D v Social Security Appeal Authority
[2021] NZHC 974
•5 May 2021
ORDER PROHIBITING PUBLICATION OF NAME, ADDRESS, OCCUPATION OR IDENTIFYING PARTICULARS OF APPLICANT IN THE HIGH COURT OF NEW ZEALAND WHANGAREI REGISTRY
I TE KŌTI MATUA O AOTEAROA WHANGĀREI-TERENGA-PARĀOA ROHE
CIV-2020-488-000062
[2021] NZHC 974
UNDER THE Social Security Act 2018 IN THE MATTER OF
An application for judicial review
BETWEEN
D
Applicant
AND
SOCIAL SECURITY APPEAL AUTHORITY
First Respondent
THE ATTORNEY-GENERAL sued on behalf of THE CHIEF EXECUTIVE OF MINISTRY OF SOCIAL DEVELOPMENT
Second Respondent
Hearing: 19 April 2021 Appearances:
Applicant in Person
S Conway and T Wild for Second Respondent
Judgment:
5 May 2021
JUDGMENT OF VENNING J
This judgment was delivered by me on 5 May 2021 at 11.00 am, pursuant to Rule 11.5 of the High Court Rules.
Registrar/Deputy Registrar
Date……………
Solicitors: Crown Law, Wellington Copy to: Applicant
D v SOCIAL SECURITY APPEAL AUTHORITY [2021] NZHC 974 [5 May 2021]
Introduction
[1] The applicant, D, is 44 years old. D was signed off work with chronic anxiety and depression on 1 February 2018 and applied for job seeker support with medical deferral, accommodation supplement and temporary additional support. The Ministry of Social Development (MSD) initially granted her Jobseeker Support with medical deferral on 31 August 2018.1
[2] On 17 October 2018 MSD reviewed her file and added $370.62 per week to her income to take account of rental income received by a company called [L Limited] (L). The applicant was the sole director and shareholder of L. As a result, MSD adjusted D’s Jobseeker Support to $12.34 per week. MSD also determined that she did not qualify for an accommodation supplement or temporary additional support because her assets exceeded the relevant threshold for a single person.
[3] D applied to the Benefits Review Committee (BRC) for the decision to be reviewed. The BRC declined to review it. The applicant then lodged an appeal with the Social Security Appeal Authority (SSAA) on 20 June 2019.
[4] In this proceeding the applicant seeks to challenge the conduct of the SSAA throughout the process of that appeal.
[5] In a separate application for judicial review the applicant challenged the actions and decisions of MSD.2 That proceeding has been resolved.
[6] The SSAA abides the decision of the Court. The second respondent has filed evidence and submissions. The evidence has been provided by Ms Allan, a principal advisor in the Deputy Chief Executive’s Office, MSD.
This judicial review
[7] As noted, this judicial review is directed at the actions of the SSAA in the course of dealing with the appeal the applicant lodged on 20 June 2019. That appeal
1 The payments were subsequently backdated to 1 February 2018.
2 CIV-2020-488-46.
was against MSD’s decision to adjust her Jobseeker Support and its determination that she did not qualify for an accommodation supplement or temporary additional support.
[8] The applicant’s statement of claim runs to some 38 pages and raises 34 points of complaint about the actions of the SSAA during the process. It is not entirely clear what relief is sought. In the conclusion to the claim she seeks a broad judicial review of the questions she raises in the statement of claim and asks how the situation may be remedied.
[9] Counsel for the second respondent helpfully suggested that the issues raised by the applicant’s claim could be conveniently grouped into three headings:
(a)the SSAA’s jurisdiction to hear and determine an appeal that had been withdrawn by the applicant;
(b)claims about the SSAA’s directions as to the conduct of the appeal; and
(c)the SSAA’s treatment of the applicant’s disability in the context of her appeal.
Judicial review principles
[10] Before addressing the issues raised by the applicant, it is convenient to set out some fundamental aspects of the Court’s jurisdiction in relation to judicial review. Section 16 of the Judicial Review Procedure Act 2016 prescribes the relief that a court may grant on an application for judicial review:
16 Relief that court may grant
(1)The High Court may, by order, grant an applicant any relief that the applicant would be entitled to in proceedings for—
(a)a writ or an order of, or in the nature of,—
(i)mandamus; or
(ii)prohibition; or
(iii)certiorari; or
(b)a declaration or an injunction.
(2)If an applicant is entitled to an order declaring that a decision made in the exercise of a statutory power of decision is unauthorised or otherwise invalid, the court may, instead of making that order, set aside the decision.3
[11] The relief under the Act is constrained by the wording of s 16. To the extent the proceedings are directed at review of the exercise of a statutory power, the power in issue must be sufficiently public in nature and effect to warrant the exercise of the Court’s supervisory jurisdiction. Importantly, the Court has a discretion whether to grant relief.
[12] The Court will normally not engage in the judicial review of procedural steps even where the procedural steps involve an inquiry into the actions of a person under investigation: A Lawyer v New Zealand Law Society.4
[13] The following factors are particularly relevant to the exercise of the discretion in the present case:
(a)the gravity of the error;
(b)degree of prejudice;
(c)administrative convenience;
(d)nature of the power being exercised;
(e)circumstances of the case;
(f)futility of granting relief – mootness; and
(g)subsequent events.
3 The meaning of “Statutory Power” in this context is further defined in the Judicial Review Procedure Act.
4 A Lawyer v New Zealand Law Society [2021] NZCA 47 at [39]–[40].
Procedural background to the SSAA appeal process
[14] With that procedural background in mind, I turn to the relevant procedural background in this case. The SSAA acknowledged receipt of D’s appeal on 26 June 2019 and directed the MSD to file its reg 249 report by 25 July 2019.5
[15] On 29 July 2019 the SSAA scheduled a telephone conference for 6 August 2019 at 11.30 am. The advice of the conference stated:
The purpose of this conference is to set a date, confirm the number and name of any witnesses giving evidence, the length of time required and the location of the hearing.
[16] There then followed an email exchange between the applicant and the SSAA regarding the telephone conference. In the course of that exchange the applicant asked if MSD had provided a response to the appeal. When advised the MSD had not yet filed its report, D noted that MSD’s response had been due on 25 July, recording her concern that MSD was “once again ignoring due process”.
[17] The case manager in the Tribunals Unit responded and advised, amongst other things:
If the [MSD] doesn’t file its report before the telephone conference it will be for the deputy Chairperson to decide on what action should be taken in that regard.
[18] D followed the matter up again on 5 August, querying again whether MSD had filed anything. On the same date the case manager replied confirming there was no expectation on the applicant to fully respond to MSD’s case at the telephone conference and confirming the main purpose of the conference was for the SSAA to get a general outline of the issues in the appeal and to set a date for the hearing.
[19] The telephone conference did not proceed on 6 August as the MSD appeals officer assigned to the applicant’s case was not at work that day and had failed to arrange a replacement staff member to attend. The SSAA scheduled another telephone conference for 9 August 2019.
5 Regulation 249 of the Social Security Regulations 2018 requires MSD, as soon as possible after receiving the notice of appeal, to send certain material to the SSAA.
[20] On 8 August 2019 the MSD sent a letter to the applicant advising that they had again reviewed the earlier decisions to charge income from L against the applicant’s benefit entitlement and to decline her application for the accommodation supplement and temporary additional support because her assets were over the threshold. The letter stated:
As a result of the review, and based on the information you provided, the Ministry has reconsidered its original decision and determined that no income and assets from [L] should have been charged against your benefit entitlement. As a result of this decision the Ministry has:
(i)Paid the full rate of Jobseeker Support of $212.45 for the period 8 February 2018 to 31 March 2018. Arrears of
$1508.00 have been paid into your bank account.
(ii)Paid the full rate of Jobseeker Support of $215.34 from 1 April 2018 to 31 May 2018. Arrears of $1769.00 have been paid into your bank account.
(iii)Paid the full rate of Jobseeker Support of $218.98 from 25 May 2019 onwards. Arrears of $2181.82 have been paid into your bank account.
(iv)The Ministry has also decided to pay accommodation supplement and temporary additional support from date of grant, 8 February 2018 onwards, subject to you qualifying for this supplementary assistance.
For the Ministry to decide on whether you quality for supplementary assistance could you please provide the Ministry with a copy of the following documents: mortgage repayments, insurance payments, Council rates and any other associated costs by 31 July 2019.
[21] The letter was apparently drafted in July 2019 but not sent to the applicant until 8 August 2019. The copy to the Tribunals Unit was received on 9 August. Obviously, the applicant could not respond by 31 July 2019.
[22] On receipt of a copy of that letter, the case manager confirmed with the applicant that the telephone conference scheduled for 9 August could be cancelled, but the applicant did ask the matter be referred back to the SSAA if she was unable to agree on the sums to be backdated and the amounts payable going forward. The case officer recorded the conference was cancelled and noted “if the parties are not able to reach a settlement then we will schedule a new conference for a future date”.
[23] On 26 August 2019 the applicant wrote to the SSAA asking for the pre-hearing teleconference to be reconvened as the MSD had not paid the accommodation supplement or temporary additional support. This was despite, she wrote, all supporting information having been provided almost two weeks earlier.
[24] The SSAA scheduled a telephone conference for 4 September 2019. In the interim, the applicant and the MSD exchanged further correspondence relating to her application for the accommodation supplement and temporary support.
[25] Following the telephone conference on 4 September 2019, the Deputy Chair of the SSAA issued a minute which included directions that:
[4][The applicant] is to provide the Ministry with a breakdown of her weekly accommodation costs showing how the sum is calculated, the source of the payments and the entity receiving the payments from 8 February 2018 for the entire period that she considers she is entitled to Accommodation Support and Temporary Additional Support. [The applicant] is to provide copies of documents, such as bank statements and/or tenancy agreements, verifying the payments she says have been made.
[5]As [the applicant] does not know how long it will take her to provide this information, no hearing date was set. Once [the applicant] has provided the information referred to above, and received the [MSD’s] decision on her entitlement, she may request a hearing date if she is not satisfied with the outcome or withdraw her appeal if the remaining issues are resolved.
[26] D says she supplied that information within 14 days. She then engaged in further correspondence with the MSD regarding the details of her accommodation costs and the summary of the source of payments and the entities receiving payments. On 2 October 2019 the MSD declined the applicant’s application for supplementary assistance. It concluded that her assets exceeded the $8,100 qualifying threshold because she was a 100 per cent shareholder of L and that company had assets of
$147,192.00.
[27] The applicant queried the MSD’s decision. The MSD replied on 29 October 2019. In that response it confirmed the earlier advice of 2 October that, as the value of her shares in L exceeded the qualifying threshold, she was not entitled to supplementary assistance.
[28] On 13 November 2019 the applicant requested a telephone conference on the appeal. The SSAA allocated a further telephone conference which took place on 27 November 2019. Following that conference the Deputy Chair issued a further minute with directions providing that by 20 December 2019 the applicant was to file and serve a statement identifying the grounds of her appeal with reference to the relevant law and further details of her financial position at the relevant time. The minute also provided that the MSD was to file its reg 249 report by 21 February 2020. After the MSD had filed its report the Authority was to convene a telephone conference to set a hearing date.
[29] On 20 December 2019 the SSAA issued an amended timetable directing the applicant to file and serve her submissions by 31 January 2020 and the MSD to file its reg 249 report by 20 March 2020. The reason given for the extension of the timetable was:
Ms Macnab, counsel for [D] has not been able to comply. She has asked for further time.
[30] On 3 February 2020 the SSAA further amended the time for the applicant to file submissions to 28 February 2020 with the MSD’s reg 249 report to be filed by 28 April 2020.
[31] On 1 May 2020 the SSAA informed the MSD and the applicant that the SSAA was closed during the Level 4 lockdown and that it would issue a statement regarding timelines and extensions shortly.
[32] On 27 May 2020 the SSAA directed the MSD to file its reg 249 report by 2 June 2020.
[33] On 9 June 2020 a further telephone conference was convened regarding the applicant’s appeal. The Deputy Chair issued a minute noting the purpose of the conference was to ensure the appeal was ready for hearing and to set a timetable for filing any further evidence and submissions by the appellant. The directions minute issued after the conference recorded that:
[2] … shortly after conclusion of the conference [the applicant] filed an email stating that:
We consider this appeal to have been conceded by MSD and do not consider that the SSAA has any authority to hear an appeal over the decisions made by MSD on 29 October 2019 as these have never been heard, confirmed or varied by the [BRC]. Nor was this decision made by the Chief Executive personally.
I am therefore withdrawing the appeal filed on 20 June 2019 as it has already been determined and conceded by MSD.
[34] The minute also confirmed that the SSAA’s view was that the appeal was filed against three decisions by the MSD – to decline job seeker support, accommodation supplement and temporary additional support. The Deputy Chair noted that:
[7][The applicant] may withdraw this appeal at any time and is not required to give reasons for her decision to withdraw. However, she should consider that if she withdraws this appeal she cannot bring another appeal against the same decisions or bring the same proceedings in another jurisdiction. Her withdrawal will bring all proceedings to an end.
[35] The Deputy Chair went on to effectively suggest that the applicant discuss the matter with counsel and noted that if the applicant wished to withdraw the appeal counsel was to file confirmation of the decision. If the appeal was to be pursued, the conference would resume on 16 June 2020.
[36] There was a further email exchange between the applicant and SSAA on 9 and 10 June. The SSAA apologised for sending the 9 June 2020 minute to the applicant rather than Ms Macnab as counsel. The SSAA also confirmed the telephone conferences were not recorded. (D had requested a copy of the transcript of the conference).
[37] On 16 June 2020 a further telephone conference was held. The SSAA issued directions recording that no further telephone conferences would be scheduled until Ms Macnab confirmed D was ready to proceed.
[38] On 17 July the applicant filed judicial review proceedings challenging the decision of MSD. She alleged that MSD had wrongfully declined to complete a review of decision or submit an appeal to the BRC. Ultimately those proceedings were
resolved. The Chief Executive of the MSD agreed to refer the decision on the applicant’s benefit entitlement to the BRC.6
[39] In the meantime, D had complained that the Deputy Chairperson of the SSAA was biased. She had also sent a number of intemperate emails to the SSAA expressing her frustration at how her matter had been dealt with.
[40] The Chairperson of the SSAA reviewed the appeal file. On 24 July 2020 the Chairperson of the SSAA issued a further directions minute in which he said the complaints about the Deputy Chairperson were “not well founded”. The minute went on to record that, while reviewing the complaint “it became apparent” to the Chairperson that “potentially the Authority’s process has been abused” by the applicant. The SSAA allocated a hearing date of 1 September 2020 for the appeal and directed the parties to file and serve information by 18 August 2020.
[41] On 10 August 2020 the applicant emailed the SSAA stating she “sees no point in a reasoned decision being issued” and that she was going to leave it for the High Court to determine. On 11 August 2020 the SSAA responded by directing that the hearing scheduled for 1 September 2020 would proceed.
[42] On 12 August 2020 the applicant emailed the SSAA stating that her counsel had not forwarded the SSAA’s 24 July 2020 direction to her and noting that she had withdrawn her 20 June 2019 appeal and that all other matters would be dealt with by the High Court.
[43] On the same date, 12 August 2020, the SSAA issued further directions regarding the hearing. On 13 August 2020 the SSAA issued yet another directions minute declining the applicant leave to withdraw her appeal.
[44]These proceedings were then filed on 14 August 2020.
6 In a decision delivered on 7 December 2020, van Bohemen J awarded disbursements to the applicant of $3,332.47 towards her costs for legal advice and travel and parking costs.
[45] On 25 August 2020 the SSAA issued a minute directing that the hearing scheduled for 1 September would proceed subject to any contrary order from the High Court. It repeated that direction on 26 August 2020. On 27 August 2020 this Court ordered a stay of the SSAA appeal pending the outcome of these proceedings.
Preliminary matter - Privilege
[46] The applicant took issue with the second respondent including in the bundle of documents some supplementary submissions the applicant filed with the SSAA said to be “supplied without prejudice save as to costs and without access to legal counsel”. On my review of that material, I do not consider it attracts privilege under s 57 of the Evidence Act 2006 as a communication made in connection with an attempt to settle any dispute. The material is effectively submissions directed at responding to issues raised by the SSAA. I consider them to be admissible as part of the record. They are in fact of some assistance to the applicant and repeat some of the matters that she raised orally when addressing the Court.
The refusal to accept D’s withdrawal of the appeal
[47] The principal legal issue raised by the review is whether the SSAA’s decision to direct a hearing after the applicant had sought to withdraw her appeal (and thereby to refuse to accept she could withdraw her appeal) was wrong and therefore should be reviewed.
[48] The right of a person initiating proceedings to withdraw or abandon them was considered by the Court of Appeal in Mullen v Parkbrook Holdings Ltd.7 The Auckland City Council had granted Parkbrook Holdings Ltd a resource consent under the Resource Management Act 1991 to construct a high rise apartment building. Mr Mullen, an adjacent owner, had lodged a submission with the Council opposing the application. But Mr Mullen did not participate in the Council hearing (and thus did not have a personal appeal right from that decision) because he and Parkbrook reached an agreement that Parkbrook would buy part of his land provided Parkbrook could obtain a particular height approval and he consented to the development. Parkbrook
7 Mullen v Parkbrook Holdings Ltd [1999] 2 NZLR 312 (CA).
later cancelled the agreement on the ground that the required height condition was not approved. Parkbrook subsequently acquired the land of adjacent owners who had lodged an appeal. The adjacent landowners then sought to withdraw their appeal. Mr Mullen successfully opposed that withdrawal in the Environment Court. On appeal the High Court held there was no abuse of process and the original appellants could not be prevented from withdrawing their appeal.8
[49] The Court of Appeal dismissed the appeal.9 In doing so it reviewed the position in other jurisdictions and in other cases before concluding:10
What emerges from these authorities is that it is crucial to examine the statutory framework in which the issue of withdrawal or abandonment arises. Generally, those initiating proceedings have a right to withdraw or abandon them, but in some instances it may be apparent from the terms of the legislation and the policies and values which the legislation seeks to enhance that this general right is, in some way, circumscribed.
[50]Later the Court concluded that:11
Whichever way one looks at the issue the indications are in favour of an appellant having a right to withdraw or abandon the appeal subject only to that course not being an abuse of process.
[51] The SSAA is established and operated under Schedule 8 of the Social Security Act 2018. In hearing and determining an appeal it sits as a judicial authority and has all the duties, functions and powers that the MSD has in respect of the same matter. Under cl 12 of sch 8, Social Security Act 2018, the SSAA is, within the scope of its jurisdiction, “deemed to be a Commission of Inquiry under the Commissions of Inquiry Act 1908”. The Commissions of Inquiry Act relevantly includes a provision confirming that the Commission has the powers of the District Court in the exercise of its civil jurisdiction. The District Court Rules 2016 do not require an appellant to obtain leave to withdraw or abandon an appeal.12
8 Parkbrook Estates Ltd v Auckland City Council [1999] NZRMA 10 (HC).
9 Mullen v Parkbrook Holdings Ltd, above n 7.
10 At 322–323.
11 At 325.
12 District Court Rules 2014, r 18.12.
[52] For the second respondent, Mr Conway, in his helpful and responsible submissions, accepted that it is consistent with the scheme and purpose of the Social Security Act 2018 not to require an appellant to obtain leave to withdraw their appeal.
[53] In Director-General of Social Welfare v W the Court of Appeal reviewed the status of the SSAA.13 At first instance, Durie J had considered the status and jurisdiction of the SSAA.14 He noted the Authority was not a court and its status was as a Commission of Inquiry. Durie J had noted that:
[22] … Commissions of Inquiry are bound by many practices peculiar to the regular courts. The rule or practice that a court will not rush in if the issue is no longer alive must surely be a case in point. A commission may be duty bound to consider the matter nonetheless for reasons peculiar to its purpose. Like a Coroner, it may be expected to advise even if those immediately affected have resolved all matters between them.
[54]And later:
[30] … Similarly, but for some intervention by the Authority for future guidance, appeal rights carefully given by the Legislature, which serve as a check on arbitrary decision-making, would be meaningless in cases of this kind. These are all sound reasons for proceeding, in my view, and in departing from the practice in the general courts. And the legislative concern in this respect is itself indicated by the fact that the Commission is deemed to be a Commission of Inquiry.
[31] Of course, it does not follow that the Authority must determine every appeal. Obviously some appeals will be frivolous or vexatious or there may be no point in pursuing those that are not prosecuted. In this case, however, the Authority clearly had a view that the Department had not dealt properly with the matter. …
[55] Although the issue in that case was whether the SSAA should have considered the appeal at all when the passage of time meant the matter in dispute was moot, the above comments are relevant and could suggest that different rules apply to the SSAA given its procedural status as a Commission of Inquiry. However, while dismissing the appeal, the Court of Appeal confirmed that:
[19] If the learned High Court Judge was declaring that the Authority has broad inquisitorial powers unrelated to the true scope of an appeal under consideration by it then we must respectfully disagree. The Authority is deemed to be a Commission of Inquiry but only within the scope of its
13 Director-General of Social Welfare v W [2005] NZAR 258 (CA).
14 W v Director-General of Social Welfare [2003] NZAR 176 (HC).
jurisdiction. … But where we are more obviously in disagreement with Durie J is with respect to his opinion to the effect that the Authority’s deemed status as a Commission of Inquiry coupled with its advisory and supervisory functions required it to allow Ms W’s appeal so that it could report to the Chief Executive. The Authority’s facultative powers had no real relevance to the question posed in the Case Stated. …
And later:
[27] … The reasons and findings with which we do not agree are … any suggestion that as a deemed Commission of Inquiry within the scope of its jurisdiction the Authority may inquire into matters not properly related to an appeal before it, and the merit based finding that the Authority should have allowed the appeal.
[56] The applicable statutory framework and relevant authorities confirm that there is nothing in the statutory scheme to prevent the applicant from withdrawing her appeal as she sought to do.
[57] The remaining issue on this point is whether it could be said that D’s withdrawal of her appeal was somehow an abuse of process, as the SSAA seemed to consider it was.
[58] A court has an inherent power to ensure its processes are not misused. The matter was put this way by Lord Diplock in Hunter v Chief Constable of the West Midlands Police:15
… this is a case about abuse of the process of the High Court. It concerns the inherent power which any court of justice must possess to prevent misuse of its procedure in a way which, although not inconsistent with the literal application of its procedural rules, would nevertheless be manifestly unfair to a party to litigation before it, or would otherwise bring the administration of justice into disrepute among right-thinking people.
[59] Similarly, the SSAA has the power to ensure that its processes are not misused. The issue is whether the SSAA’s finding in this case that D was abusing its processes by attempting to withdraw her appeal is reviewable.
15 Hunter v Chief Constable of the West Midlands Police [1982] AC 529 (HL) at 536.
[60] The reasons given by the SSAA to reject the applicant’s attempt to withdraw her appeal on the basis of an abuse of process were stated in its directions dated 13 August 2020:
[3]… The Directions give notice of concerns that [the applicant] potentially suppressed relevant information and provided wrong information. [The applicant] was required to provide the appropriate records to disclose the true position regarding her income and assets.
[4]… I noted [in the directions of 12 August 2020] that the Authority has wider duties than simply determining a dispute between parties, it has the power of a Commission of Inquiry, and must act in the public interest. The Authority determines appeals using the powers held by the Chief Executive when it determines appeals.
…
[7]Where an appellant seeks to withdraw an appeal and the Ministry’s position is apparently consistent with the relevant legislation, the Authority has no hesitation allowing the appeal to be withdrawn. This case is very different. [The applicant] is on notice that the information now before the Authority indicates she provided false information, which the Ministry accepted and cause [sic] it to pay her a benefit to which she was not entitled.
[8]It is not in the public interest to allow an appeal to be withdrawn in circumstances like this. To put the matter simply, on the face of the documents it appears:
[8.1] [The applicant] owns five rental properties through a company where she is the sole shareholder.
[8.2] She also lives in a property owned by a trust with which she has some connection.
[8.3] The applicant has apparently failed to pay tax on the income from five rental properties over the last five years. How much that might be is unknown, and at this point [the applicant] has failed to provide a copy of the records she is legally obliged to keep regarding the income from the five properties.
[8.4] Furthermore, [the applicant] has claimed the income from the five rental properties is not her income, but the documents indicate that claim is false.
[8.5] In short, the information we have indicates that potentially [the applicant] had engaged in tax evasion and provided false information to obtain a benefit. We have given her the opportunity to provide evidence that explains the circumstances, but she has not done so and now wishes not to pursue the matter.
[8.6] It is in the public interest that we issue a decision on the information we have before us. It will be a matter for other authorities to deal with any matters beyond [the applicant’s] liability to repay benefit receipts, that is the extent of the Authority’s jurisdiction.
[61]For these reasons the Authority directed the hearing was to continue.
[62] To the extent that the SSAA sought to support its decision by reference to the powers of a Commission of Inquiry, the decision is wrong at law for the reasons given above. To the extent that it sought to support its decision on the basis that to allow D to withdraw the appeal could amount to an abuse of process, it was also wrong, both factually and at law.
[63] In this context, the High Court decision in Parkbrook Holdings Ltd v Auckland City Council is helpful. In that case, the Environment Court advanced a similar proposition to the effect that its control over proceedings was such that it was empowered to refuse to allow an appeal to be withdrawn. This was rejected by Salmon J in the following terms:16
Having regard to the wider public interest in public law proceedings which come before the Environment Court we consider that once the Court is seized of a matter it has a duty to ensure that the matter is determined in a way which gives effect to the wider public interests that are reflected in the statutory purpose of the Act. This can be achieved by exercising the Court’s inherent power either to ensure its process is not abused or by regulating the Court’s procedure to achieve that obligation. With respect, I disagree with that conclusion. The Court’s obligation to apply the purpose and principles of the Resource Management Act only arises if there is a properly constituted appeal before it which it is entitled to determine. If an appellant having the right to do so withdraws an appeal there is nothing to which any obligation of the Court can then attach. The Court cannot “regulate its procedure” to keep in existence an appeal which an appellant withdraws, at least where no party opposes such withdrawal, unless there has been an abuse of process in the sense in which that term has been used earlier in this judgment.
[64]The Court of Appeal approved Salmon J’s analysis and stated:17
The Environment Court tended to merge its conception of the wider public interest with questions of abuse of process. The idea of the Court being some sort of public watchdog is not the same as the idea involved in some procedural step being an abuse of process.
16 Parkbrook Estates Ltd v Auckland City Council, above n 8.
17 Mullen v Parkbrook Holdings Ltd, above n 7, at 327.
[65] Similar reasoning applies in the present case. D was entitled to withdraw her appeal. Once she indicated she wished to do so, the SSAA’s obligations were at an end.
[66] There are also a number of factual issues which tell against the reasons the SSAA gave for not allowing D to withdraw her appeal. First, it appears from the decision that the SSAA was influenced by and considered the applicant had provided misleading information to it and engaged in tax evasion. As the applicant pointed out during the course of the hearing before this Court, the income tax returns record a loss rather than a profit. Further, the Inland Revenue Department had accepted D’s reason for not filing more recent returns. Those factors go a significant way to undermining the factual basis the SSAA relied on to decline her application to withdraw the appeal.
[67] There was no suggestion by counsel for the second respondent that the information provided by the applicant was misleading. On my review of the information provided, it was full and sufficient to enable the MSD to appropriately assess her entitlements.
[68] Next, as Mr Conway conceded, the MSD reconsidered its decision with respect to the Jobseeker support after the applicant’s appeal against the BRC decision was filed. The SSAA had advised the applicant on more than one occasion that the only issue before it was whether the applicant was entitled to supplementary assistance. On the face of the documentation from the MSD that must be correct.
[69] The applicant had recorded that she wanted to withdraw her appeal shortly after the telephone conference on 9 June 2020. The SSAA recorded that in its minute. The SSAA also (correctly) recorded at that time that the applicant could withdraw her appeal at any time and was not required to give reasons.
[70] Finally, there is no evidence to suggest that the applicant’s attempt to withdraw her appeal was made at a time when she was aware the SSAA had any concerns about the information she had provided. Rather, it appears from the chronology that the SSAA changed its position and considered the appeal should be progressed following
the Chairperson’s review of the file after the intemperate communications from D and her complaint about the Deputy Chair of the Authority.
[71] For the above reasons, the applicant is entitled to a declaration that the decision of the SSAA to refuse to allow D to withdraw her appeal was wrong.
Other procedural issues
[72] The applicant also raises a number of issues regarding the procedure of the SSAA during the course of the appeal. In particular, she complains about how the SSAA dealt with the MSD’s failure to comply with its obligation to file the reg 249 report, how the SSAA dealt with the MSD’s failure to attend the telephone conference, and how the SSAA declined to clarify its 4 September 2019 directions. From her point of view, the sole outstanding issue in the directions of 4 September 2019 was the requirement that she supply further information which she did by 18 September 2019. She also says the SSAA did not provide an audio recording of the teleconference.18
[73] Those complaints and the remaining issues raised in D’s claim are essentially complaints as to the process of the SSAA in dealing with her appeal during its interlocutory stages.
[74] The matters referred to by D are, when considered objectively, minor in nature. They occurred at a relatively early stage of the proceeding. Ms Allan has addressed some of them in her evidence, which I accept. From time to time in the course of proceedings a court or tribunal will enlarge the time for parties to comply with their statutory obligations or directions and may excuse the failure of a party to attend a conference when there is a valid explanation (as there was in this case).
[75] I test it this way. If the SSAA had otherwise given a valid substantive decision, the failings that D identified during the interlocutory process would not have invalidated that substantive decision. This is not one of the exceptional cases where the procedure has gone so fundamentally wrong that the substantive decision has to be quashed.19
18 I understand that D now accepts that the telephone conferences are not recorded.
19 Agriculture Ltd v Chief Executive, Ministry of Fisheries [2003] NZAR 362 (HC).
[76] Having regard to the considerations at [13] above, even if D’s criticism of the process was justified (and I do not accept that, at least until the decision not to allow her to withdraw her appeal), I would not have been minded to grant any relief in any event. The SSAA should be able to regulate its own processes during the course of appeals before it.
[77] I decline to make any orders or grant any relief in relation to the various procedural issues referred to by D in her claim.
D’s Health issues
[78] That leaves the issue of how the SSAA dealt with D’s health issue. In particular, the applicant says that, at the 4 September 2019 telephone conference, the Deputy Chair of the SSAA said: “You are a trustee of a trust and own all these properties, so we must assume that you are competent”. She also says that the SSAA wrongly recorded in its 24 July 2020 and 11 August 2020 directions that the applicant had “considerable capacity to engage with the issues of this appeal”, and that it rejected the suggestion her health had prevented her from filing tax returns for some years.
[79] She also says that the SSAA was wrong to indicate that if she was to seek an adjournment on medical grounds, it would require an affidavit from a medical practitioner who would be available for cross-examination by telephone or audio- visual link.
[80] It is not for this Court, on a judicial review of the actions of the SSAA, to make a finding, either adverse or otherwise, in relation to the SSAA’s obligations under the Human Rights Act 1993, particularly given no substantive decision has been made by the SSAA. In the circumstances, the appropriate agency to deal with complaints of this nature is the Human Rights Commission. That agency has been established as the specialist decision maker in this area.
[81] The application for review in the way the SSAA has dealt with the applicant’s disability is declined.
Result/costs
[82] The application for judicial review is allowed in part. There will be a declaration that the decision of the SSAA to refuse to allow the applicant to withdraw her appeal was incorrect and wrong at law. The applicant validly withdrew her appeal by notice dated 9 June 2020.
[83] To the extent the applicant seeks judicial review of the various other matters referred to in her statement of claim, the request for relief under the Judicial Review Procedure Act is dismissed.
[84] I reserve the issue of costs. My present inclination is that costs should lie where they fall. The applicant could only be entitled to an order for disbursements. While she has been successful in part, she has also failed in other respects. If either party wishes to pursue the issue of costs (or in D’s case disbursements):
(a)any memorandum seeking costs or disbursements is to be filed and served within 15 working days;
(b)any response to be filed and served within five working days thereafter;
(c)submissions to be limited to two pages.
Venning J
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