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Taxpayers helped fund legal services for those in need to the tune of $270 million in 2024, a figure that is forecast to rise by 10% this year. Today, in part two of a series looking into legal aid, Tracy Neal examines the money being spent on appeals to higher courts and whether changes, including better “triaging” of some cases, are needed.

A woman broken emotionally and financially by the end of a marriage was hit further by the cost of fighting her ex-husband over the fair division of relationship property.

Mona Nygaard* was astonished when, after winning in the Family Court, she was dragged back to court by her ex because he appealed the decision.

She said salt was rubbed into the wound when he applied for legal aid to fund the appeal, while she had to pay her own legal costs, despite being homeless, because she still had a job.

Nygaard said the appeal, which her ex lost when it was dismissed by the High Court, cost her about $45,000 in legal fees for the preparation and one-day hearing.

All up, her legal costs have surpassed $250,000 over the four years she’s been fighting. The only bright spot was that as the successful party she was awarded costs, which covered a portion of the expenditure.

Nygaard had a copy of her ex-husband’s application for legal aid, signed by a barrister, but questioned how it was possible for him to qualify for the grant when he no longer lived in New Zealand and had, she claimed, a well-paid job.

“I feel like the Government, or the taxpayer, has enabled him to continue this on, whereas we could have had this resolved 18 months ago.”

According to data provided by the Ministry of Justice, legal aid-funded appeals made up roughly 30% of all appeals heard in the High Court, and about 3% of appeals heard in the Supreme Court and the Court of Appeal.

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Legal aid for criminal defendants was a scheme created by Parliament in 1912.

Less than 30 years later, a civil legal aid scheme was introduced, aimed at ensuring legal services were available to those unable to pay for them.

Last year, taxpayers helped fund legal services for those in need to the tune of $285 million.

Excluding the duty lawyer service, police detention legal assistance, and family legal advice service, the figure was $270.2m.

The ministry said the cost of appeals funded by legal aid was included in the total expenditure for the year.

Three appeals to the Supreme Court have been supported by legal aid in the past five years, and 57 in the Court of Appeal.

In the past five years, there have been 1733 appeals backed by legal aid in the High Court.

Legal aid bill ‘reads like an offensive joke’

One of the three cases that made it all the way to the Supreme Court was that of serial sex offender Luca Fairgray, who spent several years trying to keep his name secret, even after he was convicted.

His appeals cost the taxpayer $120,000 in legal aid bills, on top of the legal aid funding for his cases in the District Court where he was sentenced in 2022 to home detention and supervision for sexually offending relating to teenage girls..

While three of his victims waived their right to automatic name suppression so they could speak publicly about what happened, Fairgray fought to keep his anonymity using legal aid.

Just under $20,000 was paid out for his High Court appeal and another $23,614 for the Court of Appeal.

His legal aid fees for the Supreme Court, where his final appeal was rejected, totalled $76,688.

Luca Fairgray's failed appeals over name suppression cost the taxpayer $120,000 in legal aid bills. Photo / Dean Purcell

Tracey Edmonds, the mother of one of his victims, told the Herald his legal aid bill “reads like an offensive joke” and described it as a “rort”.

“In contrast to Luca, his survivors were forced to rely on handouts – the generosity of a volunteer victim advocate, donated pro bono legal services from private lawyers and their own commitment to protect other young women from this predator.”

Better ‘triaging’ needed

A recently retired judge wondered if it might be time to consider placing limits on the extent to which an appeal might be funded.

Judge David Ruth, who has now stepped down as a District Court judge after a long legal career, said better triaging was needed, without cutting across the rights of a person to bring a general appeal.

“You see so many appeals come back where they’re dismissed through want of merit.”

Retired District Court Judge David Ruth says it's time to take a closer look at appeals funded by legal aid in the higher courts. Photo / Tess Jaine

‘Access to justice is fundamental’

Judge Ruth said access to justice was fundamental to a civilised society.

But in terms of legal aid, it was a question of how it was allocated and what brakes to put on it, to save it running rampant.

“That seems to have been an undercurrent ever since legal aid occurred.”

Judge Ruth said his thinking applied more to appeals lodged in the courts above the High Court.

“It would be difficult to say, ‘Well look, we’re not going to hear this appeal because we don’t think it’s worth it’, because it’s an appeal as of rights and you can’t cut across people’s rights in that sense.

“But I would have thought that a triaging should occur. In other words, a case should be looked at to see whether there really is merit in it, and if not, then I think that should be conveyed to Legal Aid Services who should then make a decision as to whether A, they will fund it at all or B, some limitation on the extent to which they would fund it.”

Case prospects tested by legal services

Senior relationship property lawyer Jeremy Sutton said there were “always questions” about whether someone should be granted legal aid where the case may not be particularly strong.

He said the legal services agency in charge of the purse strings did test the prospects of success in a case by asking lawyers to demonstrate that a case had merit.

“For example, if a person was going for a parenting order or custody of a child and they’ve just been released from prison for a violence offence, then the legal services agency are likely to say, ‘Well, you haven’t got any prospects of success because of your circumstances, so legal aid is going to be declined’.”

Legal Services Commissioner Tracey Baguley said changes have been made to the way legal aid was administered, in terms of the checks and balances after the late Brian Hunter fraudulenty claimed more than $330,000 in legal aid payments from the Ministry of Justice.

Lawyer Chris Tennet hired Hunter to carry out administrative work at his Wellington law firm, Justice Chambers.

The Lawyers and Conveyancers Disciplinary Tribunal last month found Tennet guilty of misconduct for failing to adequately supervise Hunter, and this week it suspended him from practising as a lawyer for two years.

Hunter died before he could be brought to task for it.

Baguley said the fraud was “an abuse of the high-trust model” that underpinned the provision of legal aid funding for specialist reports.

She said Legal Aid Services continued to operate under a high-trust model, which relied on legal aid lawyers engaging honestly with the service.

Questions unanswered

None of this helped Nygaard, who still had unanswered questions about the appeal lodged by her ex against the earlier Family Court decision in her favour.

“I feel like it [the appeal] was used against me because every decision that I’ve had to make legally, I have to weigh up how much it’s going to cost me, what the chance of success is, and if I don’t succeed, what costs will be awarded against me.

“If I don’t have to think about anything like that, why wouldn’t you just keep going forward legally?”

Sutton said Nygaard’s situation was not unusual in relationship property disputes.

He said it was likely that her former husband’s current liabilities were taken into account in deciding whether an appeal met the threshold for granting legal aid.

Thresholds differed depending on circumstances, but the latest figures were that a single person with one dependent, or a couple with no dependents who earned below $43,380 a year qualified for legal aid.

A single person with five dependents, or a couple with four dependents, could earn up to $88,552 a year and qualify for legal aid.

“What a lot of people don’t realise is that legal aid is not just available for beneficiaries or part-time workers but people who have high expenses.

Senior lawyer Jeremy Sutton, who specialises in relationship property cases. He says legal aid is also available to people with high expenses.

“I’ve had people who are earning double what the guideline is but their expenses are so high that they’re not able to access a lawyer,” Sutton said.

He said Nygaard’s former husband, who lived overseas, was still able to apply for legal aid because the case was heard in New Zealand.

He said income, assets or debts held by an applicant were counted regardless of where in the world they lived.

Judge Ruth believed that legal aid did, on the whole, work well and for the benefit of those who needed it.

“You’ll always have the complaint that the lawyers aren’t paid enough. That’s a separate issue and that’s really a matter of government policy as to what extent they’re prepared to fund that basic ideology of access to justice,” he said.

What he would like to see, as a way to improve access to justice, was investment in training young lawyers.

Legal firms were facing the same headwinds as other businesses, and had needed to tighten their belts, but it was “asking a bit” for legal aid to fund their training, “because that’s really what’s happening”, Judge Ruth said.

“In the old days, it was common for a firm to send a junior down who had an interest in the criminal law and pay them to sit in and listen.

“That doesn’t happen now, and so there’s no training.”

Judge Ruth said the law had become increasingly complex, which brought extra challenges and costs for people defending charges.

He said it would be a sad day if people were unable to meet those challenges because they could not get legal aid funding and, therefore, often by default, have to plead guilty.

The scheme is in for another review to find out where, the Government says, more efficiencies might be gained.

*Mona Nygaard is the name used in court documents, in accordance with Family Court rules.

Tracy Neal is a Nelson-based Open Justice reporter at ��һ�ǿ�����. She was previously RNZ’s regional reporter in Nelson-Marlborough and has covered general news, including court and local government for the Nelson Mail.