GIBSON V LEGAL SERVICES AGENCY HC AK CIV 2007-404-999

GIBSON V LEGAL SERVICES AGENCY HC AK CIV 2007-404-999 17 July 2007IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY CIV 2007-404-999BETWEEN NEVILLE JAMES GIBSON Appellant AND LEGAL SERVICES AGENCY Respondent Hearing: 11 July 2007 Appearances: N J Gibson in Person R M Taylor for the respondent Judgment: 17 July 2007JUDGMENT OF POTTER J On appellant's application for further and better discovery and adducing further evidence on appealIn accordance with r 540(4) High Court Rules I direct the Registrar to endorse this judgment with a delivery time of 3 p.m. on 17 July 2007.Solicitors: Bartlett Partners, P.O. Box 10852, Wellington Copy to: R M Taylor, P.O. Box 52-924, Wellington N J Gibson, P.O. Box 11-679, Ellerslie, AucklandIntroduction[1] Neville James Gibson has appealed against a decision of the Legal Aid Review Panel ("LARP") 069/07 dated 2 February 2007 ("the decision") which upheld a decision of the Legal Services Agency ("LSA") to decline him legal aid. [2] The appeal is brought under s 59 of the Legal Services Act 2000 ("the Act") which provides for an appeal to the High Court from a determination of LARP on a question of law. The High Court Rules apply to any such appeal. [3] This judgment concerns the appellant's application filed 15 June 2007, for further and better discovery and to adduce further evidence on appeal ("the application"). [4] LSA has filed notices of opposition to the appeal and to the appellant's application.Submissions[5] Both parties filed submissions for the hearing of the application. Mr Gibson brought to the hearing supplementary submissions and a substantial affidavit sworn on the day of hearing, 11 July 2007. These were well outside the timetable orders made by Lang J on 29 May 2007 which required written submissions in support of the application to be filed and served no later than 27 June 2007. Neither the LSA nor the Court had the opportunity to consider these submissions and the new affidavit in advance of the hearing. However, Ms Taylor did not seek an adjournment and dealt as best she could with the new material in the course of the hearing. She observed in her submissions to the Court, however, that the submissions of the appellant were in many respects too general to permit a focused notice of opposition or submissions in reply.Issues[6] In the course of the hearing I was able to identify with Mr Gibson four issues arising from the application: a) Specialist legal adviser reports. (b) (i) Deletions from documents in LSA supplementary bundle. (ii) Incomplete documents. c) Missing documents. d) Application to call evidence from named employees of the LSA. [7] I shall refer to each of these issues in turn. (a) Specialist legal adviser reports[8] It is common ground that LARP did not have before it when it made the decision, specialist legal adviser reports ("the reports") obtained by LSA. Mr Gibson maintains that the reports are relevant and important because in reaching its decision to decline his application on 23 August 2006, LSA relied on previous decisions which in turn were informed by the reports. The LSA decision of 23 August 2006 was upheld by LARP, which is the decision under appeal. [9] In a supplementary bundle of documents filed on 12 June 2007, LSA has included the reports except for one identified by Mr Gibson dated 28 April 2005. Mr Gibson annexed this report to his supplementary affidavit dated 11 July 2007 as exhibit E. I granted him leave to file that affidavit to ensure this report is before the Court in relation to the appeal. [10] In addition, Ms Taylor agreed that LSA would check its records and if this report has not previously been provided, it would be filed as part of a furthersupplementary bundle of documents. Ms Taylor observed that while LSA's position is that there was no requirement for LSA to provide the reports to LARP, LSA has been co-operative in providing them as part of the supplementary bundle of documents, in light of the judgment of Wild J on 5 March 2007 in The Convenor, Legal Aid Review Panel v The Legal Services Agency & Amanda Elisabeth TurnbullHC WN CIV 2006-485-1877, which held that the Convenor of LARP was entitled to require LSA to provide copies of specialist advisers' reports. This judgment was issued just days after LARP's decision of 2 February 2007. [11] The above arrangements meet Mr Gibson's requirement to have the reports available to this Court on appeal. (b)(i) Deletions from documents in the supplementary bundle[12] In his affidavit in support of the application sworn 15 June 2007 at paragraph 15, Mr Gibson identified six documents being: 017, 019, 020, 023, 028 and 030 in the supplementary bundle of documents, which he said appeared to contain deletions. [13] In submissions, he clarified that documents 023, 028 and 030 appeared to contain deletions, while documents 017, 019 and 020 appeared to be incomplete. (The incomplete documents are referred to in the next section of this judgment). [14] LSA claims privilege in relation to the deleted portions of these documents. Mr Gibson maintains that the claim to privilege cannot be rightly made and referred to the judgment of Wild J as to the basis upon which LSA might properly claim privilege. [15] Following discussion, Ms Taylor agreed to further check and consider the documents in issue and file an affidavit on behalf of LSA which will identify any document in relation to which LSA continues to maintain privilege in respect of the deleted portion, having taken into account the observations of Wild J in the judgment above referred to. LSA is also to identify with reasonable particularity, the basis upon which privilege is maintained.[16] I will then consider how to progress this aspect. If necessary and appropriate, I will consider directing LSA to make any documents in contention available to the Court, so I may determine the validity of any claim for privilege. [17] If on further consideration LSA does not continue to maintain its claim to privilege then the relevant documents should be included in a further supplementary bundle in an unexpurgated form. (b)(ii) Incomplete documents[18] Mr Gibson considers that 017, 019 and 020 are incomplete. Ms Taylor believes they are complete in the form included in LSA's supplementary bundle of documents. She agreed, however, to check the Department's records and to confirm the situation in an affidavit to be filed. Should the documents be incomplete, they are to be included in complete form in a further supplementary bundle, unless LSA has proper grounds for withholding them. (c) Missing documents[19] Mr Gibson referred to: a) LSA's supplementary bundle page 1 where under the heading "Attachments", there is reference to several documents which are not attached to the document that starts at page 1, being a memorandum from Jane Wheeler to Peter Stipkovits. Ms Taylor agreed to try to trace these documents and include them in a further supplementary bundle to be filed by LSA. b) Exhibit P to Mr Gibson's supplementary affidavit sworn 11 July 2007 is a letter from LSA to LARP dated 1 February 2006 including LSA's submissions to LARP. At paragraph 16 LSA states that it has not seen Mr Gibson's affidavit of 18 November 2005. LSA submitted that LARP should not consider this document as it was not before LSA when the decision under review was taken. Mr Gibsonsubmitted that this affidavit should have been both before LSA and LARP. I grant leave for Mr Gibson to file an affidavit annexing this affidavit dated 18 November 2005. Ms Taylor confirmed that LSA did not oppose leave being granted. c) Mr Gibson also referred to paragraph 22 of exhibit P which refers to a document whose origin or authorship is unknown and to which LSA said it did not propose to respond. Mr Gibson said the document is a Peer Review of the judgment of Ronald Young J dated 24 August 2005 (which dismissed the applicant's claims), which he said he provided to LSA. LSA is to provide this document in a further supplementary bundle if it can be located. Alternatively, Mr Gibson has leave to file an affidavit exhibiting the document. [20] Mr Gibson is to file the further supplementary affidavit for which leave has been granted as above, by Wednesday 1 August 2007. (d) Application to call evidence from named employees of LSA[21] The application seeks:That the respondent be subject to an Order of Examination of certain personal (sic) and advisors.[22] At paragraph 3.6 of his submissions filed 28 June 2007, Mr Gibson names the employees of LSA the subject of his application as Ms Brigit Ridden, Ms Bernadette Doolan, Ms Anna Davison, Ms Jane Wheeler, Mr Patrick Dimock and Mr Zigler. He refers to the reasons for his application being set out in a second affidavit to be filed. At paragraph 2.11 of his supplementary affidavit dated 11 June 2007, Mr Gibson expresses the belief that Ms Ridden, Ms Doolan, Robyn Nicolas and Ms Wheeler - simply set about constructing grounds to decline my application for a grant of aid, instead of impartially and fairly considering the merits of my application for aid.Paragraph 2.11 then includes factors which Mr Gibson says support his belief.[23] In submissions Mr Gibson appeared to take issue with decisions concerning his application being made by "lay persons" in the employ of LSA. [24] In response, Ms Taylor referred to the narrow compass of r 716 of the High Court Rules and in particular r 716(3) which provides:The Court may grant leave only if there are special reasons for hearing the evidence, for example, if the evidence relates to matters that have arisen after the date of the decision appealed against and that are or may be relevant to the determination of the appeal.[25] She also referred to Schier v Removal Review Authority (1998) 12 PRNZ 477 (CA) for authority that where the appeal is on a question of law only (as it is in this case), there is no power under this rule to admit further evidence. The alleged error must be found in the reasoning of the authority based on the evidence before it. [26] The Court nevertheless in its inherent jurisdiction may receive further evidence in "exceptional circumstances": Terrace Tower (NZ) Pty Ltd v Queenstown Lakes District Council [2001] 2 NZLR 388. [27] I pointed out to Mr Gibson that an appeal on a point of law pursuant to s 56 of the Act does not allow his appeal to LARP to be re-litigated before this Court. The arguments which he seeks to mount under this heading are arguments that needed to be made to LARP. [28] Mr Gibson maintained that the arguments were before LARP and referred to his submissions to LARP which are exhibited to his supplementary affidavit dated 11 June 2007. His argument seemed to be that LARP did not accept his submissions on these matters and were wrong not to have done so. [29] The application to adduce further evidence on appeal does not get off the ground. The evidence is not fresh in terms of r 716(3). The arguments were before LARP which is where they had to be made. As stated in Schier, any alleged error of law must be found in the reasoning of LARP based on the evidence that was before it.[30] I indicated to Mr Gibson following oral submissions, that this application must fail. It is declined.Observation[31] In agreeing a way forward following discussion with Mr Gibson and counsel as set out above in relation to discovery matters, I note the response of LSA to Mr Gibson's application, is one of co-operation. LSA has attempted to make available the documents Mr Gibson has sought, to enable them to be before this Court in relation to the appeal. Mr Gibson has sought the documents, and LSA has provided them. I have not determined the relevance of any of the documents in issue, to the appeal. There should be no assumption that they are, or any of them is, directly relevant to the determination of this Court on appeal.