IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CIV-2010-404-7101

IN THE MATTER OF	The Judicature Amendment Act 1972

BETWEEN	TUDOR DAVID CLEE & ISWARI JAYANANDAN
Plaintiffs

AND	THE ATTORNEY-GENERAL FOR THE LEGAL SERVICES AGENCY
Defendant

Hearing:	8 November 2010

Appearances: B P Henry and P Knapp for Plaintiffs
T Warburton for the Defendant

Judgment:	12 November 2010

RESERVED JUDGMENT OF ELLIS J

This judgment was delivered by me on 12 November 2010
At 1 pm, pursuant to r 11.5 of the High Court Rules

Registrar/Deputy Registrar

Solicitors:	Crown Law, PO Box 2858, Wellington 6140
D J Gates, PO Box 222, Whangaparaoa 0930
Counsel:	B Henry, PO Box 4070, Auckland 1140

CLEE & JAYANANDAN V ATTORNEY-GENERAL HC AK CIV-2010-404-7101  12 November 2010

[1]       Mr Clee and Mr Jayanandan are both lawyers whose practices appear solely or largely to comprise legally aided criminal defence work in the Manukau District Court.  They seek to judicially review the Attorney-General (named on behalf of the Legal Services Agency (“the Agency”)) in relation to proposed changes in the way that criminal defendants who cannot afford to pay for a lawyer will have legal aid lawyers assigned to them.  The plaintiffs also seek interim relief declaring that the changes should not be implemented pending the determination of the substantive application for review.  It is to that interim application that this judgment is directed.

[2]       Essentially the proposed changes to which the plaintiffs object entail a move away from what is termed the “preferred lawyer” assignment approach (whereby an applicant for legal aid can nominate his or her preferred lawyer from amongst those on the Agency list) to an approach involving a “strictly rotational allocation of cases” at least insofar as the proceedings involve alleged criminal offending carrying a maximum penalty of less than 10  years imprisonment.   The preferred lawyer regime is, however, to continue in relation to defendants charged with offences carrying higher penalties.

[3]       Because it was understood by the plaintiffs that the new allocation regime was to commence on 10 November 2010 the hearing of the application for interim relief was brought on urgently.  However, a 5 November affidavit sworn on behalf of the Agency made it clear that the “roll out” date is in fact 29 November 2010. Nonetheless it is plainly desirable that the matter be dealt with quickly.

The pleadings

[4]       It is instructive to set out both the substantive claim and the terms of the interim application at the outset.  Both are relatively brief.

[5]       The statement of claim begins by pleading that the Attorney is “sued for and on behalf of the Legal Services Agency responsible for the Manukau District Court”. It then goes on to state:

2.	The Legal Services Agency in respect to the provision of legal aid to criminal  offenders  appearing  before  the  Manukau  District  Court

decided   in   September   2010   to   change   the   process   for   the appointment of Counsel to represent the same.

3.         Prior to the decision referred to in paragraph 2 an offender who was approved to have the costs of his/her legal representation paid (or financed) by the state, had the right to select the Counsel that would represent them.  Having chosen the Counsel they wished to represent them the chosen Counsel would be assigned by the defendant to undertake the representation of the offender.   This was called the “preferred lawyer”.

4.         The defendant would pay the preferred lawyer for representing the offender who had chosen them.

5.         The decision in paragraph 2 removes the offender’s right to choose their preferred counsel imposing a “Strictly rotational allocation of cases to criminal legal aid providers”.

6.         That the decision to change the method of allocating criminal legal aid to offenders is the exercise of a statutory power of decision and is reviewable under the Judicature Amendment Act 1972.

7.         The defendant erred when it reached its decision in para 5 in that the decision is unlawful in that:

7.1       Breach of New Zealand Bill of Rights Act:

It breaches the rights of offenders who require the state to provide counsel under s 24(f) of the New Zealand Bill of Rights Act 1990 to preserve their rights under sections 14, 23, 24 and 27 of the New Zealand Bill of Rights Act 1990.

7.2       Breach of the Commerce Act 1986:

Breach of s 27: the decision is an arrangement and/or an understanding that has the purpose, or has or is likely to have the effect  of  substantially  reducing  competition  in  the  market  of providing legal services to offenders who under s 24(f) of the New Zealand Bill of Rights Act 1990 are entitled to the provision of legal assistance from the state.

Breach of s 29: the decision is an arrangement or understanding between persons who are in competition for the supply of services to offenders who under s 24(f) of the New Zealand Bill of Rights Act
1990 are entitled to the provision of legal assistance from the state.

Breach of s 36: the decision of the defendant who has substantial power in the market of providing legal services to offenders who under s 24(f) of the New Zealand Bill of Rights Act 1990 are entitled to the provision of legal assistance from the state.   The decision prevents the plaintiffs and other qualified barristers from engaging in competitive conduct in that market.

8.         That the plaintiff is entitled to have this Honourable Court set aside the decision of the Legal Services Agency in para. 5; further the plaintiff is entitled to restrain the defendant.

[6]	The relief sought is:

A.         An order setting aside the decision of the defendant referred to in paragraph 2 whereupon it decided to strictly rotational allocation of cases to criminal legal aid providers thereby denying an offender who was approved to have the costs of his/her legal representation paid by the state, the right to select the Counsel that would represent them.

B.         An order declaring (under s17 of the Crown Proceedings Act) that the defendant shall not implement the strictly rotational allocation of cases to criminal legal aid providers.

C.	Costs.

[7]	The following preliminary points can be noted:

a)	No  specific  statutory  power  or  statutory  power  of  decision  is identified;

b)	No error of process in relation to the decision to change the method of assignment is alleged;  and

c)	As regards the Commerce Act claims:

i)         there is no pleading that the Agency is engaged in trade (ss 5 and 6 of that Act making it clear that it only applies to the Crown or a Crown corporation to the extent it is engaged in trade);

ii)	there is no pleading of the parties to the “arrangement” or

“understanding” that is alleged in terms of ss 27 and 29; and

iii)       the “market” that has been identified in terms of s 36 is the market of providing legal aid to criminal defendants.

[8]       Turning now to the application for interim relief, the terms of the interim declaration sought are that:

A.         The defendant shall not without further order of this Honourable Court implement the strictly rotational allocation of cases to criminal legal aid providers (under s 17 of the Crown Proceedings Act).

[9]       The grounds relied on in support of the interim relief are that:

1.         Implementing a  strictly rotational  allocation  of  cases  to  criminal legal aid providers will deny an offender who is approved to have the costs of his/her legal representation paid by the state, the right to select the Counsel that would represent them.   To allow the strict rotation to be implemented is not in the interests of justice as it is a breach of a fundamental human right.

2.         Under section 27 of the Commerce Act 1986 the decision is an arrangement and/or an understanding that has the purpose, or has or is likely to have the effect of substantially reducing competition in the market of providing legal services to offenders who under s 24(f) of the New Zealand Bill of Rights Act 1990 are entitled to the provision of legal assistance from the state.

3.         Under section 29 of the Commerce Act 1986 the decision is an arrangement or understanding between persons who are in competition for the supply of services to offenders who under s 24(f) of the New Zealand Bill of Rights Act 1990 are entitled to the provision of legal assistance from the state.

4.         Under section 36 of the Commerce Act 1986.   The defendant has substantial power in the market of providing legal services to offenders, who under s 24(f) of the New Zealand Bill of Rights Act
1990 are entitled to the provision of legal assistance from the state. The  decision  of  the  defendant  prevents  the  plaintiffs  and  other
qualified barristers from engaging in competitive conduct in that market.

5.	Damages are not an adequate remedy.

[10]     Further reliance is pleaded on affidavits sworn by the plaintiffs, rules 7.53 and 7.54 and the Court of Appeal’s decision in Klissers Farmhouse Bakeries v Harvest Bakeries Ltd.

[11]     Again, some preliminary points arise:

a)        Apart from the allegation that damages are not an adequate remedy (as to which see below), the grounds relied on as supporting interim relief merely replicate the errors of law that are alleged in the substantive claim;

b)        The reference to the adequacy of damages together with the reliance placed on rules 7.53 and 7.54 and the Klissers decision suggest an application for an interim injunction (which indeed accords with the entituling of the application).  Presumably for that reason there is no reference in the application to the plaintiffs’ position or any necessity to preserve it (they being threshold matters in terms of the Court’s power to grant interim relief under s 8 of the Judicature Amendment Act 1972);

c)        Again (and presumably for the same reason) there is no reference to other matters that might be expected where an application is made under s 8 such as the implementation of the rotational assignment regime being consequential on the exercise of a statutory power.

[12]     The Agency opposes the application for interim relief on these and other grounds.  They are all matters to which further attention will be given below.  On the face of the initiating documents filed by the plaintiffs, however, the Crown’s submission that the pleadings are in a parlous state appears to me to be justified. They also make the Court’s task in determining the present application more difficult than it should be.

[13]     I turn now to consider the relevant factual and statutory backgrounds in more detail.

Factual Background

[14]     The  events  leading  up  to  the  proposed  change  in  assignment  policy  are relatively well-known, at least within the legal community.   The change has its origins in the wider review of the legal aid system commissioned by the Minister of

Justice.   The review was chaired by Dame Margaret Bazley and culminated in a report dated 27 November 2009 entitled Transforming the Legal Aid System: Final Report and Recommendations.

[15]     Amongst the problems identified in the report with the current system (which has operated in its present form since 2001) was that the preferred lawyer policy was causing distortions by interfering with the efficient allocation of cases.  In particular, Dame Margaret concluded at paragraphs 447 to 451 of the report:

447.   It seems to me that this policy has had some unintended consequences, and  it  is  undermining  its  own  objective,  which  was  to  allow  the market  to  exclude  poorly  performing  lawyers  from  the  legal  aid system.    As  I have  noted  in  paragraph  335,  there  seems  to  be  a widespread acceptance of abuse of the policy by duty solicitors.

448.   I am also aware that the preferred lawyer policy is causing distortions in the legal aid system, by interfering with the efficient allocation of cases.  It enables lawyers to take on too many cases, with no effective oversight of their caseload.  Those lawyers who lack effective support systems do not always refer files on, and instead end up using court scheduling  to  manage  their  time,  which  leaves  the  court  at  their mercy.

449.   For these reasons, I consider that for high-volume, low-cost cases, the preferred lawyer policy should not apply.   Instead, cases should be allocated by rotation and according to lawyers’ availability: cases should proceed at the court’s convenience, not at defence counsel’s.

450.   The Law Society has submitted strongly in favour of the preferred lawyer policy, noting the importance that choice of lawyer has on building client trust, which is essential to the smooth running of cases and  effective  resolution  of  disputes.    I  can  see  the  force  in  this argument for particular types of cases, such as mental health, domestic violence, and family law cases more generally.

451.   While I have taken note of the Law Society’s views, the abuses of the system that I have been told about far outweigh its benefits, and I consider that the preferred lawyer policy should be dispensed with in standard low-cost cases.

[16]     It can at this point conveniently be noted that, notwithstanding the existing preferred  lawyer  policy,  legal  aid  lawyers  are  in  fact  presently  assigned  on  a rotational basis where a client does not nominate a preferred lawyer.  In 2009 30 per cent of all criminal Legal Aid cases were assigned by rotation.

[17]     In April this year, and as a result of Dame Margaret’s report, the Minister of Justice announced a package of reforms to the legal aid system.  To the extent those reforms required legislative amendment they were manifested in the Legal Services Bill  that  is  currently before Parliament.    As  well as  referring to  the legislative changes,  however, the  Minister announced that  changes to the preferred lawyer policy would be considered as part of a wider programme aimed at improving case assignment processes.   The Minister said lawyers would be consulted before any decisions were made on the detail of the new processes.

[18]     Accordingly in May 2010 the Agency initiated consultation on its plans to change  the  way  in  which  criminal  aid  cases  were  assigned.    Consistent  with Dame Margaret’s  recommendations  the  focus  of  the  proposed  changes  was  on removing the preferred lawyer policy and replacing it with rotational allocation.  The aims of the new case assignment process were said in the consultation document to be to:

13.1.  Encourage the participation of senior and competent lawyers.  We are aware that a number of experienced and skilled lawyers have chosen to exit the current system.  The new system must operate in a way that encourages their participation.

13.2.  Provide a process that is clear, equitable and transparent.   Lawyers will know what is expected of them, and how and why cases are being assigned.

13.3.  Support   and   contribute   to   the   effective   management   of   court processes, particularly the criminal summary list.  We are aware that different courts run different processes.   We will need to ensure the new policies are capable of meeting the specific needs of courts.

13.4.  Provide a process that is both robust and administratively simple for staff.

13.5.  Address current problems associated with the preferred lawyer policy.

[19]     On 23 July 2010 the Agency published a document that set out its response to the consultation process.   It recorded that 128 submissions on the proposals were received, most of these being from lawyers.  Neither of the plaintiffs participated in the consultation process even though the evidence filed in this Court indicates that they do take issue with a number of the underlying assumptions.  As I have noted

above, there are no allegations in the statement of claim that it was in any respect inadequate or procedurally flawed.

[20]     The 23 July response document recorded that many of the submitters agreed with the need to address problems with the present system and replace it with a fairer and more transparent assignment process.   However, it said many were also concerned  that  removal  of  choice  was  likely  to  have  a  negative  impact  on defendants’ confidence in their legal representation, particularly when facing serious charges.  The general view was that the more serious the charge and consequences, the greater the weight should be given to the client’s choice.  The associated risks were considered to be particularly acute unless and until the new quality framework for legal aid providers (contained in the Legal Services Bill) could be put in place.

[21]     Of particular note, perhaps, is the submission received by the Agency from the New Zealand Law Society.   In general terms the Society favoured a rotational system for all categories of criminal legal aid, although it recorded that there was nonetheless a divergence of view within the profession in this regard.  The Society had previously made strong submissions in favour of the preferred lawyer approach due  primarily  to  the  importance  that  choice  has  in  building  client  trust  and confidence.  As regards the proposed rotational system, the Society said:

A number of lawyers are more accepting of strict rotation for category 1 and
2 cases, and a preferred lawyer policy for category 3 and 4 cases.   The general view of the lawyers who made these submissions was that the more
serious the charge and the consequences, the greater the weight that should
be given to the applicant’s choice.

The Society’s Criminal Law Committee supports a strict rotation policy for all  categories  provided  the  rotational  lists  have  integrity  (see  discussion below on Quality).   The Society is aware of some abuses of the current system and that some legal aid providers are taking on an unmanageable number of cases under the preferred lawyer policy.  In the Manukau District Court half of all assignments go to ten of the 167 lawyers who received assignments.    From 01.05.09  to  30.04.10  these  ten lawyers  received  on average 267 cases.  One lawyer undertook 599 cases in one year.  Putting aside whether or not a competent lawyer could manage this number of cases, such a high allocation causes significant scheduling problems and delays for the courts.

The Society believes that a strict rotation policy would accomplish some of the aims identified in the consultation paper.   There are many qualified lawyers who are listed providers who do not get instructions under the preferred system.   We heard from some senior members that they wish to

play a more active part in the provision of legal aid services and to receive cases on rotation.

All submissions were strongly in favour of a system that allowed a lawyer who had previously acted for a client to act for them again.     Strong relationships of trust build up over time, and allowing this to occur saves the Agency money, given the lawyer’s knowledge of the client’s history.   We have presumed that if there are any open files then any new files will be allocated to the same lawyer.  Before assigning a lawyer on the basis of a previous relationship or open file, the Agency should check that the lawyer is willing and available to accept the assignment as this will reduce the occasions where an assignment has to be reallocated.

Quality

We would prefer that implementation of a roster system be delayed until the Agency addresses the issue of quality, particularly in categories 3 and 4. Any  process  which  restricts  a  client’s  choice  of  lawyer  needs  to  take particular care to ensure that the Agency is confident that legal aid providers in each category have adequate experience and competence for any assignment.

The Society questions whether at this stage it is prudent to remove choice at categories 3 and 4 where clients face serious penalties such as life imprisonment.   As there are concerns that incompetent or inexperienced lawyers are on these lists, the Agency would be removing the choice of an individual facing the most serious penalties and imposing a potentially incompetent lawyer on that client.

[22]     It can be noted in passing that the reference to a lawyer in the Manukau District Court undertaking 599 cases in one year appears to be to Mr Clee, whose affidavit evidence in this proceeding was that he had had that number of cases assigned to him between 1 May 2009 and 31 April 2010.

[23]     As a result of the consultative process the Agency decided to differentiate the mode of assignment between the different categories of offending: the preferred lawyer policy would continue for Legal Aid applicants facing categories 3 and 4 charges (they being the most serious) whereas the new rotational policy would apply to categories 1 and 2 (those categories involving, as I have said, charges involving sentences of up to 10 years imprisonment).  That distinction was in line with the Law Society’s submissions.

[24]     The way in which the policy decisions taken by the Agency following the consultative process would be implemented is set out in a further document entitled

Establishing  Rotational  Assignment  of  Categories  1  and  2  Criminal  Legal  Aid

Cases.  Essentially:

a)        Lawyers of all categories will need to be on an assignment list in order to receive Category 1 and 2 assignments;

b)        Cases will be assigned evenly to lawyers on the relevant list.  Once a lawyer has been assigned a case, his name will go to the bottom of the list.    Lawyers  will  receive  an  even  number  of  assignments  and lawyers and court staff will be able to view the lists and how the cases have been distributed; and

c)        There are exceptions for some of the most vulnerable people and where a legally aided person already has a legal aid lawyer acting for them in an open case.

[25]     Both plaintiffs have applied for and been placed on a Category 1 assignment list and will receive rotation assignments.  The current Agency estimate is that they will be assigned 51 Category 1 cases per year.

Statutory background

[26]     Although  the  relevant  statutory scheme  (which  principally comprises  the Legal Services Act 2000 (“the Act”)) was not a significant focus of submissions before me, it is important to note certain features of that scheme.

[27]     The purposes of the Act are set out in s 3, which provides:

The purpose of this Act is to promote access to justice by—

(a) providing a legal aid scheme that assists people who have insufficient means to pay for legal services to nonetheless have access to them; and

(b) providing other schemes of legal assistance; and

(c)  supporting community legal services by funding community law centres, education, and research

[28]	Relevant terms that are defined in s 4 include:

a)        “Agency”, which is defined to mean “the  Legal Services Agency established by section 91”;

b)        “scheme”, which means any one or more of “(a) the legal aid scheme: (b) the duty solicitor scheme: (c) the PDLA scheme and (d) an approved scheme”;

c)        “legal aid scheme” which is defined as “the scheme of that name administered by the Agency under Part 2”; and

d)        “listed provider”, which is stated to mean “in relation to the provision of particular services under a scheme, ... a natural person who is listed as approved to provide those services”.

[29]	Part 2 of the Act is entitled “Legal aid and other schemes” and it specifies

(inter alia):

a)        the circumstances in which both civil and criminal legal aid may be granted;

b)        how aid is to be applied for and how decisions on such applications will be made;

c)        that grants of aid may be subject to various conditions, and that all grants are subject to the condition that the aided person must repay the Agency the sum that is calculated in accordance with s 18 of the Act; and

d)        the obligations imposed on the provider of legal aid, the aided person, and the Agency after aid has been granted and the circumstances in which the grant of aid may be amended or withdrawn.

[30]     Listed providers are dealt with in Part 4, which places such providers under various obligations in relation to both professional conduct and protecting the Agency’s  interests  in  relation  to  various  matters.    Section  70  provides  that  the Agency is required to establish and maintain a legal service list, which “must show which legal services each listed provider is approved to provide, and any conditions attaching to the approvals.”

[31]     Section 71 deals with “listing criteria” and provides that

(1)     The Agency may develop and adopt listing criteria for determining when a person may be approved to provide specified legal services.

(2)	In developing new or amended listing criteria, the Agency—

(a)   must consult with such representatives of the legal profession as the Agency considers to be appropriate; and

(b)   may consult with any other persons that the Agency considers will assist it in relation to the particular listing criteria under development.

(3)     In order to adopt new or amended listing criteria, the Agency must give notice in the Gazette of—

(a)   the service or services to which the criteria relate; and

(b)  the date on which the criteria will come into force; and

(c)   details of how copies of the criteria may be obtained.

...

(5)     For the purpose of this section, the withdrawal of listing criteria is to be treated as an amendment of the criteria.

[32]     Gazette  Notices  adopting  new  or  amended  listing  criteria  have  been promulgated on a number of occasions since 2000.

[33]     Applications for listing are made under s 72, which provides:

(1)     Every person applying for listing, or amendment to the approvals in his or her listing, must apply in the prescribed manner to the Agency.

(2)     If listing criteria that are relevant to all or part of the application have been adopted under section 71, the application or relevant part of the application must be determined in accordance with those criteria.

[34]     Section 72 also provides various natural justice rights for applicants who are either wholly or partly unsuccessful in their listing application.

[35]     The Agency is also empowered by s 80 of the Act to set up “pilot plans” for the delivery of schemes by listed providers.  As I understand it, this is the basis upon which the Public Defence Service (“the PDS”) was established in 2004.  It has since been evaluated under s 83 and made permanent.  The PDS is a stand-alone service within the Agency, with its own separate structure.     It is headed by the Public Defender who has overall responsibility for PDS staff and reports directly to the Agency’s Chief Executive.  PDS legal staff are salaried criminal lawyers employed by the Agency under s 100 of the Act.  The PDS take on criminal legal aid cases in the Auckland, Manukau, Waitakere, North Shore, Papakura and Pukekohe courts. The role of the PDS assumed some significance in the plaintiffs’ submissions before me.

[36]     Part 6 is specifically concerned with the Agency and its functions.  Section

91,  which,  as  the  s  4  definition  of  “Agency”  records,  establishes  the  Agency, provides that the Agency is a Crown Entity for the purposes of s 7 of the Crown Entities Act 2004 and that (2004) Act applies to the Agency except to the extent that the (2000) Act otherwise expressly provides.  The Crown Entities Act itself provides that the Agency is a Crown “agent” and (therefore) that:

a)        the responsible Minister may (subject to certain limitations) direct the Agency to give effect, or have regard, to a government policy that relates to its functions and objectives: Crown Entities Act ss 103, 104 and 113; and

b)        the Agency must, in performing its functions, comply with any such direction: s 114.

[37]     Any Ministerial direction given under ss 103 or 104 must be published in the

Gazette and tabled in the House.

[38]     The functions of the Agency are set out in s 92 of the Legal Services Act:

(a)	to administer schemes in as consistent, accountable, inexpensive, and efficient a manner as is consistent with the purpose of this Act:

(b)		to fund, provide, and support community legal services for the public or any section of the public, as provided for in Part 5:

(c)	to investigate and advise on any matter that is referred to it by the
Minister and that relates to schemes or community legal services:

(d)		to carry out any other functions that are conferred on it by this Act or any other enactment.

[39]     I was advised by Ms Warburton for the Agency that the impugned changes to the assignment methodology do not have their origins in any Ministerial direction under the Crown Entities Act.  Nor, it seems, will there be new or amended listing criteria adopted under s 71; that is presumably because the policy change does not involve the criteria for listing themselves but rather the basis upon which cases are assigned  once listing has occurred.   Ms Warburton essentially characterised the change as a matter of administration in respect of which no specific statutory provision was engaged and which was inherently not justiciable.

[40]     For his part, Mr Henry was unable to identify any particular statutory power that had been exercised in this case relying instead (with some prompting) on the contention that, because the Agency is a creature of statute, all of its activities involve the exercise of statutory power.

[41]     For the purposes of determining this application, at least, I am prepared to accept Mr Henry’s submission.  I therefore proceed on the basis that the changes to the assignment policy were made as an incident of the performance by the Agency of its statutory functions and powers relating to the administration of the legal aid scheme and that this renders the matter justiciable.    On that basis I turn now to assess the plaintiffs’ application against the legislative and factual backgrounds I have set out above.

What legal test is to be applied?

[42]     Notwithstanding Mr Henry’s submission that I should deal with the present application on the basis of the principles ordinarily applicable to interim injunctions, I decline to do so.  The underlying claim is one in which judicial review is sought. Injunctions may not be obtained against the Crown.   By referring to the ability to obtain declaratory, rather than injunctive, relief, s 17(1)(a) of the Crown Proceedings Act 1940 (upon which Mr Henry based this part of his submissions) does no more than direct one to the Judicature Amendment Act 1972.    In my view it is that Act that applies and the thresholds required to be met by the plaintiffs are those set out in s 8 of the Act and in the relevant case law.

Is relief necessary to preserve the plaintiffs’ positions?

[43]     Section 8 makes it clear that the first issue to be considered is whether the interim relief sought by the plaintiffs can be said to be “necessary” to preserve their respective positions.  It is therefore important to be precise about what their existing positions can properly be said to be.   In assessing this, I focus principally on the position of Mr Clee, about whom more information was before the Court.  Although the Crown was correct to point out that there was an absence of information about Mr Jayanandan’s position, that cannot be fatal to the claim, which in my view must be capable of succeeding or failing on the basis of Mr Clee’s position alone.

[44]     There appears to be no dispute that, to the extent success is measured in client numbers, Mr Clee is a very successful legal aid lawyer.   I have already noted his evidence as to the number of legal aid assignments he has received in recent times. And I accept that, because Mr Clee’s business as a criminal defence lawyer appears to be heavily (if not wholly) dependent on legal aid cases, his income is likely to drop unless he changes the way in which he operates.

[45]     Having recorded all that, however, it seems important to note at the outset that the proposed changes would not have the effect of taking away any of Mr Clee’s existing assignments.   It cannot therefore be said that this aspect of his present position is in any way being affected.  Rather, the best that can be said is that the change in assignment policy adversely affects an expectation that he may have had that the trend evidenced by the number of assignments he received between May
2009 and May 2010 would continue.

[46]     The difficulty this state of affairs presents in terms of the s 8 threshold is that the only “position” that might arguably require preserving is anticipatory in nature. Even without the implementation of the new policy there is of course no guarantee that his expectation would be fulfilled.   And it seems to me that the law in this respect is clear.  Firstly expectations of this kind will only be protected, if they are reasonable or legitimate.  Secondly, the protection afforded only extends to prevent the denial of such expectations if the holder has not been given an appropriate right to be heard on the matter.  In the present case, as I have said, it is not disputed by Mr Clee that the Agency did consult prior to finalising the new policy.   Nor does he contend that the consultation process was flawed.

[47]     For these reasons I consider that the plaintiffs do not have positions that are capable  of  being  preserved  by the  grant  of  the  present  application.    Making  a declaration that the status quo should be maintained would afford the plaintiffs an opportunity to be nominated as preferred counsel in cases that have not yet commenced.   I do not consider that a mere opportunity or chance qualifies as a position that can or should appropriately be preserved.  In my view the s 8 threshold is not met.

[48]     In case I am wrong in that, however, I go on to consider certain other matters that in my view also, particularly when viewed together, militate against the grant of interim  relief.    These  are  primarily what  I perceive  to  be  the  weakness  of  the substantive claim and the wider repercussions of granting the relief sought.

[49]     Reduced to its essence the statement of claim alleges that the decision to implement the new rotational method of assignment is contrary to both the New Zealand Bill of Rights Act 1990 [“NZBORA”] and the Commerce Act.   In that respect Mr Henry submitted that, based on the authority of Peters v Davison ,  any exercise  of  power by a  statutory body must  comply not  only with  the specific empowering provision but also with the wider law insofar as it might impinge upon
the subject matter.

[50]     I accept that as a general rule a legislative provision should be interpreted in a manner  consistent  with  the  statute  book  as  a  whole:  Agnew  v  Pardington   and JF Burrows and RI Carter Statute Law in New Zealand.     While s 6 of NZBORA of course makes the position regarding that Act particularly clear, I also accept that the Commerce Act may be relevant when interpreting the specific provisions of another statute.        It  seems  to  me,  however,  that  caution  must  be  exercised  before extrapolating that proposition too widely.   In particular I note that s 43 of that Commerce Act excludes its application in respect of conduct that is specifically
authorised by (some other) statute.   And perhaps more significantly for present purposes the Courts have on a number of occasions indicated that judicial review provides a forum that is ill suited to Commerce Act inquiries.   This latter point was brought home in argument before me during which Mr Henry intimated that pursuit of the plaintiffs’ substantive claim would necessitate not only general discovery but also extensive cross-examination of witnesses at trial.

[51]     In any event, as explained to me by Mr Henry, the plaintiffs’ position was that:

a)        In deciding to implement the new assignment regime the Agency was exercising a statutory power conferred upon it by the Legal Services Act.  As I have said, I am for present purposes prepared to proceed on the basis that that is so;

b)        Because there is nothing in the Act to suggest that the principles contained in either NZBORA or the Commerce Act are of no application (and in this respect he drew a distinction between the present Act and the previous legal aid legislation, which in s 17 expressly provided that assignment of counsel was to be done by the Registrar or the Court) the exercise of a statutory power under that Act had to be consistent with those principles; and

c)	The decision taken is not consistent with those principles.

[52]     I have no difficulty in accepting that the exercise of powers under the Act must, if possible, be consistent with NZBORA rights.  The principal question in that respect is likely to be whether in fact there is a tenable argument that the decision to implement the new assignment policy is not consistent with those principles and that is a matter I return to below.

[53]     I am  less  sanguine about  the applicability of  the Commerce Act.    Even putting to one side issues about whether the Agency engages in trade and the definition of any relevant market (as to which see [56] and [58] below) the statutory scheme I have outlined above appears to me to have objects which do not easily sit with those underlying the Commerce Act.   The Legal Service Act’s fundamental objective is one of social assistance.   The Agency does not have a profit-making requirement.  And the obligations placed on the Agency to develop and apply listing criteria and subsequently to audit and monitor listed providers are plainly regulatory matters.

[54]     That said, I also accept that there are statutory indicators the other way.  In particular I note that s 81(b) requires the Agency, when developing a pilot plan such as the PDS, to takes steps to ensure that the plan will not result in -

a)	people requiring the relevant service not being able to obtain it except under the pilot; and

b)	lawyers who are outside the pilot being denied the opportunity to offer the service.

[55]     At this point I do no more than note that there may be an argument to be had in these respects.  That is because there are, I think, more fundamental difficulties with the Commerce Act claims - in particular those that I have identified as being apparent on the pleadings.

[56]     I am not prepared to accept (for example) Mr Henry’s submission that the s 36 issue as to the definition of the relevant market can be put to one side as simply a matter “for trial”.  Without traversing the relevant authorities in the area, it seems to me highly unlikely that the relevant “market” could conceivably be defined (as it is in the statement of claim) by reference simply to the provision of legal aid to criminal defendants.  This is not merely a matter of fine tuning.  The definition of the relevant market necessarily affects, for example, the tenability of the proportion that the Agency exercises substantial power on/in that market.

[57]     As to the proposition (which appears essential to the plaintiffs’ case) that the Agency is engaged “in trade” I simply note that the weight of authority is against it: Glaxo New Zealand Ltd v Attorney-General.     I also accept Ms Warburton’s submission that the public policy considerations surrounding the provision of high quality legal assistance to those in need also militate against the issues being seen in a “trade” context.

[58]     The allegations relating to ss 27 and 29 also of course face the “in trade” hurdle.  I have already noted that the statement of claim does not plead the details of any arrangement or understanding.  When pressed on this issue during the hearing, Mr Henry said that the arrangement was one that was alleged to exist between the Agency  and  the  Public  Defence  Service  and  that  the  purpose  of  this  alleged

arrangement was to bolster the work available to be undertaken by that Service for reasons of cost.

[59]     In that respect I simply record that:

a)        Enhancing the role (or potential role) of the PDS does not feature in the aims of the proposed reforms that I have quoted at [18] above; and

b)        Without the benefit of having been referred to any authority on the point it seems improbable that an arrangement or understanding in terms of ss 27 and 29 could be said to exist between what are, in reality, two different arms of a single legal entity (the PDS comprising part of the Agency).

[60]     Turning  now  to  consider  the  NZBORA  aspect  of  the  claim,  Mr  Henry forcefully submitted that the right to counsel enshrined in s 24(c) necessarily incorporated what he submitted was the common law position, namely the right to counsel of one’s choice.   This position he said was reflective of the fundamental importance in any solicitor/client relationship of trust and confidence; without those things, he said, counsel could not be effective.

[61]     I do not in any sense dismiss Mr Henry’s argument out of hand.  Nonetheless it again seems appropriate to record that it runs against the weight of both indigenous and international authority which recognises that, even if the right to counsel generally might incorporate a right to choose, exceptions exist where legal aid is at issue.  In that respect Ms Warburton referred me in particular to:

a)        The decision of the New Zealand Court of Appeal in R v Heemi  in which it was held that the Legal Services Act 1991 (under s 17 of which legally aided defendants were simply assigned counsel by the Registrar or the Court) could not be interpreted as requiring a right to choose counsel;

b)        A decision of the Human Rights Committee in which (consistent with its  earlier  jurisprudence)  it  was  held  that  Article  14(3)(d)  of  the ICCPR did not entitle an accused to counsel of choice where he is being provided with a legal aid lawyer and is otherwise unable to afford legal representation: Teesdale v Trinidad and Tobago;

c)        Decisions  of  the  European  Court  of  Human  Rights  in  relation  to Article 6(3) of the European Convention on Human Rights (which has, through differences between the English and French texts, created something of a debate about whether legally aided defendants are
entitled to counsel of their own choosing): Pakelli v Germany and

Croissant v Germany.    In that respect, however, I observe that the Court of Appeal in Heemi  (decided after both Pakelli and Croissant) noted that:

The  ECHR  has  “consistently  held”  that  [Article  6(3)(c)] does not provide the right for legally aided applicants to choose their legal representative ....

[62]     Mr Henry sought to distinguish Heemi (saying that the existence of s 17 made all the difference).   He submitted that to the extent the international cases were inconsistent with the claim they were simply wrong.

[63]     The issue has, it seems, most fully been judicially considered in Canada. There, notwithstanding that the right to counsel of choice is enshrined in legal aid legislation in a number of Provinces, it has also been held that (absent such a specific provision)  the  right  to  counsel  in  s  10(b)  of  the  Canadian  Charter  does  not incorporate a right to choose.     In a decision of the Alberta Court of Appeal in
Panacuni v Legal Aid Society McDonald J said:

The purpose of providing that from the time of detention or arrest a person arrested or detained has a constitutional right to the assistance of a lawyer (to use a translation of the French version of s 10(b)), is to ensure that if he wishes and if he retains a lawyer to act for him, he will have professional

advice from the moment he expresses that desire and succeeds in retaining a lawyer. The purposes in turn of having a lawyer to give him professional advice and assistance are:

(1)     to enable the detainee or arrestee to know what the law is relating to the offence with which he is charged;

(2)     to conduct himself according to law and in his self-interest when deciding what to do to secure his release from detention or custody;

(3)     to avail himself effectively to whatever extent he chooses of the right to remain silent during the pre-trial investigative process;

(4)      to have professional help - not hindered by detention - mar- shalling evidence, examining the evidence upon which the Crown intends to rely;

(5)      to question witnesses in a professionally effective manner and to make representations as to fact and law in a professionally effective manner on his behalf at his preliminary inquiry;

(6)     to mount and present a full and fair defence in a professionally effective manner at his trial, including the questioning of witnesses,   dealing   with   questions   of   the   admissibility   of evidence, and making opening and closing submissions to the court as to the facts and the law;

(7)     to  represent  his  interests  in  a  professionally  effective  manner upon any appeal.

That list of purposes is not intended to be exhaustive. Its sum, in the context of the process of the criminal law, is the protection of the dignity of the citizen  when  he  is  deprived  of  his  liberty  and  he is  accused  of  having committed an offence. The power and forces of the state are marshalled against him; he has suffered the humiliation and degradation of being deprived of his liberty and threatened with continued deprivation of liberty or some other penalty; he faces potential obloquy among family, friends, employer and associates in his vocation; he faces economic loss and even disaster. From all of these the social utility of giving such a person fair protection against the power of the collectivity demands that the detainee or arrestee have no objective reason to sense that the system genuinely protects the right to regain liberty when the law permits it, to remain silent, and ul- timately to have a fair hearing that complies with the requirements of s 11(d) of the Charter.

... 

In my view, the foregoing statement of the purposes and interests which ss 7,
10(b) and 11(d) are meant to protect when the issue is the scope and extent of the right to counsel, lead me irresistibly to the conclusion that a person charged with an offence that is serious and complex, when he cannot afford to retain counsel, is constitutionally entitled to have counsel provided to assist him at the expense of the state: see R v Stiopu; Re MacKay and Legal Aid Society of Alberta. ... and Deutsch v LSUC Legal Aid Fund, ...

...

Do the same purposes constitutionally mandate that an accused person be permitted to use the state's funds to pay counsel of his choice rather than one selected by the state or its agency to act on his behalf? What interests which those sections of the Charter are meant to protect would be served by requiring the state to pay counsel of his choice?

At this point it is necessary to look at the position of the non-indigent accused who can afford to retain counsel. There may be reasons of social importance for entitling such a person to retain the services of any lawyer who is willing to act on his behalf. No one has ever suggested in our society that the system should prevent a person from doing so or that the state should say to a non-indigent accused: you may have counsel at your own expense but it must be the counsel whom the state or its agent assigns to you. Why would such a situation not likely be tolerated? Probably because of a sense that freedom of choice of one's professional advisers is socially desirable: the less involvement of the state in the relationship between a person and the professional who advises him or helps him in a confidential capacity – whether lawyer, medical doctor or accountant – the better it is from the point of view of making intrusions by the state into the individual's privacy less likely and less possible. The reason for society's not likely being willing to countenance a régime denying the right of choice of legal counsel when the client can afford to pay is not that such a system would infringe or even run the risk of infringing or negating the purposes already enumerated of an accused's having a lawyer to give him professional advice and assistance. The right to counsel guarantees that those purposes are fulfilled, but freedom of choice of counsel is not essential to the fulfilment of those purposes. Freedom of choice – if it results in the counsel chosen being willing and able to act – may increase the degree of confidence which the accused has in the effectiveness of his legal representation. That heightened degree of confidence may or may not be justified, depending upon the reliability and accuracy of the information upon which the accused acts in choosing his counsel. However, in the case of the non-indigent accused the purposes of the ss 7, 10(b) and 11(d) of the Charter do not rest upon the desirability of satisfying the subjective needs of a particular accused or of accused persons in general, but rather upon the search for objective fairness in the process of the prosecution of persons for the commission of offences.

The rich man charged with an offence may be able to afford to pay a defence lawyer whose fees are high, but the rich man's ability to pay such fees will not guarantee that he will have the most effective counsel. His judgment as to which expensive lawyer to select may be exercised badly if the rich man relies upon unsound information and advice in making his selection. The system affords him no guarantee that he will choose the best. He may think that he has, but there is no- way that he can be sure. The system guarantees him no more than that he will have the right to professional advice and assistance for the purposes listed above during the pre-trial process, at trial, and  until  the  appellate  process is completed.  His right  to counsel is  an objective one; his subjective sense of satisfaction is of no concern to the judicial system. Nor is the question whether the counsel he has chosen will in fact be as effective as he hopes and thinks, even if it were possible to measure that fact objectively.

The poor man charged with an offence, who cannot afford counsel on the basis of his own financial resources, but for whom the state has created a system which gives him the right to receive economic assistance for the payment of the fees of counsel, is entitled, as a matter of constitutional guarantee, to claim no more than the rich man.

It  may be desirable that the poor man's interests be protected as far as possible by the agency chosen by the state to administer these matters taking steps to ensure not only that all lawyers on their roster (or, in the case of a public defender system or any system using state-salaried lawyers for the defence) be members of the bar, but that their qualifications and experience are such as to guard against any justified accusation of incompetence. (Whether  incompetence,  or  gross  incompetence,  in  the  conduct  of  the defence of an accused person in a particular case would offend the s 11(d) guarantee of a fair hearing is not in issue in this case.) However, the desirability of ensuring the meeting of adequate standards of competence is a matter not of constitutional implication but of administrative policy — a question that falls outside the competence of the court. The same might be said as to whether the interests of non-indigent and indigent accused persons alike should be protected by the organized legal profession by a system of initial and continuing certification of lawyers' competence to conduct practices in the area of the criminal law.

My conclusion, therefore, is that s 7, s 10(b) and s 11(d) do not separately or together support a constitutional right of an accused person to be assigned counsel of his choice by the Legal Aid Society of Alberta.

[emphasis added and citations omitted]

[64]     As  well  as  the  fact  that  the  conclusion  reached  here  by McDonald  J  is consistent with what appears to be the international position, his analysis is also noteworthy because it confronts (and denies) the contention that choice is a fundamental aspect of the right to counsel, even outside the legal aid context.  Again I make no comment other than to record that it adds a further dimension of difficulty to the plaintiffs’ position.

[65]     I also raised with counsel during the hearing the potential issue of “standing” in relation to the plaintiffs’ ability, as lawyers, to rely on a right that is conferred not on them but on their clients.   Although counsel were unable to refer me to any authority on the point it seems clear, for example, that in the search and seizure context at least, third parties may not seek to have evidence excluded on the basis that it was obtained allegedly in breach of NZBORA rights belonging to another.  As
the Court of Appeal said in R v Williams:

[47]      It has long been established that breaches of other people’s rights under the Bill of Rights cannot be relied upon by third parties – see R v Wilson [1994] 3 NZLR 257 at 259 (CA).  This concept is often couched in terms of standing, although the term is rather inapt for this subject-area. It is more helpful to define the issue as being whether or not a person is able to claim a personal remedy (i.e. exclusion of evidence) under the Bill of Rights. The purpose of that remedy is to provide vindication of an individual’s rights. If that individual’s rights have not been breached then there is nothing to vindicate.

[66]     Here, of course, there is no possibility that the plaintiffs’ NZBORA rights will be vindicated by the remedy they seek.   It seems to me that these potential difficulties with standing merely serve further to underscore the conclusion I have reached in relation to the absence of any position held by the plaintiffs that is in need of being preserved.

[67]     In summary, even if the pleadings are liberally construed, and account taken of the ways in which they might be altered or improved (which I have attempted to do) it seems to me that there are considerable difficulties with the legal substance of the plaintiffs’ claim.  It is not necessary for me to express a view on whether even a properly amended claim would be unarguable.  However the numerous and serious legal impediments I have identified strongly militate against the grant of interim relief.

Consequences of granting interim relief

[68]     Ms Hill for the Agency summarised in her affidavit the serious operational difficulties that would result in the event that interim relief were granted.  Were it not for the other matters that I have addressed above I would not necessarily be inclined to give these such weight.  However in light of what I consider to be the weakness of the substantive claim and the absence of any position to be preserved some, at least, of those difficulties assume considerable moment.

[69]     Ms Hill deposed, and I accept, that considerable disruption would result were implementation to be delayed.  Operational changes have already occurred as part of the implementation process, including the creation of a new IT case assignment tool, staff training, and widespread communications with lawyers, judges and court staff.

There would be an impact on the duty lawyer changes that are being or have already been made in the Papakura and Pukekohe Courts.  For example some lawyers have already removed themselves from the duty lawyer service on the understanding that they would be eligible to receive legal aid cases on rotation.   Other lawyers have similarly altered their practice in anticipation of the reforms.  Steps have also been taken by the PDS in terms of additional recruitment in order to meet the demands of the new regime.

[70]     It follows from my conclusions about the plaintiffs’ absence of positions capable of being preserved that, apart perhaps from a loss of chance, my refusal of interim relief will not cause them any relevant detriment in the event that their substantive claim ultimately succeeds.   I accept, however, that it might be argued that (in that event) such a detriment would have been suffered by those who have been charged with criminal offences in the interim and have not been permitted to choose their lawyer.  But it seems to me that the reality is that whether this is so will depend on the particular circumstances and facts of each case.   Any actual, consequential, prejudice to a defendant’s fair trial rights (for example) would need to be assessed against the specific context of the specific trial.  Any such detriment is accordingly too speculative for me to give it significant weight here.

[71]     The matters referred to in the preceding few paragraphs give rise to one final matter - it is not just the plaintiffs’ who are affected by the changes.  I suspect that others may well have a right to be heard in relation to the substantive claim.  That is an issue that will need to be borne in mind should the claim proceed to trial.

Result

[72]     For the reasons I have given above I have formed the view that interim relief should be denied because the plaintiffs have no relevant position that is necessary to preserve in terms of s 8 of the Judicature Amendment Act.  Had I not formed that view, however, I would also have denied relief as a matter of discretion because of what I perceive to be quite fundamental difficulties with the plaintiffs’ substantive claim and the wider consequences of stopping the implementation of the proposed changes later this month.

[73]	I trust that counsel will be able to agree on the matter of costs, in respect of which  I consider  that  Category 2,  Band  B  is  appropriate.	If  there  is  no  such
agreement memoranda are to be filed within 10 days of this judgment.

Rebecca Ellis J