Franks Stephen: Legal Services Amendment Bill (No 2) — First Reading 
Franks Stephen: Legal Services Amendment Bill (No 2) — First Reading 
[Volume:625;Page:20639] 
STEPHEN FRANKS (ACT) 
: 
 I take it that the Legal Services Amendment Bill embodies 6 years of work by the Government on its eligibility review. I doubt that anyone in the House would not remember the Government’s promise to all those groups of activists that supported Labour in 1999 that a review of eligibility for legal aid would be one of the first things it would do in office. In fact a major legal aid reform had been introduced I think by the National Party and was carried on by Labour. That bill ground its way through the House and eventually resulted in the establishment of the Legal Services Agency. 
Throughout that process the select committee dealt with submissions from people who quite rightly complained about eligibility conditions for legal aid. We heard from people who were very very concerned that cases that should have been pursued were not pursued. We heard from environmentalists who gave examples. Community groups said there should be assistance for representation on matters affecting their community. Then of course people on the other side of the argument put forward examples of the worst injustices that occur in this country. Some of the worst injustices are suffered by people who are sued by legally aided plaintiffs and those victims are absolutely driven to bankruptcy or ruin because the plaintiff does not give a toss about costs. These cases are often driven by lawyers who do give a toss about costs and are quite comfortable on the relatively meagre but nevertheless certain payment they get from the Legal Services Agency. 
Those people told us they wanted the Government’s promised eligibility review to protect them. Well the eligibility review did not turn up. The select committee asked for it whenever we reviewed Department of Justice estimates. I asked the Legal Services Agency when we reviewed it how much was being paid out to the poor victims of people bringing unfounded cases; and of people with unmerited claims who were funded through their cases by the Legal Services Agency. The agency did not know. It was so rare no one had ever heard of it. We questioned the officials and they could not think of instances where they had reimbursed some poor victim the costs of a meritless case brought and funded by the Legal Services Agency. 
The Minister plainly does not give a toss about the men who have been driven to absolute distraction by the type of cases that Judith Collins spoke about whereby false allegations of violence had been made against them to justify an automatic grant of legal aid. The Minister does not care about that— 
Lianne Dalziel 
: False allegations of violence Judith Collins said. Very interesting. 
STEPHEN FRANKS 
: I said false allegations of violence—absolutely false. This bill is far from ensuring that the State is not a party to this kind of injustice. 
The bill makes it harder for someone who has been hounded by legally aided actions. There used to be something called “maintenance”. It used to be a tort. Someone who pursued promoted or continued proceedings when the real party to it would have stopped was found liable in maintenance and could be made to pay all the costs that the poor victim of those proceedings had suffered. There was another one called “champerty” which was where someone took over proceedings and pursued them when otherwise they would have died. We now have a State that is cold-bloodedly fostering and paying for proceedings that by any ordinary rational calculation would have died—and the State is immune. 
When we look at the provisions dealing with costs we see that clause 26 replaces the existing section 40 with a new section 40. The existing section 40 at least leaves some faint hope that a person who is hounded by a legally aided plaintiff can go to the Legal Services Agency and say: “If I had not been facing a legally aided plaintiff the court would have done justice by awarding costs to me. They are not permitted to award full costs so please refund the difference.” What we now have from Mr Goff—this champion of justice—is the new section 40(2) in clause 26 which states: “No order for costs may be made against an aided person in a civil proceeding unless the court is satisfied that there is misconduct by the aided person in the course of proceeding.” 
Misconduct! Well the courts consider that a pretty high standard to pass. So the normal rule of British justice and of New Zealand justice that the costs follow the result—in other words if people win their case the loser should reimburse them all the costs they have been put to or at least a part of them because they were facing an unjustified claim—is out the door for the vast majority of civil proceedings in New Zealand courts. Mr Goff is now saying that no full order for costs may be made against an aided person. In other words the State will involve itself the State will sponsor unjustified proceedings and the State will then tell the court that it may not order costs unless there has been actual misconduct. 
That is a high standard. It is failure to comply with the rules deceitful or misleading behaviour unreasonable pursuit of one or more issues or an unreasonable refusal to negotiate. Those are matters that are more than just “You were wrong and your lawyer should have told you that you were wrong.” The court is going to have to find actual misconduct before it can order costs and when it does it can order only a very limited amount. The poor victim who has won his or her court case then has to go to the Legal Services Agency and ask for the difference. Bear it in mind that if the person does not get any costs awarded he or she cannot do that. For the vast bulk of cases where there is no misconduct the poor victim of the failed proceedings just wears whatever he or she has been driven to. I ask the Minister to explain that. Is that just? What is that doing to the rule of law in this country? What is that doing to the enormous number of people who are confronted by plaintiffs who do not care whether they have a meritorious case or plaintiffs who may not have even wanted to take proceedings but have been persuaded by their lawyers to promote them? That is Dickensian; that is the modern  
Jarndyce v Jarndyce 
. 
Before I finish I want to mention one other thing. This bill maintains the patronising race discrimination that has always been evident in the legal aid system. We have all heard about Donna Hall’s little windfalls—the wife of one of Her Majesty’s judges who has made a very fine living out of Waitangi Tribunal cases. That is despite the fact that this bill for most New Zealanders says that the only people who can benefit from legal aid are individuals—not corporates not trusts just individuals. There is an exception. New section 15(5) in clause 9 expressly states that the provisions that relate to one’s means—one’s disposable income and capital—cutely do not apply to applications for legal aid under section 42 in respect of certain proceedings before the Waitangi Tribunal. 
In other words the parties that want legal aid for Waitangi claims do not have to show they are needy. They do not have to show that the proceedings would not be brought but for that help. Every other New Zealander no matter how meritorious his or her claim no matter how badly he or she has been wronged will be refused legal aid if his or her financial circumstances are not shown. 
But we find that in relation to Maori claimants—and this is patronising; it is treating Maori as if they cannot cope—the agency is not able to apply the rule that disqualifies in new section 9(4)(a) in clause 5 if: “the Agency is unable to obtain full information concerning the applicant’s financial affairs because of the default or failure of the applicant:”. In other words Maori claimants on legal aid can simply say: “I haven’t got books. I don’t believe in keeping books.”—as Donna Awatere Huata did not—“I want legal aid and you can’t even require me to show what my means are.” This is a disgrace in a justice Minister’s bill. This alone should have the National Party saying: “We won’t vote for this kind of nonsense.” and the New Zealand First Party which at last will make a majority in the next Parliament that says: “Enough of race discrimination in our law.”