Henry v Secretary for Justice [2012] NZHC 3360 (12 December 2012)

Last Updated: 19 December 2012

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

_{[2012] NZHC 3360}

BETWEEN COLIN SAMUEL HENRY Plaintiff

AND THE SECRETARY FOR JUSTICE First Defendant

AND THE ATTORNEY-GENERAL Second Defendant

Hearing: (On the papers) Judgment: 12 December 2012

_{JUDGMENT OF BREWER J}

COPIES TO:

CS Henry (Auckland) in person

_{Gordon Sulliman, Team Leader, High Court, Auckland}

HENRY V THE ATTORNEY-GENERAL HC AK [2012] NZHC 3360 [12 December 2012]

[1] The plaintiff seeks review of a decision of the Registrar made on

10 September 2012 declining his application for a waiver of Court fees.

Background

[2] The plaintiff has attempted to file a notice of proceeding and statement of claim in this Court seeking to enforce the terms of a Deed of Settlement (“the Deed”) entered into between the plaintiff and the Legal Services Agency (“the Agency”).[1]

[3] The statement of claim pleads that the Deed is part of a settlement of proceedings brought by the plaintiff against the Agency. In consideration for discontinuance of the proceedings, the Agency agreed, inter alia, to grant an application for the plaintiff to be listed as a lead provider on refugee matters.

[4] The granting of the application was subject to several conditions, including:[2]

The plaintiff will undertake the number of matters before the Refugee Status Branch (“RSB”) or its successor under the Immigration Act 2009 to fulfil the requirements of listing as a lead provider on refugee matters, currently being preparation on three Refugee Status Branch level matters.

[5] The plaintiff pleads that he has fulfilled all other conditions, but has not had the opportunity to fulfil the above condition. The plaintiff pleads that despite the terms of the Deed, he has never been put on any list of lawyers approved to act on refugee matters. He re-applied for legal aid approval upon the coming into force of the Legal Services Act 2011 and was given approval for all the matters sought except

_{refugee matters.}

[6] The plaintiff pleads that in declining to grant him a continuing conditional approval on refugee matters until the remaining condition has been met, the Deed has been breached, and relief is sought accordingly.

Waiver of fees

[7] The Registrar has the power to waive Court fees under reg 6 of the High

Court Fees Regulations 2001. The relevant parts of that regulation are:

6 Power to waive fees

(1) A person (the applicant) otherwise responsible for the payment of a fee required in connection with a proceeding or an intended proceeding may apply to a Registrar for a waiver of the fee.

(2) The Registrar may waive the fee payable by the applicant if satisfied,—

...

(b) that the proceeding,—

(i) on the basis of 1 of the criteria specified in subclause

(4), concerns a matter of genuine public interest; and

(ii) is unlikely to be commenced or continued unless the fee is waived.

...

(4) For the purposes of these regulations, a proceeding that concerns a matter of genuine public interest is—

(a) a proceeding that has been or is intended to be commenced to determine a question of law that is of significant interest to the public or to a substantial section of the public;...

[8] A decision of the Registrar on the waiver of fees can be reviewed by a Judge or an Associate Judge pursuant to s 100B of the Judicature Act 1908. That section requires applications to review to be filed within 20 working days (or longer if the Judge or Associate Judge allows) and for the review to be conducted by way of rehearing. The review is to be dealt with on the papers unless otherwise directed.

[9] The plaintiff seeks a fee waiver on public interest grounds. My task on

review of the Registrar’s decision is to determine whether:

(a) The proceeding is intended to determine a question of law that is of significant interest to the public or a substantial section of the public; and

(b) The proceeding is unlikely to be commenced or continued unless the fee is waived.

[10] In the application for waiver, the plaintiff states that the question of law of significant interest to the public is:

Whether the Ministry of Justice is obligated to honour the terms of a settlement agreement entered into by the Legal Services Agency prior to the disestablishment of the Agency by the Legal Services Act 2011.

[11] In the application for review, he submits:

The intended defendant is a public entity whose policies affect the public in general, and in particular, a very significant section of the public, namely, lawyers who provide legally aided services, and members of the public who are served by those services.

[12] The plaintiff says that he will not continue with the proceedings if the application is declined.

Decision

[13] I accept that the proceeding is unlikely to be commenced unless the fee is waived. The plaintiff has made that clear in his statutory declaration verifying his application for waiver.

[14] I do not accept that the proceeding is intended to determine a question of law that is of significant interest to the public or a substantial section of the public. The Legal Services Act 2011 makes it clear that the Ministry of Justice inherits the

liabilities of the Agency.[3] If the proceeding were to go ahead it would focus on the proper construction of the Deed and the actions taken by the parties to comply with their obligations under it. The outcome would be of personal interest to the plaintiff. It might also be of interest to any other lawyers who have settlement agreements with the Agency not yet fulfilled. But that interest would be in the construction of the Deed, not whether the Deed is binding on the defendants.

_{[15] I decline the plaintiff ’s application for review of the Registrar’s decision.}

_{Brewer J}

---

[1] The Agency was disestablished pursuant to s 117 of the Legal Services Act 2011. All the assets, records, liabilities, and debts of the Agency are vested in the Ministry of Justice pursuant to s 119. Under s 135(5), contracts between listed providers and the Agency are deemed to be contracts between the provider and the Secretary for Justice.

[2] Statement of Claim, dated 23 August 2012, at para 2.2(i).

[3] Refer to n 1.