Decisions

Legal Aid Tribunal decisions

The Chair of the Legal Aid Tribunal decides which decisions are to be published. All decisions are de-personalised before publishing ie, names and other information that would identify the person applying and any other person are removed.

The Tribunal is now engaged in the project of uploading its own decisions onto a searchable database. Pending the implementation of that database, decisions approved by the Chair of the Tribunal for publication will be listed below.

BQ (Historic Abuse) [2012] NZLAT 001 (PDF, 147KB)

Civil / parties reach provisional settlement agreement / Commissioner declined application to increase maximum grant to finalise the settlement and close the file / Commissioner determined that the increase to the maximum grant is excessive / HELD / section 52(2)(d), Legal Services Act 2011 / Tribunal’s enquiry restricted to considering the increase to the maximum grant / Tribunal has no jurisdiction to consider disputes that relate to amounts payable to provider / Commissioner entitled to determine that some tasks are administrative in nature but provider must still supervise staff member’s work / Tribunal finds Commissioner has underestimated the tasks required to be completed by the provider / Tribunal finds the Commissioner’s assessment of the amendment application was flawed and not specific to the individual circumstances of the applicant / Commissioner directed to reconsider the decision

BR (Historic Abuse) [2011] NZLAT 073 (PDF, 180KB)

Civil / Commissioner declined to grant aid for historic abuse proceedings but allowed grant to pursue settlement agreement / Commissioner declined to approve amendment to grant to pay for attendance of second counsel and preparatory work for judicial settlement conference / Commissioner / time for discovery, will-say statements, counsel memorandum / whether amount of preparation time approved by the Commissioner is sufficient / HELD / submission dealing with post-decision matters will not be considered / Commissioner’s reconsideration decision did not take account of additional information supplied by the applicant indicating that the original decision of the Commissioner was faulty nor the extent of discovery / Legal Services Agency v KGR HC Wellington, CIV 2009-404-3399, 6 August 2009 / JMM v Legal Services Agency HC Wellington, CIV 2010-485-1306, 14 April 2011 / Commissioner required to give reasons for his decision to decline the amendment application / Commissioner entitled to take account of his experience in claims of this nature when determining reasonableness of grant / not accepted that funding for other cases gives rise to legitimate expectation / Commissioner must assess particular case in accordance with Act / Lalli v Attorney General [2009] NZAR 720 at [19] / legitimate expectation cannot require the Commissioner to act contrary to statute / AM (Historic Abuse) v Legal Services Agency [2011] NZAR 95 / Legal Services v Haslam [2007] 18 PRNZ at [51] / Commissioner to assess reasonable hours, not pay according to actual hours / Decision wrong in law / Commissioner directed to reconsider decision to decline preparatory time for Judicial Settlement Conference

BP (Historic Abuse) [2011] NZLAT 035 (PDF, 135KB)

Civil / transition / Agency withdrew grant of aid / practitioner’s account only partly paid / Agency declined application to amend the maximum grant as aid already withdrawn / whether Agency should have exercised statutory discretion to consider payment of the invoice even though it exceeds the maximum grant / HELD / section 75(3)(a) Legal Services Act 2000 / AM (Historic Abuse) v Legal Services Agency [2012] NZAR 95 / Agency failed to exercise discretion to consider the invoice / decision to decline the amendment does not automatically justify refusal to pay the invoice / wrong in law / Commissioner must assess the reasonableness of the invoice / Tribunal directs the Commissioner to reconsider the decision to decline the invoice

BO (Civil) [2012] NZLAT 003 (PDF, 252KB)

Civil / Commissioner declined to write-off applicant’s debt of legal aid / Commissioner prescribed conditions of grant, including interim repayment amount and statutory charge over property of the applicant / proceedings discontinued due to unforeseen circumstances and applicant subsequently applied to write-off debt of aid / Commissioner not satisfied that statutory grounds for write-off met by the applicant / whether applicant has established serious hardship or that it is just and equitable to write-off the debt / HELD / section 43(1)(a) and (c) Legal Services Act 2011 / applicant does not meet standard of serious hardship in section 42(4) / applicant has provided no evidence to the Tribunal that requiring repayment of the debt would cause serious financial hardship or that it would be unjust or inequitable to require repayment / not manifestly unreasonable or wrong in law / Tribunal confirms the decision of the Commissioner

BN (Criminal) [2011] NZLAT 053 (PDF, 232KB)

Criminal / applicant is bankrupt but is discretionary beneficiary of family trust and appointer of trustees / whether trust assets to be considered as those of applicant / calculation of “capital” and “disposable capital” / calculation of maximum amount repayable / calculation of interim payments and whether trust assets available / Commissioner made grant of aid subject to condition that applicant and trustees authorise charge registered in the Commissioner’s favour over trust property / whether the Commissioner is entitled to impose a condition requiring a charge over trust property / HELD / Petricevic v Legal Services Agency [2011] 2 NZLR 802 / Legal Services Regulations 2011, clause 8 / Commissioner has discretion to treat part or all of assets of a trust as applicant’s assets / Commissioner must consider interests of other beneficiaries, notably disabled son incapable of looking after himself / once applicant’s interest is family trust added to his assets, his “capital” and “disposable capital” can be calculated, having made the deductions allowed under clause 3(1) Schedule 1 / if trust’s home is counted as an asset of the applicant, then allowance for equity in house must be made / calculation of “prescribed repayment amount” under clause 10 of Legal Services Regulations 2011 and hence maximum amount repayable under section 21 Legal Services Act 2011 must take account of debt at time the proceedings are concluded / trust assets available for interim lump sum repayment / applicant’s debts must be deducted in assessing a lump sum interim repayment / statutory land charge is permissible only over the property of the applicant / section 18(3) Legal Services Act 2011 / applicant’s interest in the property is a ‘mere expectancy’ since he has no legal or equitable interest in the trust / Commissioner entitled to have regard to trust assets for eligibility purposes but there is no provision authorising the Commissioner to obtain security over third party property / Commissioner has no power to impose a condition requiring a charge over trust property / Tribunal directs the Commissioner to reconsider the decision and reverses the required statutory land charge

BM (Criminal) [2011] NZLAT 071 (PDF, 156KB)

Criminal / review of the Commissioner’s decision to decline reassignment of legal aid provider / original grant of aid made for charge of common assault / provider was assigned by the Commissioner on rotation / charge subsequently upgraded and applicant reapplied for grant of aid specifying different preferred lawyer / Legal Services Act 2011, section 52(1)(a) and (e) / whether Tribunal can review the decision of the Commissioner to decline the applicant’s request to reassign preferred lawyer / HELD / section 52(1)(a) permits the Tribunal to consider all matters that “relate” to grant of aid / Tribunal finds that granting and reassignment of provider are different statutory processes, however assignment does relate to grant of aid / Tribunal finds that the decision of the Commissioner is reviewable / Commissioner’s decision to decline request to reassign provider contrary to legal aid policy / wrong in law / Tribunal directs Commissioner to reconsider the decision

BL (Criminal) [2011] NZLAT 062 (PDF, 183Kb)

Criminal / Commissioner declined request to reassign grant of legal aid / Commissioner refused to make grant of aid to fund expenses of self-represented applicant for legal aid / legal aid applicant refused to accept representation by a lawyer appointed by a Crown agency / whether Legal Services Act 2011 permits grants of aid to be made to applicants to meet the costs of self-representation / HELD / AY (Historic Abuse) [2011] NZLAT 047 / section 75(a), Legal Services Act 2011 / provisions of the Legal Services Act do not permit payment to a person other than a listed provider / travel and accommodation of party not payable under a grant / expert witness not payable except through a listed provider / sections 24(f) and 25(a), Bill of Rights Act 1990, / R v Petricevic HC Auckland, CRI 2008–004–29179, 12 July 2011 / Legal Services Act gives effect to the Crown’s obligation under section 24(f) to provide access to legal representation / whether absence of mechanism for payment for a person who wishes to exercise right to represent themselves amounts to a breach of Bill of Rights Act would have to be considered in light of all the circumstances / no evidence of breach of Bill of Rights Act in this case / not manifestly unreasonable or wrong in law / Tribunal confirms decision of the Commissioner

BJ (Historic Abuse) [2011] NZLAT 027 (PDF, 168KB)

Civil / transition / aided person and provider applicants / Agency declined to amend the maximum grant and approve payment of invoice / applicant granted aid to pursue appeal of the Legal Aid Review Panel’s decision to confirm the Agency’s decision to withdraw aid in the substantive proceedings / applicant one of seven appellants to review decision of Legal Aid Review Panel confirming Agency’s decision to withdraw aid for substantive proceedings / Agency granted applicant aid to pursue such appeal / whether the Agency gave adequate reasons / whether the reasons provided by the Agency in the submissions to the Tribunal but not set out in the decision can be relied on by the Commissioner / HELD / section 75(3)(a) Legal Services Act 2000 / reasons given by the Agency declining the preparatory hours included in the invoice are vague and unsatisfactory / Legal Services Agency v Haslam (2007) 18 PRNZ 469 / JMM v Legal Services Agency HC Wellington CIV 2010-485-1306, 14 April 2011 / Agency must determine an “assessed proper fee” or “reasonable fee” with reasons to justify the sum approved / Agency has not undertaken a “fact-specific” examination of the practitioner’s invoice / reasons given by Commissioner in submissions to the Tribunal comes too late to justify a decision / principal reasons must be set out in the decision itself / manifestly unreasonable and wrong in law / Commissioner directed to reconsider the decision of the Agency

BD (Historic Abuse) [2011] NZLAT 021 (PDF, 209KB)

Civil / transition / aided person and provider applicants / Agency declined to approve amendment to grant / practitioner’s account only partly paid / applicant one of seven appellants to High Court to review decision of Legal Aid Review Panel confirming Agency’s decision to withdraw aid for substantive proceedings / Agency granted applicant aid to pursue such appeal / Agency assessed five applications for aid together as a ‘funding cluster’ / funding of all five appeals was spread evenly between the applicants / Agency made identical decisions for each application without consideration of specific amendments and invoices of each applicant / whether Agency permitted to conduct global decision making in respect of multiple similar applications for aid / whether Agency could decline to reconsider amendments and invoices, as it had already reconsidered the matter before / HELD / Legal Services Agency v KGR HC Wellington CIV 2009-404-3399, 6 August 2009 / JMM v Legal Services Agency HC Wellington CIV 2010-485-1306, 14 April 2011 / Agency permitted to make global funding decisions for initial grants of aid / Agency’s approach to global funding of applications consistent with statutory directive to administer aid efficiently / section 3(b) Legal Services Act 2011 / inappropriate for the Agency to rely on section 29(3) Legal Services Act 2011 / Agency’s decision to not reconsider the decisions wrong in law / Agency failed to make individualised decisions in respect of amendment applications and invoices as it eventually must/ Agency failed to consider substance of individual amendment applications / Legal Services Agency v Haslam (2007) 18 PRNZ 469 / Agency required to pay “assessed proper fee” or “reasonable fee” for work done / wrong in law / Commissioner directed to reconsider the decision

BE (Historic Abuse) [2011] NZLAT 022 (PDF, 212KB)

BF (Historic Abuse) [2011] NZLAT 023 (PDF, 210KB)

BG (Historic Abuse) [2011] NZLAT 024 (PDF, 213KB)

BH (Historic Abuse) [2011] NZLAT 025 (PDF, 209KB)

BI (Historic Abuse) [2011] NZLAT 026 (PDF, 165KB)

BC (Criminal) [2011] NZLAT 060 (PDF, 113KB)

Criminal / Commissioner declined to approve amendment to grant for private investigator / amendment application refused because work already covered in initial grant of aid / fee for private investigator not reasonable / Commissioner accepts work necessary but can be undertaken by provider / whether the Commissioner should have approved a disbursement for a private investigator to conduct work on the provider’s behalf / HELD / private investigator needed to undertake complex and necessary work on behalf of provider in respect of serious charge / Commissioner did not have regard to the complex nature of the proceeding / Commissioner failed to seek justification from provider before declining amendment application / Commissioner breached natural justice / wrong in law / manifestly unreasonable for Commissioner to reject entire invoice when work regarded as necessary and reasonable / Commissioner directed to reconsider the decision

BA (Civil) [2011] NZLAT 057 (PDF, 156KB)

Civil / Agency declined to approve payment of practitioner’s invoice which exceeded the maximum grant / practitioner’s account only partly paid / whether practitioner ought to be paid for all work done even though exceeds maximum grant / HELD / Legal Services Act 2011, section 99(4) / MA (Historic Abuse) [2011] NZLAT 036 / no statutory prohibition against payment of an invoice exceeding the maximum grant / failure by practitioner to submit an amendment to grant does not justify an automatic refusal of an invoice which exceeds the maximum grant / Commissioner’s decision to decline payment of part of the invoice which exceeds the maximum grant is wrong in law / Commissioner directed to reconsider decision

AT (Historic Abuse) [2011] NZLAT 028 (PDF, 191KB)

Historic Abuse / transition / aided person and provider applicants / Agency withdrew legal aid / Agency declined to approve amendment to grant to pay for work prior to withdrawal / practitioner’s account only partly paid / Agency refused to amend as no grant in existence / whether amendment to grant correctly declined / whether practitioner ought to be paid for all work done even though exceeds maximum grant / further amendment application for work done to close file / whether Agency had power to amend maximum grant for work to close file / HELD / Legal Services Agency v Rossiter HC Christchurch CIV-2004-409-2529, 13 May 2005, at [18] / grant of aid must be extant for it to be amended / amendment applications submitted after grant of aid had ceased to exist / section 75(3)(a) of the Legal Services Act 2000 / no statutory prohibition against payment of an invoice exceeding the maximum grant / failure to submit amendment application does not automatically result in a refusal to approve an invoice / factors to assess in decision whether to pay an invoice exceeding maximum grant / wrong in law / Tribunal confirms Agency’s obligation to pay invoice for work done to close file / Commissioner directed to reconsider decision

AX (Criminal) [2011] NZLAT 043-044 (PDF, 108KB)

Criminal / Commissioner declined to make grant of legal aid / Commissioner found applicant had sufficient means to pay for legal assistance / section 8(1)(b) Legal Services Act 2011 / applicant is a settler, trustee and discretionary beneficiary of a family trust which has the means to pay for legal services / applicant advised a change in circumstances had occurred and that trustees would permit charge over trust property / whether Commissioner correct to decide that the advice by the applicant that the trustees would constitute a charge over trust property did not constitute a material change in circumstances / whether the applicant satisfied the Commissioner that he did not have sufficient means to pay for legal assistance despite the availability to him of a family trust / effect of renunciation beneficial interest / HELD / Commissioner correct to decide that the charge over trust property did not constitute a material change in circumstances to the applicant / applicant does not own trust property / applicant’s beneficial interest in the trust amounts to a resource under the Act / applicant’s renunciation of beneficial entitlement not effective / clause 8 and 9 Legal Services regulations 2011 / not manifestly unreasonable or wrong in law / Tribunal confirms the decision of the Commissioner

AZ (Historic Abuse) [2011] NZLAT 019 (PDF, 157KB)

Civil / transition / Agency declined to grant legal aid / Agency determined applicant’s prospects of success to low to justify a grant of aid / Agency offered reconsideration subject to certain information supplied by the applicant / Agency declined to grant interim legal aid for investigation until interview of the applicant is undertaken by applicant’s legal representative / what information should be provided to the Agency by the applicant before interim legal aid is granted / HELD / Legal Services Agency v Lange HC CIV 2010-404-2364, 22 December 2010 / applicant must be thoroughly interviewed and applicant’s documents provided to Commissioner before interim aid granted / interim aid would then fund interviewing witnesses and obtaining third party documents / Commissioner entitled to specify and limit tasks funded on interim grant / funding alternative mechanisms of resolving disputes open to the Commissioner / decision wrong in law / Commissioner directed to reconsider the decision to refuse to grant aid

AW (Civil) [2011] NZLAT 061 (PDF, 139KB)

Civil / Commissioner declined to grant legal aid / Commissioner determined applicant’s prospects of success not sufficient to justify grant of aid / applicant contends decision of Commissioner is wrong in law because the prospects of success cannot be determined without an opinion from an independent lawyer / applicant requests interim legal aid to assess the feasibility of his case / whether Commissioner correct to determine that the applicant’s prospects of success are not sufficient to grant legal aid / HELD / Commissioner permitted to decline a grant of aid if the prospects of success are insufficient to justify the grant / Commissioner cannot usurp Court’s function to assess facts but cannot fund worthless litigation / Commissioner to act as gatekeeper to ensure public funds are spent on worthwhile litigation / Tribunal finds the applicant’s case fits the category of case where the suggestion the force used was excessive or unreasonable has no prospect of succeeding on the information provided / not manifestly unreasonable or wrong in law / Tribunal confirms decision of the Commissioner

AV (Civil) [2011] NZLAT 055 (PDF, 184KB)

Civil / Commissioner declined to grant legal aid / Commissioner found applicant’s prospects of success were insufficient to justify a grant of legal aid / applicant sought grant of aid to pursue civil action against employer for negligent response to applicant’s disclosure of inappropriate sexual relationship /applicant and employer had reached a settlement agreement for earlier dispute arising from the employment relationship arising outside employer relationship / whether Commissioner erred in his approach to the settlement agreement / applicant conducted inappropriate sexual relationship with supervising employee / whether the Commissioner correctly declined legal aid on the basis that applicant’s prospects of success were insufficient to justify a grant of legal aid / HELD / section 10(4) Legal Services Act 2011 / Timmins v LARP [2004] 1 NZLR 708 at [33] / Commissioner assessed the legal action applicant would take in the circumstances if they were paying their own legal costs / Commissioner erred in law in concluding that the settlement agreement precluded causes of action which arose outside the employment relationship / decision wrong in law / Tribunal directs Commissioner to reconsider decision

AU (Historic Abuse) [2011] NZLAT 038 (PDF, 164KB)

Historic Abuse / transition / Agency withdrew legal aid / Agency declined to approve amendment to grant after withdrawal / provider’s account only partly paid / aid retrospectively reinstated for a limited period / review application submitted outside statutory time limit / whether delay caused by exceptional circumstances / Agency refused to amend as no grant in existence / whether amendment to grant correctly declined / whether provider ought to be paid for all work done even though exceeds maximum grant / HELD / factors applicable to extension of time under section 53(2) / meaning of “exceptional circumstances” / Ye v Minister of Immigration [2010] 1 NZLR 104 at [34] / exceptional circumstances found / application accepted / Agency correctly refused to amend the grant after aid withdrawn as no grant in existence / retrospective reinstatement of aid for a limited period is not material / inability of the Agency to amend the grant does not prejudice the provider who can submit an invoice which will have to be considered under section 99(4) of Legal Services Act 2011 / not manifestly unreasonable or wrong in law / Tribunal confirms the decision of the Agency

AS (Historic Abuse) [2011] NZLAT 029 (PDF, 189KB)

Historic Abuse / transition / aided person and provider applicants / Agency withdrew legal aid / Agency declined to approve amendment to grant to pay for work prior to withdrawal / practitioner’s account only partly paid / review application submitted outside statutory time limit / whether delay caused by exceptional circumstances / Agency refused to amend as no grant in existence / whether amendment to grant correctly declined / whether practitioner ought to be paid for all work done even though exceeds maximum grant / further amendment application for work done to close file / whether Agency had no power to amend maximum grant for work to close file / HELD / factors applicable to extension of time under section 53(2) / meaning of “exceptional circumstances” / Ye v Minister of Immigration [2010] 1 NZLR 104 at [34] / exceptional circumstances found / application accepted / Legal Services Agency v Rossiter HC Christchurch CIV-2004-409-2529, 13 May 2005, at [18] / grant of aid must be extant for it to be amended / amendment applications submitted after grant of aid had ceased to exist / section 75(3)(a) of the Legal Services Act 2000 / no statutory prohibition against payment of an invoice exceeding the maximum grant / failure to submit amendment application does not automatically result in a refusal to approve an invoice / factors to assess in decision whether to pay an invoice exceeding maximum grant / wrong in law / Tribunal confirms Agency’s obligation to pay invoice for work done to close file / Commissioner directed to reconsider decision

AR (Family) [2011] NZLAT 052 (PDF, 132KB)

Family / Commissioner declined to grant a write-off of remaining repayment due under a grant of legal aid / applicant granted legal aid and advised repayment would be required / applicant applied for a write-off of the debt under the grant / applicant contends it is unjust and inequitable she repay legal aid as she had no choice but to defend proceedings / Commissioner declined application for write-off / section 43(1)(c) / whether applicant has established serious hardship or some other equitable reason to justify a write-off / HELD / applicant does not meet the threshold of serious financial hardship / inequity must arise from the applicant’s financial circumstances / not manifestly unreasonable or wrong in law / Tribunal confirms the Commissioner’s decision

AQ (Family) [2011] NZLAT 049 (PDF, 137KB)

Family / Commissioner declined grant of legal aid / applicant requested to provide evidence to the Commissioner of the nature of the dispute / grant of legal aid not justified / whether the Commissioner failed to have regard to certain material factors / HELD /section 10 / existence of a dispute is not a requirement to obtain a grant of legal aid / applicant did not set out reasonable grounds for taking the proceedings / Tribunal cannot rely on information not disclosed to Commissioner in considering whether Commissioner’s decision manifestly unreasonable or wrong in law / Tribunal confirms the decision of the Commissioner

AY (Historic Abuse) [2011] NZLAT 047 (PDF, 117KB)

Historic Abuse / transition / provider applicant / Agency declined to approve amendment to grant to pay for attendance of additional counsel and preparation work for judicial settlement conference / provider’s account only partly paid / whether the provider ought to be paid for all work done even though exceeds maximum grant / HELD / Legal Services v Haslam [2007] 18 PRNZ at [51] / role of the Agency is not passive / Agency to assess the nature and reasonableness of provider’s invoice / Agency is entitled to draw upon views of a specialist advisor when determining the appropriate fee / level of preparation for judicial settlement conference disproportionate to substantive claim and nature and length of conference / travel disbursement for the aided person does not fall within the definition of legal services / Lalli v Attorney General 2009 NZAR 720 at [19] / legitimate expectation cannot require the Commissioner to act contrary to a statute / not manifestly unreasonable or wrong in law / Tribunal confirms the decision of the Commissioner

AP (Historic Abuse) [2011] NZLAT 050-051 (PDF, 182KB)

Historic Abuse / aided person and provider applicants / Agency declined to approve amendment to grant for preparation for settlement conference / Agency conducted reconsideration of that decision / Commissioner declined to reconsider Agency’s earlier decision / Agency declined to grant aid for two counsel to attend the settlement conference / whether 2000 or 2011 Acts apply to reconsideration by Commissioner and review by Tribunal / whether the Commissioner correctly declined payment for preparation time for the judicial settlement / HELD / sections 130, 131, 132 Legal Services Act 2011 / 2011 Act applies to reconsideration by Commissioner and both Act to review by Tribunal / sections 51(6) and 125 Legal Services Act 2011 / Commissioner erred in purporting to reconsider the decision of the Agency but substantially did reconsider / Tribunal finds invoice for preparation time for judicial conference excessive / judicial settlement conference is not synonymous with a trial / Tribunal agrees with Agency’s decision that attendance of one experienced counsel at the judicial settlement conference is sufficient / Tribunal finds Agency made error of law in declining to give reasons for refusing to pay for post conference attendances by the provider / Tribunal directs Commissioner to reconsider decision to decline time for post settlement conference and payment of certain disbursements

AO (Historic Abuse) [2011] NZLAT 032 (PDF, 141KB)

Historic Abuse / transition / Agency withdrew legal aid / Agency declined to approve amendment to grant to pay for work to close file / Agency reinstated aid for limited purpose / whether there is any reviewable dispute between the applicant and the Agency / HELD / partial reinstatement of aid / grant of legal aid exists once aid reinstated / grant approved therefore the amendment to provide for work to close file / no reviewable dispute / not manifestly unreasonable or wrong in law / Tribunal confirms decision of the Agency

AN (Criminal) [2011] NZLAT 020 (PDF, 129KB)

Criminal / transition / aid for appeal / Agency withdrew legal aid / legal aid was no longer in the interests of justice and a grant of legal aid was no longer justified / Agency agreed with appellate counsel that appeal has no merit and unlikely to succeed / whether legal aid should have been withdrawn / HELD / information provided by appellate counsel appropriately considered by Agency / no information was provided by the applicant to change the Agency's view / not manifestly unreasonable or wrong in law / Tribunal confirms the decision of the Commissioner

AM (Historic Abuse) [2011] NZLAT 036 (PDF, 185KB)

Historic Abuse / transition / aided person and provider applicant / Agency withdrew legal aid / Agency declined to approve amendment to grant to pay for work prior to withdrawal / practitioner’s account only partly paid / review application submitted outside statutory time limit / whether delay caused by exceptional circumstances / Agency refused to amend as no grant in existence / whether amendment to grant correctly declined / whether practitioner ought to be paid for all work done even though exceeds maximum grant / HELD / factors applicable to extension of time under section 53(2) / meaning of “exceptional circumstances” / Ye v Minister of Immigration [2010] 1 NZLR 104 at [34] / exceptional circumstances found / application accepted / Legal Services Agency v Rossiter HC Christchurch CIV-2004-409-2529, 13 May 2005, at [18] / grant of aid must be extant for it to be amended / amendment application submitted after grant of aid had ceased to exist / section 75(3)(a) of the Legal Services Act 2000 / no statutory prohibition against payment of an invoice exceeding the maximum grant / failure to submit amendment application does not automatically result in a refusal to approve an invoice / wrong in law / Commissioner directed to reconsider the decision

AL (Criminal) [2011] NZLAT 046 (PDF, 142KB)

Criminal / Commissioner declined to grant amendment for legal aid / applicant did not take all reasonable steps to apply for an amendment to grant before final disposition / section 28(2) Legal Services Act 2011 / Commissioner not satisfied that circumstances were within applicant’s control / whether applicant took all reasonable steps to apply for an amendment to grant before final disposition / HELD / Commissioner applied wrong test when conducting reconsideration of original amendment application / section 51 requires reconsideration of application for amendment to grant, not a review of the original decision / assessment of whether a decision is manifestly unreasonable or wrong in law is a test to be applied by the Tribunal, not the Commissioner / meaning of “all reasonable steps” / Department of Health v Multichem Laboratories Ltd [1987] 1 NZLR 334 / no reasonable steps which the applicant could have taken to file second amendment to grant as to the preparation hours before the final disposition / other circumstances arose in the proceedings which could not have been reasonably anticipated / manifestly unreasonable and wrong in law / Commissioner directed to reconsider the decision

AK (Criminal) [2011] NZLAT 048 (PDF, 132KB)

Criminal / Commissioner declined to make a grant of legal aid / maximum sentence faced by applicant less than six months / Commissioner determined that the interests of justice do not require a grant of legal aid to be made / proceedings are not complex / Commissioner determined no real likelihood of imprisonment / whether decision to decline grant of aid contrary to section 24(f) of the Bill of Rights Act 1990 / HELD / nature of the charge is minor / absence of complex evidential or legal matters in proceedings / interests of justice do not favour decision to grant aid / Bill of Rights Act adds no extra requirements to section 8 of Legal Services Act / Tribunal confirms the decision of the Commissioner

AJ (Family) [2011] NZLAT 042 (PDF, 137KB)

Civil / Commissioner declined to make grant of legal aid / applicant’s income exceeded the income threshold / whether the Commissioner should have included applicant’s war disability allowance in income testing / whether the applicant has special circumstances under s10(2) due to wish to save for possible health risk and to improve property / HELD / applicant’s allowance a payment under the War Pensions Act 1954 rather than a payment under 69C of the Social Security Act 1964 / applicant’s allowance does not come within the exceptions to income stated in clause 2, Schedule 1 of Legal Services Act / applicant does not meet threshold of special circumstances / not manifestly unreasonable or wrong in law / Tribunal confirms Commissioner’s decision

AI (Criminal) [2011] NZLAT 015 (PDF, 155KB)

Criminal / transition / aided person and provider applicants / Agency declined to grant amendment for preparation and waiting time / provider sought additional hours for preparation of submissions / Agency found not evident that there were any circumstances out of the ordinary that justified the amendment to grant / waiting time declined as it was not reasonable / whether practitioner ought to be paid for all work done / HELD / Agency’s decision to decline extra preparation work in excess of guideline hours not unreasonable / Agency’s decision to decline payment for waiting time unreasonable / manifestly unreasonable to require provider to have other work available during waiting time / Tribunal reverses decision regarding some waiting time and directs Commissioner to reconsider the decision on remaining waiting time / Tribunal confirms decision of the Agency regarding preparation time

AG (Civil) [2011] NZLAT 006 (PDF, 152KB)

Civil / Agency declined to make a grant of legal aid for an appeal / Agency determined applicant’s prospects of success too low to warrant a grant of legal aid / significant delay in pursuing appeal / grounds of appeal are vague / allegation barrister negligent / whether the Commissioner was correct to determine the prospects of success are too low to justify a grant of aid / HELD / interests of justice do not favour the court granting an extension to file appeal out of time / judge found against applicant, appeal court unlikely to overturn factual findings by judge / case not sufficiently meritorious to justify a grant of legal aid to appeal / not manifestly unreasonable or wrong in law / Tribunal confirms the decision of the Commissioner

AF (Family) [2011] NZLAT 016 (PDF, 132KB)

Family / transition / aided person and provider applicants / Agency declined to grant amendment / practitioner’s account only partly paid / aid granted above maximum guideline hours / additional aid sought for preparing submissions and liaising with counsel, the Court and aided person / declined amendment to grant / whether applicant entitled to the amendment to grant to cover additional hours on invoice / whether practitioner ought to be paid for all work done / HELD / case not sufficiently complex to justify additional hours / not manifestly unreasonable or wrong in law / Tribunal confirms decision of Agency

AD (Civil) [2011] NZLAT 005 (PDF, 126KB)

Civil / transition / Agency refused legal aid / applicant had no reasonable grounds for bringing proceedings / application for review of Agency’s decision made to Tribunal on 22 July 2011 / whether Tribunal has jurisdiction to consider application for review given repeal of LSA 2000 and commencement of LSA 2011 on 1 July 2011 / HELD / no jurisdiction / not a “remaining application for review” under transition provisions/ section 132(1) not applicable as legal aid was refused / Tribunal can only review decisions by the “Commissioner” / no decision was made by the “Commissioner” / Agency’s decision cannot be regarded as that of the Commissioner / Agency not part of the Ministry of Justice and Commissioner has not made a decision on the applicant’s legal aid application /in addition, Panel had no jurisdiction to accept review application after 30 June 2011 / Tribunal declined request to state a case for the opinion of the High Court / section 61 is confined to legal issues arising out of decisions of the Commissioner / application dismissed

AE (Criminal) [2011] NZLAT 003 (PDF, 96KB)

Criminal / Commissioner refused legal aid / applicant’s maximum term of imprisonment was less than 6 months and interests of justice did not require legal aid to be granted / Commissioner was advised of applicant’s depression, adverse hardship and inability to conduct own defence if aid not granted / whether the Commissioner failed to have regard to certain material factors in refusing to grant legal aid / HELD / manifestly unreasonable and wrong in law / Commissioner did not provide specific reasons on why applicant did not meet the “interests of justice” requirements of section 8(1)(c)(ii) /Legal Services Agency v KGR HC Wellington, CIV-2009-404-3399 6 August 2009 / Ronberg v Chief Executive of the Department of Labour [1995] NZAR 509 / reasons for refusal were not “fact specific” / applicant’s mental illness relevant to consideration under section 8(2)(b) as to whether applicant able to understand the proceedings or present / Commissioner’s decision did not record consideration of applicant’s sickness benefit, depression and medication for his condition / applicant’s omission of his mental illness and sickness in original application to the Agency is not a factor for refusing a grant legal aid / although Commissioner not obliged to accept a submission of a mental illness at face value, Commissioner cannot properly dismiss such a disability without giving the applicant the opportunity to provide confirmation of such an illness / Commissioner never asked applicant to provide evidence of mental illness / Commissioner directed to reconsider the application

AC (Family) [2011] NZLAT 004 (PDF, 126KB)

Civil / transition / Agency refused legal aid / applicant had no reasonable grounds for bringing or defending proceedings / Tribunal received application for review of Agency’s decision on 18 July 2011 / whether Tribunal has jurisdiction to consider application for review given repeal of LSA 2000 and commencement of LSA 2011 on 1 July 2011 / HELD / no jurisdiction / review application concerns decision of the Agency dated 20 June 2011 / review application made direct to Tribunal / review application therefore not a “remaining application for review” under transition provisions / section 132(1) not applicable as legal aid was refused / Tribunal can only review decisions by the “Commissioner” under section 52 / no decision was made by the “Commissioner” / application dismissed

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