REZNIKOVA V LEGAL SERVICES AGENCY HC AK CIV-2009-404-007591

REZNIKOVA V LEGAL SERVICES AGENCY HC AK CIV-2009-404-007591 29 June 2010IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY CIV-2009-404-007591UNDER the Legal Services Act 2000 IN THE MATTER OF an appeal against the decision of the Aid Review Panel BETWEEN OLENA REZNIKOVA Appellant AND LEGAL SERVICES AGENCY Respondent Hearing: 15 April 2010 Appearances: E Orlov for the Appellant G Taylor for the Respondent Judgment: 29 June 2010RESERVED JUDGMENT OF ELLIS JThis judgment was delivered by me on 29 June 2010 at 11am, pursuant to r 11.5 of the High Court Rules Registrar/Deputy Registrar Solicitors: A McClymont, PO Box 8272, Auckland 1150 Bartlett Partners, PO Box 10-852, Wellington 6143 Counsel: E Orlov, PO Box 8333, Auckland 1150 G Taylor, PO Box 5294, Wellington 6145[1] This is an appeal by Ms Reznikova under s 59 of the Legal Services Act 2000 against a decision of the Legal Aid Review Panel (LARP) dated 20 October 2009. In that decision LARP had declined to review a decision by the Legal Services Agency (LSA) dated 31 July 2009 in which the LSA had declined to reconsider its earlier decision declining Ms Reznikova legal aid. The legal aid sought by her related to what was then an upcoming appeal in a Family Court matter related to the care and custody of her son (Leon). [2] Applications for reconsideration are made pursuant to s 29 of the Act. The notice of the LSA decision declining to reconsider Ms Reznikova's application advised her of her right to apply to LARP for a review of that decision. Section 54 sets out the types of LSA decisions that are reviewable by LARP and provides that the only grounds for review are that the decision concerned is : a) Manifestly unreasonable; or b) Wrong in law. [3] In turn, s 59 provides that a LARP review decision may be appealed to this Court on a question of law.Jurisdictional issue[4] It is relevant to note at this point that the LSA contended that this Court had no jurisdiction to hear Ms Reznikova's appeal. That was said to be because (notwithstanding the advice given to Ms Reznikova on the LSA form) there was no underlying right of review to LARP from the 31 July LSA decision. Mr Taylor submitted that a refusal to reconsider an application for legal aid was not a decision that was included in s 54(2). Reliance was placed in this regard on the decision of Ronald Young J in Legal Services Agency v Pickard HC AucklandCIV-2009-404-1230, 3 July 2009 at [15] and [37].[5] As I have said, s 54(2) sets out an exclusive list of the decisions that may be reviewed by LARP. Of relevance here is s 542(a) which effectively provides that a decision that affects the applicant for review and "relates" to "an application for Legal Aid" is included in that list. [6] For myself, I find it difficult to see how a decision not to reconsider a decision declining an application for Legal Aid is not a decision that "relates to" an application for Legal Aid. A narrower interpretation could lead to injustice. In particular, s 55 provides that an application for review must be made within 20 working days after the date on which notification of the relevant decision is given to the applicant, unless the Convenor allows otherwise. If an applicant for Legal Aid chooses to apply for reconsideration of a LSA decision before applying for a review under s 54 (which appears commonly to be the approach), the operation of s 55 would almost certainly mean that the applicant would then be out of time for applying for a review of the original decision in the event that the LSA refused to reconsider. [7] That would certainly have been the position in the present case, in relation to an earlier application by Ms Reznikova where: a) The LSA gave its decision on 25 June 2008; and b) A reconsideration decision was given on 15 August 2008, after more than 20 working days had elapsed. [8] On the LSA's analysis she would thus have been unable to apply for review of the 25 June decision without the Convenor's consent. Such an outcome would appear to me to undermine the dual, complementary, statutory rights of reconsideration and review. [9] Nor do I read the decision in Pickard as supporting the LSA's position in this respect. Ronald Young J's comments were made in the context of an appeal from a Review Panel decision in favour of the applicants for aid in relation to an LSA decision to withdraw legal aid under s 27(2). The relevant ground of appeal was thatinadequate notice had been given by the LSA of the withdrawal decision. Ronald Young J said that only the Agency's decision to withdraw aid could be reviewed under s 54(2)(f). He said that the contention that the Agency had failed to give the applicants reasonable notice could not constitute an allegation that the withdrawal decision was manifestly unreasonable or wrong in law. Neither a decision made under s 29 nor the ambit of s 54(2)(a) were in issue. [10] It follows that I do not accept the LSA's jurisdictional argument. I consider that LARP did have jurisdiction to determine Ms Reznikova's application for review, although the onus would then be on Ms Reznikova to identify some aspect of the LSA's refusal to reconsider that was manifestly unreasonable or wrong in law. As my later analysis shows, that is necessarily difficult to do in a case such as the present where reliance was placed by both the LSA and LARP on s 29(3). [11] It follows that I also consider that this Court has jurisdiction to hear an appeal from the LARP decision, provided that the appeal is founded on an alleged error of law, as required by s 59.Background to the appeal[12] It is important to place Ms Reznikova's appeal in context. For that reason I begin by outlining something more of the background leading up to the impugned LARP decision. [13] The Family Court proceedings that have been appealed by Ms Reznikova concerned an application by the Ministry of Social Development (MSD) for a declaration that Ms Reznikova's son Leon was in need of care and protection. Ms Reznikova strongly opposed the making of such a declaration, while Leon's father, Mr Copeland, agreed that a declaration should be made. Counsel for Leon urged the Court to consider alternatives to making the declaration. The hearing before the Family Court Judge lasted some eight weeks. It resulted in a decision of Judge Annis Sommerville dated 2 March 2008 in which she granted the declaration sought by MSD. Judge Sommerville's careful and thorough judgment is some 189 paragraphs long, over half of which are dedicated to findings of fact.[14] Both Ms Reznikova and Mr Copeland were legally aided for the purposes of the Family Court hearing. [15] On 28 May 2008 Mr Orlov filed a notice of appeal in which he advanced 54 separate grounds or sub-grounds of appeal relating to a considerable range of procedural, factual, evidentiary and legal matters in respect of which the Family Court judgment was said to be in error. [16] On the same day he applied on Ms Reznikova's behalf for legal aid in relation to the appeal. In the letter of application Mr Orlov summarised the principal matters relied upon in the appeal. In accordance with normal practice, the application for aid was referred to a specialist adviser to the LSA. [17] The report that accompanied the referral recommended that legal aid for the appeal be denied, principally on the grounds that s 9(4)(e) of the Act imposed a higher threshold for granting aid for an appeal which he considered was not been met in Ms Reznikova's case. In essence, the adviser considered that the prospects of success on appeal were low. However, he also referred to the history of the matter and related judicial review proceedings noting that $265,000 had been paid out to date to Ms Reznikova and Mr Copeland in relation to the proceedings. [18] The subsequent report by the specialist adviser was thorough and fair in terms of its assessment both of the judgment under appeal and Mr Orlov's application for legal aid. However, like the referral itself it noted that the Act imposed a higher threshold for the grant of aid in relation to appeals required in terms of the merits. The report recommended that the application be declined and the LSA then made its decision on that basis. Ms Reznikova was advised that her decision had been declined on 25 June 2008. [19] Applications for both review (by LARP) and reconsideration (by the LSA) of that decision were then made on Ms Reznikova's behalf. Mr Orlov made further detailed submissions and urged the LSA to read the transcript of the (8 week) trial. Again the LSA referred the matter to a specialist adviser. In a thorough memorandum dated 11 August 2008 the adviser said (inter alia):I have reviewed the file in detail, which was quite an effort. It is not easy to follow Mr Orlov's reasoning. The Supreme Court decision doesn't help his client, the European decision doesn't help him, and I can't understand why he sent the Agency the copy of the address given in the Fiji Law Society. In essence, this was not a particularly difficult case, and it was nothing to do with human rights, and little to do with interpretation of the rights of children. It was a common type of application by Child Youth & Family to obtain a declaration that a child was in need of care and protection, that being a statutory first step to making plans for the child. There was ample evidence of harrowing difficulties in the child's life, and it appears that everyone in the child's life (including the Court appointed lawyer for the child) except the Applicant agreed that the declaration should be made. I have considered the analysis that Rogan Speirs did in her advice of 25 June 2008, and think that it is entirely correct. But I add some further broad comments. One is that the sole issue before the Court was whether a declaration ought to be made that the child was in need of care and protection in terms of the Act. On that sole issue, one parent agreed that the declaration should be made, and the other (the Applicant) had agreed but withdrew her consent. On that sole issue, a massive amount of evidence was heard. On that sole issue, Judge Somerville had to make a number of factual findings. She did this quite explicitly ie noting each issue that had to be determined, noting the evidence for consideration, and recording her decision. This is the very type of decision-making that a Court hearing an appeal is least likely to disturb. Moreover, Judge Somerville made the declaration on two separate grounds: under 14(1)(a) and (h) being (paraphrased) likelihood of harm or deprivation, and serious differences between parents. Interesting, Judge Somerville did not make the declaration on the ground under (b) that relates to development being impaired. That may have been a mistake in drafting the judgment, because at [150] she found that all grounds were established. Of course, only one ground has to be upheld for a declaration to be made. This makes the appeal very difficult, because to get a successful result, Mr Orlov has to eliminate or knock down all the grounds (either two or three). So in addition to the difficulty of overturning findings of fact generally, he has to do it two or even three times. I also note that Mr Orlov seems to have pitched a significant part of his client's case at the shortcomings of Child Youth & Family. However, whether or not that Agency has erred in the management of the file has little relevance as to whether the child is in need of care and protection.[20] At the conclusion of the memorandum, the Specialist Adviser said:It is impossible to see good grounds for an appeal. The application falls hopelessly short of the thresh-hold for granting aid.[21] In subsequently advising Mr Orlov that the application for review had been declined, however, reference was again made by the LSA to the higher threshold that was believed to be required in order to grant funding in relation to an appeal. [22] Ms Reznikova's application for review, however, was granted. LARP noted that the higher threshold applied by LSA in relation to appeals had (subsequent to the LSA's decision on Ms Reznikova's application) been rejected by Wylie J inLegal Services Agency v MA (2008) 19 PRNZ 1. On 22 October 2008 LARP accordingly ordered that LSA reconsider the application for aid on the grounds that its earlier decision had been premised on an incorrect understanding of the law. [23] On reconsidering the matter again the LSA accepted the correctness of the decision in Legal Services Agency v MA. However it recorded that, whatever threshold was applied, its earlier analysis showed that the appeal had no realistic prospect of success. That position is of course consistent with the Specialist Adviser's report of 11 August 2008 that I have referred to above. The application for aid was again denied. [24] A further application for reconsideration was made by Ms Reznikova on 9 July 2009. Again, Mr Orlov maintained that the LSA had failed properly to consider the transcript, the facts of the case and the grounds of appeal. On this occasion the Agency declined to reconsider the decision on the grounds that it had already reconsidered the matter. Section 29(3) provides that reconsideration may be declined on that basis. There is no dispute that the decision was made by someone "other than the person who made the original decision" as required by s 29(2). [25] Ms Reznikova then also sought review of that decision by LARP. That application for review was denied on 20 October 2009 and it is from that decision that Ms Reznikova now appeals.Grounds of appeal[26] Ten grounds of appeal are advanced on behalf of Ms Reznikova. In my view they can be grouped under the following three broad headings:a) That the LSA and/or LARP decisions are contrary to various human rights (NZBORA) and international instruments (ICCPR and UNCROC) related either to access to justice or the rights of children; b) That the merits of the appeal from the Family Court are irrelevant to the decisions; c) That there was insufficient consideration of the basis for the appeal from the Family Court and/or insufficient reasons for the LSA/LARP decisions given. [27] There is also a general (unparticularised) allegation of manifest unreasonableness.Discussion[28] It can shortly be noted at the outset that, to the extent that the grounds of appeal focus on the proposition either that the LSA/LARP decisions were wrong to focus on the merits of the appeal or that there is some overarching right to legal aid in relation to any proceedings that engage, or purport to engage, fundamental rights and freedoms, they are inconsistent with both the terms of the Act and with judicial authority and cannot succeed. By way of example only I refer to the decision of John Hansen J in Legal Services Agency v A (2003) 17 PRNZ 443 (HC) where he specifically held that the argument that (subject only to financial eligibility) legal aid must be granted to any person wishing to fight a decision by CYFS to remove a child, was wrong in law. As regards the relevance of the merits to legal aid decisions he said:Parliament, in the legislation, has laid down that there is power to refuse aid where the prospects of success are not sufficient to warrant a grant for the proceedings. That is what the [LSA] must do in its considerations.[29] I respectfully agree. [30] At a more general level, and as I have already indicated, it seems to me that the principal difficulty faced by Ms Reznikova is the narrow ground upon whichLARP (and the LSA before it) made the relevant decisions. As the background I have set out above makes clear the substantive decision declining aid was made earlier and is not the subject if this appeal. Nor is the rejection of the first application to reconsider. For the avoidance of doubt, however, I reiterate my view that those decisions were made only after careful and thorough consideration of Ms Reznikova's case, within the necessary limits on the task in which the Agency is engaged. I doubt, for example, that in coming to a view on the merits of an appeal such as this, the LSA should (for example) be required to wade through the transcript of an 8 week trial. The onus must surely be on an applicant for aid succinctly to articulate the critical points upon which the appeal is being advanced in order to enable the Agency to make a robust and realistic assessment of its prospects of success. [31] As I have said, however, it is not the substantive decision to refuse aid that is the subject of the present appeal. Rather, the decision specifically impugned is the second LARP decision declining to review the LSA's third refusal to reconsider, primarily on s 29(3) grounds, namely that reconsideration had already occurred (twice). When seen in that context the grounds of appeal that focus on the absence of detailed reasoning for the decision must in my view be rejected. It is, perhaps, notable that none of the grounds of appeal engage directly with the legal correctness of the s 29(3) position. [32] Section 29(3) makes it quite clear that the Agency is entitled to decline to reconsider if the Agency has already reconsidered the relevant decision. By definition such a decision to decline must be predicated on the LSA forming the view that there has in fact been a prior reconsideration - as there plainly had been here. [33] In most cases I would also expect that before relying on s 29(3) the LSA would turn its mind to whether there had been a material change in circumstances, or in the information before it, such that the matter should be looked at afresh. Again, however, it seems to me that that is what occurred here. The Specialist Adviser's recommendation dated 29 July 2009 made it clear that he did in fact consider whether Mr Orlov's 10 July letter raised matters warranting further consideration.He decided that it did not. That view is consistent with my own reading of that letter, which does little more than repeat or amplify the previous grounds advanced in favour of the grant of aid. [34] For all the above reasons I can see no basis upon which to hold that the LARP decision declining review of the LSA's refusal to reconsider was either wrong in law or in any way unreasonable, let alone manifestly so. The appeal is dismissed accordingly. [35] I record that the Agency does not claim costs and no orders are required in that respect. ______________________________ Rebecca Ellis J