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Glancy v Legal Services Agency [2003] NZCA 298; (2003) 17 PRNZ 168 (15 December 2003)

Last Updated: 16 December 2011


IN THE COURT OF APPEAL OF NEW ZEALAND

CA28/03CA274/02

BETWEEN FIONA GLANCY AND OTHERS
Appellants


AND LEGAL SERVICES AGENCY
Respondent


Hearing: 26 and 27 November 2003


Coram: Blanchard J Tipping J McGrath J


Appearances: I R Millard QC and H C McDouall for Appellants
G D S Taylor, P Ryder-Lewis and R Taylor for Respondent


Judgment: 15 December 2003


JUDGMENT OF COURT OF DELIVERED BY BLANCHARD J

[1] This is an appeal from a decision of Gendall J in the High Court at Wellington, holding that the Legal Services Agency was entitled to withdraw the appellants’ legal aid by virtue of ss9(6), 10(3) and 10(4) of the Legal Services Act 2000 (the Act). The Judge also dismissed the appellants’ application for judicial review of the Agency’s decision to withdraw legal aid under s9(4)(d)(ii) of the Act.
[2] Three persons of Maori descent are seeking reinstatement of grants of legal aid withdrawn by the Legal Services Agency (the Agency). The aid had been granted for a proceeding brought against the Treaty of Waitangi Fisheries Commission. The primary relief sought in a lengthy and complicated statement of claim, naming numerous other defendants, was a declaration that the Commission in preparing proposals for distribution of certain fisheries assets held by it under the Maori Fisheries Act 1989 owed certain duties. These have been pleaded as duties to ensure that the benefit of the assets will be available to all Maori, to ensure that all Maori are treated fairly and to ensure that its proposal for distribution of assets facilitates and assists Maori and groups of Maori to enter into, to continue and to develop the business and activity of fishing, “which expression includes groups of Maori on a non-iwi basis, without limiting that facilitation or assistance only to Maori linked to traditional tribes” and also to take into account economic and social considerations and past depletion of fisheries.
[3] The claim is made in reliance on the deed of settlement of what is commonly called the Sealords settlement of 1992 which provided that the settlement should be “ultimately for the benefit of all Maori” and that the Commission was to hold the settlement benefits “on behalf of Maori and for their benefit”. Some of the history of the contest amongst Maori concerning the fisheries assets held by the Commission is to be found in the decisions of the High Court and this Court in Te Waka Hi Ika o Te Arawa v Treaty of Waitangi Fisheries Commission [2000] 1 NZLR 285. The text of the deed is to be found as an appendix to Te Rununga o Wharekauri Rekohu Inc v Attorney-General [1993] 2 NZLR 301 at 311-321.
[4] The Judicial Committee of the Privy Council affirmed the decision of the High Court and the majority decision of this Court on 2 July 2001 ([2002] 2 NZLR 17). It said that any scheme of distribution of fisheries assets developed by the Commission would have to be in accordance with its “overriding duty and accountability to the Maori people” and, if that could not be achieved by a distribution to iwi, the Commission was under no obligation to make any distribution at all: para [19]. Their Lordships also commented that the trust obligation on the Commission to ensure that the settlement was for the ultimate benefit of the Maori people appeared to be a concept of public law which used the term “trust” only by analogy with the more familiar trust of private law. It employed a very broad concept of benefit which would not seem to require any immediate and demonstrable advantage for each member of the Maori people.

The statement of claim

[5] The appellants’ statement of claim had been filed before the Court of Appeal and Privy Council judgments and, although it has not been amended, must be read in light of them. Some clarification of what the appellants are now seeking is available in the statement of claim in their application for judicial review of a decision of the Agency withdrawing legal aid, to which reference will shortly be made. In it the appellants referred to a new proposal published by the Commission which included provision for a contestable putea or fund of $20 million (out of a total settlement now valued at $700 million). The putea is intended by the Commission to meet the needs of Maori who do not associate with iwi or are remote from their tribal rohe. The appellants raised concerns about the adequacy of the putea for this purpose.
[6] We return to the statement of claim in the proceeding against the Commission. The plaintiffs were a Mr Ryder and the present appellants. (He was the lead plaintiff but has now abandoned any claim for legal aid.) They pleaded that the Commission’s proposals did not make any adequate provision for ensuring that the benefits of allocations of fisheries assets were enjoyed by all Maori. Amongst other objections it was said that the Commission had not genuinely taken into the account the comparative economic and social situations of different Maori groups or even iwi.
[7] Under a heading “Background to the Parties” the appellants gave particulars of themselves. In paragraphs 15, 16 and 17 of the pleading, the following is said of the three appellants:

15. The First Plaintiff, Fiona Glancy, is a Maori solo mother of three children by two different Maori fathers from different tribes from each other and herself. Both she and her children live away from the ancestral base of the various tribes with which they are affiliated. Fiona Glancy was selected by her hapu, Poutini, because of her membership of the hapu and her personal circumstances which typified the concerns that hapu held about the Proposal, namely, that the benefits should return to hapu and not Iwi.

16. The First Plaintiff, Alexander Watson is a Maori of one Iwi, Te Atiawa descent with three distinct regional locations, Taranaki, Wellington and top of the South Island who is unwilling to choose between the three.

17. The Second Plaintiff, Hori Thompson is an Apotoro of the Ratana Church. He disavows traditional tribal affiliations in favour of all Maori of the Ratana faith being equal and known as Te Iwi Morehu. The Second Plaintiff is the Co-ordinator of Morehu Social Services. He identifies as Maori and associates with other Maori but outside their Iwi. Tribal affiliations are less important for many individual adherents of the Ratana Movement than their membership of the Ratana Church or movement.

[8] Then follows paragraph 18:

18. The foregoing First and Second Plaintiffs sue for the benefit of:

18.1 Maori who wish to enter fishing on a non Iwi or multi Iwi (pan Maori) basis;
18.2 Maori who do not know to which Iwi they are affiliated;
18.3 Maori who, for religious reasons or because of their political opinions, do not acknowledge a traditional tribal group as the primary Maori group to which they belong;
18.4 Maori who are unemployed and/or are receiving social welfare benefits but are not in receipt or any assistance from any Iwi to which they are affiliated and all dependants of such Maori;
18.5 Maori who have not maintained their tribal links or, because of their distance from their ancestral base, are unable to play an active part in their tribal community; and
18.6 Maori whose primary Maori social community is not an Iwi organisation but is, instead, an organisation in which Maori from several Iwi are associated.
[9] Later (in para 54) it was pleaded that the Commission held its assets on behalf of and for the benefit of all Maori and (in para 58) that there was a duty on the Commission to ensure that the proposal for distribution was just and treated all Maori fairly and (in para 61) that the Commission had a function and a duty to facilitate and assist Maori and groups of Maori to enter into and to continue and to develop the business and activity of fishing.
[10] In paragraph 72 it was pleaded that the Commission’s proposals:

The Agency’s decision under ss9(6) and 10(4)

[11] On 20 September 2001 a Full Bench of the High Court delivered a decision in an appeal under the Legal Services Act 1991 in which it upheld a refusal of legal aid to a Mr Edwards and a Ms Te Hau: Edwards v North Auckland District Legal Services Subcommittee [2002] 1 NZLR 706. It found that they were respectively bringing their proceedings for Muriwhenua and Rongomaiwahine which were each a “body of persons” to whom legal aid was not generally available, by reason of s27(1) of the 1991 Act, equivalent to s9(6) of the Legal Services Act 2000 (the Act). This decision led the Agency to re-appraise the position of Mr Ryder and the present appellants. On 7 January 2002 the Agency wrote to their solicitor taking the position that they were suing in a representative capacity and that s9(6) excluded them from claiming legal aid:

(Section 9(1)(a)(ii) extends legal aid to a trustee corporation in certain circumstances. Section 42 enables it to be granted to groups of Maori for proceedings before the Waitangi Tribunal.)

[12] The Agency said that if s9(6) did not exclude an entitlement to claim, “then s10(4)(a) and (b) provide no exceptions in this case to enable a grant to be made”.
[13] Section 10(4) states:

(4) If an applicant applies for legal aid in connection with a matter in which numerous persons have the same interest, and the rules of court permit the applicant to sue or be sued on behalf of all those persons, then the Agency must refuse to grant legal aid if it is satisfied that—

(a) the refusal of legal aid to the applicant would not seriously prejudice the rights of the applicant; or

(b) it would be proper for the other persons having the same interest to pay for the proceedings.

Review by the Panel

[14] Mr Ryder sought review of this decision by the Legal Aid Review Panel on the ground that it was wrong in law: s54(1)(b) of the Act. It is accepted that he did so on his own behalf and also on behalf of the present appellants. The Panel’s decision was given on 3 July 2002. It concluded that the High Court’s decision in Edwards was distinguishable. The groups represented by Mr Edwards and Ms Te Hau could be identified by common ancestry. Mr Ryder claimed to represent Maori in a number of categories, of which it was said by his counsel that it was impossible to delineate membership.
[15] The Panel referred to the fact that Mr Ryder had applied to the High Court for a representation order under to r78 of the High Court Rules. That application had been refused by Gallen J: Ryder v Treaty of Waitangi Fisheries Commission [1998] 1 NZLR 761. The Panel referred to Gallen J’s statement that the adherence by people to a particular view did not provide an adequate basis for categorising the group in which they ought to be included for distribution of fisheries assets. The Panel was of the view that while Mr Ryder was suing in a representative capacity he was not bringing his proceedings on behalf of a body of persons. It determined that the Agency was wrong in law in deciding that s9(6) excluded entitlement to further aid.
[16] Moving then to s10(4), the Panel said that the difficulty facing the Agency was that while Mr Ryder might have an interest in common with other persons, Gallen J had determined that the rules of court did not permit him to sue on behalf of those persons. The pre-condition to the operation of the subsection had not been made out. The Panel commented also that before the Agency might refuse aid under 10(4) it had to have obtained sufficient information concerning the other persons who had a similar interest in the proceedings to enable it to make an informed decision. It had not done so. Had the Panel not found that s10(4) had no application to the case, it said it would have directed the Agency to reconsider and obtain sufficient information to be able to make a finding under (a) and (b) of the subsection.
[17] The Agency had also referred the Panel to s10(3):

(3) The Agency must refuse to grant legal aid to an applicant who applies for legal aid in connection with a civil proceeding in which he or she is concerned in a representative, fiduciary, or official capacity, unless it appears to the Agency that,—

(a) if proceedings were brought, the court would be likely to order that the cost of the proceedings be paid out of any property, estate, or fund; and

(b) if that happened, the property, estate, or fund would be diminished or extinguished by the order and any person beneficially interested would suffer hardship as a result.

The Panel took the view, however, that this provision had application only where the applicant for legal aid had no personal interest in the outcome of the proceeding and represented a group which was able to be clearly identified and whose assets would be diminished or extinguished by the cost of the proceeding, with resulting hardship. The Panel did not consider that Mr Ryder came within that category. Section 10(3), it said, had no application.

[18] The Agency had also raised with the Panel the application of s9(4)(d)(ii):

(4) The Agency may also refuse legal aid to an applicant in any of the following circumstances:

...

(d) in the case of original proceedings,—

...

(ii) the grant is not justified, having regard to the nature of the proceedings and the applicant's interest in them (financial or otherwise), in relation to the likely cost of the proceedings; or

The Panel said that it was still open to the Agency to consider the matter under that provision and s26(2)(a):

(2) In relation to a civil matter, the Agency may withdraw legal aid from, or amend a grant of legal aid to, an aided person in any of the following circumstances:

The Agency’s decision under s9(4)(d)(ii)

[19] The Agency then appealed to the High Court under s59 of the Act against the Review Panel’s reversal of its decision. But it also gave consideration to withdrawing aid under ss9(4)(d)(ii) and 26(2)(a). After an exchange of correspondence with Mr Millard QC, for Mr Ryder and the appellants, the Agency wrote to their solicitor on 26 September 2002. It said it had expended approximately $1.5 million in funding legal services for them. (That figure is admitted to have overstated the position by about 45%). The Agency said that it had asked the solicitors what benefit Mr Ryder might himself receive if his civil action was successful:

We asked who else would benefit if he was successful. We stated our belief that any benefit received by any person would be less than the cost of funding the proceedings to a conclusion.

In reply Mr Millard urges us to view the matter as one involving “great public importance”. He urges us to look at the matter as not just one to benefit Mr Ryder in particular but to all other persons having the same interest.

The matter in issue is undoubtedly an important one. If it was a matter before the Waitangi Tribunal, no issue would likely arise from the fact that Mr Ryder was a party in a representative capacity. But, this is not a Waitangi Tribunal proceeding and s9 and with it s10 Legal Services Act 2000, does apply.

[20] Reference was made in the Agency’s letter to an acknowledgement by Mr Millard that Mr Ryder was presently unlikely to obtain any benefit from the fisheries settlement personally, but, if more were done, that he might well benefit in proportion to other Maori. The Agency’s letter continued:

Mr Ryder is one of four plaintiffs appearing in a representative capacity. Mr Ryder and another plaintiff sue for the benefit of groups of Maori who do not know their iwi. It is an amorphous group, without structure and of uncertain extent.

The proceedings involve a large amount of money. However, the plaintiffs will only benefit minimally if the proceedings succeed. Mr Millard mentioned a figure of $1,200.00. We think this figure is nearer to $360.00 if, as is claimed, the Ryder plaintiffs represent as many as 1/3 of all Maori.

Consideration of s9(4)(d)(ii) Legal Services Act 2000 involves a balancing exercise. The proceedings are far from concluded. There has yet been no substantive hearing. A grant of aid involves an allocation of public money. Any benefit derived from Mr Ryder and his co-plaintiffs from success in the outcome, is speculative and likely at best to be nominal. We are reminded by s92 Legal Services Act 2000 that a function of the Agency is “to administer schemes in as consistent, accountable, inexpensive, and efficient a manner as is consistent with the purpose of the Act”.

[21] It was confirmed that legal aid was withdrawn.

The High Court judgment

[22] Mr Ryder and the appellants wished to challenge this decision. In order that it could be considered by the High Court at the same time as their s59 appeal, they proceeded by way of application to that Court for judicial review. Both proceedings were heard together by Gendall J in December 2002, by which time this Court’s decision dismissing the appeal in Edwards had been delivered: Edwards v Legal Services Agency [2003] 1 NZLR 145.
[23] Gendall J delivered his reserved decision on 16 December 2002. He was of the view that, on the basis of this Court’s Edwards judgment, s9(6) precluded a grant of legal aid. He said that the proceedings purported to be brought “on behalf of sections of Maori within their all encompassing respective iwi”, referring to the connections described in paragraphs 15-17 of the statement of claim in the substantive proceedings (see para [7] above). In Gendall J’s view, each of those groupings was a body of persons “recognisable by those who seek to come within the group”. They had in common their being Maori and belonging to an iwi (whether they wished to recognise it or not). He said it was only to iwi that the settlement assets were available. The Judge continued (at para [49]):

In substance the actions of the individuals is that they would obtain a right no greater than that occurring to them as members of the body, namely the iwi to which proceeds must be allocated, and whose total membership benefit through the ultimate method of allocation sought by the respective plaintiffs. They seek declarations or orders as to trust obligations by the Commission, so that it ensures the iwi provide for all their members. Although the plaintiffs, in the end, said that they do not represent anybody but are simply putting or representing a “viewpoint” which might lead to a benefit to the others, I think that argument is sophistry. Within the designated “subgroup” it still is the case that all claims in the proceeding relate to the entitlements of all Maori which can be obtained only through their iwi. In substance, the issue is who are to be the beneficiaries of the proceedings, and they can only be all of those Maori who are entitled to fair and just division of proceeds derived as members of an iwi. The plaintiffs have no greater nor lesser claim than other members of their iwi and within that body, their respective claimed identifying subgroups.

[24] The Judge also considered that s10(4) applied. He said Gallen J had exercised his discretion against making a representation order but Mr Ryder and the appellants beyond doubt represented others. The rules permitted such actions although formal representation orders were not made.
[25] The Review Panel had also erred, Gendall J said, in concluding that s10(3) did not apply. The plaintiffs were suing in a representative capacity. The exception to the provision requiring aid to be refused where an application for aid is “concerned” with civil proceedings in such a capacity could not apply.
[26] Gendall J therefore allowed the Agency’s appeal. He also dismissed Mr Ryder’s judicial review application. He did not accept that there were fundamental mistakes of fact invalidating the Agency’s decision under s9(4)(d)(ii). He rejected the submission for Mr Ryder that the Agency had ignored the importance of the proceedings to a significant number of Maori.

The further appeals

[27] Mr Ryder lodged an appeal against the refusal of judicial review and sought leave to appeal under s60 of the Act, which applies the regime found in s144 of the Summary Proceedings Act 1957. On 19 February 2003 the High Court granted leave. Mr Ryder has since elected not to pursue matters further on his own behalf but no objection has been taken to the appellant’s doing so.

Section 9(6)

[28] The parties were agreed that the starting point in considering s9(6) is the central passage from our judgment in Edwards in which we have adjusted the section references so that they are to the comparable provisions in the 2000 Act:

[26] Section [9(6)] denies legal aid to a “body of persons”. The addition of the words “whether corporate or unincorporate” simply makes it clear that the disqualification of bodies is not restricted to those which have been incorporated. It is to extend also to persons who together are properly to be regarded as a body rather than as a number of individuals. Subject to the exceptions in [ss9(1)(a)(ii) and 10(3) and s42], legal aid is to be available only to one or more individuals. It would therefore be incongruous, and contrary to the evident parliamentary intention, if an individual who had no right in the matter greater than is derived from the fact of membership of a body of persons could obtain a grant of legal aid. It would not be aid for that individual’s claim. The benefit would then, impermissibly, be extended to the body. An applicant therefore cannot avoid the bar in s [9(6)] by saying that he or she is a natural person if the right asserted in the proceeding for which aid is sought is no greater than that of membership of a body and the proceeding is in substance for the benefit of that body, even if there is no formal agency and the member has taken it upon him or herself to bring the proceeding. It is of no moment that were legal aid to be granted the self–appointed claimant would not be under the control of the body and that he or she alone could give instructions to the legal representatives. The test must be whether their work would be directly for the benefit of the applicant or whether the direct benefit – the damages or other relief granted – would accrue to the body, with the applicant participating only through membership. (In contrast, an individual would not be barred from a grant of legal aid where he or she had a personal claim not derived through membership of the body even though the body might itself benefit, but that situation might well fall within [s10(4)]to which reference is made below.)

[29] In that case neither Mr Edwards nor Ms Te Hau had a personal right or interest separate or distinct from the body of persons (iwi) they represented. In contrast, the claims made by the appellants have a different basis. They claim as Maori who, they contend, are entitled to benefit from the fisheries settlement. As individuals, they say that they and many others besides, have the right to have the Commission establish an appropriate delivery mechanism to benefit them separately from their iwi, through whom they do not wish to claim. They say that the references to their iwi or hapu (a sub-group of an iwi which itself may well be a body of persons) or to the Ratana Church (certainly a body of persons) were not made for the purpose of asserting a claim via those entities but merely – as the heading referred to in para [7] of this judgment shows – as background and to demonstrate the importance of the claim, by indicating the existence of other individual Maori in a like position. Other references to iwi in the statement of claim, mentioned by Mr Taylor in his argument to us, were said by Mr Millard not to be for the purpose of asserting iwi rights but merely to make the point that, in the appellants’ view, the distribution formula proposed by the Commission is overly generous to some iwi. If it is adjusted to remove some of that benefit, more will be available, in the putea or otherwise, for those who claim as individuals.
[30] It is not for us in this proceeding to say whether there is any merit in these arguments. Nor should we be taken to do so. What is plain to us, however, is that when the statement of claim is read as a whole and it is appreciated that to an extent it has been overtaken by the Privy Council decision in July 2001, it becomes apparent that the appellants are indeed putting forward claims as individuals. They are not claiming tribal benefits. They are seeking to hold the Commission to the obligation which this Court and the Privy Council have recognised, that there is to be benefit for all Maori, which includes themselves. It is true that if the appellants succeed in their individual claims many other Maori in like situations may also benefit. The appellants can therefore broadly be described as claiming on behalf of or representing such other Maori, but they are not bringing claims on behalf of a body of persons. Mr Edwards and Mr Te Hau had no claim other than a group claim, which was for a group which could be recognised as a collective entity. Any benefit they might get came to them only through membership of the entity. The present appellants, in contrast, assert individual claims, distancing themselves from the claims of their respective iwi. The other Maori who may benefit if the appellants’ claims succeed may be persons who fall within the same general description as that given by one of the appellants but they share no common structure with the appellants and, as posited, also spurn or are unaware of any rights they may possess through an iwi.
[31] Section 9(6) accordingly does not deny the appellants a legal aid grant.

Section 10(3) and (4)

[32] Nor, in our view, do ss10(3) and (4). Mr Taylor accepted during argument that he was in difficulty over s10(3), which has to be read with s9(1)(a):

9 When legal aid may be granted: civil matters

(1) The Agency must, subject to this section and sections 10 and 11, grant legal aid to an applicant in respect of proceedings to which section 7 applies (civil proceedings) if—

(a) the applicant is—

(i) a natural person, whether resident in New Zealand or not; or

(ii) a trustee corporation (as defined in section 2(1) of the Administration Act 1969) that applies for legal aid in connection with proceedings in which it is concerned in a representative, fiduciary, or official capacity;...

Section 10(3) requires refusal of legal aid to a trustee corporation or another applicant in a representative, fiduciary or official capacity unless the case falls within the exceptions cumulatively stated in (a) and (b). But, to the extent that an applicant has a personal claim, as we have held the appellants do, and is otherwise qualified in terms of s9, legal aid is not denied by s10(3), which is directed only to representative claims or to the portion of a claim which is representative.

[33] The following example makes the point and shows the unfairness which might result if the argument advanced by the Agency were accepted. Say an applicant was otherwise entitled to legal aid and was concerned with recovering an interest in property to which he asserted a legal right on the basis that he would have to account to a number of other persons for a one-quarter share. Section 10(3) would apply only insofar as he was claiming for those other persons. It would not prevent him being assisted with legal aid for his personal claim for a three-quarters share, although s10(4), to which we now turn, might have some application if the other persons could properly be called “numerous persons” and their claims and that of the applicant were a matter in which they had the same interest.
[34] Two situations must co-exist before the Agency can consider a refusal under (a) and (b) of s10(4). First, there must be numerous persons with the same interest in the matter for which legal aid is being sought and, second, it must be a situation in which the rules of court permit the application to sue or be sued on behalf of all those persons.
[35] The relevant High Court Rule is r78:

78 Persons having same interest

Where 2 or more persons have the same interest in the subject-matter of a proceeding, one or more of them may, with the consent of the other or others, or by direction of the Court on the application of any party or intending party to the proceeding, sue or be sued in such proceeding on behalf of or for the benefit of all persons so interested.

[36] In this case there would appear to be numerous Maori who might fall within the descriptions in para 18 of appellants’ statement of claim, but it is most uncertain whether, if aware of the proceedings, they would regard themselves or could be objectively be regarded as having the same interest therein. The High Court was evidently persuaded by Mr Taylor’s argument that Gallen J had considered that there was jurisdiction in the circumstances to make a representation order and that he refused to do so only as a matter of discretion. With respect, we do not read Gallen J’s judgment in that way. He of course would not have foreseen how the distinction would achieve significance in the present context and, understandably, when summarising his reasons for refusing the order ([1998] 1 NZLR at 768), ran together matters of jurisdiction and matters of discretion. But, in an earlier passage, Gallen J referred to the need for the persons to constitute a class of claimants with the same point of view:

Those opposing the application submitted that classes of persons as categorised in the plaintiffs’ application, included persons already represented in this proceeding. It is clear from the affidavits that this must be the case. In most if not all of the categories defined by the plaintiffs for the purposes of the application, there will be persons who for one reason or another, see their interests as best protected by organisational groups which take a different point of view to that espoused by the plaintiffs and who have some form of adherence to other parties in these proceedings. There is no advantage to people being represented in more than one capacity, particularly when the groups concerned take different views of an appropriate outcome. Indeed this has the potential to disrupt the proceedings.

It is contended that the members of the classes in respect of which representation orders are sought, do not all have the same interest in the subject-matter of the proceeding as the plaintiffs. This argument overlaps with that just dealt with. It is apparent from the affidavits that there are persons who take a different view of an appropriate outcome from that which the plaintiffs put forward but who would come within the categories as defined by the plaintiffs. Such persons would not see the outcome for which the plaintiffs contend as involving a benefit. That negates one of the criteria which the cases have considered appropriate for justifying the inclusion of persons in a representation order. (pp766-7)

[37] To the extent that Gallen J determined the application against Mr Ryder on this basis – and it appears to us to have been an important consideration for him – he was declining a representation order because the necessary jurisdiction did not exist since the numerous other Maori whom Mr Ryder wished to represent did not all have the same interest in the proceedings. For the reasons Gallen J gave, we take the same view. That being so, s10(4) has no application and does not bar the claim of the appellants for legal aid.
[38] Before leaving s10(4) we note also that in its decision of 7 January 2002 the Agency misstated the position if the subsection were to apply. It said that aid must be refused under s10(4) “unless” the Agency was satisfied in terms of (a) that the applicant’s right to bring the claim was not seriously prejudiced. What the subsection actually says, however, is that the Agency must refuse legal aid if it is satisfied of that matter or satisfied in terms of (b). On the basis of its misreading, the Agency appears to have considered that it had no obligation to call for information on those matters and could simply refuse aid if information had not been volunteered to it. If that was what the Agency was trying to convey in its decision, it does not reflect the statutory pre-condition to a refusal of aid under s10(4). The Legal Aid Review Panel was correct in its approach to this question.

The judicial review appeal – s9(4)(d)(ii)

[39] The final issue arises on the judicial review application and concerns whether, in withdrawing legal aid by reference to s9(4)(d)(ii), the Agency failed to take account of a consideration which Mr Taylor realistically accepted as having been relevant, because it goes to the nature of the proceedings for which legal aid had been granted. But there is a preliminary point concerning s26(2)(a) which we should mention notwithstanding that, in the end, we have not found it necessary to resolve the matter. Section 26(2)(a) enables the Agency to withdraw legal aid where the aided person is “no longer” a person entitled to a grant by virtue of any of ss9, 10 or 11. Can someone who was in reality never entitled to legal aid be said to be “no longer” entitled? On a literal application of that expression, the answer might be in the negative. It would however be peculiar if the Agency could not withdraw funding in such circumstances. It may well have no power to continue to extend aid to such a person. Possibly, also, the situation may be one in which the Agency is entitled to exercise its powers for a second time: s16 Interpretation Act 1999. But these are merely our tentative views on a point which might benefit from legislative clarification. For the reasons we now indicate, we do not find it necessary to come to a conclusion on the point.
[40] That is because it is clear to us that, on a reading of the whole of the Agency’s letter, it was taking the position that the existence of many other Maori in a position similar to that of Mr Ryder and the appellants and the importance of the case to those persons, was of no relevance. In the passage quoted in para [19] of this judgment, the decision-maker referred to the Agency’s belief that any benefit received by any person would be less than the cost of funding the proceedings to a conclusion. No doubt it would, as will often be so when a plaintiff brings a test case against a government agency to establish his or her personal right, for example, to a social welfare benefit, and there are many others in a like position. But such an analysis would overlook the importance of such proceedings to those other persons and, indeed, to the defendant, which needs to know the extent of its legal obligations.
[41] In its next paragraph the Agency adverts to this question, noting that Mr Millard had urged it to look at the matter in this way. But it then dismisses it by saying the proceeding is not a Waitangi Tribunal proceeding and so ss9 and 10 apply. That appears to be a reference to the very provisions which in the earlier part of this judgment we have held not to apply. So that reasoning by the Agency was also erroneous. This error seems to be repeated in the first sentence of the further passage which we have quoted in para [20] above, in which further reference is made to the representative capacity of the plaintiffs. That again appears to be heavily influenced by the Agency’s view of the position under s9(6), although we must say that in such context it appears contradictory for the Agency then to describe the group of Maori as “amorphous, without structure and of uncertain extent”.
[42] Importantly, when the decision-maker came, in the last of the quoted paragraphs, to carry out the balancing exercise, reference was again made to the nominal (at best) personal benefit to Mr Ryder and his co-plaintiffs, but there was a complete failure to mention the wider importance of the case to many Maori. It is in our view inescapable that the Agency has failed to give proper consideration to the nature of the proceedings. A relevant consideration has effectively been disregarded. The decision to withdraw aid was therefore flawed and must be set aside.

Result

[43] The appeals are allowed. The decision of the Legal Aid Review Panel of 3 July 2002 reversing the decision of the Legal Services Agency is restored. The Agency’s decision of 29 September 2002 withdrawing legal aid is set aside. As the appellants are legally aided for this appeal no order for costs is required.

Solicitors:
Woodward Law Offices, Lower Hutt, for Appellants
Bartlett Partners, Wellington for Respondent

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