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Legal Aid Review Panel Decision No 167/04 [2004] NZLARP 21 (22 January 2004)

Last Updated: 8 April 2015

LARP NO. 167/04

Summary:

Requirement of initial contribution – effect of s16 on respondent

The applicant was granted aid to defend applications for final protection and furniture orders. Payment of the initial contribution of $50 was a condition. The applicant, a beneficiary, sought a write off of the contribution and the provider submitted that s16 of the Act was ambiguous and must be interpreted consistently with the Bill of Rights Act resulting in interpreting s16 as waiving payment of the initial contribution by a respondent. The Agency required payment.

After setting out s16, the Panel held that it was not ambiguous. Person A was the person bringing the application or for whose benefit the application was brought. Section 16 did not apply to a respondent. The Agency’s decision was found to be neither manifestly unreasonable nor wrong in law. However, the Panel decided that it was unreasonable to expect the applicant to pay the contribution within 20 days as the Agency had required, and modified the Agency’s decision to allow the applicant to pay at $5 per week.


DECISION

This is an application under section 54 of the Legal Services Act 2000 (the “Act”) to review the decision of the Legal Services Agency (the “Agency”) dated 23 October 2003 on reconsideration to require payment by the applicant (as the respondent to proceedings under the Domestic Violence Act) to pay an initial contribution of $50.00.

BACKGROUND

1. The applicant was granted legal aid to defend applications for final protection and furniture orders. It was a condition of the grant of aid that the applicant pay an initial contribution of $50.00.

2. The applicant sought a write off of the initial contribution. The applicant receives an invalids benefit and he clearly has little income and few, if any assets.

3. The Listed Provider stated that section 16 of the Act is ambiguous, that the Agency is under a statutory obligation to interpret legislation consistently with the Bill of Rights Act and international conventions, and that this results in the view that section 16 waives payment of the initial contribution of $50.00 by a respondent to proceedings under the Domestic Violence Act.

4. Section 16 of the Act states:

“Special provisions about conditions on grant to persons involved in proceedings under Domestic Violence Act 1995

(1) In the section person A means a person who is a party to proceedings (which includes appeals) that in any way relate to, or arise out of, an application by or on behalf of, or a grant in favour of, the person for a protection order under Part II, or an order relating to property under Part III, of the Domestic Violence Act 1995.

(2) A grant of legal aid made to person A is not subject, and may not be made subject, to any conditions referred to in subsections (1),(2) or (3) of section 15, unless subsection (3) or subsection (4) of this section applies.

(3) The Agency may impose any of the conditions in subsections (1),(2) or (3) of section 15 on a grant of legal aid made to person A if the Agency considers there are exceptional circumstances that justify the imposition of 1 or more of those conditions.

(4) If a grant of legal aid to person A is in respect of proceedings that involve matters in addition to proceedings under the Domestic Violence Act 1995, then the Agency may impose conditions on the part of the grant that relates to those additional matters.

(5) If the Agency proposes to impose conditions under subsection (4), it must –
(a) consider any representations by person A concerning the proposition of the grant that should not be subject to conditions; and
(b) determine what proportion of the grant is subject to conditions, and what those conditions are; and
(c) advise person A of its decision, and explain how it decided what proportion of the grant should be subject to conditions.

5. The Listed Provider relies on the decision of Moonen v Film and Literature Board of Review [1999] NZCA 329; (1999) 5 HRNZ 224 in that, if there are two tenable meanings of any legislative provision that the one which is most in harmony with the Bill of Rights must be adopted.

DECISION

6. The Panel is of the view that section 16 is not ambiguous. Person A is the person who brings the application or for whose benefit the application is brought. This is clear from the use of he words “the person”.

7. Having regard to these matters the Panel finds that the Agency’s decision is neither manifestly unreasonable nor wrong in law, and the review application is therefore declined.

8. In its decision on the grant of legal aid to the applicant, the Agency required the contribution of $50 to be paid within 20 days. On its own calculations, the applicant has a surplus of income over expenditure of a maximum of $20 per week. On that basis it is unreasonable to require the applicant to pay the contribution within 20 days.

9. Accordingly, pursuant to section 57(2) of the Act, the Panel modifies the decision of the Agency. Payment of the initial contribution of $50 is confirmed, but it is payable at the rate of $5 per week, the first payment to be made 14 days from the date of the release of this decision to the applicant.


Dated this 22nd day of January 2004

(original signed by)

A.A. Walter, Convenor