GIBSON V LEGAL SERVICES AGENCY HC AK CIV 2007-404-000999

GIBSON V LEGAL SERVICES AGENCY HC AK CIV 2007-404-000999 1 August 2008IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY CIV 2007-404-000999BETWEEN NEVILLE JAMES GIBSON Appellant AND LEGAL SERVICES AGENCY Respondent Hearing: 27 June 2008 Counsel: N J Gibson in Person R M Taylor for the respondent Judgment: 1 August 2008 at 3 p.m.JUDGMENT OF POTTER J On application for leave to appeal interlocutory judgmentIn 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 1 August 2008.Solicitors: Bartlett Partners, P.O. Box 10852, Wellington 6143 Copy to: R M Taylor, P.O. Box 5294, Lambton Quay, Wellington 6145 N J Gibson, P.O. Box 11-679, Ellerslie, Auckland 1542Introduction[1] Mr Gibson, the appellant, seeks leave to appeal to the Court of Appeal against an interlocutory judgment in the substantive appeal, comprised in my judgment dated 17 July 2007 and minute dated 10 August 2007 (together called "the interlocutory judgment"). [2] By amended notice for leave to appeal dated 13 March 2008, which was filed considerably out of time, Mr Gibson sought to enlarge the ambit of his application for leave to appeal. He subsequently confirmed that his application for leave was limited to his original application for leave which was filed in time. It relates to [2]b) of my minute of 10 August 2007 issued pursuant to [16] of my judgment of 17 July 2007. Thus, the sole aspect of the interlocutory judgment in respect of which leave to appeal is sought is the upholding of the claim to legal professional privilege of the Legal Services Agency ("LSA") in relation to document 023, paragraph 2 under Recommendation Reasoning. [3] The application for leave is opposed by LSA.The appeal[4] Mr Gibson's appeal is against the determination of the Legal Aid Review Panel ("LARP") 069/07 dated 2 February 2007 which upheld a decision of LSA dated 23 August 2006 declining Mr Gibson legal aid in relation to proceedings which ultimately resulted in a judgment of this Court on 24 August 2005: HC AK CIV 2002-404-1987, Ronald Young J. [5] Mr Gibson filed an application in the appeal for further and better discovery and to adduce further evidence on appeal. The interlocutory judgment relates to that application.Does this Court have jurisdiction to grant leave to appeal the interlocutory judgment?[6] Based on a consideration of ss 66 and 67 of the Judicature Act 1908 and the relevant provisions of the Legal Services Act 2000 and the Summary Proceedings Act 1957, LSA submitted that this Court does not have jurisdiction to grant leave to appeal to the Court of Appeal from an interlocutory decision in an appeal on a question of law under s 59 of the Legal Services Act. [7] In reply at the hearing on 27 June 2008, Mr Gibson placed reliance on the judgment of Williams J in Gibson v Complaints Assessment Committee HC AK CIV 2005-404-007353; CIV 2005-404-007355 17 April 2008, contending that jurisdiction does exist. I reserved leave for LSA to file further submissions in relation to this judgment, which it did on 14 July 2008. [8] Section 59 of the Legal Services Act under which Mr Gibson brings his appeal, provides a right of appeal to the High Court on a question of law for LSA or an applicant for legal aid, if either considers that LARP's determination is wrong in law. [9] Section 60 of the Legal Services Act provides for appeals to the Court of Appeal and Supreme Court:Appeals to Court of Appeal and Supreme CourtSections 144 to 144B of the Summary Proceedings Act 1957 (which provide for appeals to the Court of Appeal and Supreme Court) apply to determinations of the High Court on an appeal under section 59 of this Act as if they were determinations under section 107 of that Act.[10] Section 144 of the Summary Proceedings Act 1957 relevantly provides:Appeal to Court of Appeal(1) Either party may, with the leave of the High Court, appeal to the Court of Appeal against any determination of the High Court on a question of law arising in any general appeal (2) the High Court may grant leave accordingly if in the opinion of that Court the question of law involved in the appeal is one which,by reason of its general or public importance or for any other reason, ought to be submitted to the Court of Appeal for decision.[11] By section 144(3) a party who is refused leave by the High Court may apply for special leave to the Court of Appeal. [12] Section 107 of the Summary Proceedings Act which is invoked by s 60 of the Legal Services Act relevantly provides:Appeal on question of law only by way of case stated(1) Where any information or complaint has been determined by a District Court, either party may, if dissatisfied with the determination as being erroneous in point of law, appeal to the High Court by way of case stated for the opinion of that Court on a question of law only.[13] The question to be addressed therefore, is whether the interlocutory judgment is a "determination" of the High Court on a question of law arising in any general appeal in respect of which this Court may grant leave under s 60 of the Legal Services Act and s 144 of the Summary Proceedings Act. [14] "Determination" is not defined in either the Legal Services Act or the Summary Proceedings Act. However, assistance can be gained from the interpretation of that term where it is used in s 115 of the Summary Proceedings Act. Section 115 relevantly provides:Defendant's general right of appeal to High Court(1) Except as expressly provided by this Act or by any other enactment, where a District Court determines any information or complaint, and - (a) convicts any defendant; or (b) makes any order, including – (i) an order for payment for costs; or (ii) an order declining an application for the payment for such costs; or (iii) an order for the estreat of a bond, - the person convicted or against whom the order is made may appeal to the High Court.[15] In Black v Fulcher [1998] 1 NZLR 417 (CA) Cooke P concluded at 420 in relation to s 115:In the summary criminal jurisdiction, interlocutory general appeals are not provided for. As to points of law, similarly s 107 of the Summary Proceedings Act requires the determination of an information or complaint before an appeal lies.[16] Cooke P compared the situation in the summary jurisdiction with that under s 379A of the Crimes Act 1961 and with interlocutory appeals by leave from the District Courts in civil proceedings provided for by the District Courts Act 1947, s 71A(2) (since repealed), where in both situations there was express statutory provision for appeals by leave. [17] A Full Court of this Court in Nuplex Industries Limited v Auckland Regional Council [1999] 1 NZLR 181 at 185, agreed with the observations by Cooke P inBlack v Fulcher. The Court was not persuaded by an argument for the appellant that the slightly different phraseology in s 107(1) and s 115(1) meant the provisions carried different meanings. The Court held that the phrase "Where any information or complaint has been determined" in s 107(1) has the same meaning as the phrase "where on the determination of any information or complaint" in s 115(1). The Court considered the words to be plain on their face. [18] Thus, before leave may be granted by this Court under s 60 of the Legal Services Act and s 144 of the Summary Proceedings Act to appeal to the Court of Appeal, there must be a "determination" of this Court within the meaning of s 107 of the Summary Proceedings Act. On the basis of the above authorities that means a final determination by this Court of an appeal on a question of law from a determination of LARP pursuant to s 59 of the Legal Services Act. [19] I consider this interpretation is consistent with the scheme provided for appeals by the Legal Services Act. Under s 59 an applicant may appeal from a "determination" of LARP which is considered to be wrong in law, and under s 60 there is a right of appeal with leave, from a "determination" of the High Court on an appeal under s 59. A plain reading of these sections is that they afford successiverights from final determinations of respectively LARP and the High Court. They do not provide for, or contemplate, appeals from interlocutory decisions or rulings. [20] In Association of Dispensing Opticians of New Zealand Inc v Opticians Board [2000] 1 NZLR 158 the Court of Appeal made the general observation that whether decisions are appealable depends on context (refer discussion under that heading from [21]), and at [36] said that: the scheme and object of the relevant provisions and underlying policy and sound practice may be a helpful starting point.[21] The scheme and object of ss 59-61 of the Legal Services Act is to provide for appeals and references on a question of law from a specialist tribunal, LARP, to the High Court. LARP may review on the limited grounds stated in s 54, decisions of the LSA relating to the provision of legal aid in relation to civil proceedings, on the application of a legally aided person or an applicant for legal aid. Decisions of LARP must be conducted on the papers with all reasonable speed (s 56(5)). The scheme and object of the provisions, in my view points against appeals on interlocutory matters on an appeal to this Court from a determination of LARP. [22] I turn to consider the relevant provisions of the Judicature Act 1908. Sections 66 and 67 relevantly provide:66. Court may hear appeals from judgments and orders of the High CourtThe Court of Appeal shall have jurisdiction and power to hear and determine appeals from any judgment, decree, or order save as hereinafter mentioned, of the High Court, subject to the provisions of this Act and to such rules and orders for regulating the terms and conditions on which such appeals shall be allowed as may be made pursuant to this Act. 67. Appeals against decision of High Court on appeal(1) The decision of the High Court on appeal from an inferior court is final, unless a party, on application, obtains leave to appeal against that decision - (a) to the Court of Appeal; or (b) directly to the Supreme Court (in exceptional circumstances as provided for in section 14 of the Supreme Court Act 2003).[23] Section 67 mirrors in the case of appeals to this Court from the District Court, the right of appeal to the Court of Appeal provided by s 60 of the Legal Services Act in respect of determinations of this Court on appeal from LARP. LARP does not fall within the definition of an "inferior court" within the meaning of s 67: Waikato/Bay of Plenty District Law Society v Harris [2006] 3 NZLR 755. So s 67 does not apply to appeals from LARP and therefore does not apply to the appeal. In this case that is logical because of the mirror provision in s 60 of the Legal Services Act. [24] Section 66 is a general provision conferring jurisdiction on the Court of Appeal to hear and determine appeals from "any judgment, decree or order" of the High Court. No leave is required under s 66. [25] In a recent decision in The Friends of Pakiri Beach v McCallum Bros Ltd & Ors [2008] NZCA 87 the Court of Appeal referred to comments made in theDispensing Opticians case relating to ss 66 and 67 of the Judicature Act. The issue in The Friends of Pakiri Beach case was whether a judgment of this Court striking out certain grounds of appeal was a decision under s 299 of the Resource Management Act 1991. The Court of Appeal, reversing the judgment at first instance, held that it was and that therefore a right of appeal to the Court of Appeal was available subject to leave being granted, pursuant to s 308 of the Resource Management Act. The Court observed that it had not found helpful decisions trying to define "interlocutory decision" because the judgment in issue was a substantive determination. However, in the course of discussion the Court referred to observations of the Court of Appeal in the Dispensing Opticians case. [26] Chambers J observed at [30] that in relation to ss 66 and 67 of the Judicature Act, the Court of Appeal in Dispensing Opticians had: noted as an 'important feature' the anomaly created by any interpretation which permitted an appeal as of right from an interlocutory decision in a proceeding where the final determination could be appealed only with leave.Chambers J stated that the Court agreed with that observation, while noting that it was not directly applicable to the case before it.[27] In the Dispensing Opticians case the Court referred at [27] to Murphy v Murphy [1989] 1 NZLR 204 where the Court of Appeal held that a ruling declining an application to re-hear part of the evidence in the matrimonial property appeal was not a judgment, decree, or order within the meaning of s 66. The giving of the ruling was a step taken in the course of disposing of the appeal and lacked any determinative effect. The Court in Dispensing Opticians cited from the judgment inMurphy v Murphy at 206:It would be extraordinary if, while an appeal to this Court on the issues arising on the substantive appeal may be brought only with leave, an appeal on an incident of the hearing itself could be brought as of right. And it is not to be assumed that the legislature would ever have contemplated a sequence of appeals to this Court from a matter appealed from the District Court to the High Court. The better view is that any matters ancillary to the hearing of the appeal in the High Court and, whether dealt with in a separate ruling or on the determination of the appeal, may be taken into account on consideration of the application for leave to appeal under s 67 and are not subject to separate appeal to this Court.[28] Those observations are equally applicable when considering how s 60 of the Legal Services Act sits in relation to s 66 of the Judicature Act. The right of appeal provided by s 60 in relation to determinations of this Court on appeal from LARP mirrors that provided by s 67 of the Judicature Act in relation to appeals from the District Court. Since the final determination on appeal to this Court can only be appealed to the Court of Appeal with leave, it would be anomalous to interpret s 66 as conferring a right of appeal from an interlocutory decision without leave. [29] Finally I refer to the judgment of Williams J in Gibson v Complaints Assessment Committee relied on by Mr Gibson. This was a judgment in an appeal under s 64(1) of the Dental Act 1988 (since repealed). It concerned an application for leave to appeal against a judgment of this Court declining in part an application for leave to amend the notices of appeal. Williams J considered that s 64(7) of the Dental Act 1988, which provided a right of appeal to the Court of Appeal with the leave of the High Court: against any decision on a question of law of the High Court -questionably provided jurisdiction or that there was jurisdiction via s 66 of the Judicature Act. However, the Court determined that the appeals did not raisequestions of law or fact capable of bona fide and serious argument in a case of public or private importance such as to outweigh the cost and delay of the appeal, and on that basis leave was declined. [30] The application for leave in that case was brought under a different statutory provision and the judgment dealt with a specific application under that provision. It does not provide any assistance in relation to applications for leave to appeal under the provisions of the Legal Services Act which I have analysed above. [31] For the reasons set forth above I conclude that there is no jurisdiction for this Court to grant leave to appeal to the Court of Appeal from the interlocutory judgment in this proceeding.The merits[32] However, if I am wrong in my conclusion as to jurisdiction, Mr Gibson must still persuade this Court under s 144(2) of the Summary Proceedings Act that: the question of law involved in the appeal is one which, by reason of its general and public importance or for any other reason, ought to be submitted to the Court of Appeal for decision.[33] The requirement in s 144(2) reflects that in the authorities accepted by Mr Gibson in his submissions, Waller v Hider [1998] 1 NZLR 412 and the Dispensing Opticians case. In Waller v Hider the Court stated the test for leave under s 67 at 413:The appeal must raise some question of law or fact capable of bona fide and serious argument in a case involving some interest, public or private, of sufficient importance to outweigh the cost and delay of the further appeal.[34] Mr Gibson submitted that paragraph 2 of document 023 is substantially relevant to the shape of his appeal from the LARP determination upholding LSA's decision of 23 August 2006. He claimed the extract is material and fundamental to his appeal because it underpins LSA's decision to decline him legal aid.[35] He referred to the two grounds for review of a decision of LSA by LARP provided in s 54 of the Legal Services Act, namely that the decision is – a) manifestly unreasonable; or b) wrong in law. Mr Gibson's case is that the decision of LSA was manifestly unreasonable and he says that the full background to the LSA decision is therefore relevant and important. It is his particular contention that LARP was wrong in not finding LSA was wrong to rely to the extent it did, on the judgment of Ronald Young J referred to at [4] above. [36] He maintains that paragraph 2 of document 023 is not privileged and even if it were, privilege has been waived by the LSA because it has communicated the document not only to him, but to LARP. The latter point was raised by Mr Gibson only on the application for leave to appeal and was strenuously resisted by LSA. LSA maintains that the disclosure of the contested extract from document 023 was inadvertent in the course of meeting the requirements of Mr Gibson and LARP to provide all relevant documentation in an unedited form; in so doing, by an oversight, paragraph 2 in respect of which LSA claims privilege (which I upheld in the interlocutory judgment) was not protected; however, as soon as LSA became aware of the situation (which was following the hearing on 11 July 2007 at which Mr Gibson presented a substantial affidavit sworn on that day which included document 023), LSA confirmed its claim to privilege (affidavits of Rosaleen Mary Taylor sworn and filed 31 July and 22 August 2007). [37] Paragraph 2 of document 023 is included in a recommendation from Mr David Howden to the LSA on two specified issues. It provides an opinion as to the extent it is reasonable or appropriate for LSA to rely on the judgment of Ronald Young J when dealing with an earlier application for legal aid in relation to the proceeding which the judgment determined. Mr Howden states that his opinion differs in some respects from an opinion provided by Mr Graham Taylor.[38] In my view the short point is that Mr Howden's opinion and for that matter the opinion of Mr Taylor or anyone else, is irrelevant to the question this Court will have to determine on appeal, namely whether reliance by LSA on the judgment of Ronald Young J, to the extent that it did place reliance on that judgment, was wrong or unreasonable. Which opinion LSA accepted and whether it accepted either opinion, was entirely a matter for LSA and is not relevant to the Court's determination whether LSA was wrong or unreasonable to rely to the extent it did, on the judgment of Ronald Young J: St John of God Health & Elder Care Services Trust Board v Little Sisters of the Poor (NZ) Trust Board HC Napier CIV 2007-441- 628 5 March 2008, Williams J. [39] Accordingly, paragraph 2 of document 023, in respect of which I have upheld legal advice privilege is not relevant to the issues on appeal. [40] In so far as preparation of his case on appeal is concerned, Mr Gibson is fully aware of the contents of the privileged paragraph, it having been previously disclosed to him. [41] It follows that I do not need to determine whether LSA has waived its privilege in the document by disclosing it to LARP and to Mr Gibson, and I expressly do not. Even if privilege was waived, the document is irrelevant to the issues on appeal and there is no basis upon which it must or should be admitted as evidence on the appeal. [42] For these reasons Mr Gibson's appeal against the interlocutory judgment has no reasonable prospect of success. It involves no question of general or public importance. It does not meet the criteria for leave to be granted. Thus, even if there were jurisdiction to grant leave to appeal the interlocutory judgment, leave must be declined. [43] If following determination of the appeal by this Court Mr Gibson were to seek leave to appeal under s 60 of the Legal Services Act this is an ancillary matter which he may be able to persuade the Court, should be taken into account on anyapplication for leave to appeal (refer [27] Association of Dispensing Opticians of New Zealand Inc v Opticians Board, citing from Murphy v Murphy).Result[44] The application for leave to appeal is dismissed.Next step[45] All interlocutory matters having now been disposed of there will be the following timetable orders: a) The substantive appeal is set down for hearing on 13 November 2008(one day allocated); b) The appellant is to file written submissions not later than 9 October 2008; c) The respondent is to file written submissions not later than 30 October 2008.