Legal Services Agency v Goodship CA226/02 [2003] NZCA 371 (28 November 2002)

Last Updated: 1 January 2019

IN THE COURT OF APPEAL OF NEW ZEALAND CA226/02


BETWEEN LEGAL SERVICES AGENCY

Appellant

AND TREVOR PHILLIP GOODSHIP

Respondent


Hearing: 25 November 2002

Coram: Blanchard J
Tipping J McGrath J

Appearances: G D S Taylor for Appellant T J Castle for Respondent

Judgment:

Reasons for Judgment

25 November 2002

28 November 2002

REASONS FOR JUDGMENT OF THE COURT DELIVERED BY BLANCHARD J

[1] We indicated at the end of the hearing that the application for special leave would be refused and that written reasons would be issued in due course. These are those reasons.

[2] The application was brought under s60 of the Legal Services Act 2000. It relates to a judgment of the High Court on questions of law arising from a decision by the Legal Aid Review Panel reinstating a grant of legal aid to Mr Goodship which the Legal Services Agency had withdrawn. The first question sought to be argued in this Court was as follows:
Did the High Court err in holding that the respondent was eligible to receive legal aid notwithstanding the grant of aid to the respondent had been held by the Legal Aid Review Panel to be also funding the respondent’s company’s proceedings?

[3] Mr Taylor said that the basic question lying behind the appeal could be framed as: where a single firm of solicitors and counsel act for an individual and also for a company controlled by that individual in the same proceeding, does the Act allow for legal aid to be granted to the individual? Mr Taylor said that the issue assumes that, but for the involvement of the company, the individual would be eligible for legal aid. He referred to the recent decision of this Court in Edwards v Legal Services Agency (CA156/01, 10 October 2002), in which we held that where the individual had no interest apart from a body of persons, the individual was not eligible for legal aid as a result of s27(1) of the Legal Services Act 1991, which was a predecessor provision equivalent to s9(6) of the current Act. Mr Taylor said that this present case concerns a point that is related but has the additional factor that the individual has a different interest. What had occurred in this case was that Mr Goodship sought legal aid for a claim against the Minister of Fisheries concerning alleged unfairness on the part of the Minister in refusing to grant him permits to fish for scampi during the 1990/1991 season. Doubts arose about whether it was Mr Goodship who should be claiming for the permits or whether all or some of them ought to have been issued to his company, Pranfield Holdings Ltd. That company had since been struck off the register. Because of the doubts, steps were taken to restore Pranfield to the register but it had no assets. Clearly it was possible that Pranfield alone might benefit from the proceeding, in which it was then joined as a second plaintiff. Equally, however, it remained possible that it would be Mr Goodship who alone obtained any benefit from successful litigation. Or both of them might benefit separately in relation to particular permits.

[4] In our view this Court in Edwards - a Court of five – has already given the answer to the general legal question. At paragraph [26] of that decision we commented that, in contrast to the situation in that case, “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 itself might benefit”. But we
pointed out that situation might well fall within s71, which was the equivalent of s10(4) of the current Act.

[5] If the position taken by the Legal Services Agency in the present case were correct, an individual litigant otherwise qualified for legal aid would be denied it merely because that individual’s case might indirectly assist a claim by a body of persons. Assuming that a claim is not being brought in the name of an individual merely to by-pass s9(6) and that the individual does have his or her own arguable cause of action, the individual is not disentitled merely by reason that the body of persons may also be assisted by the pursuit by the individual of the personal claim.

[6] The second question depended upon the answer to the first question being given in the affirmative. It asked whether the High Court had erred in holding that the Agency’s decision to withdraw aid was necessarily manifestly unreasonable. That is a question which is specific to this case. It does not meet the test of being a question of public or general importance. We confirm however that in our view Mr Taylor was correct when he said that if, having granted aid to an individual, the Agency then learns that the individual has in fact no personal claim at all – say, for example, where the individual has subsequently abandoned the claim which is being continued only in the name of a company – it would not necessarily be unreasonable for the Agency to withdraw legal aid, even if it did so very close to the trial date. But it would need to be a clear case, unlike the present.

[7] The third question was related to a particular award of costs made by the High Court in the present case. We are satisfied that there has been a misunderstanding by the Agency about the Judge’s object. Mr Castle accepted that there was no intention on his client’s part of attempting to recover costs twice over. In the unlikely event that there is now further need for clarification from the Judge, that matter can be taken back to her. It is not appropriate for an appeal to this Court.

[8] For these reasons the application for special leave was dismissed.

Solicitors:

Bartlett Partners, Wellington for Appellant Parry Field & Co, Christchurch for Respondent