Gordon Campbell | Parliament TV | Parliament Today | News Video | Crime | Employers | Housing | Immigration | Legal | Local Govt. | Maori | Welfare | Unions | Youth | Search

 

Judgment: McGuire v Secretary for Justice

27 NOVEMBER 2018

MEDIA RELEASE – FOR IMMEDIATE PUBLICATION

JEREMY JAMES MCGUIRE v SECRETARY FOR JUSTICE

(SC 22/2018) [2018] NZSC 116

PRESS SUMMARY

This summary is provided to assist in the understanding of the Court’s judgment. It does not comprise part of the reasons for that judgment. The full judgment with reasons is the only authoritative document. The full text of the judgment and reasons can be found at Judicial Decisions of Public Interest www.courtsofnz.govt.nz

In issue in this appeal is a decision by the respondent, the Secretary for Justice, to decline an application made by the appellant, Mr Jeremy McGuire, a practising lawyer, for approval to provide legal aid services as a lead provider in family law. This decision was made on 7 November 2013 (the 2013 decision).

Three years later, Mr McGuire issued judicial review proceedings in the High Court, with part of his claim resting on a challenge to the 2013 decision. In response, the Secretary applied to strike out the part of the claim referring to the 2013 decision.

In the High Court, Cull J dismissed the Secretary’s strike-out application. In doing so, she rejected an argument that Mr McGuire’s failure to exercise his statutory review rights under s 82 of the Legal Services Act 2011 in respect of the 2013 decision meant s 83 of the Act precluded him from applying for judicial review. This section provides:

A person may not apply for judicial review of any decision made under this subpart until the person has sought and obtained a review of the Secretary’s decision under section 82.

In the High Court, Mr McGuire had represented himself. Despite his success, Cull J did not award Mr McGuire costs; this notwithstanding the then usual practice of awarding costs to lawyers who had successfully sued or defended in person.

Mr McGuire appealed to the Court of Appeal on the costs point, with the Secretary cross-appealing on the substantive issue. The Court of Appeal allowed the cross-appeal and struck out Mr McGuire’s claim in respect of the 2013 decision. It found that exercising the statutory review rights provided by the Act was a prerequisite to bringing a claim in judicial review. As Mr McGuire had not exercised his statutory review rights in a timely manner, he was precluded from seeking judicial review. This necessarily meant that Mr McGuire’s appeal in respect of costs failed. As the judgment made clear, however, his appeal would have failed in any event because in Joint Action Funding v Eichelbaum [2017] NZCA 249, [2018] 2 NZLR 70, a decision released before the Court of Appeal hearing in the present case, the Court of Appeal had held that lawyers acting in person are not entitled to costs.

The Supreme Court granted leave on both: (a) whether the Court of Appeal was correct to strike out Mr McGuire’s claim in respect of the 2013 decision; and (b) whether Joint Action Funding was correctly decided. The New Zealand Law Society and the New Zealand Bar Association were given leave to act as interveners.

The Supreme Court has unanimously dismissed the appeal. It has also held Joint Action Funding to be wrongly decided.

The Court found that the application for review of the 2013 decision was misconceived. The statutory review process initiated promptly after the 2013 decision, providing for fresh consideration of the application and conducted with reasonable speed, would have offered a far better mechanism for challenging the 2013 decision than judicial review commenced nearly three years later. The Court saw no justification for Mr McGuire being permitted to challenge the 2013 decision so long outside the time limits provided by the Act and where no sensible remedy could be provided. The Court accordingly held that his application for judicial review of the 2013 decision was properly struck out.

In respect of the costs issue, the position prior to Joint Action Funding was that litigants in person were not entitled to costs (the primary rule) unless the litigant in person was a lawyer (the lawyer in person exception). A litigant represented by an employed lawyer was also entitled to recover costs (the employed lawyer rule). Under the approach adopted in Joint Action Funding, the primary rule was upheld and the lawyer in person exception abandoned; this on the basis that under the current costs rules, costs may only be awarded to reimburse a party for legal fees actually incurred (the invoice required approach). The Court of Appeal did not directly address the employed lawyer rule but the invoice required approach it adopted was inconsistent with the continuation of that rule.

The Supreme Court has concluded that Joint Action Funding was wrongly decided in that the current costs regime in the High Court Rules did not override the primary rule, the lawyer in person exception or the employed lawyer rule. The result is that the law as it was understood to be before Joint Action Funding is to continue to apply – namely, lawyers representing themselves in litigation are entitled to costs, as is a litigant represented by an employed lawyer, but litigants in person are otherwise not entitled to costs. If any change is to be made, this should be effected by Parliament or perhaps the Rules Committee.

Ellen France J agreed with the conclusion reached by the other members of the Court on the costs issue. However, she noted that if the underlying premise of costs is to recompense a person for loss of opportunity cost, the distinction drawn in the primary rule between lawyers who appear in person and other self-represented litigants is irrational.

Scoop copy of judgment:
2018NZSC116.pdf

© Scoop Media

 
 
 
Parliament Headlines | Politics Headlines | Regional Headlines

RNZ Live Blog: Eruption At Whakaari / White Island

An eruption has occured on Whakaari / White Island in the Eastern Bay of Plenty, sending a huge plume of smoke and ash into the sky.More>>

Police Update
While it was initially believed there were approximately 100 people on or near the island at the time of the eruption, we now believe there were fewer than 50.

Some of those people have been transported to shore, however a number believed to be on the island are currently unaccounted for. Of those transported to shore, at least one has been critically injured. More>>

ALSO:

 
 

Big, Bold, Permanent Change Needed: Children's Commissioner On 2019 Child Poverty Monitor

“I want to see family incomes dramatically raised by increasing benefits and making the minimum wage a living wage. And the Government needs to move much faster at increasing the supply of social housing..." More>>

ALSO:

RNZ Live Updates: Weather Mayhem Strands Tourists; Major Roads Closed

Hundreds of tourists are stranded on the West Coast, and on the other side of the South Island a flood-damaged bridge has closed State Highway 1, after a weekend of torrential rain... More>>

ALSO:

Policing: Armoured Specialist Police Vehicles

New Zealand Police has taken delivery of three Armoured Special Purpose Vehicles. The vehicles are unmarked and look like standard Toyota Land cruisers... They will not be used for patrol. More>>

Single Use PVC And Polystyrene Out: Next Steps On Plastic Waste

The Government will phase out more single-use plastics following the success of its single-use plastic bag ban earlier this year and the release today of a pivotal report for dealing with waste. More>>

ALSO:

Faafoi Statement: Minister's Suspicious Immigration Texts

I have apologised to the Prime Minister and understand I have let her down in regards to my dealings with Jason Kerrison over an immigration matter concerning his family. More>>

ALSO:

NZ First Conflicts Of Interest: New Details Around Timeline

New information has emerged showing it was the New Zealand First chief of staff who identified potential conflicts of interest between a forestry company and two senior government ministers, sparking a series of declarations. More>>

Earlier:

Donations:

Five New Cancer Meds In Six Months: Pharmac Funds More Cancer Medicines, Faster Assessment

PHARMAC has confirmed that two new medicines – olaparib for ovarian cancer and fulvestrant for breast cancer – have been approved for funding... Rituximab and bortezomib, which are already funded, have also been approved for widened access following successful commercial proposals from new suppliers. More>>

ALSO:

 
 
 
 
 

LATEST HEADLINES

  • PARLIAMENT
  • POLITICS
  • REGIONAL
 


 

InfoPages News Channels