This was an appeal by the Legal Services Commissioner against the decision in Fawcett v Legal Services Commissioner [2022] NZHC 3366, [2023] 2 NZLR 88 (noted in Legal Services (online ed, Thomson Reuters) at [LA4.17.04(2)] and [LA99.08]), where the High Court had made a declaration at [81] 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.”

In both the High Court and Court of Appeal, the key issue was whether the administrative work relating to the legal aid grant in question fell within the definition of “legal aid services” in s 4(1) of the Legal Services Act 2011, which is defined by reference to para (a) of the associated definition of “legal services” in s 4(1). As the Court of Appeal noted at [2], work that falls within the definition is eligible for legal aid funding.

After outlining the legal aid scheme generally and its history, the Court of Appeal examined the criminal legal aid grant in question (relating to a complex retrial proceeding and funded under an hours-based Criminal High Cost Cases regime), the particular “legal aid management” amendment application by the lead provider (which sought 90 hours’ funding for junior counsel to manage the legal aid file, including preparing invoices, amendment to grants, and liaising with experts and legal aid staff), and the nature and parts of the definition of “legal services” (which includes assistance with “taking steps that are incidental to any proceedings” in para (a)(iii)), before arriving at the following result:

“[135] The appeal is allowed in part.

“[136] 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 the legal aid grant by the preparation of the application for an amended grant, and correspondence with the Commissioner in respect of same may amount to the provision of a legal aid service. The High Court erred in finding that invoicing work may fall within the definition of legal aid service.

“(2) Was the High Court wrong to grant the declaration at [81] of the judgment?

“No, although that declaration has now been superseded by this appeal.”

The Commissioner was directed to reconsider the “legal aid management” amendment application in light of the Court of Appeal judgment.

Many significant findings and observations were made along the way. One that may be noted here is whether qualifying administrative work must be “significant, complex and time-consuming” (part of the High Court declaration). The Court of Appeal said on this point:

“[121] We reiterate that this appeal, although it has potentially wide precedential value, relates to the specific circumstances of Mr Fawcett’s case. As the Judge pointed out, the amendments to grant work that was undertaken by Mr Fawcett’s provider was significant, complex and time-consuming. It did not simply involve routine or simple form-filling. Nevertheless, we accept that it is difficult to justify drawing a distinction based on how complex or time-consuming a particular amendment to grant application or associated communication is. Indeed, this will not be known (at other than a general level, based on the complexity of the case) at the time that funding approval is sought for the costs of preparing amendments to grant, as such approval must be sought prospectively, rather than retrospectively.

“[122] We are only required to determine whether the Judge was correct to find that the amendments to grant work undertaken (or proposed to be undertaken) in Mr Fawcett’s case was capable of falling within the definition of legal services. In our view, that finding was correct, for the reasons we have outlined above. However, the fact that the work was significant, complex and time-consuming is not critical to our analysis. Rather, in our view, the key reasons why the amendments to grant work falls within the scope of para (a)(iii) of the definition of legal services (or is capable of doing so) are that:

“(a) the work involved the provision of assistance to the client by the provider, of the type usually provided by a lawyer;

“(b) the assistance related to the taking of a step that did not directly progress the substantive proceeding but nevertheless had a sufficient nexus to be incidental to it;

“(c) in undertaking the work, the provider was representing the interests of the client (not those of the provider) — explaining the defence strategy and advocating for the required funding was essential to promoting and protecting the client’s interests; and

“(d) the work was an essential step for ensuring the client’s fair, equitable, and effective participation in the justice system, and therefore promoted access to justice.

“[123] We note that completing legal aid applications is already funded work in cases under the Fixed Fee regime (which we understand to be the vast majority of legal aid cases). Amendment to grant applications are only necessary in cases that cannot be managed under the Fixed Fee regime, due to their complexity. The above factors may well apply to all (or most) such applications and associated communications, but that will be a matter for the Commissioner to assess. We further note that, as with any legal aid funding application, it will always be for the Commissioner to assess what is a reasonable fee for the work involved.”

Regarding the judgment’s potential precedential value, it may also be noted that the Ministry of Justice Annual Report 2023/24 (October 2024) at <www.justice.govt.nz> flagged the then pending outcome of the Fawcett appeal under the heading “Unquantifiable contingent liabilities” at 110–111:

“Legal Services Commissioner v Fawcett seeks a decision on what constitutes ‘legal services’ under the Legal Services Act 2011. The Legal Services Commissioner is appealing the December 2022 High Court decision that determined that work administering legal aid files comes within the definition of ‘legal services’. The Court of Appeal decision could apply to any legal aid case that is currently before the courts.”

A similar note appeared in The Treasury Half Year Economic and Fiscal Update 2024 (17 December 2024) <www.treasury.govt.nz> at 95.

For a quick way to keep up with this and other legal aid-related developments, visit the Current Awareness: Legal Aid and Related Services page of Legal Services on Westlaw New Zealand.