The Court of Appeal released its decision Criminal Bar Assoc of New Zealand Inc v Attorney-General [2013] NZCA 176 on 24 May 2013.

A copy of the decision is available here, together with an accompanying media release from the Court of Appeal.

Judgment of the Court

The 69-page decision is encapsulated in the initial “Judgment of the Court” section:

“A  The appeal is allowed, to the extent that we hold:

(a) The Secretary for Justice acted unlawfully in implementing the Criminal Fixed Fee and Complex Cases Policy, in that it is inconsistent with the Legal Services Commissioner’s independent functions under the Legal Services Act 2011.

(b) The Criminal Fixed Fee and Complex Cases Policy and Procedures is also unlawful, in that it unreasonably fetters the discretions imposed in the Legal Services Commissioner by ss 16, 23 and 28 of the Legal Services Act 2011.

B  We make declarations accordingly.

C  Any decision on further relief is reserved, for application by way of memorandum if sought.

D  The appeal is otherwise dismissed.

E  The costs of the appeal are reserved.”

Seven questions addressed in decision

After setting out the background of the case, the Court considered that the appeal could “best be determined by answering seven questions” that “capture the appellant’s arguments on appeal in the most orderly way” (at [38]). In short, those questions and their final answers were:

• Question 1: Is the purpose of cost-cutting which supported the introduction of the Legal Services Act 2011 a proper purpose of that Act?
  Answer: “Yes, cost-cutting is a proper purpose of the 2011 Act” (at [63]).
• Question 2: Is the Fixed Fee Policy consistent with the 2011 Act, in particular the Legal Services Commissioner’s independent functions under the Act?
  Answer: “No, the Policy is not consistent with the 2011 Act and is not consistent with the Commissioner’s independent functions under the 2011 Act” (at [104]).
• Question 3: Does the Fixed Fee Policy unreasonably fetter the Commissioner’s discretion under the 2011 Act?
  Answer: “Yes, the Fixed Fee Policy unreasonably fetters the Commissioner’s discretion under the 2011 Act” (at [126]).
• Question 4: Was the delegation of the Justice Secretary’s powers under the 2011 Act to Mr White (the second respondent) when he was also the Commissioner a valid exercise of the Secretary’s powers of delegation?
  Answer: “Yes, the delegation of the Secretary’s powers under the 2011 Act to Mr White was a valid exercise of the Secretary’s powers of delegation” (at [134]).
• Question 5: Is the Fixed Fee Policy unreasonable?
  Answer: “No, the Fixed Fee Policy is not unreasonable” (at [155]). (The Court added an observation at [156]: “In the context of this proceeding, in which the appellant sought judicial review of the overall legality of the new Policy, it is neither possible nor appropriate to reach any view as to whether the reduced fixed fees may impact negatively over time on the high-quality legal services the 2011 Act aims to deliver.”)
• Question 6: Is the Fixed Fee Policy unlawful, in that the Secretary when developing the Policy failed to take into account rights under the New Zealand Bill of Rights Act 1990 (BORA)?
  Answer: “When developing the Fixed Fee Policy the Secretary did not fail to take into account rights under the BORA, so the policy is not unlawful for that reason” (at [169]).
• Question 7: Was the Secretary’s decision to implement the Fixed Fee Policy unlawful, in that it gave effect to the 10 per cent reduction in fees directed by Cabinet?
  Answer: “The Secretary’s decision to implement the Fixed Fee Policy was not made unlawful because it gave effect to the 10 per cent reduction in provider remuneration” (at [203]).

Note that the Court said at [135]:

“In answering Questions 2 and 3, we have held that the Policy was unlawful, both in that it involved the Secretary dictating to the Commissioner as to the exercise of the latter’s independent functions under the 2011 Act, and because it unreasonably fettered the Commissioner’s discretions under ss 16, 23 and 28 of the Act. On a strict view, that renders answers to Questions 5, 6 and 7 which follow unnecessary. We have answered these questions for completeness, and in the hope that our views and decision on them may assist future reconsideration.”

Initial reaction

For initial reaction to the judgment, see (for example):

• A media release from the Auckland District Law Society here.
• News items from The New Zealand Herald here and here.
• News items from Radio New Zealand here, here and here