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Legal Aid Review Panel Decision No 185/05 [2005] NZLARP 71 (6 April 2005)

Last Updated: 21 May 2015

LARP NO. 185/05

Summary:

Refusal to grant further aid for damages claim under NZBORA

The applicant was a prisoner requested to provide a urine sample for random drug testing. The sample tested positive for THC, but the applicant claimed that the sample had been contaminated by the prison officer who took it. The applicant was charged with having THC in his urine and prior to the charge being heard, he was asked to provide another sample under the IDU (identified drug user) regime. He refused on the basis that he was not an IDU status inmate as the charge against him had not been heard. He was then convicted of failing to comply with a directive. Although the inmate had been in prison for many years, he had never been convicted of a drug offence. The applicant was then refused an adjournment of his hearing on the drug charge, was convicted and sentenced to cell confinement and loss of privileges. His security classification was increased although he was in his final year of imprisonment and he missed the family day on which inmates can celebrate Christmas with their families. He also had a number of complaints about the physical conditions in which he was held. The applicant applied for aid for proceedings for damages for breach of the NZ Bill of Rights Act. The Agency initially refused aid and then granted aid for an opinion from counsel. When it was received the Agency refused further aid under s9(4)(d)(i) and (iii), citing the test from Timmins v Legal Aid Review Panel [2004] 1 NZLR 708. To the Panel the applicant submitted that his situation could be distinguished from the situation in Timmins because in Timmins the applicant was the defendant and he was the plaintiff. He further submitted that the facts on which his claim relied were not improbable, that he had not had a fair trial on either charge and that a reasonable person in his position would take the action he proposed, especially as he had committed no prison offences in the past and was coming up for parole. The Agency submitted that the facts on which he relied were improbable, that even if he established that he had not had a fair trial he also needed to establish that the outcome would probably have been different, that the proceedings were expensive and the amount of damages awarded likely to be small and therefore it was uneconomic.

The Panel considered the definitions of “manifestly unreasonable” and “wrong in law” from LSA v Fainu (Randerson J; HC, Auckland; 19/11/02; AP 68/02). It also considered the statements of John Hansen J in LSA v A & O (John Hansen J; HC, Christchurch; 22/5/03; CIV 2003-409-597 & 598) that manifestly unreasonable meant something different from wrong in law and would be made out where it was shown that the Agency’s decision went beyond what was reasonable or was irrational or logically flawed. His Honour added that to find a decision manifestly unreasonable the Panel must form the view that it was so unreasonable that the intervention of the Panel was called for. The Panel must make this decision objectively and not substitute its view of what the decision should have been for that of the Agency. The Panel considered that the applicant’s statement of claim was deficient. Although his counsel referred to the public interest in proper jail administration, the statement of claim sought only damages for breach of his rights on the basis of a private law remedy. The Panel’s view was that BORA claims were a public law remedy and that the applicant would have been on stronger ground if he had sought a declaration of a BORA violation. The Panel also made other criticisms of the statement of claim, and held that on the claim as pleaded the Panel could not say that the Agency’s decision to refuse further aid was either manifestly unreasonable or wrong in law. The Panel considered asking the Agency to reconsider and the applicant to redraft pleadings, but decided instead to confirm the Agency’s decision.


DECISION

Introduction

[1] This is an application by an aided person (the “Applicant”) for a review of the decision of the Legal Services Agency (the “Agency”) dated 15 November 2004 by which it refused to grant further aid for the Applicant to bring civil proceedings against (presumably) the Attorney-General for damages.

Grounds of the Application

[2] A decision may be reviewed if it is either manifestly unreasonable or wrong in law.

[3] The Applicant does not state the ground on which he relies and so the Panel will consider whether the Agency’s decision was manifestly unreasonable or wrong in law or both.

The Facts

[4] The Applicant is a sentenced prisoner at Paremoremo Prison. In December 2002 he was asked to provide a urine sample in accordance with the random drug-testing regime operated by the prison. The urine sample tested positive for an illegal substance, (“THC”).

[5] The Applicant alleges that his urine sample was contaminated by the prison officer who took it, through forcing his gloved fingers through the cellophane seal to break it, with the result that the prison officer’s gloves contacted the inside of the sterile container.

[6] The Applicant was charged with having THC in his urine. He pleaded not guilty. The Applicant has spent many years in prison, but has never previously been found guilty of an offence against the ban on drugs.

[7] Prior to the charge against him being heard, the Applicant was asked to provide a further urine sample, but this time under the identified drug user (“IDU”) regime. He refused to provide the sample, on the grounds that he was not an IDU status inmate, and he could only be given that status, if he was found guilty at the hearing into the charge he then faced. The Applicant was then further charged with failing to comply with a directive, and was subsequently convicted of this offence by the site manager.

[8] The Applicant requested an adjournment of the charge of having THC in his urine, to enable him to prepare his defence. That adjournment was refused. He was convicted of the charge, and sentenced to seven day’s cell confinement and 15 days loss of privileges.

[9] The Applicant alleges that he was “in credit” in relation to the cell confinement, and that should have been taken into account but was not. As the result of that, the Applicant alleges he missed out on the family day on 20 December, which is the prisoners’ Christmas Day. His security classification was increased as the result of being found guilty on the charges, and he was transferred from medium security to maximum security. This was in spite of his being in his final year of imprisonment, and having had no other prison offences.

[10] The Applicant lists a number of other complaints, including being placed in D Block, which is the most restrictive part of the prison, and being assaulted and verbally abused by a prison officer. The Applicant also lists a number of complaints about the physical conditions of his cell, and the conditions under which he was held, which he alleges were contrary to human rights and a form of torture.

[11] The Applicant applied for legal aid to issue proceedings for damages for breach of his rights under the New Zealand Bill of Rights Act. He provided a draft statement of claim to the Agency. This named the Department of Corrections as defendant. The Panel is not aware that this department is amenable to suit in its own name, and assumes that the Attorney-General will be the named defendant. Damages are claimed in the sum of $50,000.

[12] The Agency refused to grant aid for the proceedings, but, on reconsideration, made an interim grant of $1,500 for an opinion from the Applicant’s counsel. On receipt of the opinion, the Agency declined to grant further aid. The grounds for the Agency’s decision were that “the prospects of success and economics of the case are such that a reasonable person would not fund proceedings if paying privately: see s9(4)(d)(i) and (iii) of the Legal Services Act 2000, Timmins v Legal Aid Review Panel (2004) 1 NZLR 708.”

[13] The Agency said further, that the Applicant’s allegation as to how his urine sample was contaminated was improbable, and even if the Court could be persuaded that the BORA damages were open, the amount awarded, if any, would be so small that any proceedings were uneconomic.

The Applicant’s Submissions

[14] The Applicant submits:

· The Agency applied the wrong test in making its determination.
· In Timmins (supra) the Applicant for aid was the defendant. Here, the Applicant is the plaintiff and different considerations arise.
· The Applicant is a long serving prisoner who has never been found drug positive despite being subjected to many random tests. Applying the Timmins (supra) criteria, a reasonable individual would pay his own legal costs in the position the Applicant found himself.
· The factual situation pleaded by the Applicant is not far fetched. Prison guards wear gloves when taking urine samples because there is a danger that in handling the sample they will get urine on their fingers. Had this happened and had that urine contained THC, and the Applicant’s sample opened in the way claimed in his draft statement of claim, then that would have contaminated his sample.
· Contrary to the Agency’s submission, the Applicant was denied a fair hearing at the first hearing, as he was not able to have his sample cross-checked with his medication to confirm whether the sample was properly attributable to himself. In addition he was only informed of the hearing immediately before it proceeded and was unable to arrange for his witness to attend.
· He did not have a fair hearing in respect of the subsequent charge of failing to give a sample, when he was not an identified drug user.
· A reasonable person in the position of the Applicant, namely being a prison inmate who was coming up for parole, and had not previously offended against the prison drug regulations, would use his own resources to vindicate himself and seek damages.

The Agency’s Submissions

[15] The Agency submits:

· Two specialist advisers to the Agency, one external and one internal had considered the application.
· The prospects of success and economics of the case were such that a reasonable person would not fund proceedings if paying privately.
· Even if the Applicant established he had been denied a right to a fair trial, there must be a reasonable possibility that the outcome would have been different if the trial was fair, before damages would be awarded.
· The Applicant’s defence to the charge that his urine sample had been interfered with was improbable and far-fetched.
· Even supposing that the Court could be persuaded the BORA damages were open, the amount awarded would be so small that proceedings were uneconomic.
· The type of proceedings the Applicant was bringing were expensive, and a reasonable person would not pay a large amount in pursuit of such a small and remote award.
· The Agency’s decision was neither manifestly unreasonable nor wrong in law.

The Issues

[16] The issues before the Panel are whether the Agency’s decision to refuse the Applicant further legal aid was either manifestly unreasonable or wrong in law or both?

The Law

[17] A decision is “manifestly unreasonable” if it is shown “clearly and unmistakably” that the Agency’s decision “went beyond what was reasonable or was irrational or logically flawed” (Legal Services Agency v Fainu 19/11/02 Randerson J HC Auckland AP68/02).

[18] A decision may be wrong in law for a variety of reasons. It may be wrong in law, for example, if it derives from an inaccurate application or interpretation of a statute, or is wrong in principle. It may be wrong in law if a decision-maker has failed to take into account some relevant matter or takes into account some irrelevant matter, or if the decision depends on findings which are unsupported by the evidence (Legal Services Agency v Fainu (supra)).

[19] In Legal Services Agency v A and O (22/5/03 High Court Christchurch CIV 2003/409/597 & 598) J Hansen J said at paragraph 11 that manifestly unreasonable meant “something different from what is “wrong in law””, and would be made out “where it is shown, clearly and unmistakably, that the decision made by the Agency went beyond what was reasonable, or was irrational or logically flawed”. His Honour also said that “manifestly unreasonable” required “not only that the decision be found to be unreasonable but that LARP forms the view that the decision is so clearly unreasonable that the intervention of the Panel is called for”. His Honour added that, “the determination of what is “manifestly unreasonable” is to be made objectively by the members of LARP, applying their judgment to the matter in accordance with the principles stated“, and that it was “not for LARP to substitute its view of what the decision should have been for that of the Agency”.

Discussion

[20] In earlier correspondence with the Agency, the Applicant’s counsel referred to the public interest in the proper administration of jails, and said that denial of legal aid frustrates the intention of the Act which is to provide access to justice. However, that is not how the Applicant has drawn his statement of claim. He is seeking damages for breach of his rights, on the basis of a private law remedy.


[21] In the Panel’s view, the Applicant’s statement of claim is deficient. BORA claims are a public law remedy. In Manga v Attorney-General [2000] 2 NZLR 65, the Court said at paragraph [126]:

“Cases based upon violations of the Bill of Rights are about the vindication of statutory policies which are not “just” private: they have over arching, public dimensions. The context of such a proceeding necessarily changes, in at least three ways. First, the case is not a winner-takes-all kind of case. Damages are an economic concept. Bill of Rights cases routinely involve a rearrangement of the social relations between the parties, and sometimes with third parties. The object is to promote mutual justice, and to protect the weak from the strong. Secondly, the future consequences of such a case are every bit as important as the past, and the particular transgression. Thirdly, there is a distinct interface with public administration, and indeed, the governance of a given jurisdiction. (The classic article is still Chayes, “The Role of the Judge in Public Law Litigation” (1976) 89 Harv L Rev 1281.)”

[22] The Court went on to hold that it was very important for it to make a declaration of a Bill of Rights violation, even if the prayer for relief did not include a claim for a declaration. The Court said at paragraph [132]:

“... the real power of a Court in this subject area is that of moral persuasion. A New Zealand Court cannot control the purse, and the lions’ strike should generally be withheld, in favour of a legitimate judicial expectation that public confidence will be enlarged, public morality advanced, and democratic decision making improved, by the Courts clearly identifying breaches and exercising remedial powers with restraint. Judicial declarations of right are usually not in vain, even if they reach the recipient with a sound no more audible than the turning of a page.”

[23] In his proceeding, the Applicant is not seeking a public acknowledgement that his rights have been violated. If he were, he would have a stronger argument for a grant of aid. Prospects of success are not always measured in monetary terms, and as the Court said in Timmins (supra) at paragraph [33] achieving a successful outcome includes vindicating some important point of principle.

[24] The Applicant has chosen to limit his claim to one for damages. The draft statement of claim contains two causes of action, both alleging breaches of the Applicant’s rights. The first cause of action relates to the treatment of the plaintiff while in solitary confinement. The second cause of action is a global allegation of the denial of the Applicant’s right to the observance of the principles of natural justice. There is no particularisation of the rights breached in respect of the various charges and disciplinary hearings faced by the Applicant. Neither is there any particularization of damages in respect of each breach. On the claim as pleaded, the Panel cannot say that the Agency’s decision to refuse further aid was either manifestly unreasonable or wrong in law.

[25] The Panel has considered whether or not it should direct the Agency to reconsider, and offer the Applicant the opportunity to amend his pleadings. That is the practice followed by the Courts, in considering whether to strike out a statement of claim on the grounds that it discloses no cause of action. The Panel has decided not to do so. The situations are not the same. There is nothing to stop the Applicant from filing a fresh application for aid with amended pleadings if he so chooses.

Decision

[26] For the reasons set out above, the Agency’s decision is therefore confirmed.


Dated this 6th day of April 2005

(original signed by)

D.J. Maze, Convenor