M S MANSELL V LEGAL SERVICES AGENCY CA CA167/03

M S MANSELL V LEGAL SERVICES AGENCY CA CA167/03 12 November 2004IN THE COURT OF APPEAL OF NEW ZEALAND CA167/03BETWEEN MAUREEN SHARON MANSELL Appellant AND LEGAL SERVICES AGENCY Respondent Hearing: 9 September 2004 Coram: Glazebrook J Chambers J O'Regan J Appearances: D J More and S Spaak for Appellant G D S Taylor and R M Taylor for Respondent Judgment: 12 November 2004JUDGMENT OF THE COURT DELIVERED BY O'REGAN J[1] The Legal Aid Review Panel ("LARP") on 10 September 2002 confirmed a decision of the Legal Services Agency ("the Agency") dated 9 August 2002 declining to grant the appellant civil legal aid in relation to proceedings brought by her in the Family Court. The reason legal aid was declined was that the appellant had not applied for it until after her proceedings in the Family Court had been finally disposed of. The appellant appealed to the High Court. Goddard J upheld the LARP's decision (Mansell v Legal Services Agency HC WN AP261/02 9 May 2003, reported at (2003) 5 Brookers Legal Services 675). [2] The appellant then sought leave to appeal to this Court against Goddard J's decision. The question of law on which the appeal was based was focussed on s 93 of the Legal Services Act 2000 (the Act), which had not been referred to by Goddard J in her substantive judgment. Goddard J granted leave on 1 August 2003.[3] The question of law which we must determine is as follows:By virtue of section 93 of the Legal Services Act 2000, the Legal Services Agency has: (a) All the rights, powers, and privileges of a natural person of full age and capacity; and (b) The power to do anything it is authorised to do by or under- (iii) any rule of law. Does this provision enable the Legal Services Agency to waive the time requirements of sections 12(c) and 24(1)(c) of the Legal Services Act 2000 pursuant to the rule of law that a person may waive a time requirement if it is a civil matter, a matter of practice and procedure, and entirely for the Agency's benefit, and no public interest is involved?Background[4] The proceedings concerned an application by the appellant for an order appointing her as her nephew's guardian. The appellant had had effective custody of her nephew since his mother's death in early 1997. The whereabouts of his father were unknown. The appellant's nephew required a passport urgently and the appellant was advised that she could not sign his application for a passport on his behalf as she was not his legal guardian. The appellant, a recipient of a domestic purposes benefit, consulted her solicitors on 23 July 2002 and completed and signed a legal aid application. Her solicitors faxed through a request for confirmation of her benefit income details to Work and Income New Zealand ("WINZ") the same day. We were told that the Agency requires that a confirmation of benefit income from WINZ be filed with an application for legal aid where the applicant is a beneficiary. [5] The Court proceedings were filed in the Family Court at Porirua on 25 July 2002, consisting of numerous documents relating to an application of custody. The appellant's solicitors expected that interim orders only would be made at first as it was usual for the Court to require a social welfare report before determining whether to grant the orders applied for by the appellant. Rather unexpectedly, however, final orders were made on the papers, without any such report, the following day, 26 July 2002.[6] Confirmation of the appellant's benefit income details was not received from WINZ until three days later, on 29 July 2002. On 1 August, the appellant's solicitor sent her legal aid application to the Agency with the WINZ confirmation. According to the Agency's records, it was received on 6 August 2002. The application for legal aid could not be made until the WINZ confirmation was available, but the appellant could have applied for interim legal aid without a confirmation of income from WINZ. This was not done, presumably because the appellant's solicitor did not anticipate the need for it. [7] On 9 August 2002, the Agency refused to grant the appellant legal aid on the basis that to do so would be contrary to s 12(c) of the Act, which requires applications for legal aid to be made prior to the conclusion of proceedings. In this case, the Agency noted, matters were finalised on 26 July 2002 and the appellant's application was not received until 6 August 2002. [8] The appellant applied to LARP for a review of the Agency's decision on the grounds that it was manifestly unreasonable. LARP dismissed the appellant's application also on the basis that s 12(c) prevented the Agency from granting legal aid to the appellant. In terms of the allegation of unreasonableness, LARP stated that it was essential to the workings of the legal aid regime that there is some fixed time limit by which applications for aid have to be made.Legal Services Act 2000[9] The purpose of the Act is stated in s 3 of the Act. Section 3(a) provides:3 Purpose of ActThe purpose of this Act is to promote access to justice by – (a) providing a legal aid scheme that assists people who have insufficient means to pay for legal services to nonetheless have access to them.[10] The critical provision in this case is s 12(c) of the Act which provides as follows:12 Application for grant of legal aidAn application for a grant of legal aid – (c) may be made at any time before the matter to which the application relates is finally disposed of by a court or tribunal.[11] Counsel for the appellant argued in the High Court that the permissive "may" at the beginning of s 12(c) meant that the following timeframe of "at any time before the matteris finally disposed of" was merely directory rather than mandatory in nature. Thus, the appellant submitted, s 12(c) of the Act leaves the Agency with a discretion whether to accept a late application for aid. He said the same arguments could be made in the context of s 24(1)(c) of the Act, which imposes a similar requirement in relation to applications for amendment of a grant of legal aid. [12] Goddard J held the Agency has no jurisdiction to entertain an application that is not made within the timeframe clearly specified in the section. Although the word "may" is used permissively in s 12(c), Goddard J was of the view that its permissiveness related only to the entitlement of a person to make application for a grant of legal aid, if he or she so wished. She said its permissiveness did not extend to enabling such a person to apply at any time whatsoever, including after the final disposal of the proceedings to which the application relates. The Judge noted this conclusion was consistent with the legislative history of the section and supported also by good and obvious policy reasons.Submissions for the appellant[13] The appellant's major point in the High Court, namely that the wording of ss 12(c) and 24(1)(c) conferred a discretion on the Agency, was not pursued in this Court. Thus, the appellant accepted that s 12(c) imposed a time limitation on the filing of applications for legal aid. In this Court, the appellant contended that the Agency has the power to waive this time limitation, by virtue of s 93 of the Act. Section 93 gives the Agency all the rights, powers and privileges, of a natural person of full age and capacity.[14] Counsel for the appellant, Mr More submitted that, in civil proceedings, a natural person of full age and capacity has the power to waive a time requirement if it is: (a) A matter of practice and procedure; and (b) Entirely for that person's benefit; and (c) No public interest is involved. [15] In relation to the first requirement, Mr More submitted that the time requirement in s 12(c) is a matter of practice and procedure. He said the provision is headed "Application and grant" and is embedded among sections dealing with the process of applying for, and the granting of, aid. He said that, if s 12(c) purported to limit the jurisdiction of the Agency rather than simply regulate the procedure for applying for aid, the section would make express reference to the Agency and its limitations. [16] As to the second requirement, Mr More submitted that the legal duties imposed on applicants by s 12 of the Act are entirely for the Agency's benefit. The section benefits the Agency by advising it of the conditions under which applications will be made for legal aid. [17] Mr More submitted the third requirement refers to adverse public interest. As to whether the waiver is adverse to the public interest in a general sense, Mr More submitted that there is no increased demand on the public purse as it is already set to provide for litigants who but for the lateness of their application, would qualify for legal aid. Nor is there adverse public interest in allowing the application for waiver in the appellant's case, as the Agency would give consideration to the public interest in determining whether to waive the time requirement. [18] Mr More submitted that discretion to waive the time requirement is not prohibited by s 93, nor is it contrary to the functions of the Agency as set out in s 92. One of those functions is to administer the legal aid scheme in accordance with thepurpose of the Act, (i.e. to promote access to justice by assisting people with insufficient means to pay for legal services), and the discretion is, the appellant submitted, consistent with that purpose. Leaving the appellant personally liable to meet her solicitor's account is contrary to that purpose, as is dissuading legal aid practitioners from acting for clients such as the appellant because of the inflexibility of such rules. [19] Mr More said that the Agency ought to be given the power to avoid an injustice in an appropriate case. He referred to several "hard luck" cases similar to the appellant's where legal aid has been refused on the basis of minor departures from the legal aid procedure as laid down by the Act.Submissions for the respondent[20] On behalf of the respondent, Mr Taylor submitted that a statutory authority cannot waive compliance with a statutory provision that allows no discretion to do so. Were it otherwise, the statutory authority would be either itself breaching or allowing others to breach the statute. Thus, the appellant's argument that the Agency can waive the time requirement in s 12(c) is illogical in light of the concession that s 12(c) has made that time requirement mandatory. [21] Further, Mr Taylor submitted that it has been the uniform view of the Courts and legal aid review authorities that there is no jurisdiction to consider an application for legal aid made after the final judgment in the proceeding to which it related. The first case referred to by Mr Taylor was Re Thompson [1980] 1 NZLR 669, decided under the Legal Aid Act 1969. The 1969 Act did not have a s 12(c) equivalent, but referred in s 15(1) to legal aid being available in respect of particular "proceedings". Quilliam J held that "proceedings" was intended to apply only to present or future proceedings, and that it was inconsistent with the whole scheme of the Act to grant legal aid in respect of proceedings that had been completed. [22] The same issue came before Heron J in Re Ramsay [1992] NZAR 351 and Wild J in Whitby v Wairarapa District Legal Services Sub-Committee HC WN AP283/99 7 October 2002, this time under the Legal Services Act 1991. Both Judgesfound that s 22(1) of the 1991 Act, the equivalent to s 12(c) of the 2000 Act and phrased materially identically, meant that all applications for legal aid must be made before the conclusion of proceedings to which they relate. [23] Mr Taylor also cited McCready v Legal Services Agency HC WN AP 87/02 2 October 2002, decided under the 2000 Act, where it was held that there was no material difference between s 22(1) of the 1991 Act and s 12(c) of the 2000 Act and that, again, applications for legal aid must be made before the conclusion of proceedings. [24] Mr Taylor surveyed the decisions of the Legal Aid Review Authority (under the 1991 Act) and LARP (under the 2000 Act). He said almost all of the decisions were straightforward applications of the proposition that an agency has no jurisdiction to entertain a late application. He acknowledged, however, two LARP decisions that have held that the uniform position in respect of late applications is wrong, and three that have suggested a discretion exists under s 12(c). [25] In any event, Mr Taylor submitted that Parliament can properly be taken to have affirmed the preceding and uniform interpretation of the analogous section in the 1991 Act, otherwise it would have inserted in the 2000 Act a standard proviso about extending time. The question of late actions was before the drafters of the 2000 Act, as is evidenced by s 55(2) of the Act, relating to review of Agency decisions, and thus the absence of such a provision in relation to s 12(c) must be viewed as deliberate. The fact the provision relating to amendment to total remuneration in the 1991 Act, (s 36(1) - which had allowed applications for an increase to be filed "at any time") was changed to bring it into line with s 12(c), (in s 24(1)(c)of the 2000 Act) illustrated that the latter section was to have the effect of excluding late applications. [26] Mr Taylor submitted that s 93 did not set the Agency free from the provisions of the 2000 Act. Although the Court found in New Zealand Kiwifruit Marketing Board v Beaumont [1997] 3 NZLR 516 that a provision similar to s 93(1) gave the Marketing Board powers of a natural person, such powers do not extend to doing anything that is contrary to the general law or a legislative provision governing theagency. Thus, s 93 cannot authorise waiver as it would be contrary to s 12(c). He said the question of whether s 12(c) is jurisdictional or procedural is irrelevant, so long as s 12(c) does not contain a discretion to waive the time requirement. [27] Mr Taylor also made comprehensive submissions to the effect that waiver of the statutory time limit could not be fairly compared to the waiver by a civil litigant of a time requirement in civil proceedings. In view of our conclusion on the interpretation of s 93, it is not necessary for us to deal with those arguments.Decision[28] We have no doubt that s 12(c) of the Act prohibits the Agency from considering an application for legal aid made after the final judgment in the proceeding to which it relates. Mr More properly conceded that that was the case. That the analogous provisions in earlier Acts excluded such jurisdiction was made clear by Quilliam J and Heron J in the cases of Thompson and Ramsay. In enacting s 12(c) of the Legal Services Act, it was obviously Parliament's intention to preserve this position. In that respect we agree with the analysis of Wild J in McCready and Goddard J in the present case. As Goddard J said, the use of the term "may" in s 12(c) does not assist the appellant: it merely allows for applications to be made within the permitted time frame – it does not provide for the possibility that applications will be made outside that time frame. [29] We accept the force of the respondent's argument in relation to s 24(1)(c) of the Act. Under the 1991 Act, applications for amendments to grants of legal aid could be made "at any time". Parliament considered that unsatisfactory; that is obvious from s 24(1)(c), which now requires applications for amendment to grants of aid to be made "at any time before the matter to which the application or grant relates is finally disposed of by the relevant body". That phraseology is identical in material terms to the phraseology in s 12(c). It reinforces the view that Parliament was concerned that all applications, whether original or seeking amendment, should be made before the proceedings to which the application or grant relates is finally disposed of. This deliberate change to the amendment regime is quite inconsistent with Mr More's s 93 argument.[30] Like Goddard J, we see s 93 as something of a red herring in this situation. Mr More made much of the fact that it gave the Agency the powers of a natural person, but that has no impact on the clear wording of s 12(c) which requires applications to be made before proceedings are finally disposed of. A natural person does not have the power to waive a statutory requirement binding on him or her: the conferring on the Agency of the powers of a natural person cannot create a power to grant legal aid where no application has been made in accordance with the legislative requirements. The Agency's power to grant legal aid is not engaged until it has received an application in accordance with the Act. As it did not receive such an application in this case, it cannot grant legal aid to the appellant. [31] We express no view on Mr More's proposition of law as set out in the question of law posed and again in para [14] of this judgment, as it is unnecessary to do so. We would observe however, that, even if the proposition of law is accurate, this case would not come within it. The time limit in s 12(c) is not "entirely for the Agency's benefit". The time limit is also for the benefit of the other party or parties to the proceedings to which the prospective grant of aid relates. The other parties have an interest because of the effect of a grant of aid on the costs to which they may be entitled: s 40 of the Act. We do not accept that it is correct to say that "no public interest is involved" in the decision whether to accept late applications. [32] Accordingly, we dismiss the appeal. We answer the question of law set out in para [3] as follows: "No". We express no view as to whether there is such a "rule of law" as set out in the question. [33] We make no award of costs. [34] We should record that we reach this conclusion with some regret. The appellant's solicitor's conduct of the proceedings was prompt and responsive to the appellant's immediate needs. There was no reason to believe that the Family Court would resolve the matter so quickly: the need for an interim application would not have been anticipated. The application for legal aid was made promptly after the WINZ confirmation was received. It is unfortunate that, because of the strict rule relating to filing of applications for legal aid, the appellant will have to pay legal fees(or her solicitor will remain unpaid) when the appellant was otherwise eligible for legal aid.Solicitors: Wellington Family Law Centre, Wellington for Appellant Bartlett Partners, Wellington for Respondent