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Legal Aid Review Panel Decision No 244/07 [2007] NZLARP 106 (24 July 2007)

Last Updated: 28 July 2015

LARP NOs. 241/07 - 249/07

Summary:

Refusal of aid under s9(40(e)

The applicants are practitioners of the Falun Gong movement who began High Court proceedings against the former president of the People’s Republic of China, the former Vice Premier of China’s State Council and the Secretary of the Political and Judiciary Committee of the Central Committee in China. They sought damages and declaratory relief for unlawful arrest and detention, assault and battery, malicious abuse of office and conspiracy to injure. As the defendants were out of NZ, the applicants needed leave from the HC under Rule 220 to serve the proceedings on the defendants. The application was declined by an Associate Judge and then by a HC Judge. The reason was that the defendants were protected by state immunity. An exception to that principle would be needed, and the House of Lords decision in Jones v Saudi Arabia [2006] UKHL 26; 2 WLR 1424 stated that there was no basis for an exception. The applicants applied for aid to appeal to the Court of Appeal. After consulting a specialist adviser the Agency declined aid under s9(4)(e), and confirmed that refusal after reconsideration. To the Panel the applicant submitted that there was a recent decision of the Supreme Court of New South Wales (Zhang v Zemin & anor [2007] NSWSC 229) which had come to her attention in which leave to serve similar proceedings outside the jurisdiction had been granted. In addition there was a decision in 2006 of the Ontario Superior Court where an order had been made dispensing with service for a similar proceeding by Falun Gong practitioners.

The Panel noted that the specialist adviser had given his advice before these decisions had come to light so they had not been taken into account. Although the Agency had stated that the additional information had not persuaded it to grant aid, it appeared that the Agency had not sought another report from a specialist adviser. As the issue was a difficult one involving a mix of domestic and international law, the Panel considered that the Agency should again consult a specialist adviser on the new information. For those reasons, the Panel directed the Agency to reconsider its decision within 15 working days taking into account the Panel’s finding that it should ensure it obtained another specialist adviser’s report considering the new information. To ensure natural justice, the Panel advised that it was desirable that the new information be considered by a new specialist adviser.


DECISION

Introduction

[1] This decision relates to nine separate applications for review brought by nine applicants for legal aid (the “Applicants”). The subject matter of each application is the same and it is convenient to deal with them all in one decision.

[2] Each of the Applicants applied for legal aid for an appeal to the Court of Appeal and, by letters dated 39 April 2007, but presumably meant to be 30 April 2007, the Legal Services Agency (the “Agency”) upheld earlier decisions of 30 March 2007 to decline aid.

Grounds of the Application

[3] Eight of the Applicants submit that the Agency’s decision was both manifestly unreasonable and wrong in law. While the applicant for review in LARP 244/07 has not identified the grounds upon which she has made her application, the Panel has proceeded on the assumption that she, too, submits the Agency’s decision is both manifestly unreasonable and wrong in law.

The Facts

[4] The Applicants are practitioners of the Falun Gong movement who initiated proceedings in the High Court against the former president of the People’s Republic of China, the former vice-premier of China’s State Council and the Secretary of the Political and Judiciary Committee of the Central Committee in China. They sought damages and declaratory relief for unlawful arrest and detention, assault and battery, malicious abuse of office and conspiracy to injure.

[5] Pursuant to rule 220 of the High Court Rules, the Applicants had to obtain the leave of the High Court to serve the proceeding on the defendants out of New Zealand. Initially, the application for leave came before Associate Judge Faire, who declined it. The Applicants then sought a review of that decision. Randerson J considered the application for review and, for a number of reasons, dealt with it as if it were a fresh application under rule 220 of the High Court Rules. In a reserved judgment of 21 December 2006, he dismissed the application. His Honour was satisfied that there was no arguable prospect that the Applicants could establish an exception to the principle of state immunity, which he found would protect the defendants if the Applicants were granted leave to serve out of the jurisdiction. In reaching that conclusion, His Honour found that there was no valid basis upon which to distinguish the House of Lords’ decision in Jones v Saudi Arabia [2006] UKHL 26; 2 WLR 1424, which he followed.

[6] The Applicants applied for legal aid to appeal Randerson J’s decision in the Court of Appeal. The Agency received the applications on 27 February 2007 and referred them to a specialist advisor.

[7] The Agency followed the specialist advisor’s recommendation to decline the applications for aid pursuant to section 9(4)(e) of the Legal Services Act 2000 (the “Act”). That provision permits the Agency, in the case of an appeal, to refuse aid where it “considers that for any reason the grant of aid or further aid is not justified”. By letters dated 30 March 2007, the Agency advised that, like Randerson J, it found the analysis in Jones v Saudi Arabia (supra) compelling and it did not consider the Court of Appeal would differ from the House of Lords on such an issue of international law.

[8] On 3 April 2007, counsel for the Applicants asked the Agency to reconsider its refusal to grant aid. By its letters of 30 April 2007, the Agency confirmed its decisions. It stated that, while it is possible that the Court of Appeal or Supreme Court might depart from the House of Lords, that seemed very unlikely on matters of international law where there is a strong tendency for courts of different states to share a common position. There was nothing in either Jones v Saudi Arabia (supra) or in Randerson J’s decision that supported a departure by New Zealand from the international consensus.

[9] The Agency sent a further letter dated 11 May 2007 to replace its letter of 30 April, which, it stated, had been sent in the name of the wrong grants officer. The second letter was sent so as to conform with section 29(2) of the Act, which, as a matter of natural justice, requires that a decision must be reconsidered by a different person than the person who made the original decision.

[10] On 22 May 2007, the Applicants filed with the Panel applications for review of the Agency’s decision. They nominated the Agency’s decision of 30 April 2007 as the decision to be reviewed.

The Applicant’s Submissions

[11] On behalf of the Applicants, counsel submits that the Agency’s decision to decline aid is manifestly unreasonable and wrong in law because it is unwilling to accept that the Court of Appeal is able to distinguish Jones v Saudi Arabia (supra). She refers to the decision of the Supreme Court of New South Wales in Zhang v Zemin & Anor [2007] NSWSC 229, which came to her notice after the Agency’s refusal to grant aid. In that decision, the Supreme Court granted leave to serve similar proceedings outside its jurisdiction.

[12] In a covering letter that accompanied the applications for review, counsel also refers to a decision dated 17 July 2006 of the Ontario Superior Court of Justice. In that decision, the Court dealt with similar proceedings brought by Falun Gong practitioners and made an order dispensing with service under rule 16.04 of the Ontario service rules. Counsel contends that the Agency’s decision did not analyse the evolution of the law within the Commonwealth and that the Applicants’ appeal relies on the evolving differences in law from Australia and Canada.

The Agency’s Submissions

[13] The Agency submits that nothing further has been added that justifies a review of its decision to decline aid.

The Issue

[14] The issue before the Panel is whether the Agency’s decision to refuse aid to each of the Applicants is manifestly unreasonable or wrong in law, or both.

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] 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)).

Discussion

[17] On the copy of the file that is before the Panel, the decisions of the New South Wales Supreme Court in Zhang v Zemin (supra) and of the Ontario Superior Court of Justice are stapled to counsel’s letter of 3 April 2007. However, on 27 June 2007, responding to a request by the Panel’s Convenor to clarify this point, the Agency advised that counsel did not enclose with her letter a copy of the New South Wales judgment and did not refer to the judgment. Presumably, the Ontario judgment was also not enclosed with the letter.

[18] In any case, the specialist advisor’s report, upon which the Agency based its decision, is dated 29 March 2007. The specialist advisor did not have either judgment when he wrote his report.

[19] The Panel has before it a short letter dated 12 June 2007 from the Agency in which it confirms that it has received and considered all the attachments counsel for the Applicants has forwarded to it, which, presumably, is a reference to the documents filed in support of the application for review, including the New South Wales and Ontario decisions. It states that the additional information has not persuaded it to grant aid. However, there is nothing to suggest that the Agency has obtained a report from a specialist advisor in respect of the additional information, including the two overseas decisions that counsel for the Applicants maintains support their case.

[20] Given that the matters raised in these applications are difficult ones that involve a mix of domestic and international law, and that the Agency’s decision relies on a specialist advisor’s report, the Panel considers the Agency should ensure it obtains a further specialist advisor’s report that gives full consideration to the new information the Applicants have provided.

Decision

[21] For the reasons set out above, and instead of determining the review, the Panel directs the Agency within 15 working days from receipt of this decision to reconsider its decision. The Agency is directed to take into account:

(a) the Panel’s finding in paragraph [20] that it should ensure it obtains a further specialist advisor’s report that gives full consideration to the new information the Applicants have provided, including in particular the decisions of the Supreme Court of New South Wales and of the Ontario Superior Court of Justice.
(b) the desirability from a natural justice point of view that the new information the Applicants have provided be considered by a different specialist advisor than the person who first advised the Agency.


Dated this 24th day of July 2007

(original signed by)
__________________________
D.J. Maze, Convenor