Cook v Chief Executive of the Ministry of Social Development

[2016] NZHC 1892

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CIV-2015-404-002803 [2016] NZHC 1892

UNDER

The Social Security Act 1964

IN THE MATTER

of an appeal by way of case stated from the determination of the Social Security Authority at Wellington under s 12Q of the Social Security Act 1964

BETWEEN

DESMOND WILLIAM COOK Appellant

AND

THE CHIEF EXECUTIVE OF THE MINISTRY OF SOCIAL DEVELOPMENT

Respondent

Hearing:	9 August 2016
Appearances:	Appellant on own behalf N Fong for the Respondent
Judgment:	16 August 2016

JUDGMENT OF WOODHOUSE J

This judgment was delivered by me on 16 August 2016 at 3 pm

Pursuant to r 11.5 of the High Court Rules 1985.

Registrar/Deputy Registrar

………………………………………………………..

Solicitors:           Crown Law, Wellington

Copy To:           Appellant

COOK v CHIEF EXECUTIVE OF THE MINISTRY OF SOCIAL DEVELOPMENT [2016] NZHC 1892 [16 August 2016]

[1]      Mr Cook filed in this Court a notice of appeal against a decision of the Social Security Appeal Authority made on 20 October 2015.1   An appeal to this Court from the Authority can only be by way of case stated on a question of law: Social Security Act 1964 (the Act) s 12Q.  Because Mr Cook had simply filed a notice of appeal in the  ordinary  way,  the  purported  appeal  was  adjourned  to  give  Mr  Cook  an opportunity to apply to the Authority for the settling and signing of a case stated to

this Court.  For reasons recorded in a decision of 5 August 2016, the chairperson of the Authority declined to state a case.2

[2]      Mr Cook contends that he has taken all necessary steps to enable his appeal to proceed and that the appeal should now proceed.   Mr Fong for the respondent contends that the appeal should be dismissed.   This judgment is directed to those contentions.

[3]      Section 12Q of the Act is as follows:

12Q     Appeals to High Court on questions of law only

(1)       Where  any  party  to  any  proceedings  before  the  Authority  is dissatisfied with any determination of the Authority as being erroneous in point of law, he may appeal to the High Court by way of case stated for the opinion of the court on a question of law only.

(2)      [Repealed]

(3)       Within 14 days after the date of the determination the appellant shall lodge a notice of appeal with the Secretary of the Authority. The appellant shall forthwith deliver or post a copy of the notice to every other party to the proceedings.

(4)       Within 14 days after the lodging of the notice of appeal, or within such  further  time  as  the  Chairman  of  the Authority  may  in  his discretion allow, the appellant shall state in writing and lodge with the Secretary of the Authority a case setting out the facts and the grounds of the determination and specifying the question of law on which the appeal is made. The appellant shall forthwith deliver or post a copy of the case to every other party to the proceedings.

(5)       As soon as practicable after the lodging of the case, the Secretary of the Authority shall submit it to the Chairman of the Authority.

(6)       The Chairman shall, as soon as practicable, and after hearing the parties if he considers it necessary to do so, settle the case, sign it,

1      Re D Cook [2015] NZSSAA78.

2      Re D Cook [2016] NZSSAA077.

send it to the Registrar of the High Court at Wellington, and make a copy available to each party.

(7)       The  settling  and  signing  of  the  case  by  the  Chairman  shall  be deemed to be the statement of the case by the Authority.

(8)       If within 14 days after the lodging of the notice of appeal, or within such time as may be allowed, the appellant does not lodge a case pursuant  to  subsection  (4),  the  Chairman  of  the Authority  may certify that the appeal has not been prosecuted.

(9)       The court or a Judge thereof may in its or his discretion, on the application of the appellant or intending appellant extend any time prescribed or allowed under this section for the lodging of a notice of appeal or the stating of any case.

(10)      Subject to the provisions of this section, the case shall be dealt with in accordance with rules of court.

[4]      The determinative provision is s 12Q(6).  It is for the chair of the Authority to decide whether a case on appeal should be settled, signed and sent to the High Court; to determine whether it is “necessary” for a case to go to the High Court.   The chairperson in this case, as already recorded, has determined, in a reasoned decision, that it is not necessary to state a case.  If there is no case stated there is no appeal.

[5]      Mr  Cook  argued  that  his  appeal  should  proceed  because  he  has  taken appropriate steps to secure a case stated, including steps referred to in earlier minutes of this Court.  Mr Cook did apply to the Authority for a case to be stated.  But as will be apparent from the procedure set out in s 12Q, more is required than the taking of various steps by the intended appellant, with the critical step being the decision of the chair is required by s 12Q(6).

[6]      Mr Cook submitted, in effect, that the decision is wrong.  As I explained to Mr Cook during the hearing, a question whether there was some relevant error by the chair in declining to settle a case for this Court cannot be determined in this proceeding.   This Court simply has no jurisdiction to take the matter any further unless the final steps required under s 12Q have been taken.

[7]      Mr  Cook  also  made  submissions  directed  to  the  earlier  decision  of  the Authority which he has been wanting to challenge on appeal.  Whether there were any relevant errors in the Authority’s substantive decision of 20 October 2015 are not

issues that can in some way give this Court jurisdiction in the absence of a settled case under s12Q(6).

[8]      I do note that one of the points made by Mr Cook in this regard was that the Authority panel that made the substantive decision, on 20 October 2015, was not properly constituted because there were only two members.  Mr Cook submitted that an earlier decision of this Court is authority for his proposition.   He referred to a decision of Whata J on an appeal by way of case stated Mr Cook brought against the present respondent and arising out of Mr Cook’s original application to the Ministry

which has given rise to the present issues.3     Mr Cook referred me to [31] of the

judgment.  That paragraph does not contain a statement of this Court that decisions of the Authority must be made by three persons.  That paragraph of the judgment simply reproduces s 12A of the Act which is as follows:

12A     Social Security Appeal Authority

(1)      There is hereby established an Authority to be known as the Social

Security Appeal Authority.

(2)       The Authority shall consist of 3 persons appointed by the Governor- General on the recommendation of the Minister given after consultation with the Minister of Justice.

(3)      One  of  the  members  shall  be  appointed  as  Chairman  of  the

Authority.

[9]      Mr Cook was presumably referring to s 12A(2), but he has misunderstood the effect of this provision.  There must be three members of the Authority.  But s 12A is not the section in the Act prescribing the number of Authority members required to sit on any appeal.  The relevant provision is s 12N which actually is recorded in the next paragraph in Whata J’s judgment.   The requirement is that the chair of the authority and one other member sit on an appeal.  There is further provision in s 12E for appointment of a person to act in the place of the Chairman for any sitting.

[10]     Mr Fong referred me to a recent decision of this Court on another appeal by way of case stated under the Act.4   Mr Cook protested that this case was not relevant

to his case because it involved a different appellant.  As I explained to Mr Cook, the

3      Cook v Chief Executive of the Ministry of Social Development [2015] NZHC 850.

4      Lawson v The Chief Executive of the Ministry of Social Development [2016] NZHC 910.

reason Mr Fong referred me to this decision was as a precedent in relation to the interpretation of the Act.  It has no relevance on the facts of Mr Fong’s case, but it is relevant on the meaning of the Act.  In particular, Dobson J in that case discussed the need for the chair of the Authority to scrutinise with care applications made to state a case to this Court.  He said:

[124]    The  Authority  is  not  obliged  to  recognise  all  questions  of  law proposed as justifying the stating of a case for the decision of this Court.  I respectfully adopt the careful analysis of the context and mode of working of s 12Q reflected in the Gendall J’s judgment in Crequer v Chief Executive of the Ministry of Social Development.5    As that judgment demonstrates, the Chair of the Authority must retain final control over a case stated and ensure that a case is confined to errors of law alone and that such issues are genuinely in contention between the parties.  Not every legal issue is to be submitted to the High Court.  Where some have obvious answers, then there is no question to refer to the Court.6

[11]     The only possible question of law that arose on Mr Cook’s proposed case on appeal was whether there must be three members of the Authority sitting on any decision. Although, from a technical point of view, that is a question of law, it is not one justifying a case stated to this Court because the answer is clear beyond reasonable argument.  The answer is clearly contained in s 12N of the Act – only two members are required to sit on any appeal to the Authority.

Result

[12]     Mr Cook’s purported appeal to this Court is dismissed.

Woodhouse J

5      Crequer v Chief Executive of the Ministry of Social Development [2015] NZHC 1602, [2015] NZAR 1395.

6      At [29], [40].