Re SA (Criminal) [2021] NZLAT 32 (19 January 2022) was an application to the Tribunal by an aided person for review of a decision of the Legal Services Commissioner to partially decline a criminal legal aid amendment application. The Commissioner submitted to the Tribunal that the decision being challenged was not a reconsidered decision and so there was no decision upon which the application for review could be founded. The Tribunal agreed, citing ss 51(7) and 52(1) and saying (at [6]): “The Tribunal has no jurisdiction to review original decisions, only reconsidered decisions.”

Unpacking this, s 51(7) provides:

“A person must not, other than under section 52(3), apply for a review of a decision of the Commissioner unless the person has first sought and obtained a reconsideration of that decision under this section.”

Section 52(1) reinforces this by stating (emphasis added):

“An aided person or an applicant for legal aid may apply to the Tribunal for a review of the Commissioner’s reconsideration of a decision referred to in subsection (2) on the grounds that it is—

(a)         manifestly unreasonable; or

(b)         wrong in law.”

So as is made clear in Re SA (Criminal), an aided person or applicant for aid must have “first sought and obtained” a reconsideration from the Commissioner before applying to the Tribunal for a review of the reconsidered decision.

Note from s 51(7) that there is one exception to this “reconsideration first” requirement. It relates to s 52(3), which concerns the opponent of an aided person:

“A party who has applied to the Commissioner for payment of costs under section 46 may apply to the Tribunal for a review of the Commissioner’s decision under that section on the grounds that the decision is—

(a)         manifestly unreasonable; or

(b)         wrong in law.”

In other words, the successful opponent of an aided person who (armed with a s 45 order from the court relating to costs) has applied to the Commissioner under s 46 for payment of costs may go straight to the Tribunal if wanting to challenge the Commissioner’s decision, rather than apply for a reconsideration first.

Although not a feature of Re SA (Criminal), it should be noted that there are time limits on both reconsideration applications (20 working days after receiving notice of the original decision, or three months in exceptional circumstances: see s 51(2)–(4)) and review applications (20 working days after receiving notice of the relevant decision, or 60 working days in exceptional circumstances: see s 53).

The full text of Re SA (Criminal) is available on Westlaw New Zealand, and it is noted in Legal Services (online ed) on the Current Awareness page and in commentary at [LA51.07].