Crequer v Chief Executive of the Ministry of Social Development

IN THE SUPREME COURT OF NEW ZEALAND

SC 69/2014
[2014] NZSC 119

BETWEEN	MARGOT CREQUER Applicant
AND	CHIEF EXECUTIVE OF THE MINISTRY OF SOCIAL DEVELOPMENT Respondent

Court:	Elias CJ, William Young and Arnold JJ
Counsel:	Applicant in person D L Harris for Respondent
Judgment:	2 September 2014

JUDGMENT OF THE COURT

The application for leave to appeal is dismissed.

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REASONS

The applicant has appealed, by way of case stated, to the High Court against a decision of the Social Security Appeal Authority. The case as settled by the Authority differed from the draft submitted by the applicant. The applicant argued in the High Court that the Authority was not entitled to amend her draft case other than to correct errors of fact. This proposition is supported by r 21.9(6) of the High Court Rules. Mallon J, however, concluded that s 12Q of the Social Security Act 1964 (under which it is for the Authority to settle the case) prevails over r 21.9.[1] She did note that the High Court could amend the case (under r 21.12) at the hearing of the substantive appeal.
[1]Crequer v Chief Executive of the Ministry of Social Development [2012] NZHC 2575, [2012] NZAR 951.
The applicant then applied to Mallon J for an order rescinding or varying her earlier judgment. This was pursuant to r 7.49 which relevantly provides:
7.49 Order may be varied or rescinded if shown to be wrong
(1)A party affected by an interlocutory order (whether made on a Judge's own initiative or on an interlocutory application) or by a decision given on an interlocutory application may, instead of appealing against the order or decision, apply to the court to vary or rescind the order or decision, if that party considers that the order or decision is wrong.
…
(5)Unless a Judge otherwise directs, the application must be heard by the Judge who made the order or gave the decision.
(6) The Judge may,—
(a)if satisfied that the order or decision is wrong, vary or rescind the order or decision; or
(b)on the Judge's own initiative or on the application of a party, transfer the application to the Court of Appeal.

Mallon J dismissed this application as being no more than an attempt to dispute the reasons for her first judgment.[2] She again noted that there was a power to amend the case at the hearing.

[2]Crequer v Chief Executive of the Ministry of Social Development [2012] NZHC 3620.

The applicant then appealed against the second judgment to the Court of Appeal. She did not comply with the timetabling requirements under the Court of Appeal (Civil) Rules 2005. She applied for an extension of time which was dismissed.[3] The result is that her appeal to the Court of Appeal now stands abandoned.
[3]Crequer v Chief Executive of the Ministry of Social Development [2014] NZCA 284.
In its judgment, the Court of Appeal accepted that the delay was comparatively short and that it had not occasioned any prejudice to the respondent. On the other hand, it took the view that because the applicant was seeking the exercise of a positive discretion, the merits (or otherwise) of the appeal were relevant. The Court concluded that the appeal was “hopeless” and, for this reason, dismissed the application.
The applicant wishes to appeal to this Court against the Court of Appeal judgment. The proposed appeal is subject to s 13(4) of the Supreme Court Act 2003. Because the appropriateness or otherwise of the present form of the case can be addressed at the substantive hearing of the appeal, it is not necessary in the interests of justice for this Court to hear the proposed appeal before the High Court determines the appeal from the Social Security Appeal Authority.
The respondent has indicated that it will not seek to enforce the award of costs made by the Court of Appeal and does not seek costs in respect of the current application.

Solicitors:
Crown Law Office, Wellington for Respondent

CaseChat Overview and Summary

The Supreme Court of New Zealand considered an appeal by Margot Crequer against a decision of the Social Security Appeal Authority. Crequer argued that the Authority was not entitled to amend her draft case other than to correct factual errors, relying on rule 21.9(6) of the High Court Rules. The case was previously heard by Mallon J, who concluded that section 12Q of the Social Security Act 1964, which allows the Authority to settle the case, takes precedence over rule 21.9. Crequer subsequently applied to Mallon J to rescind or vary her judgment, which was dismissed as an attempt to dispute the reasons for the initial judgment. Crequer further appealed to the Court of Appeal but did not comply with the timetabling requirements, leading to her appeal being dismissed as hopeless. Crequer now seeks to appeal to the Supreme Court against the Court of Appeal's judgment.

The primary legal issue was whether the Social Security Appeal Authority had the authority to amend the applicant's draft case beyond correcting factual errors. The Court considered the interplay between section 12Q of the Social Security Act 1964 and rule 21.9 of the High Court Rules. Additionally, the Court addressed the procedural issue of whether the appeal to the Supreme Court should be heard before the substantive appeal from the Social Security Appeal Authority was determined in the High Court. The Court also examined the merits of Crequer's appeal to the Court of Appeal, considering the delay in filing and its impact on the respondent.

The Court held that section 12Q of the Social Security Act 1964 prevails over rule 21.9 of the High Court Rules, allowing the Authority to settle the case as it saw fit. The Court noted that the High Court retains the power to amend the case at the hearing of the substantive appeal. Regarding the appeal to the Court of Appeal, the Court found that while the delay was short and caused no prejudice, the merits of the appeal were relevant due to the discretionary nature of the application. Consequently, the Court of Appeal dismissed the appeal as hopeless. The Supreme Court decided that the proposed appeal should not be heard before the substantive appeal was determined in the High Court, as the form of the case could be addressed at that stage.

The Supreme Court dismissed Crequer's application for leave to appeal. The Court also noted that the respondent would not seek to enforce the award of costs made by the Court of Appeal nor costs in respect of the current application.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established