GIBSON V LEGAL SERVICES AGENCY HC AK CIV 2006-404-5229

GIBSON V LEGAL SERVICES AGENCY HC AK CIV 2006-404-5229 6 December 2006IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY CIV 2006-404-5229UNDER the Legal Services Act 2000 BETWEEN NEVILLE JAMES GIBSON Appellant AND LEGAL SERVICES AGENCY Respondent Appearances: N J Gibson appellant in person G D S Taylor for the respondent Judgment: 6 December 2006ORAL CONSENT JUDGMENT OF PRIESTLEY JCounsel: G D S Taylor, Bartlett Partners, P O Box 10852, Wellington. E-mail: info@btlaw.co.nz Copy to: N J Gibson, C/- Ocean Reef Trust, P O Box 11679, Ellerslie, Auckland. Email: nig8@hotmail.com[1] In terms of directions made by Lang J on 26 October I was required to determine first whether this Court has any jurisdiction to entertain an appeal purportedly under s59 of the Legal Services Act 2000. The second issue before me was an application by the appellant seeking orders to restrain the convenor of the Legal Aid Review Panel. [2] The appellant who is currently representing himself has been obliged to file a number of memoranda and affidavits. He has appeared today and has adopted a realistic and co-operative stance. So too has Mr Taylor appearing for the respondent. [3] A jurisdictional point was raised by counsel on 16 November. Mr Taylor filed brief submissions on that date pointing out that the statutory power contained in s58 whereby the Panel can direct the Agency to review a decision is not, as a matter of statutory interpretation, a "determination" which would permit an appeal to this Court under s59 on a question of law. [4] As is apparent from the materials before me, the Panel, in its decision directing reconsideration delivered on 31 July 2006, made a number of findings to the effect that the Agency's decision was manifestly unreasonable and wrong in law. [5] Clearly when one looks at the provisions of Part 3 of the Act, the s58 power is designed to ensure that the supervisory role of the Panel can in suitable cases be deployed to require an Agency to reconsider grants or declines of legal aid appropriately. This is what has happened here. [6] I understand that the Agency has reconsidered the issue but has maintained, albeit by a somewhat different route, its original decision. However, the Review Panel has yet to determine its approach to the Agency's reconsideration. [7] The jurisdictional point to which I have referred was first raised, not by the respondent but by memorandum filed in this Court dated 29 September 2006 from Mr D J Maze, the Panel's convenor. That short memorandum stresses, with reference to ss58 and 59, that a direction to reconsider is not a "determination" on which s59 would bite.[8] Mr Gibson needed some time to seek pro bono advice on the point. For that reason it would seem that after the short hearing before Lang J on 26 October, he was under the impression that if Mr Maze's point was valid the best course of action would be for him to seek a stay of the current appeal pending the Panel's second determination. [9] Mr Gibson now accepts that if, as I consider to be correct, a decision by the Panel under s58 to reconsider is not a determination to which s59 applies, this Court has no jurisdiction at all to exercise its s59 powers. There is thus nothing in respect of which a stay can operate. [10] Mr Gibson has confirmed that the related application to restrain the Panel serves no useful function if his appeal is no longer afoot. Thus the appellant seeks leave both to abandon his appeal and discontinue the application to restrain. Leave is granted. [11] That leaves the issue of costs. Mr Taylor has filed a memorandum on costs and points out that a strict application of rule 48B would entitle the respondent to 2B costs on various relevant items totalling 1.2 day, plus disbursements which in this case appear to be limited to the filing fee for the strike out application of $200. [12] I have, of course, a broad discretion under ss 46 and 48D(f). In my view the unusual situation created by Mr Maze filing the memorandum required both sides to consider a jurisdictional issue which, as Mr Taylor accepts, had hitherto not been examined. The respondent with the benefit of legal advice was able to assess and act with greater speed than the appellant. I have floated some figures before the parties and, in the absence of any objection, award costs to the respondent in respect of both matters in the global sum of $500 plus disbursements of $200. Priestley J