Buis v Chief Executive of the Ministry of Social Development HC Auckland CIV-2011-485-1008

[2011] NZHC 1664

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CIV-2011-485-1008

BETWEEN  MICHAEL BUIS Appellant

ANDCHIEF EXECUTIVE OF THE MINISTRY OF SOCIAL DEVELOPMENT

Respondent

Hearing:         16 November 2011

Counsel:         M Buis (Appellant) in person

E Child for Respondent

Judgment:      18 November 2011

JUDGMENT OF BREWER J

This judgment was delivered by me on 18 November 2011 at 11:00 am pursuant to Rule 11.5 High Court Rules.

Registrar/Deputy Registrar

SOLICITORS

Crown Law (Wellington) for Respondent

(Copy to Appellant in person)

BUIS V CHIEF EXECUTIVE OF THE MINISTRY OF SOCIAL DEVELOPMENT HC AK CIV-2011-485-1008 [18 November 2011]

Introduction

[1]      By judgment delivered on 6 March 2009,[1]  Rodney Hansen J dismissed an application by Mr Buis for the review of decisions of the Accident Compensation Corporation (ACC) made in his case.

[1] Buis v Accident Compensation Corporation HC Auckland CIV-2007-404-4703, 6 March 2009.

[2]      Mr Buis had for some years been the recipient of an income-tested social security benefit paid by Work and Income New Zealand (WINZ).  In 1999 he was successful in his claim that ACC should have been paying him weekly compensation at a higher rate.   This meant that WINZ was entitled to a refund from ACC of payments it had made to Mr Buis.

[3]      ACC deducted the sum of $101,879.75 from the arrears it was due to pay to Mr Buis.  Of that sum, $86,108.96 had been paid directly to Mr Buis by WINZ and the balance of $15,770.79 was tax on the benefit which had been deducted and paid to the Inland Revenue Department (IRD).

[4]      ACC dealt with the refund by paying the $86,108.96 direct to WINZ and the tax component to the IRD. The IRD then transferred the tax component to WINZ.

[5]      In the application for review brought by Mr Buis before Rodney Hansen J, Mr Buis contended that ACC’s decisions to deduct the tax from the sum it paid to Mr Buis and to make that payment to the IRD were wrong in law and ultra vires ACC’s powers under the Income Tax Act 1994, the Tax Administration Act 1994, and relevant ACC statutes.

[6]      As stated, Rodney Hansen J found against Mr Buis.

[7]      Mr Buis then sought a (non-judicial) review of the decision of the Chief Executive of the Ministry of Social Development to recover the gross amount of benefit paid during the relevant period.  In other words, having had the decision of

Rodney Hansen J that ACC was entitled to make the payments that it had, Mr Buis

went to the Ministry of Social Development and argued that the Chief Executive did not have the power to receive the gross amount of the benefit paid.

[8]      Mr Buis was granted an out-of-time review by a Benefits Review Committee which upheld the decision of the Chief Executive.   Mr Buis then appealed to the Social  Security Appeal Authority  (the Authority).    The Authority  dismissed  his appeal.    Mr Buis  now  appeals  to  this  Court  against  the  determination  of  the Authority.   The appeal proceeds by way of case stated pursuant to s 12Q of the Social Security Act 1964 and Part 11 of the High Court Rules.

Questions of law for the opinion of the Court

[9]      The Court is required to answer the following questions of law as stated by the Authority:

(a)      Did the Authority err in law in finding that the Chief Executive of the Ministry of Social Development was entitled to recover the gross, rather than net, benefit debt from the appellant’s backdated weekly compensation entitlement?

(b)Did the Authority err in law in finding that the appeal was an abuse of process?

Discussion

[10]     Mr Buis represents himself.  He has put a great deal of work into this appeal. He has filed extensive submissions, both in support of the appeal directly and in reply to submissions of the respondent.   These submissions annex significant quantities of documents and copies of cases.   In addition, the common bundle of documents runs to 276 pages and the bundle of authorities exhibits 19 separate pieces of legislation and decisions of the Courts.

[11]     In his oral submissions to me, Mr Buis identified the following as his key submissions:

(a)      The Authority was wrong in law to regard itself as being bound by Rodney Hansen J’s judgment because it did not give proper weight to newly discovered documents not before Rodney Hansen J.

(b)The  Authority  was  wrong  in  law  in  not  holding,  by  following Mr Buis’s analysis, that Woodhouse J was wrong in his decision in Goh v Commissioner of Inland Revenue.[2]

[2] Goh v Commissioner of Inland Revenue (2010) 24 NZTC 24,024 (HC).

(c)      The Authority erred in law in not directing the Ministry of Social Development to review payment procedures consequent upon the decision of Department of Social Welfare v Allan.[3]

(d)The Authority erred in law in not giving weight to a presumption in statute that in the ACC context only net figures should be returned rather than gross figures.

[3] Department of Social Welfare v Allan (1993) 10 CRNZ 307 (HC).

[12]     The respondent submits that Mr Buis faces two insurmountable difficulties. The first is that the issues he is raising are the same as those which were before Rodney Hansen J.  Mr Buis argued before Rodney Hansen J that ACC had no right to make the payments as it did.  Having been rebuffed he now seeks to argue that the respondent had no right to receive the payments for substantially the same reasons dismissed by Rodney Hansen J.   Therefore, what was before the Authority was a collateral attempt to re-litigate the issues already decided against him.   Such an attempt amounts to an abuse of process and the Authority was correct in holding that it was.

[13]     I agree with this submission.  The appellant’s application for review by the Benefits Review Committee, and the subsequent appeals, were clearly a collateral attack upon the earlier decision of this Court which cannot be entertained.[4]   The only matters  that  Mr Buis  was  able  to  identify as  distinguishing  the  case  before  the

[4] Lai v Chamberlains [2006] NZSC 70, [2007] 2 NZLR 7 at [58]–[72] per Elias CJ.

Authority and the case before Rodney Hansen J were:

(a)       Rodney Hansen J was not asked to determine whether the respondent had the power to receive the payment; and

(b)       Rodney Hansen J had not seen the new evidence.

[14]     The first ground has no merit at all.  The issues are simply both sides of the same coin.

[15]     The second ground fails upon closer examination. The new evidence referred to consists of two documents annexed to Mr Buis’s submissions as documents “D” and “E”.  Document “D” is part of a WINZ information bulletin apparently issued some time in 1993.  Parts of it refer to the way in which the respondent’s chief legal advisor had interpreted a recent case from this Court as to how recovery from

“clients” should be sought.  The document annexed as “E” is a copy of a letter from ACC to Mr Buis dated 22 December 2009 enclosing an excerpt from an internal ACC bulletin issued in 1994 titled “Reimbursements between New Zealand Income Support Service (DSW) and ACC, and taxation of Weekly Compensation”.

[16]     Neither of those documents has any legal status other than to shed light on the internal policies of the respective entities at the particular time.  Moreover, the crucial statutory provision around which all of Mr Buis’s arguments rotate is s 83A of the Social Security Act 1964.  This is the section that specifies the regime that is to apply “where any instalment or a payment of an income-tested benefit is a source

deduction payment”.[5]   The section was inserted in 2005 — years after the documents

relied on by Mr Buis.  The section has retrospective effect and governs the payments made to Mr Buis.[6]

[5] Social Security Act 1964, s 83A(1).

[6] Social Security (Social Assistance) Amendment Act 2005, s 18.

[17]     The second insurmountable obstacle submitted by the respondent to exist is that the issues raised by Mr Buis have been dealt with authoritatively by the Court of

Appeal in Goh v Commissioner of Inland Revenue.[7]

[7] Goh v Commissioner of Inland Revenue [2011] NZCA 344, (2011) 25 NZTC 20-066.

[18]     The appellant in that case, Ms Goh, was in an identical position to Mr Buis in that she had for a period received benefits from the Ministry of Social Development until ACC reinstated her weekly compensation, at which point she became entitled to a retrospective payment from ACC.  As with Mr Buis, ACC reimbursed the Ministry of Social Development the net benefit and paid the IRD the relevant tax amount, which the IRD then credited back to the Ministry of Social Development.

[19]     As with Mr Buis, Ms Goh contended that ACC was entitled only to deduct the net benefit from the retrospective payment.  The Court of Appeal found against Ms Goh and in doing so expressly accepted the decision of Rodney Hansen J in Mr Buis’s case.[8]

[8] Ibid, at [33].

[20]     Mr Buis’s submission on this point was that I should put aside the Court of Appeal’s decision because “no good alternate argument was made to it”.  Further, the Court of Appeal did not have the benefit of Mr Buis’s “further evidence”.

[21]     I accept Mr Child’s submission on the relevance of the Court of Appeal’s

decision in Goh to this case.

Decision

[22]     Mr Buis believes passionately in the force of his arguments.  His position is that Rodney Hansen J was wrong in finding as he did, as were Woodhouse J and the Court of Appeal in Goh.  The Authority was wrong in not seeing the force of his arguments and granting him the relief he seeks.  Unfortunately, while he is genuine in his cause, the appellant misunderstands the way in which the civil legal process resolves disputes.

[23]     To the first question posed by the Authority for the opinion of the Court, namely:

(a)       Did the Authority err in law in finding that the Chief Executive of the

Ministry of Social Development was entitled to recover the gross,

rather than net, benefit debt from the appellant’s backdated weekly

compensation entitlement?

I give the answer “No”.

[24]     To the second question of law posed by the Authority for the opinion of the

Court, namely:

(b)Did the Authority err in law in finding that the appeal was an abuse of process?

I give the answer “No”.

[25]     If  there  is  any  question  as  to  costs,  I  will  consider  memoranda.     The respondent should file its memorandum within 28 days of the date of this judgment,

Mr Buis within a further 14 days.

Brewer J