Legal Services Commissioner v Fawcett - [2025] NZCA 63
Date of Judgment
21 March 2025
Decision
Legal Services Commissioner v Fawcett (PDF 385 KB)
Summary
The appeal is allowed in part. We answer the questions of law as follows:
(1) Was the High Court wrong to hold that “in the circumstances of this case, which involved work that was significant, complex and time consuming, the administration of the legal aid grant by the preparation of the application for an amended grant, correspondence with the Commissioner in respect of same and the work related to invoicing that goes beyond form filling may amount to the provision of a legal aid service”?
The High Court did not err in finding that the administration of Mr Fawcett’s legal aid grant by the preparation of amendment to grant applications and associated correspondence may amount to the provision of a legal aid service. The High Court did err, however, in finding that the time spent by Mr Fawcett’s legal aid provider in relation to invoicing may amount to the provision of a legal aid service.
(2) Was the High Court wrong to make a declaration?
No.We set aside the Commissioner’s decision and direct her to reconsider Mr Fawcett’s application for legal aid funding for the preparation of amendment to grant applications and associated correspondence, in light of this judgment. Leave is reserved to file memoranda on costs.
Legal Services Act 2011 – Question of law – Legal aid administration
Mauha Fawcett was charged with murder, and his defence was funded through a legal aid grant under the Criminal High Cost Cases regime. His legal aid provider applied for amendments to the legal aid grant, seeking additional funding for various aspects of his defence.
The High Court found that the significant, complex, and time-consuming work undertaken by Mr Fawcett’s legal team in preparing the amendment applications—and work related to invoicing beyond simple form-filling—could fall within the definition of “legal aid service” under the Legal Services Act 2011 and hence be eligible for legal aid funding. The Legal Services Commissioner now appeals.
Whether the preparation and submission of invoices is capable of falling within the definition of legal services? Held: No.
Preparing invoices is an administrative task that is tied to the operation and management of the lawyer’s practice. Such costs are generally absorbed by a firm or sole practitioner as part of the costs of running a practice. Completing an invoice is not a service that a lawyer provides to a client, it is work undertaken primarily for the benefit of the lawyer. Such work does not fall within the definition of legal services in the Act and is not eligible for legal aid funding.
Whether time spent by a provider in relation to amendment to grant applications is capable of falling within the definition of legal services? Held: Yes.
The work undertaken by a legal aid provider in preparing applications for amendments to a grant of legal aid, and associated correspondence, can fall within the definition of “legal services” in the Act. Here, Mr Fawcett’s legal aid provider presented detailed and comprehensive information to the Commissioner to justify funding for specific defence strategies. This work involved legal advocacy, requiring legal skill, knowledge, and the application of law—similar to advising a private client regarding appropriate defence strategies in order to justify the required expenditure. The interactions were an were an essential and unavoidable part of representing Mr Fawcett in the proceedings. The work is capable of falling within section 4(a)(iii) of the Act, which encompasses “assistance with taking steps that are incidental to proceedings.” Steps that are “incidental” to a proceeding must have some connection to it but may be secondary, indirect, or subordinate. Here, the relevant work had a close nexus to Mr Fawcett’s proceeding and was fundamental to ensuring his fair, equitable, and effective participation in the justice system. There is nothing in the scheme of the Act to suggest that legal aid providers in High Cost cases are expected to undertake extensive legal work in relation to amendment to grant applications for free, or that legally aided persons are expected to undertake such work themselves.
Whether the High Court erred in granting a declaration? Held: No.
While granting a declaration was unusual, it was not an error of law to make such a declaration. In any event, the issue of the appropriate relief has been superseded by this appeal.
(1) Was the High Court wrong to hold that “in the circumstances of this case, which involved work that was significant, complex and time consuming, the administration of the legal aid grant by the preparation of the application for an amended grant, correspondence with the Commissioner in respect of same and the work related to invoicing that goes beyond form filling may amount to the provision of a legal aid service”?
The High Court did not err in finding that the administration of Mr Fawcett’s legal aid grant by the preparation of amendment to grant applications and associated correspondence may amount to the provision of a legal aid service. The High Court did err, however, in finding that the time spent by Mr Fawcett’s legal aid provider in relation to invoicing may amount to the provision of a legal aid service.
(2) Was the High Court wrong to make a declaration?
No.We set aside the Commissioner’s decision and direct her to reconsider Mr Fawcett’s application for legal aid funding for the preparation of amendment to grant applications and associated correspondence, in light of this judgment. Leave is reserved to file memoranda on costs.
Legal Services Act 2011 – Question of law – Legal aid administration
Mauha Fawcett was charged with murder, and his defence was funded through a legal aid grant under the Criminal High Cost Cases regime. His legal aid provider applied for amendments to the legal aid grant, seeking additional funding for various aspects of his defence.
The High Court found that the significant, complex, and time-consuming work undertaken by Mr Fawcett’s legal team in preparing the amendment applications—and work related to invoicing beyond simple form-filling—could fall within the definition of “legal aid service” under the Legal Services Act 2011 and hence be eligible for legal aid funding. The Legal Services Commissioner now appeals.
Whether the preparation and submission of invoices is capable of falling within the definition of legal services? Held: No.
Preparing invoices is an administrative task that is tied to the operation and management of the lawyer’s practice. Such costs are generally absorbed by a firm or sole practitioner as part of the costs of running a practice. Completing an invoice is not a service that a lawyer provides to a client, it is work undertaken primarily for the benefit of the lawyer. Such work does not fall within the definition of legal services in the Act and is not eligible for legal aid funding.
Whether time spent by a provider in relation to amendment to grant applications is capable of falling within the definition of legal services? Held: Yes.
The work undertaken by a legal aid provider in preparing applications for amendments to a grant of legal aid, and associated correspondence, can fall within the definition of “legal services” in the Act. Here, Mr Fawcett’s legal aid provider presented detailed and comprehensive information to the Commissioner to justify funding for specific defence strategies. This work involved legal advocacy, requiring legal skill, knowledge, and the application of law—similar to advising a private client regarding appropriate defence strategies in order to justify the required expenditure. The interactions were an were an essential and unavoidable part of representing Mr Fawcett in the proceedings. The work is capable of falling within section 4(a)(iii) of the Act, which encompasses “assistance with taking steps that are incidental to proceedings.” Steps that are “incidental” to a proceeding must have some connection to it but may be secondary, indirect, or subordinate. Here, the relevant work had a close nexus to Mr Fawcett’s proceeding and was fundamental to ensuring his fair, equitable, and effective participation in the justice system. There is nothing in the scheme of the Act to suggest that legal aid providers in High Cost cases are expected to undertake extensive legal work in relation to amendment to grant applications for free, or that legally aided persons are expected to undertake such work themselves.
Whether the High Court erred in granting a declaration? Held: No.
While granting a declaration was unusual, it was not an error of law to make such a declaration. In any event, the issue of the appropriate relief has been superseded by this appeal.