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Legal Aid Review Panel Decision No 090/08 [2007] NZLARP 175 (14 November 2007)

Last Updated: 6 August 2015

LARP NO. 086-094/08

Summary:

Refusal of aid - insufficient prospects of success - state immunity

The applicants are all members of the Falun Gong movement seeking damages and declaratory relief against political authorities in China for unlawful arrest and detention amongst other grounds. Pursuant to Rule 220 of the High Court Rules, the applicants had to obtain the leave of the High Court to serve the proceedings on the defendants out of NZ. Leave was refused by an Associate HC Judge, and then considered as a fresh application by a HC Judge. It was dismissed on the basis that there was no arguable prospect that the applicants could establish an exception to the principle of state immunity. There was no basis on which Jones v Saudi Arabia [2006] UKHL 26; 2 WLR 1424 could be distinguished. The applicants applied for aid to appeal to the CA, and after consulting a specialist adviser, the Agency declined and confirmed its refusal after reconsideration. The applicants provided to the Panel in support of their first application for review 2 cases from overseas jurisdictions: Zhang v Zemin & anor [2007] NSWSC 229 and Zhang v Zemin (Ontario Superior Court of Justice, 04-CV- 178915CM2, 17 July 2006, Master Glustein). As the Agency had not had an opportunity to consider those cases the Panel directed the Agency to reconsider, taking them into account. The Agency then issued a fresh decision based on its reconsideration. It decided that both cases could be distinguished and that aid should not be granted. It considered that NZ courts would follow Jones v Saudi Arabia. To the Panel the applicants submitted that the Agency did not address the fact that Jones had been appealed to the European Court of Justice and in any case could be distinguished because the law was evolving and NZ was able to develop its own jurisprudence along with Australia. The NSW case took into account that Jones had been appealed. The Agency made no new submissions.

The Panel first stated that even if Jones was being appealed, it did not follow that it was proper that the Agency grant aid to appeal to the CA. The proper approach was for the applicant to make a fresh application if the appeal on Jones succeeded. The Panel then noted that the applicants had not explained how Jones was to be distinguished. The argument appeared to be that NZ was not bound to follow the House of Lords. As there was no argument presented as to why the CA would not follow the House of Lords, it was within the reasonable bounds of the Agency’s discretion to find that that was unlikely. The Panel also did not agree that either of the cases put forward by the applicants provided any support for their case. The cases did not appear to deal with the same issue. Once again the counsel for the applicants had provided further material for the Panel that it had not put to the Agency. These were submissions by the counsel for the International Coalition against Torture to the UN Committee against Torture. He was also counsel for Jones and he had advised that the full argument had not been put before the House of Lords but would be put to the European Court of Justice. It was not possible for the Panel to test the accuracy of that claim. It had before it a well reasoned judgment of the NZ High Court following a highly authoritative decision of the House of Lords in Jones. The Panel considered that that reinforced its conclusion that the proper course for the applicant was to await the outcome of the appeal to the European Court of Justice. For those reasons the Panel confirmed the Agency’s decision to refuse aid.


DECISION

Introduction

[1] This decision relates to nine separate applications for review brought by nine applicants (the “Applicants”) for legal aid. Each application for review gives rise to an identical issue and it is therefore appropriate to deal with all the applications by way of one decision.

[2] The applications for review that are the subject of this decision follow earlier applications for review made by the Applicants. Instead of determining those applications, the Panel directed the Legal Services Agency (the “Agency”) to reconsider the decisions it had made (see LARP 241/07 – 249/07, 24 July 2007).

[3] Following its reconsideration, the Agency issued a single decision dated 29 August 2007 in respect of all nine legal aid applications. The Agency again refused to grant the Applicants legal aid. The Applicants now apply for a review of that decision.

Grounds of the Application

[4] Pursuant to section 54(1) of the Legal Services Act 2000 (the “Act”), the Applicants have applied for review on the grounds that the Agency’s decision of 29 August 2007 is manifestly unreasonable and wrong in law.

The Facts

[5] The following extract from the Panel’s previous decision sets out the relevant background.

“[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.”

[6] In support of the first applications for review, counsel for the Applicants submitted to the Panel two cases from overseas jurisdictions: Zhang v Zemin & Anor [2007] NSWSC 229, a decision of the New South Wales Supreme Court, and Zhang v Zemin (Ontario Superior Court of Justice, 04-CV-278915CM2, 17 July 2006, Master Glustein).

[7] As the Agency had not had the opportunity to consider those cases, the Panel directed, pursuant to section 58 of the Act, that it take them into account in reconsidering its decision of 30 April 2007.

[8] On 29 August 2007, the Agency issued a fresh decision based on its reconsideration. It was not persuaded that either the New South Wales or the Ontario case assisted the Applicants. It stated that the Ontario decision was the result of an ex parte application that related solely to whether service of the relevant statement of claim on the Chinese officials should be dispensed with. Master Glustein made no finding as to the merits of the claim and did not have the benefit of the House of Lords decision in Jones v Saudi Arabia (supra). Similarly, the Agency stated that the New South Wales decision made no specific finding on the substantive issues of state immunity.

[9] The Agency also observed that the House of Lords did not decide Jones v Saudi Arabia (supra) on the basis of an ex parte application but after hearing comprehensive argument from all parties. The Agency’s firm view was that the New Zealand courts would follow Jones v Saudi Arabia (supra).

The Applicant’s Submissions

[10] In essence, counsel submits on behalf of the Applicants:

(a) The Agency did not address the fact that Jones v Saudi Arabia (supra) has gone on appeal to the European Court of Justice. For that reason, it is proper to grant legal aid to the appellants.
(b) Jones v Saudi Arabia (supra) can be distinguished in respect of the evolution of the law and the ability for New Zealand to develop its own jurisprudence along with that of Australia. The New South Wales case was decided in the knowledge that Jones v Saudi Arabia (supra) had been appealed.

The Agency’s Submissions

[11] The Agency simply submits that the Panel should confirm its decision of 29 August 2007.

The Issue

[12] The issue before the Panel is whether the Agency’s decision of 29 August 2007 not to grant the Applicants legal aid is manifestly unreasonable or wrong in law, or both.

The Law

[13] 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).

[14] 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

[15] Counsel’s submissions to the Panel lack merit.

[16] While it is not clear that the Agency was informed that Jones v Saudi Arabia (supra) is being appealed to the European Court of Justice, the fact that it is under appeal does not mean it is proper that the Agency should grant aid so that the Applicants can appeal Randerson J’s decision.

[17] Rather, the proper approach is for the Applicants to consider making a fresh application, if, in due course, the European Court of Justice delivers a decision that supports their case.

[18] Second, the Applicants have not explained how Jones v Saudi Arabia (supra) can be distinguished. The argument seems to be simply that New Zealand is not bound to follow the House of Lords. While the Applicants are correct in that respect, they have not presented a cogent argument as to why the Court of Appeal would disagree with Randerson J and not follow the House of Lords. It was within the reasonable bounds of the Agency’s discretion to find that it was most unlikely that the Court of Appeal would disagree with Randerson J and not follow Jones v Saudi Arabia (supra).

[19] Further, the Panel is not persuaded that either the New South Wales or the Ontario case that counsel relies upon provides the Applicants with any real support. Neither case deals substantively with the issue of immunity. Indeed, at paragraph 22 of Zhang v Zemin [2007] NSWSC 229, the New South Wales Supreme Court made it clear that the issue was still moot and said:

“Once the amended statement of claim is served, the issue of immunity ... can be ventilated”.

[20] Counsel has again submitted with these applications for review information that has not been put to the Agency. The information concerned is a copy of submissions dated 9 April 2005 of the International Coalition against Torture (INCAT) to the United Nations Committee against Torture. Counsel states that the author of the submissions is David Matas, who produced submissions for INCAT in Jones v Saudi Arabia (supra). According to counsel, Mr Matas has advised that INCAT’s full argument was not put before the House of Lords in Jones v Saudi Arabia (supra) and that the entire submission will “of course” be fully heard in the European Court of Justice.

[21] It is not possible for the Panel to test the accuracy of that claim. However, it remains the case that Randerson J, in his own thorough and, with respect, well-reasoned judgment followed the highly authoritative and comprehensive decision of the House of Lords in Jones v Saudi Arabia (supra). Even if the INCAT submissions do support the Applicants, counsel submits that the European Court of Justice will have an opportunity to consider them when it hears the appeal against Jones v Saudi Arabia (supra). That reinforces the Panel’s conclusion in paragraph 17 above that the proper course for the Applicants is now to await the outcome of the appeal to the European Court of Justice.

Decision

[22] For the reasons set out above, the Panel confirms the Agency’s decision of 29 August 2007 not to grant the Applicants legal aid.


Dated this 14th day of November 2007

(Signed on original)
__________________________
D.J. Maze, Convenor