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High Court of New Zealand Decisions |
Last Updated: 17 January 2011
IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY
CIV 2006 485 1877
UNDER Section 61 of the Legal Services Act 2000
IN THE MATTER OF a review by the Legal Aid Review Panel under Part 3 of the Legal Services Act 2000 of a decision of the Legal Services Agency
BETWEEN THE CONVENOR, LEGAL AID REVIEW PANEL
Applicant
AND THE LEGAL SERVICES AGENCY First Respondent
AND AMANDA ELISABETH TURNBULL Second Respondent
Hearing: 28 February 2007
Counsel: M T Scholtens QC and J S McHerron for the Applicant
G D S Taylor and R M Taylor for the First Respondent
Judgment: 5 March 2007
JUDGMENT OF WILD J
Introduction
[1] Is the Legal Aid Review Panel (LARP) entitled to reports to the Legal Services Agency (the Agency) by its Specialist Advisers? That is the issue on this case stated by the Convenor of the LARP, for this Court’s opinion, pursuant to s61 of the Legal Services Act 2000 (the 2000 Act).
[2] Answering the four questions suggested by Mr Taylor seems to me a sensible approach, and will answer the two questions stated for the Court’s opinion.
THE CONVENOR, LEGAL AID REVIEW PANEL V THE LEGAL SERVICES AGENCY AND ANOR HC WN CIV 2006 485 1877 5 March 2007
[3] But first I need to explain what this case is all about and set it in its statutory context, both past and present.
Background
[4] As from 1 March 2007, civil legal aid is available upon criteria set out in s9 of the 2000 Act. These limit legal aid to individuals or trustee corporations with disposable income and capital under a $2,000 threshold, and who have reasonable grounds for taking or defending the proceeding or being a party to it. Section 9(4) gives the Agency a discretion to refuse legal aid if the applicant’s prospects are insufficient, or the nature of the proceeding and the applicant’s interest in it are such that a grant of legal aid is not justified. Amendments which came into force on 1
March 2007 add specific mandatory criteria where legal aid is sought for a proceeding under family and mental health legislation.
[5] It is irrelevant now to trace past eligibility criteria, suffice it to say that they were generally less prescriptive.
[6] The coming into force of the 2000 Act removed legal aid decision-making from the legal profession and the Courts to the Agency. The new decision-makers were and are public servants, few if any legally qualified. They lack the legal knowledge, and the experience of legal practice, which the former decision-makers had.
[7] The Agency filled this gap in its institutional legal knowledge and experience by appointing Specialist Advisers. Three of these are internal Specialist Advisers (ISAs) on the Agency’s staff, and about 30 are external Specialist Advisers (ESAs), drawn from the practising legal profession throughout New Zealand.
[8] These ISAs and ESAs have no statutory recognition, but their role is outlined in Part 17 – Specialist Advisers, of the Agency’s Service Practice Manual. The Manual stipulates that Specialist Advisers must be barristers and solicitors holding a current practising certificate. The contract for services for Specialist Advisers sets out the intention of the contract thus:
1. INTENTION
1.1 The Agency is required to make decisions on granting legal aid, amending grants and payment of claims, and wishes to use the specialist skills of law practitioners to support decision making in areas where judgment must be applied.
............
[9] Clause 9 is a confidentiality provision stipulating that, subject to the Official Information and Privacy Acts, all information relating to or arising out of the Contract will be kept confidential. Specifically, Specialist Advisers are not to discuss that information with anyone other than Agency staff or another Specialist Adviser.
[10] Schedule 1 is the Service Description for the Specialist Adviser. It includes these provisions:
1. The service to be provided includes the provision of expert and timely advice on complex legal aid cases to the Agency’s Grants staff nationally and providing peer review, advice and support to the Agency’s internal Specialist Advisers on complex legal aid matters. Service provision will also include discussing recommendations with the Agency’s Grants staff and/or internal Specialist Advisers.
2. The Agency may refer any matters in relation to an application for legal aid, grant claim, reconsideration or review from the legal Aid Review panel to the Specialist Adviser. The Specialist Adviser may be asked to provide advice on:
a. Whether legal aid should be granted b. Whether a grant should be amended
c. Whether legal aid should be withdrawn
d. Any case that raises specific complexities or precedents not previously encountered
e. Aspects of the professional performance of the listed provider/s assigned to the case
f. The appropriateness of a claim, some of which may be examined.
3. The Specialist Adviser shall consider the referral and provide his or her recommendation to the Agency:
a) in the manner prescribed by the Agency
b) including the rationale for his or her recommendation in a manner that explains fully the reasoning to Agency’s Grants staff and/or Agency’s internal Specialist Advisers
c) within 5 working days of receipt of the referral, unless otherwise specified.
[11] The Agency’s staff who decide legal aid applications are called Grants Officers (GOs). As is apparent from the provisions set out in [10], GOs can resort to an ISA for advice and a recommendation in deciding a legal aid application. If the GO does not agree with the recommendation the GO can, through the ISA, seek advice from an ESA – essentially, a second opinion. In that event “the majority viewpoint will determine the decision”.
[12] Although the questions asked in this case have general application, the case is based on an application for civil legal aid by the second respondent, Ms T. The GO dealing with T’s application sought advice from an ISA on four successive occasions. I give two examples of the GO’s request for advice, and the ISA’s response.
Example 1
The request
A total of 16 hours has already been approved for CA matters, including 4 hours for short causes hearing.
By way of amendments dated 28/11/03, 31/5/04 and 22/6/04 a further 59.8 hours is sought to cover 3 further short causes hearing and a substantive hearing. The amounts sought is excessive even considering the fact that the LAP is respondent. I have today approved 16 hours (including hearing time) to cover the 3 short causes hearings (over amendment 28/11/03) and 9 hours plus AHT for the substantive hearing (over amendment 31/5/04). I am not prepared to grant further aid for another short causes hearing. This is becoming ridiculous. We need to bring about a resolution very soon. Why the need for so many short causes hearings with so little by way of outcome.
With the amendments approved (as indicated above) the total aid will now stand at 41 hours with the substantive hearing not yet held (Judges minute indicates September 2004).
Please review this file and advise if the amount granted is reasonable in the circumstances or whether the full hours sought reflects more accurately the actual work required to bring this case to conclusion in lite of LAP being the respondent.
As always your input is appreciated.
The advice
I cannot even begin to consider any of the amendments without being provided with (a) copies of all affidavits filed to date by both parties and witnesses, (b) copies of any submissions filed and (c) copies of all Judge’s minutes, decisions and directions. These should have been provided all along and we should not have to request them. It is also important to have an idea of where the Judge was going on this to see if that corresponds with the solicitor’s information which leads us to believe that this is all the other party’s fault.
In this case it would also be helpful to be provided with any reports filed by
C4C.
It appears that the solicitor is asking us to cover the same matters on more than one occasion. The initial grant was beyond the standard grant and should have covered the first short cause hearing without the need for an amendment. I would consider that the solicitor would not need full prep time for each short cause hearing.
I also note that in each account, it appears that each item of correspondence requires at least two units. That would be an unusual situation and may require a full file audit once the level of remuneration has been established prior to accounts being paid.
I also note that counsel is requesting 7 hours per day for the substantive hearing. Unless the Court hours are different in Dunedin, all courts sit from
10 to 1, then from 2.15 to 5. That totals 5 hours and 45 minutes per day.
Recommendation is: Additional information as outlined above is required in order to make an informed decision on the remuneration requested. In addition the solicitor needs to be questioned about the time requested for hearing and the amount of time for each item of correspondence.
Example 2
The request
This is now the 3rd submission filed to LARP. As discussed by phone, file as requested. Is a further submission by the Agency warranted in this case?
I have read much of the material on these three files in order to fully deal with your referral, as I have not previously been involved with the decision- making on the file.
In answer to the question in the referral I do not see much point in making a further response to LARP, as the amount that the other party has paid his lawyer is not relevant to the decisions made in relation to the legal aid grant. In any event, I note that it is Ms T’s position that all the relevant applications were made by Mr T and that she accordingly had to respond to the same. It would accordingly be reasonable that his total lawyer’s bill would be considerably higher than that for Ms T. Having said that, the fact that Mr T’s legal costs for the 2003/4 years apparently totalled $32,753.50, whereas Ms T’s maximum grant for the total period from December 2002 is $7,330, is of some note. Even allowing for the reactive role required of Ms T and the fact that (the provider) would have been charging her standard hourly rate, there is a considerable discrepancy.
Having carefully read the provider’s detailed explanatory letter of 11 March
2005 and her subsequent submission and enclosure of 23 May 2005, I am of
the view that the Agency has taken a too hard a line on this matter. Although I note the criticism by the previous specialist advisers of the excessive claims for correspondence and the criticism by various Judges as to the way that the proceedings have progressed, I believe that the explanation given in the 11 March letter has been given insufficient weight. An intercountry access/custody battle was always going to be a complex and expensive one, particularly when the Australian father was seeking to have his daughter stay with him for extended periods after a long gap in contact.
The original reconsideration related, I believe, to the application for amendment to grant dated 31 May 2004 and then the subsequent invoice dated 22 September 2004. The invoice was reduced to $7,981.50 but it was paid to the amount of $2325.30, leaving a balance of $5,656.20. Accepting that the position being taken by Ms T contributed to some extent to the adversarial way that these proceedings progressed, the proceedings were nevertheless resolved by way of a detailed consent memorandum that did allow for A to travel to and stay with her father in Australia. The agreement would not have been possible without the active involvement of (the provider).
For the above reasons, I would recommend that you consider reviewing the Agency’s previous decision and I would further recommend that an amendment to grant be now made that would enable an additional $4,500 to be paid in respect of the September invoice.
[13] Dissatisfied with the GO’s decisions on her application, Ms T applied to the LARP to review them. First the Convenor of the LARP, and then the review panel he had appointed, asked the Agency for copies of the ISAs’ advice/recommendations to the Agency. Both requests were declined, as was a further request by the Convenor. The reasons given (and I summarise here) were:
a) The ISAs’ advice to the Agency is protected by legal advice privilege: Counties Manukau District Health Board v Legal Services Agency HC AK CIV 2005 404 2989 Lang J (one of the rulings the Judge made during the hearing, which he refers to in [11]. The effect of these rulings and the Judge’s reasons for them are not part of the judgment).
b) Sections 56(3) and 109 of the 2000 Act do not override that privilege.
Express words in a statute or necessary implication is needed to override legal advice privilege: B v Auckland District Law Society [2004] 1 NZLR 326 (PC).
c) Only when the GO effectively “signs out” the Specialist Adviser’s decision without applying an independent mind, would the Specialist Adviser’s advice not be protected by legal advice privilege.
[14] The Agency’s thinking in refusing the LARP’s requests for the Specialist Adviser’s reports further emerges from the Agency’s letters to the Convenor. In a letter dated 27 June 2005 the Agency enclosed a “synopsis” of its internal communications (i.e. the GO’s request to the ISA for advice, and the ISA’s response) and then stated:
We are reluctant to disclose any further details of internal communications, as the interest of another party involved need to be protected.
[15] As to the Counties Manukau decision, the Agency advised in a 4 November
2005 letter to the Convenor:
The Agency has advised you of the decision of Lang J in Counties Manukau District health Board v Legal Services Agency and Ellis that specialist advisers’ advice on legal aid applications and grants is protected by legal professional privilege. This decision was made in the course of the hearing and so not expressly covered in the reasons for judgment.
[16] After requests to more senior people in the Agency for the Specialist Adviser’s reports were also declined, the Convenor resolved to seek this Court’s ruling on whether LARP is entitled to those reports. Thus this case stated.
[17] I have set out in [4] the current criteria for eligibility for civil legal aid.
[18] Criminal legal aid is available to people charged with an offence carrying a maximum penalty of 6 months imprisonment or more, who lack the means to obtain their own legal assistance. Section 8(2) of the Act contains further mandatory considerations, not presently relevant.
[19] Section 54 entitles a person dissatisfied with the Agency’s decision on a legal aid application to apply to the LARP for a review. The review application must be grounded on the Agency’s decision being manifestly unreasonable or wrong in law.
[20] In reviewing the Agency’s decisions the LARP forms a review team of one, two or three members including one lawyer: s55A(1)(b) and (2).
[21] LARP may determine a review “by confirming, modifying, or reversing the decision under review” (s57(2)) or, instead, may direct the Agency to reconsider all or part of the decision, and may set out the matters the Agency must take into account in its reconsideration: s58.
[22] The two sections empowering the LARP to obtain information for the purposes of its review are:
55A Powers and duties of Convenor of Review Panel on receipt of application for review
(1) On receipt of an application for review, the Convenor of the Review
Panel—
(a) may require the Agency or any person to provide any information relating to the decision or the application for review and;
.........
56 Review of decision by Review Panel
.........
(3) A team assigned to a review may require the Agency to provide either or both of the following:
(a) all information held by the Agency relating to the decision and to any reconsideration by the Agency of the decision:
..........
Question 1: Are Specialist Advisers acting in a solicitor/client relationship?
[23] I am content to answer this question yes, although I have reservations. In case those reservations should be relevant on any appeal, I outline them briefly. They emerge from what the Court of Appeal said in this passage in its judgment in Miller v CIR [1999] 1 NZLR 275 at 296-297:
After a review of the authorities Baragwanath J concluded that the position of a legal practitioner in New Zealand holding a current practising certificate but in the employment of a government department attracted all privileges and all obligations applicable to other practitioners “of whatever rank”. He thought it was inappropriate to draw distinctions between in-house counsel and those practising privately, “provided the former are in truth acting as lawyers and not in some other capacity”’; and that the proper approach was to require the in-house practitioner to demonstrate affirmatively that he or she had been acting as a lawyer and not simply as an employee possessing specialist skills. ...
The document with which the remaining privilege claim is concerned is a memorandum from Mr Clarke of 10 September 1990 which was discussed at a meeting of 27 September 1990. Mr Clarke was a solicitor in the Inland Revenue Department’s central regional office. After inspecting the document the Judge was of the view that it was to be characterised as prepared for the dominant purpose of giving legal advice rather than in performance of an executive function. He found that it was privileged. Having, like the Judge, inspected the document in question, we have no doubt that the Judge was right; it was simply a legal opinion.
(my emphasis)
[24] The words I have emphasised in bold can be compared with clause 1.1 of the
(external) Specialist Advisers’ Contract for Services:
1.1 The Agency ... wishes to use the specialist skills of law practitioners to support decision making in areas where judgment must be applied.
(again, my emphasis)
[25] Although Specialist Advisers must be qualified lawyers holding a current practising certificate, they are described in the Agency’s Service Practice Manual and in the Contract for Services attached to it as Specialist Advisers, not as lawyers. Given what the Court of Appeal said in Miller, the position description is significant.
[26] Further, I doubt that the advice of which I give two examples in [12] could or would ordinarily be described as legal advice. It is advice about the amount of time appropriate to the particular case. Certainly, it is advice which calls upon the Specialist Adviser’s legal knowledge and/or experience of the practice of the law, in terms of assessing how much time that type of case involves. But is that a call upon “the special professional knowledge and skills of a lawyer” (the words of Baroness Hale in Three Rivers District Council v Governor & Co. of the Bank of England (No.
5) [2005] 4 All ER 948 (HL)? I have some doubts.
[27] The final point is the inclusion of a confidentiality clause in the Specialist Advisers’ Contract for Services. It is otiose if the relationship is a solicitor-client one.
Question 2: Is the client the Agency?
[28] I agree with Mr Taylor that, assuming a solicitor-client relationship between the Agency and the Specialist Adviser, the answer can only be “yes”.
Question 3: Is the advice Specialist Advisers give the Agency within the scope of legal advice privilege?
[29] Both Ms Scholtens and Mr Taylor applied the two-stage test which I set out in Commerce Commission v Bay of Plenty Electricity Ltd [2006] NZHC 65; (2006) 18 PRNZ 191 (HC) at [16], based on the authorities I cited at [15]. I will deal with the two steps in turn.
Does the advice have a “relevant legal context”?
[30] Does the advice relate to the rights, liabilities, obligations or remedies of the client under either private or public law? If not, then legal advice privilege would not apply to any communications or documents in relation to that advice.
[31] In one sense, question 3 can be answered “yes”. The advice relates to the obligations of the Agency under the 2000 Act in respect of Ms T’s application for legal aid. That is, it relates to the Agency’s obligations to ensure that Ms T is granted legal aid if eligible, and in the proper amount(s).
[32] But I consider the advice is more accurately viewed as advice to the Agency about Ms T’s rights and entitlements under the 2000 Act. Is she eligible for legal aid? If yes, how much aid should be granted to her (or, strictly, to her solicitor or “provider”)? Viewed in this way, the advice does not relate “to the rights, liabilities, obligations or remedies of the client under either private or public law”.
Objectively assessed, is it reasonable to expect the privilege to apply?
[33] I set out again what I said in Commerce Commission v BoPE about this second stage of the test:
[17] The second step – an objective assessment of the reasonableness of the client wishing “to consult the special professional knowledge and skills of a lawyer” (the words of Baroness Hale cited in the passage which follows)
– must be made with the rationale for legal advice privilege firmly in mind. The rationale is elaborately detailed in the judgments in Three Rivers (No 5). In short, it is the public interest in people being able to consult their lawyers in confidence, knowing that confidence will be respected. Otherwise they “might hold back half the truth” (Lord Taylor CJ’s words in R v Derby Magistrates Court, ex p B [1995] UKHL 18; [1996] AC 487; [1995] 4 All ER 526 at p 507; p
540 cited by Lord Scott in Three Rivers (No 5) at para 29), or not communicate with the “requisite candour” (Lord Scott at para 34).
[18] For an explanation of the reason for legal advice privilege, and thus what is meant by a “relevant legal context”, both parties fastened upon this passage in the judgment of Baroness Hale in Three Rivers (No 5):
There will always be borderline cases in which it is difficult to decide whether there is or is not a ‘legal’ context. But much will depend upon whether it is one in which it is reasonable for the client to consult the special professional knowledge and skills of a lawyer, so that the lawyer will be able to give the client sound advice as to what he should do, and just as importantly what he should not do, and how to do it. We want people to obey the law, enter into valid and effective transactions, settle their affairs
responsibly when they separate or divorce, make wills which will withstand the challenge of the disappointed, and present their best case before all kinds of court, tribunal and inquiry in an honest and responsible manner. [Para 62]
[19] Mr Smith also referred to para 34 in the judgment of Lord Scott. This is the paragraph in which, after referring to “the requisite candour” by clients in providing their lawyers with all the facts and information necessary for the lawyers to provide sound legal advice, he continues:
... the dicta to which I have referred all have in common the idea that it is necessary in a society in which the restraining and controlling framework is built upon a belief in the rule of law, that communications between clients and lawyers, whereby the clients are hoping for the assistance of the lawyers’ legal skills in the management of their (the clients) affairs, should be secure against the possibility of any scrutiny from others, whether the police, the executive, business competitors, inquisitive busybodies or anyone else (see also [18 PRNZ 191, 197] pp 532-533 (paras 15.8-15.10) of Adrian Zuckerman’s Civil Procedure (2003) where the author refers to the rationale underlying legal advice privilege as “the rule of law rationale’ (see para 15.11). I, for my part, subscribe to this idea. It justifies, in my opinion, the retention of legal advice privilege in our law, notwithstanding that as a result cases may sometimes have to be decided in ignorance of relevant probative material.
[34] I agree with Mr Taylor that the second stage of the test rather ties back to the first – whether there is a relevant legal context.
[35] It does not seem to me to be in the public interest that a GO should be able to seek advice from a Specialist Adviser knowing that it will be treated as confidential. Assuming the public interest is in ensuring that legal aid in the appropriate amount(s) is granted to those eligible, appropriate disclosure of the Specialist Adviser’s advice to the GO seems to me to be in the public interest, rather than contrary to it. By appropriate disclosure, I mean disclosure to the LARP for the purposes of a review, and to this Court if relevant on an appeal.
[36] I cannot see that such appropriate disclosure would deter a GO from seeking advice from a Specialist Adviser in an open and candid way. Nor do I consider it would in any way inhibit the Specialist Adviser from giving full and frank advice. If there were any suggestion of such deterrence and/or inhibition, then it suggests a systemic problem within the Agency.
[37] To summarise, I do not consider that either stage of the test for legal advice privilege (the term I prefer to legal professional privilege) is met, and accordingly I answer question 3 “no”.
[38] The position would be altogether different if question 3 related to an opinion Mr Taylor had given the Agency about the merits of, and best strategy for, a proceeding taken against the Agency by a dissatisfied applicant for legal aid. No opposing party or Court would expect to see such an opinion. But the Court would expect to see any Specialist Adviser’s report to the Agency about whether a grant of legal aid was appropriate and, if so, the appropriate amount, if those were issues in the case.
Question 4: Is privilege overridden by the 2000 Act?
[39] I have set out ss 55A(1)(a) and 56(3)(a) in [22] above. A specialist adviser’s report to the GO who made the Agency’s decision, comes within the description “any information relating to the decision...for review” in s 55A(1)(a), and the similar wording s 56(3)(a).
[40] Ms Scholtens therefore submits that both provisions override any legal advice privilege attaching to the specialist adviser’s reports.
[41] Mr Taylor relies on B v Auckland District Law Society [2004] 1 NZLR 326 to counter this. B was decided in a legal disciplinary context: a complaint against a firm of solicitors. Section 103(3)(d) of the Law Practitioners Act 1982 provides that the disciplinary committee:
...may require the production for inspection by the District Council or committee or any person so employed by it of any books, documents, papers, accounts, or records that are in the possession or under the control of the person complained against or, as the case may require, his employer and that relate to the subject-matter of the inquiry.
[42] Overruling the Court of Appeal, the Privy Council held at [58] that s
103(3)(d) did not override legal advice privilege because the section “does not expressly exclude legal professional privilege”.
[43] The Lordships disagreed with the Court of Appeal’s conclusion that the section overrode legal advice privilege by necessary implication. Also at [58], their Lordships adopted what Lord Hobhouse had said in R (Morgan Grenfell & Co Ltd) v Special Commissioner of Income Tax [2002] 2 WLR 1299 at [45]:
A necessary implication is not the same as a reasonable implication . . .. A necessary implication is one which necessarily follows from the express provisions of the statue construed in their context. It distinguishes between what it would have been sensible or reasonable for Parliament to have included or what Parliament would, if it had thought about it, probably have included and what it is clear that the express language of the statue shows that the statue must have included. A necessary implication is a matter of express language and logic not interpretation. (Emphasis in original.)
[44] Mr Taylor points out that the s 101(3)(d) words “may require” are precisely those used in ss 55A(1)(a) and 56(3)(a) of the 2000 Act. Relying on B, he submits that those two sections do not exclude legal advice privilege either expressly or by necessary implication.
[45] I do not accept that.
[46] As outlined in [19] to [21], the LARP exists to review the decisions of the
Agency, and to correct those which are manifestly unreasonable or wrong in law.
[47] Let me take an hypothetical example. X applies for legal aid. She is eligible and has a meritorious claim. The GO, misconceiving the proposed claim, considers it groundless, but does seek advice from an ISA who correctly advises that the claim has excellent prospects of success. The GO nevertheless declines the application. X applies to the LARP for a review. The LARP’s request for the ISA’s report to the GO is declined on the grounds that legal advice privilege attaches to it.
[48] It would be highly relevant to the LARP’s review to know what the ISA’s advice to the GO was, and to know that the GO departed from that advice. Indeed, a legitimate view is that the LARP could not do its job properly without that information. It would not have a complete view of the Agency’s decision-making process. That is the view taken by the LARP here. It has deferred completing its review of the Agency’s decisions relating to Ms T, pending the outcome of this case,
and the making available to the LARP of the ISA reports which the LARP hopes will result from this case.
[49] In B, the Privy Council said this:
[59] It has been accepted in New Zealand that, if the section is capable of being interpreted on the supposition that the privilege is not abrogated by it, it should be so interpreted: see Commissioner of Inland Revenue v West- Walker [1954] NZLR 191 (CA) at p213 per Gresson J. A useful test is to write in the words “not being privileged documents “ and ask, not “does that produce a reasonable result?” or “does it impede the statutory purpose for which production may be required?” but “does that produce an inconsistency?” or “does it stultify the statutory purpose?”. The circumstances in which such a question would receive an affirmative answer would be rare. But a statutory right to require production of correspondence between a person and his solicitor for the purpose of obtaining legal advice, for example, would obviously be inconsistent with the existence of a right to withhold documents on the ground of legal professional privilege. And unless a taxing master could require the production of privileged documents it would be impossible for him to perform his function of taxing a solicitor’s bill of costs: see Goldman v Hesper [1988] 1 WLR 1238.
[50] Applying that test here, I conclude that the result of reading into ss 55A(1)(a) and 56(3)(a) the words “not being privileged documents” would stultify the statutory purpose of those provisions, and the function of the LARP.
[51] I have not overlooked that B contains a powerful re-assertion by the Privy Council that legal advice privilege is “a fundamental condition on which the administration of justice as a whole rests”, and one which “ought to be preserved, and not frittered away”. But the passages cited by their Lordships in [37] to [44] in B, all uniformly demonstrate that the rationale of the rule is to ensure full and free communication between solicitor and client.
[52] I reiterate what I said in [36]: I cannot see that free and frank communication between a GO and Specialist Adviser would in any way be imperilled by appropriate disclosure of the advice e.g. to the LARP and the Court. The LARP is not an opponent of the Agency. Such disclosure could only improve the quality of decision making at all levels, including at Agency level. Although the relationship of GO (Agency) and Specialist Adviser is (doubtfully) a solicitor/client relationship, it is in no way comparable to any of the situations in the cases cited by the Privy Council in [37] to [44] in B. Similarly, the role of Specialist Advisers cannot sensibly be
compared with the situations outlined by Baroness Hale at [62] in Three Rivers(No
5). While her Lordship obviously did not intend her list of circumstances to be exhaustive, the relationship between GOs and Specialist Advisers is far removed from the situations she envisaged where lawyers are advising their clients so that the latter can:
... obey the law, enter into valid and effective transactions, settle their affairs responsibly when they separate or divorce, make wills which will withstand the challenge of the disappointed, and present their best case before all kinds of court, tribunal and inquiry in an honest and responsible manner.
The situation in issue here is simply not one to which it is either reasonable or appropriate for legal advice privilege to apply.
[53] In [13]a) I refer to the Agency’s reliance on the judgment of Lang J in Counties Manukau, in asserting that its Specialist Adviser’s reports are protected by legal advice privilege. Mr Taylor also placed reliance on Counties Manukau. He accepted that the ruling is not contained in Lang J’s judgment, so of course His Honour’s reasons for it are not there either. Mr Taylor invited me to rely upon his own notes of the hearing, in which he appeared for the Agency. With due respect to Mr Taylor, I decline to do so. As I cannot from the judgment see what the ruling was, or the Judge’s reasons for it, I cannot place any reliance on Counties Manukau.
[54] Mr Taylor also relied on the judgment of William Young J in Legal Services
Agency v Attorney-General [2002] 1 NZLR 842 where the Judge said this:
[26] I have no doubt that if the four accused in this case had approached solicitors in terms of arranging representation in relation to the charge or charges they face and had discussed with those solicitors financial arrangements associated with the funding of their defence, such discussions, including the information as to their financial circumstances, would have been privileged within the solicitor/client communication rule.
[55] I respectfully agree with what William Young J says there. It is easy to see why legal advice privilege should attach to a discussion or communication between an accused person and his counsel, relating to an application for legal aid. For example, the discussion or communication might refer to the possibility of advancing defences such as an alibi, provocation or self-defence. Or it might refer to the possibility of the accused making formal admissions or admitting certain facts.
All these matters may have legal aid ramifications. Legal advice privilege is entirely appropriate to ensure that such possibilities can be freely and fully canvassed in any such discussion or communication. But I quite fail to see how William Young J’s comments assist the Agency here. Again, the type of discussion/communication contemplated by William Young J is far removed from communications between a GO and a Specialist Adviser.
[56] Accordingly, I answer question four “yes”.
The Official Information and Privacy Acts
[57] In their submissions, counsel referred to both the Official Information Act
1982 and the Privacy Act 1993. I find it unnecessary to deal with either, but have not overlooked them.
Result
[58] The two questions posed by the Convenor to this Court for its opinion, and my answers to them are:
Question one
[59] On receiving an application for review of a decision by the Legal Services
Agency, is the Convenor of the Legal Aid Review Panel entitled, by section
55A(1)(a) of the Legal Services Act 2000, to require the Agency to provide copies of specialist advisers’ reports it has obtained in relation to a decision which is subject to review by the Panel?
Answer
[60] Yes.
Question two
[61] Is a team assigned to a review of a decision by the Legal Services Agency enttitled, by section 56(3)(a) of the Legal Services Act 2000, to require the Agency to provide copies of specialist advisers’ reports it has obtained in relation to a decision which is subject to review by the Panel?
Answer
[62] Yes.
Costs
[63] As requested by Ms Scholtens, I reserve costs. Given the result, but also the nature of the proceeding, my view is that the Agency should indemnify the Convenor for his costs of the proceeding. Mr Taylor conveyed that this will certainly be the position.
[64] If, as I gather is the position, Mr McHerron assisted in the preparation of the Convenor’s argument, then I would hope that his fee would also be met by the Agency as part of the Convenor's costs.
Solicitors: Convenor, Legal Aid Review Panel for the Applicant
Bartlett Partners, Wellington for the First Respondent
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URL: http://www.nzlii.org/nz/cases/NZHC/2007/1689.html