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Legal Aid Review Panel Decision No 243/08 [2008] NZLARP 116 (13 August 2008)

Last Updated: 30 August 2015

LARP NO. 243/08

Summary:
Refusal of amendment to grant

The applicant was granted aid for applications for a parenting order and a protection order. Initially the protection order application was made without notice, but the court refused to make ex parte orders, and her former husband filed a notice of defence. Because he then failed to file an affidavit, the matter was set down for formal proof at which time final orders were made by the court and sealed the same day. Several months after the sealing of the final orders the provider made another application for an amendment to grant to cover work she had had to do to provide the court with the address of the respondent so that the protection order could be served. The Agency declined payment under s24(2)(a) as the application had not been received within 15 working days of the date on which the case had been finally disposed of. To the Panel the applicant submitted that the Agency was wrong in law to equate “finally disposed of” to the making of the final protection order, when the court had required further work from the provider; she could not refuse to do what the court wanted, particularly as that would undermine the purpose for which aid had been granted, namely the obtaining of a protection order; this case was distinguishable from Mansell v LSA [2004] NZCA 275; [2005] NZFLR 551(CA); in a case involving a final protection order, “finally disposed of” must be given a wide interpretation such as “all statutory obligations of the court in relation to this proceeding have been concluded” so that the life of the applicant could be protected; the NZ Bill of Rights Act 1990 and Osman v United Kingdom [1998] 29 EHRR 245 (ECtHR) were relevant here and the Agency had the power to take a positive protective measure by enabling the provider to assist the court to effect service of the order; and the wider interpretation was consistent with the obligations of the state, the Agency and the court under the United Nations Convention on the Rights of the Child, Care of Children Act 2004 and the CYPF Act 1989. The Agency submitted that under s24(6) of the LS Amendment Act 2006 “final disposition” meant the final disposition of the matter by a court, tribunal or any other means, and that was the making of the final protection order. The applicant had incorrectly said that the Agency had refused payment on the authority of Mansell but in fact the decision had been made under s24 of the Legal Services Amendment Act 2006 which allowed the Agency to consider an amendment if it was made within 15 working days of the final disposition. This application did not fulfill that requirement. The Agency also noted that the provider had only been requested to provide an updated address for the respondent. In response the applicant provided extracts from a speech by Judge Peter Boshier to a domestic violence hui regarding the safety of applicants for protection orders. The provider also made the further submissions that Mansell was relevant and that the 15 day deadline was irrelevant because the request was not made by the court until after 15 days.

The Panel noted that it had considered a similar factual situation in LARP 022/08, and had relied on McCready v LSA (Wild J; HC, Wellington; AP 87/02; 2/10/02) as authority for the proposition that a matter was finally disposed of when the court had given judgment on the substantive matter despite the fact that some issues, such as costs, remained undetermined. It considered this to be still binding as was Mansell. McCready had followed Craig v Craig [1993] 1 NZLR 29, and the same reasoning had been used in LARP 355/04. The Panel noted that a fresh application could be made after proceedings had ended, but an amendment to the previous grant could not be. The Panel found that the Agency was not wrong in law to follow McCready, and confirmed its decision.



DECISION

Introduction

[1] An aided person (the “Applicant”) has applied for a review of the decision of the Legal Services Agency (the “Agency”) dated 17 June 2008. By that decision the Agency declined the Applicant’s application for an amendment to grant dated 16 June 2008.

Grounds of the Application

[2] A decision may be reviewed on the grounds that it is either manifestly unreasonable or wrong in law.

[3] In the application for review the Applicant submits that the Agency’s decision was “wrong in law”.

The Facts

[4] On 21 December 2007 the Applicant was granted aid for advice for parenting matters and the filing of an application for a protection order in the Family Court.

[5] The Applicant obtained a final parenting order (day to day care) for her daughter on 22 March 2007 and was divorced from her former husband on 20 August 2007. In her affidavit in support of a without notice application for a protection order she referred to both physical and mental abuse by her husband against both her and her daughter. When her application was filed in November 2007 the court refused to make interim orders ex parte and her former husband was served with a copy of the application. In response he filed a notice of defence on 6 December 2007. He then failed to file an affidavit as required by the court. The matter was set down for formal proof on 17 March 2008 at which time final orders were made by the court. These were sealed that day by the court office.

[6] Between the filing of the initial application and the sealing of the final orders three applications for amendment to grant were made and granted. These were made in December 2007, January 2008 and March 2008 respectfully. These amendments related to the giving of advice after an apparent breach or breaches of the final parenting order for day to day care of the Applicant’s child, the updating of the Applicant’s affidavit dealing with harassment by the respondent and the completion of a memorandum of counsel for the formal proof hearing on 17 March 2008.

[7] On 16 July 2008, the Agency received a further application for amendment to grant from the Applicant’s listed provider. The amendment sought was to cover work done subsequent to the order being made and arose from a situation where the court had been unable to serve the respondent with the protection order made on 17 March 2008.

[8] The listed provider stated that she had been asked by the court for information regarding the respondent’s current address. She stated that the extra 0.5 of an hour was required for her to liaise with the court and her client.

[9] The Agency rejected the application on 17 June 2008 under s24(2)(a) of the Act as the application had not been received within 15 working days of the date the case was finally disposed of.

[10] The Applicant subsequently filed an application for review.

The Applicant’s Submissions

[11] The Applicant submits:

(a) The Agency’s decision was wrong in law because it wrongly equates ‘finally disposed of’ with when the final protection order was made, despite the fact that the court itself required further work to be done in order for the court to fulfil its statutory obligations (namely to effect service).
(b) The Agency failed to take into account the obligations of an officer of the court, namely to respond to a request from the court, even after proceedings have apparently finished.
(c) Despite the authority of Mansell v Legal Services Agency [2004] NZCA 275; [2005] NZFLR 551 (CA) this case is distinguishable from the present situation. Mansell v Legal Services Agency (above) does not cover the situation in the Family Court where the Family Court itself has the statutory obligation to effect service of the final orders under the Family Court Rules – FCR 101.
(d) The additional work in this case was instigated by the court, not by the client or the lawyer. It arose after the judgment but before the matter was finally disposed of by the court.
(e) It is not reasonably open to a lawyer, as an officer of the court, to ignore a request from the court.
(f) Failure to comply with the court’s request would undermine the purpose for which aid was granted namely to assist the Applicant to obtain a protection order.
(g) It is unreasonable to expect a lawyer to do this further work on an unremunerated basis.
(h) Further, if the respondent’s new address cannot be found, it would also be reasonable for the lawyer to monitor the situation as to whether further steps can be taken by the registrar under FCR 206, or whether it is appropriate to apply for an order for substituted service. It would be unreasonable to require the client to make a new application for legal aid at this point.
(i) “Finally disposed of’ in s 24(2)(a) of the Legal Services Act 2000 can reasonably be interpreted as meaning ‘all statutory obligations of the Court in relation to this proceeding have been concluded’.”
(j) In a case involving a protection order, it needs to be given that wider interpretation, so as not to be inconsistent with the client’s right not to be deprived of life (section 8 of the New Zealand Bill of Rights Act 1990, and see also sections 4 – 6).
(k) Where the state is aware of a real risk to the life of an identified individual from the criminal acts of a third party, the relevant authorities are obliged to take positive protective measures within the scope of their powers which, judged reasonably, might be expected to avoid that risk, Osman v United Kingdom [1998] 29 EHRR 245 (ECtHR). In this case, because a final protection order has been made, and because of the information available to the Agency about domestic violence, the Agency can reasonably be said to be aware of a real risk to the life of an identified individual from the criminal acts of the respondent. The Agency has the power to take a positive protective measure (ie granting aid to enable the lawyer to assist the court to effect service of the order). Effecting service of the protection order might be expected to avoid that risk. Also judged reasonably, enabling the court to obtain updated information about the respondent’s address is part of that protective measure.
(l) In domestic violence cases involving children, the wider interpretation of ‘finally disposed of’ is consistent with the obligations of the state under articles 6(2), 18(2) and 19(1) of the United Nations Convention on the Rights of the Child. Relevant treaty obligations may posit mandatory considerations when a statute is being interpreted (Tavita v Minister of Immigration [1994] 2 NZLR 257 (CA)).
(m) In cases involving the welfare and interests of children the wider interpretation is consistent with the obligations of the Agency and the court under:
(i) Articles 3.1 and 4 of the United Nations Convention on the Rights of the Child;
(ii) Care of Children Act 2004, section 4; and
(iii) Children Young Persons and their Families Act 1989, section 6.

The Agency’s Submissions

[12] The Agency submits:

(a) Under section 24(6) of the Legal Services Amendment Act 2006: final disposition means the final disposition of the matter to which the application relates, by a court, tribunal, or any other means.
(b) It was therefore correct in its view that matters were disposed of on 17 March 2008 with a final protection order being made. Any further work required by the court such as to effect service is seen to be a statutory obligation of the court and does not take precedence over the fact that the matters have been disposed of.
(c) Under the old provisions of the Act it had no discretion to accept an amendment to grant after matters had been disposed of under section 24(1)(c) of the Act. This was upheld in Mansell v Legal Services Agency (above).
(d) The Applicant has referred to this case as the authority by which the Agency declined the amendment to grant. This is incorrect. The amendment to grant was considered and declined by the Agency under the amended provisions of section 24 of the Legal Services Amendment Act 2006. This amendment provides scope for it to exercise their discretion provided that the requirements of section 24(2)(a) and (b) are satisfied.
(e) Under section 24(2)(a) of the Act it may consider an amendment to grant if it is received within 15 working days of the final disposition of the case. The current amendment to grant was not received within such time.
(f) On the Applicant’s submission that it gave insufficient regard to the obligations of counsel to respond to a request from the court after proceedings had finished the Agency submits that the court had simply requested an updated address (if any) of the respondent to enable service.
(g) The statutory obligation to effect service is an obligation of the court and counsel was merely asked to provide a new address if possible. Therefore the Family Court does not require nor request counsel to complete this work.

[13] Writing later, the Applicant through her listed provider submits:

(a) That the Panel consider the speech of Judge Peter Boshier to the Waikato Domestic Violence Hui (1 March 2007) and in particular the following points:
(b) “When a death occurs on a Family Court file, courts look at the procedure followed in those cases to identify if any lapses have occurred and consider if improvements or changes to systems can processes can be made to improve the management of cases and reduce any risks to the parties. An example is one case where it became evident that a final protection order was served late. The courts now have a nationwide computer system which provides a reminder to court staff whenever a final protection order is due to be issued.”
(c) The highlighting of a case where a female and her male acquaintance were killed by her former partner in circumstances where a temporary order had been made but not served; and
(d) Under the heading “‘Cost of applying for an order’ ... what is yet to be achieved is a situation in which there are legal aid rates which remunerate lawyers fairly and realistically, and which encourage them to continue to undertake domestic violence cases. I am presently in discussion with the Legal Services Agency in order to arrive at an approach which not only properly remunerates lawyers for undertaking domestic violence work in the Family Court, but which also encourages them to do so, and enables them to discuss wider and important concerns involving the victim’s safety.’” Here the Applicant submits that the words of Judge Boshier can be rephrased to read, “‘and enables them to address wider and important concerns involving the victim’s safety’, because ‘discussion’ hardly helps anything if it is not accompanied by action.”

Further Submissions by the Applicant

[14] In reply to the Agency’s submissions the Applicant through her listed provider submits:

(a) Mansell v Legal Services Agency (above) is still authority for the interpretation of ‘final disposition’.
(b) The delay in filing the amendment to grant is irrelevant as the court’s letter asking for further service details came more than 15 working days after the Agency’s interpretation of when the file was finally disposed of.
(c) It would be manifestly unreasonable for a lawyer to ignore the court’s request.
(d) The alternative is to reply “I am not paid by the Legal Services Agency’ to find this out and therefore I am not going to”.
(e) The court is obliged to effect service by mail. If service cannot be effected in this manner the court is obliged to assess whether service on a party can indeed by effected by personal service. Contacting the Applicant’s listed provider is part of the court’s process in identifying whether there is a reason why personal service cannot be effected.

The Issue

[15] The issue before the Panel is whether the Agency’s decision to decline the Application for an amendment to grant was wrong in law. In answering this issue this case concerns the interpretation of ‘final disposition’ as it appears under sections 24(1)(c), (2), (2)(a) and (6) of the Act.

The Law

[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 [2002] 17 PRNZ 433).

[17] Sections 24(1)(c) and 24(2)(a) and (b) of the Act provide:
“24 Application for Amendment to grant of legal aid
(1) An application for an amendment to a grant of legal aid—
...
(c) must, subject to subsection (2), be made before the final disposition.
(2) An application for an amendment to a grant of legal aid may be made after the final disposition only if—
(a) the Agency receives the application within 15 working days from the date of the final disposition; and
(b) the Agency is satisfied that—
(i) the application was delayed because of circumstances beyond the control of the applicant and the listed provider, and those circumstances could not have been reasonably anticipated; and
(ii) the applicant and the listed provider took all reasonable steps to apply before the final disposition.”
[18] ‘Final disposition’ is defined under section 24(6) of the Act, the subsection provides:

“6) In this section, final disposition means the final disposition of the matter to which the application relates, by a court, tribunal, or any other means.”

[19] Before being amended, effective from 1 March 2007, section 24(1)(c) of the Act provided:

“24 Application for Amendment to grant of legal aid

(1) An application for amendment to a grant of legal aid—
...

(c) may be made at any time before the matter to which the application or grant relates is finally disposed of by the relevant body.”

Discussion

[20] This review concerns the post 1 March 2007 wording of section 24(1)(c) of the Act. The authorities on the other hand relate to the pre 1 March 2007 wording of section 24(1)(c). While acknowledging that a “final disposition” may now be achieved by “a court, tribunal or any other means” and not just “the relevant body”, the Panel considers that, in dealing with these authorities that there is no difference between ‘final disposition’ (post March 2007) and ‘finally disposed of’ (pre March 2007).

[21] The pre March 2007 wording was considered by the Panel in LARP 022/08 (30 October 2007). That review dealt with the similar factual situation of work being undertaken by a listed provider after the court encountered difficulties with servicing a final protection order. The Panel then considered McCready v Legal Services Agency (High Court, Wellington, AP 87/02, 2 October 2002, Wild J) as clear authority that a matter was finally disposed of when the court has given judgment on the substantive matter despite the fact that some issues, such as costs, remain undetermined. Despite the changes in wording under section 24 of the Act the Panel considers that the Agency is still bound by this decision.

[22] The Agency is also bound by Mansell v Legal Services Agency (above) which holds that the Agency has no discretion to accept an application after the substantive matter has been finally disposed of by the court or body charged with determining it. The Panel is not in a position to consider whether the court’s use of “final” is determinative of its entire scope. The Panel observes that the interpretation of final disposition was not in issue in Mansell v Legal Services Agency (above) therefore there were no submissions made on that point before either the High Court or the Court of Appeal.

[23] In citing the Court of Appeal decision in Craig v Craig [1993] 1 NZLR 29; [1993] NZFLR 1 (CA) the High Court in McCready v Legal Services Agency (above) stated (at paragraph [25]) that:

“... There, the Court held that a judgment appearing on its face to be a final determination of the issues before the Court is just that. In their judgment Richardson and McKay JJ said:

“The argument for the appellant fails for another reason. Even if the judgment itself identified further issues still to be decided, it would still be a final decision on the matters dealt with.”(p 33)”

[24] Similar reasoning was adopted by the Panel in LARP 355/04 (12 August 2004). That case concerned a review of an Agency’s decision not to amend a grant where a decision of the Family Court had been made but the subsequent orders had not been sealed by the court. The listed provider in that case argued that it was the date of service/receipt of the order, not the date of the order itself that indicated the point of final disposition. The Panel disagreed finding that the Family Court Rules 2002 had the effect of finally disposing of the matter on the date of judgment and not the date on which the order was sealed.

[25] In LARP 041/04 (8 August 2003) the Panel determined that an Applicant may make a fresh application for aid to cover work done after the determination of the proceedings, but that the Agency was precluded from amending an existing grant of aid after such time.

[26] Given the binding effect of McCready v Legal Services Agency (above) the Agency had no discretion to entertain the application. It cannot have been said to have acted in a manner that was wrong in law.

[27] While the Applicant has submitted that this Review is distinguishable this is not a question that the Panel has the jurisdiction to consider. The Agency was not wrong in law to follow McCready v Legal Services Agency (above) in finding that the case had been finally disposed of and that the application to amend was made outside the 15 working days provided in the Act.

Decision

[28] For the reasons set out above, the Agency’s decision of 17 June 2008 is confirmed.


Dated this 13th day of August 2008

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