 29 July 2021. By that date I would expect all counsel to have conferred and filed a joint memorandum addressing all sixth schedule matters and any other pre-trial matters so that this appeal can be set down.[18] I make no order as to costs of this hearing.Associate Judge Johnston