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Legal Aid Review Panel Decision No 267/06 [2006] NZLARP 171 (15 September 2006)

Last Updated: 10 July 2015

LARP NO. 267/06

Summary:

see text below if available

The applicant sought aid for filing a claim against the police for breach of his rights under NZBORA following alleged intimidation by the police. Ten hours were sought as an initial grant. The relief sought was a declaration that the applicant’s rights had been breached, public law compensation and exemplary damages. The Agency asked for further information which was provided. The Agency refused a full grant of aid, but offered a limited interim grant. The Agency took the view that the applicant’s rights could be upheld, and scrutiny of the actions of police by an independent body carried out by the Police Complaints Authority process. It asked for the police report, the Police Complaints Authority decision, details of the outcome of the criminal prosecution of the police officer and an assessment of prospects of success and economics in terms of Timmins v LARP [2004] 1 NZLR 708. A limited grant of $890 was made. The applicant applied for review. He submitted that the Police Complaints Authority investigation would not help as its decisions were confidential and not admissible in any court against the police and it had no power to award compensation or damages against the police. In Pure v Attorney-General (CIV 2003- 404-607, Auckland DC, 11/11/05) an award of $10,000 plus costs had been made against the police. The Agency submitted that ss9(4)(d)(i) and (ii) were not satisfied; that the case seemed marginal economically; that the Timmins test had not been addressed; for a successful exemplary damages claim the applicant had to explore all complaint options such as the PCA; and that it was not unreasonable to make a limited grant. The granting of aid had not been ruled out, but at this stage it appeared that there were insufficient prospects of success. The provider submitted in reply to the Agency’s submissions that the Agency had placed too much weight on the monetary considerations and that the proceeding was justified on the grounds of public interest, clarification of the law, and redress for the individual. This was the first claim for damages under NZBORA for degrading and humiliating treatment. The provider also contradicted the Agency’s submissions that the PCA process would be adequate, or that its report was admissible in other proceedings.

The Panel considered statements on the meaning of “manifestly unreasonable” and “wrong in law” from LSA v Fainu (2002) 17 PRNZ 433, LSA v A & O (2003) 17 PRNZ 443 and the wording of ss9(4)(d)(i) and (ii) and 14. It noted that under s14 the Agency had the right to make a limited grant and that further information had now been provided which the Agency had not had a chance to consider. The Panel criticized the Agency’s assumption that any award would be minimal, which it had not supported with authority. The Agency’s reference to Taunoa v Attorney-General [2000] 2 NZLR 65, as supporting the use of the PCA was inaccurate as Taunoa said nothing about the PCA. The Panel then discussed and quoted from Manga v Attorney-General [2000] 2 NZLR 65 and Simpson v Attorney-General (Baigent’s Case) [1994] 3 NZLR 667 to the effect that breaches of the Bill of Rights had to be given effective remedies by the courts. The Panel also noted that the police report to the PCA and any other evidence it obtained, could not be disclosed. The Panel held that the Agency was wrong to seek provision of that information and that it had misunderstood Taunoa. Despite that finding, the Panel confirmed the Agency’s decision to make a limited grant of aid. The Panel also suggested that it would be desirable if the Agency gave the applicant more details of the information it required to make a decision on a full grant.


DECISION

Introduction

[1] This is an application by an aided person (the “Applicant”) for a review of the decision dated 24 March 2006 of the Legal Services Agency (the “Agency”) by which it limited the grant of aid to provision by the listed provider of certain documents and an assessment of what it referred to as “the prospects of success and economics”.

Grounds of the Application

[2] A decision may be reviewed on the ground that it is either manifestly unreasonable or wrong in law. In this case, it is submitted that the decision was manifestly unreasonable and wrong in law.

The Facts

[3] By letter dated 17 February 2006, the listed provider submitted a legal aid application seeking aid for ten hours’ work to file proceedings in the District Court. The proceedings relate to a claim that the Applicant is the victim of police intimidation and that the police breached the rights he has under s 9 and s 23(5) of the New Zealand Bill of Rights Act 1990 (the “NZBORA”). By way of relief, the Applicant seeks declarations that there was a breach of his rights under the NZBORA, public law compensation in the sum of $20,000.00 and $10,000.00 exemplary damages. He also seeks costs.

[4] The listed provider filed with the application a copy of a draft statement of claim and a brief letter dated 23 November 2005 from the Police Complaints Authority indicating that it was investigating the incident.

[5] The listed provider’s accompanying letter gave a short background to the application. It noted that the Applicant was of a young age, that the police actions had humiliated him, and that the incident was “a clear case of Police intimidation” that had “serious implications” and had received national publicity. It is not clear whether the listed provider also filed a legal aid summary with the application for aid. No such summary is on the file before the Panel.

[6] By letter of 24 February 2006 the Agency asked the listed provider to supply further information before it made a decision. None of the information it asked for is material to this review.

[7] By letter dated 28 February 2006, the listed provider sent the information the Agency had requested. He also commented further on the Applicant’s prospects of success, stating:<br><br> the police officer at the centre of the incident had faced “initial criminal charges”, one of which had been proven while a number of others had not been proven to the criminal standard of beyond reasonable doubt.<br><br> the Applicant and his friends:
“were poorly handled by the police. In some instances, this has meant that other offenders have reportedly been given settlements from the Police out of Court, although I cannot confirm those precise details.”<br><br> it was a clear case of police intimidation “in a yet untested field” under s 9 of the NZBORA. In Pure v Attorney-General (CIV 2003-404-607, Auckland District Court, 11 November 2005) the listed provider had been successful in obtaining an award of $10,000.00 against the police in a case that had involved physical injury. Although there was no physical injury in this case, “[g]iven the actions of the Police and the uncertainty of the Law”, a grant of aid was warranted.

[8] By letter dated 24 March 2006, the Agency advised:

“While the incident may have been humiliating to your client, we are not satisfied that a grant of aid for proceedings is justified under either Section 9(4)(d)(i) or (ii) of the Legal Services Act 2000. If success is measured in money, we consider that the prospect of being awarded an amount sufficient to justify expensive proceedings against the Crown are remote. Any monetary award of either public law compensation or exemplary damages is likely to be modest.

The objects of seeking a declaration of breach of Bill of Rights such as vindication of your client’s rights, scrutiny of public officials by an independent body, and giving directions to the Police can be achieved by the Police Complaints Authority process. (See Taunoa v AG HC, Wellington CIV 2002 485 742, 2 September 2004, Ronald Young J at paragraph 15).

In the circumstances we are prepared to make a limited interim grant of aid to enable you to look into the matter, provide a copy of the Police report and Police Complaints Authority decision, full details of the outcome of the criminal prosecution of ZZ, and your assessment of prospects of success and economics. The test in Timmins v Legal Aid Review Panel [2004] 1 NZLR 708 should be addressed. Please consider what action a reasonable person paying privately take [sic] in the circumstances.

Legal aid has been granted with a maximum grant of $890.00 including any special disbursements and office disbursements. ...”

[9] This application for review was then filed.

The Applicant’s Submissions

[10] On the Applicant’s behalf, the listed provider submits:
<br><br> The matter is one of “extreme principle”.<br><br> “Success is not always measured in money”.<br><br> If successful, the action would help to highlight and reduce improper activity.<br><br> The Agency is wrong on the facts presented to conclude that the expense of the proceedings cannot be justified in relation to the amount the Court is likely to award. The Agency has not cited any case law for its assertion.<br><br> In Pure v Attorney-General (supra), the plaintiff was awarded $10,000.00 plus substantial costs against the Attorney-General. The law is clear that “the actual injuries suffered or non-injury does not have anything to do with the amount awarded”. The fact that the breach occurred is the important point.<br><br> In such situations costs against the Crown are almost always recovered.<br><br> The Police Complaints Authority process cannot assist the Applicant in ways that the Agency suggests as the Police Complaints Authority is an independent authority and any directions it might give are not admissible in any court of law.<br><br> The Police Complaints Authority does not appear to be making significant directions to stop breaches of the NZBORA.<br><br> The decision of the Police Complaints Authority is confidential and is not admissible in any court against the Police.<br><br> The Police Complaints Authority does not normally make a ruling or provide for compensation. (Indeed, the Panel notes that the Authority has no power to award compensation or damages against the police.)

The Agency’s Submissions

[11] The Agency submits:
<br><br> Section 9(4)(d)(i) and (ii) of the Legal Services Act 2000 (the “Act”) were not satisfied and therefore the Agency’s decision is not manifestly unreasonable.<br><br> The case appears marginal economically. In New Zealand, awards of exemplary damages “tend to be moderate, even modest, and in this case the amount that could be received would far outweigh the amount spent bringing the action”.<br><br> The Agency has not received any information specifically addressing the application of Timmins (supra).<br><br> It is entitled to request further information in order to make a decision particularly when considering the prospects of success and it is not manifestly unreasonable to do so.<br><br> It did not limit its consideration solely in terms of monetary success.<br><br> Any breach of the Applicant’s rights under the NZBORA could be exposed through the Police Complaints Authority.<br><br> It has granted aid to enable the listed provider to look into the matter and provide an opinion as to the prospects of success and an assessment as to the economics of the case. The Agency has not ruled out granting aid for the issuing of proceedings but it is not satisfied at this stage that it should grant aid for that purpose.<br><br> In order for a claimant to be successful in an exemplary damages claim, he or she will need to explore the complaint options already available.<br><br> It has asked for a copy of the police report for this matter, together with a copy of the Police Complaints Authority decision. It has also asked for details of the criminal prosecution brought against “the other party”. The Agency has not received this information and the listed provider has not submitted that it is not reasonable to submit the Police Complaints Authority decision to it.<br><br> From the information presented, there were insufficient prospects of success to justify a grant of aid.

The Applicant’s Submissions in Reply

[12] In summary, the listed provider has made the following submissions in reply on the Applicant’s behalf:
<br><br> While the Agency is entitled to consider the prospects of success, in this case it placed undue weight on monetary considerations and has given insufficient weight to other considerations. This case raises issues that are wider than simply balancing the cost of the proceedings and the amount of any award that might follow.<br><br> There are three broad heads under which the Applicant should be considered justified in bringing the proceedings. First, there is the public interest. The allegation involves a police officer’s mistreatment of a boy and the misuse of the officer’s status and authority. The police officer has been convicted of “associated criminal charges but not in respect of this incident”. It is not in the interests of the administration of justice to allow such serious allegations against the police to lie unresolved. Second, there is the clarification of the law, as there have been few opportunities for the Courts to consider the meaning of s 9 of the NZBORA in this context. Third, it is reasonable to expect an individual in these circumstances would seek redress for the humiliation and degradation he suffered, even if doing so were to come at some financial cost to him.<br><br> The Agency’s claim that there would have to be an inquiry and report by the Police Complaints Authority before bringing a claim for exemplary damages is unsupported by any authority.<br><br> The Police Complaints Authority has stated in respect of another matter that it is not a criminal investigation agency and any evidence it obtains “may not be used in criminal or other proceedings”.<br><br> Material that is not admissible in evidence cannot bear on the prospects of success.<br><br> While the Agency considers that awards of exemplary damages in New Zealand tend to be modest and any award to the Applicant would be less than the cost of bringing the action, there is no authority for that proposition in the circumstances of the Applicant’s case. The courts have yet to rule on exemplary damages under the NZBORA in a case of degrading and humiliating treatment.

[13] The Panel records that in the course of this review it wrote to the listed provider to seek additional information about a range of matters. The listed provider replied by letter dated 14 July 2006, and enclosed a copy of Vaihu v Attorney-General (CIV 2005-404-2096, High Court, Auckland, 8 November 2006, Ellen J) and a copy of the letter from the Police Complaints Authority which he (the listed provider) had referred to in his submissions in reply.

The Issue

[14] The issue before the Panel is whether the Agency’s decision to make a limited grant of aid was, in this case, manifestly unreasonable or wrong in law.

The Law

[15] 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 (2002) 17 PRNZ 433).

[16] In Legal Services Agency v A and O (2003) 17 PRNZ 443 J Hansen J said at paragraph 11 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”.

[17] 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).


[18] Sections 9(4)(d)(i) and (ii) of the Act provide:

“9 When legal aid may be granted: civil matters
(4) The Agency may refuse to grant legal aid to an applicant in any of the following circumstances:
(d) in the case of original proceedings, –
(i) the applicant’s prospects of success are not sufficient to justify the grant of legal aid; or
(ii) the grant of legal aid is not justified, having regard to the nature of the proceedings and the applicant’s interest in them (financial or otherwise), in relation to the likely cost of the proceedings”.

[19] The relevant part of s 14 of the Act provides:

“14 Decision on application for legal aid
(1) On an application for legal aid, the Agency may, in respect of the whole or any part of the proceedings or appeal,-
...
(b) grant legal aid on an interim basis pending further consideration of the application ;or
(c) request further information from the applicant, the proposed lead provider, or both”.

Discussion

[20] By the time the Agency made its decision of 24 March 2006, the Applicant had provided it with a relatively limited amount of information. In addition, some of that information was vague, including for example, the listed provider’s statement that “other offenders have reportedly been given settlements from the police out of Court, although I cannot confirm those precise details”.

[21] Under s 14(1) of the Act, the Agency was entitled to make a limited grant of aid and to request further information before it decided whether to grant further aid to cover the filing of proceedings. In doing so in this particular case, the Agency did not ‘close the door’ on granting further aid and the Panel is unable to find that the decision to make a limited grant of aid was manifestly unreasonable or wrong in law.

[22] The Panel also notes that the listed provider has, in his submissions in reply and in his letter of 14 July 2006 to the Panel, effectively provided some of the additional information that the Agency asked for in its decision of 24 March 2006. The Agency has not had an opportunity to state its position in relation to that information.

[23] Nevertheless, the Panel has a number of concerns about aspects of the Agency’s approach to this matter.

[24] First, if the Agency is to assert that any monetary award of compensation or damages is likely to be modest and insufficient to justify the expense of the proceedings, it is desirable that it support that assertion with relevant case law and any other supporting reasons. By the Agency doing so, the Applicant can then properly address its concerns.

[25] Second, the Agency’s reference to Taunoa v Attorney-General, reported at 7 HRNZ 379, as authority for the contention that the objects of seeking a declaration of a breach of the NZBORA can be achieved by the Police Complaints Authority process appears to be completely wrong. Insofar as the Panel is aware, that case says nothing about the Police Complaints Authority process.

[26] The Panel draws to the attention of the Agency and the Applicant the following dicta of the High Court in Manga v Attorney-General [2000] 2 NZLR 65, where the Court was dealing with claims based on a breach of the NZBORA:

“Cases based upon violations of the Bill of Rights are about the vindication of statutory policies which are not statutory “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.” (Para 126)

“... the real power of the 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.” (Para 132)

[27] The Panel also notes the Court of Appeal’s decision in Simpson v Attorney-General [Baigent’s Case] [1994] 3 NZLR 667. At page 692, Casey J reflected the majority viewpoint in saying:

“I am satisfied that the purpose and intention of the Bill of Rights is that there be an adequate public law remedy for infringement obtainable through the Courts ...”.

In the same case, Hardie Boys J stated (at page 702):

“The New Zealand Bill of Rights Act, unless it is to be no more than an empty statement, is a commitment by the Crown that those who in the three branches of the government exercise its functions, powers and duties will affirm the rights that the Bill affirms. It is I consider implicit in that commitment, indeed essential to its worth, that the Courts are not only to observe that Bill in the discharge of their own duties but are able to grant appropriate and effective remedies where rights have been infringed.”

[28] Third, it would appear that the Agency has no right to insist the Applicant provide it with a copy of “the Police report” to the Police Complaints Authority. Section 32 of the Police Complaints Authority Act 1988 restricts the disclosure of that report and any other evidence the Authority obtains.

[29] Fourth, the outcome of any criminal proceedings against the police officer involved is of limited relevance to the civil proceedings the Applicant is seeking to bring given the different standard of proof and the possibility of other factors, which might not or might not be known to the Applicant, influencing the outcome of those prosecutions.

Decision

[30] For the reasons set out above, the Panel confirms the Agency’s decision of 24 March 2006 to make a limited grant of aid so as to enable the Applicant to provide it with further information regarding the prospects of success and regarding the test in s 9(4)(d)(ii) of the Act.

[31] Despite that determination, the Panel finds that the Agency was wrong to seek the provision of certain information that is confidential in terms of the Police Complaints Authority Act 1988 and it was wrong in terms of its understanding of Taunoa v Attorney-General (supra). Having reviewed this matter, the Panel

considers that it would be desirable if the Agency provided the Applicant with a revised description of the information it wishes him to provide and more detailed and accurate reasons as to why it is not satisfied as to the Applicant’s prospects of success and as to why the grant of aid is not justified in terms of s 9(4)(d)(ii) of the Act.


Dated this 15th day of September 2006

(original signed by)

GL Melvin, Convenor
A member of the Panel acting under delegation
pursuant to s 62A of the Legal Services Act 2000