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PT (Criminal) [2016] NZLAT 73 (7 February 2017)

Last Updated: 17 January 2018

COPY FOR PUBLICATION

_DECISION

INTRODUCTION

[1] This is an application by an applicant for aid, for review of the decision of the Legal Services Commissioner (“Commissioner”) of 31 October 2016 declining a grant of aid.

[2] The applicant parked his house bus in an area where freedom camping was prohibited. The local council seized and sold the bus. The Commissioner granted interim aid for the applicant’s lawyer to investigate the validity of a claim against the council. An equivocal opinion was provided by the lawyer as to the applicant’s prospects of success. Following receipt of the opinion, the Commissioner declined aid.

[3] The essential issue for me is whether the applicant has shown that he has a good cause of action against the council.

BACKGROUND

[4] The applicant lived in a house bus. The warrant of fitness and registration had long since expired. He parked the bus in various places but was moved on by campsite owners and the local territorial council.

[5] On 3 July 2014, the council issued an infringement notice under the

Freedom Camping Act 2011.

[6] On either 27 July 2014 (at 10 pm) or 28 July (at 1 am) – the timing is disputed – the bus was seized by the council with the assistance of the Police. There is also a dispute as to whether the applicant was allowed to remove his personal property from the bus at the time of seizure.

[7] Following the seizure, the appropriate statutory post-seizure procedure was followed by the council and the bus ultimately sold. The proceeds (less an outstanding fine) were paid to the applicant.

[8] On 3 June 2016, the applicant applied for a grant of interim aid to enable his lawyer to provide an opinion as to his prospects of success in suing the council. The applicant believed the bus had been seized illegally and that there had been theft from the vehicle after seizure. On an unknown date, the Commissioner granted aid of five hours.

[9] An opinion (undated) was provided by the lawyer to the Commissioner on

13 September 2016. In summary, it found that the council’s actions were permitted under the Freedom Camping Act 2011. The procedure under the legislation had been followed. The Ombudsman had investigated and found that the dispute as to the removal of property from the bus “could not be pursued further”. The lawyer did not disagree with this.

[10] In the opinion, the lawyer raised an issue (of “some prominence”) as to the reasonableness of the seizure at night, in terms of s 21 of the New Zealand Bill of Rights Act 1990 (“NZBORA”). The lawyer considered that the council could have taken the bus during daylight hours and should also have ensured there was a support person from a community agency present at the time. According to the lawyer, the failure to do so could give rise to an award of damages in accordance with Simpson v Attorney-General [Baigent’s case] [1994] 3 NZLR 667 (CA).

[11] The recommendation of the lawyer was that the stronger cause of action appeared to be for unreasonable seizure. An award of damages was difficult to predict, but the lawyer emphasised in this context that an “all-powerful council” seized the bus “in the dead of night to much tumult and inconvenience”.

[12] On 30 September 2016, the Commissioner declined aid on the ground that the prospects of success were not sufficient to justify aid. In the view of the Commissioner’s officer, the council was entitled to seize and sell the bus. There was nothing in the legislation restricting seizures to certain hours. The Ombudsman had agreed with this. Even if the seizure was unreasonable, the

damages awarded would not be effective in relation to the cost of legal services, so aid was not justified.

[13] The applicant must have sought reconsideration by the Commissioner of the decline of aid, as a further decision was issued by another officer of the Commissioner on 31 October 2016. The original decision declining aid was confirmed. There was no real sustainable basis to proceedings against the council. The seizure was lawful under the Freedom Camping Act 2011. The time of the seizure, given the circumstances, could not be said to be unreasonable. The applicant had been given notice prior to seizure that if he did not stop committing an offence under the legislation, the council had the power to seize the property. The prospects of success did not justify a grant of aid.

THE APPLICANT’S CASE

[14] The applicant contends the decision of the Commissioner is manifestly unreasonable and wrong in law.

[15] The applicant’s case on review is set out in short submissions on the completed application form, with supporting documents.

[16] The Commissioner’s submissions are dated 7 December 2016, with supporting documents.

[17] The submissions of the applicant and Commissioner are considered below.

THE LAW

[18] The grounds for reviewing a decision of the Commissioner are set out in

section 52(1) of the Legal Services Act 2011 (“the Act”):

An aided person or an applicant for legal aid may apply to the Tribunal for a review

of the Commissioner’s reconsideration of a decision ...on the grounds that it is 

(a) manifestly unreasonable; or

(b) wrong in law.

[19] A decision is manifestly unreasonable where “it is shown, clearly and unmistakably, that the decision made by the [Commissioner] went beyond what was reasonable or was irrational or logically flawed”; Legal Services Agency v Fainu [2002] NZHC 1256; (2002) 17 PRNZ 433 at [28]. Manifestly unreasonable requires “not only that the decision be found to be unreasonable, but that [the Tribunal] forms the view that the decision is so clearly unreasonable that the intervention of the

[Tribunal] is called for”; Legal Services Agency v A (2003) 17 PRNZ 443 at [11](c). The threshold for intervention is a high one and it is necessary for the Tribunal to exercise restraint; Meredith v Legal Services Agency [2012] NZCA 573 at [97] & [99].

[20] A decision may be wrong in law “if it derives from an incorrect application or interpretation of the statute; or if it is wrong in principle; or if the decision-maker has failed to take into account some relevant matter; or has taken account of an irrelevant matter; or if it depends upon findings which are unsupported by the evidence”; Legal Services Agency v Fainu at [27], approved by the Court of Appeal in Meredith at [103] & [111].

[21] The Tribunal is required to conduct reviews on the papers and to provide a brief summary of the reasons.

ASSESSMENT

[22] The Commissioner relies on s 10(4)(d)(i) of the Act, permitting him to refuse aid if the applicant’s prospects of success are not sufficient to justify a grant.

[23] Whether the prospects of success justify a grant for proceedings requires weighing their likely benefit against the likely cost. This evaluative exercise is assisted by enquiring as to what, if any, legal action a reasonable individual would take if paying his or her own legal costs. The courts have said that the enquiry, as to what the reasonable self-funded individual would do, should not be applied in a rigid manner; see Timmins v Legal Aid Review Panel [2004] 1 NZLR 708 at [33]-[36], Meredith at [50]-[54].

[24] It follows that, like the Commissioner, I am required to make an assessment of the merits of the proposed proceedings, as best as can be done on the evidence made available by the applicant, recognising that it would ultimately be a matter for the Court to determine the outcome of any proceedings filed. In order to obtain aid, the applicant is not required to prove that he would prevail in his case but he must show sufficient merit to justify the cost to the Commissioner of pursuing the claim.

[25] The applicant was granted five hours of interim aid for his lawyer to produce an opinion as to his prospects of success against the council, but the opinion provided by the lawyer does not even assert good prospects, let alone justify

them. The lawyer actually concluded that the seizure was lawful, the council having complied with the relevant legislation.

[26] The lawyer did raise an issue as to the reasonableness of a seizure (of a vehicle being used as a home) occurring at night. While the lawyer noted that s 37 of the Freedom Camping Act 2011 permitting the seizure of property, contained no temporal restrictions, s 21 of NZBORA protected against unreasonable seizure. However, no authority was identified supporting the contention that a nocturnal seizure could be unreasonable.

[27] I am not aware of any authority confining seizure to daylight hours. As to the reasonableness of a night seizure, the applicant is far more likely to be in his bus then. The lateness was due to the council officer waiting for a Police officer to become available to assist. A night-time seizure is not inherently unreasonable.

[28] There is nothing in the freedom camping legislation, nor NZBORA, restricting seizure to daylight hours or supporting any argument that those responsible for a seizure should be accompanied by a community support person.

[29] The opinion raised other issues but offered no authority or conclusion supportive of any valid cause of action against the council.

Conclusion

[30] The applicant has not established that he has an arguable claim against the council. A reasonable person would not self-fund such a speculative claim. The decision of the Commissioner to decline further aid is neither manifestly unreasonable nor wrong in law.

OUTCOME

_{[31] The decision of the Commissioner is confirmed.}

D J Plunkett

Chair