Hill v Chief Executive of the Ministry of Social Development
[2020] NZCA 157
•11 May 2020 at 3.00 pm
| IN THE COURT OF APPEAL OF NEW ZEALAND I TE KŌTI PĪRA O AOTEAROA |
| CA433/2019 [2020] NZCA 157 |
| BETWEEN | PERCY HILL |
| AND | CHIEF EXECUTIVE OF THE MINISTRY OF SOCIAL DEVELOPMENT |
| Counsel: | Applicant in person |
Judgment: | 11 May 2020 at 3.00 pm |
JUDGMENT OF MILLER J
(Review of Registrar’s Decision)
AThe application to review the decision of the Deputy Registrar declining to dispense with security for costs is dismissed.
BThe applicant is to pay the sum of $7,060 by way of security for costs within 20 working days of the date of this judgment.
REASONS
Mr Percy Hill seeks review under r 5A(3) of the Court of Appeal (Civil) Rules 2005 of a decision by the Deputy Registrar of this Court declining his application to dispense with security for costs. The review was requested on 17 December 2019. I regret the delay in dealing with it.
Background
In early 2010, the Ministry of Social Development concluded that Mr Hill owed it money because he had received a sickness benefit and accident compensation at the same time. On 29 June 2010, the Benefits Review Committee upheld that decision and the Ministry proceeded to recover the outstanding amount by a cancellation or modification of Mr Hill’s sickness benefit. Recovery was completed on 6 December 2010.
The last day for appealing the Committee’s decision was 29 September 2010. Mr Hill did not file an appeal with the Social Security Appeal Authority until 7 November 2016: over six years late. The Authority declined Mr Hill’s application for an extension of time to appeal.
Mr Hill sought permission from the High Court to extend the time to appeal against the Authority’s decision.[1] Downs J declined permission, as none of the matters raised by Mr Hill gave rise to a question of law,[2] and Mr Hill’s justifications for filing the appeal out of time did not justify the inordinate delay of over six years.[3]
[1]Hill v Chief Executive Ministry of Social Development [2019] NZHC 1661 [High Court judgment].
[2]Social Security Act 1964, s 12Q. See also Social Security Act 2018, s 405.
[3]High Court judgment, above n 1, at [11]–[12].
Mr Hill seeks to appeal that decision. From his notice of appeal, it appears that he wishes to advance the following grounds of appeal:
(a)The decision of the Benefit Review Committee was unsigned and therefore lacked any legal effect.
(b)Section 252(6) of the Accident Compensation Act 2001 prevails and (as I understand his notice of appeal) allowed him to receive both benefits, because it deems an ACC payment to have been made for all purposes in respect of the ACC entitlement.
(c)The delay in appealing the decision of the Committee was a result of failure of an advocate to file an appeal on time. It was not attributable to Mr Hill.
The appeal was accepted for filing in this Court, and security for costs was fixed at $7,060. Mr Hill applied for security for costs to be dispensed with under r 35(6)(c) of the Court of Appeal (Civil) Rules. The respondent opposed the application.
The Deputy Registrar’s decision
The Deputy Registrar dismissed the application on 22 November 2019, giving the following reasons:
(a)It was not possible to determine that Mr Hill was impecunious as he had failed to provide some of the information requested, namely details of the financial circumstances of close relatives, friends, or family trusts that may be able to assist him in funding his appeal.
(b)The appeal lacked merit, as the grounds of appeal raised by Mr Hill had been addressed and disposed of by Downs J. In short, the Judge had found that the Committee’s decision was signed, s 252(6) of the Accident Compensation Act was a deeming provision not affecting benefit eligibility, and the delay of over six years could not be explained by the failures of a legal advocate. Having regard to the Supreme Court’s judgment in Reekie v Attorney-General, a reasonable and solvent litigant would not proceed with the appeal.[4]
(c)There were no exceptional circumstances or matters of public interest that would justify dispensing with security for costs.
[4]Reekie v Attorney-General [2014] NZSC 63, [2014] 1 NZLR 737 at [35].
Mr Hill applied for a review of the decision on the basis that the focus of the appeal had been diverted by a family emergency. He did not identify any errors of principle or law by the Deputy Registrar. In December 2019, he was invited to submit any further information in support of his application. He has not done so.
Analysis
The starting point is the decision of the Supreme Court in Reekie v Attorney‑General. The discretion to dispense with security for costs should be exercised to preserve access to this Court by an impecunious appellant to pursue an appeal which a solvent litigant would reasonably wish to prosecute.[5]
[5]At [35].
I am satisfied that the Deputy Registrar’s assessment that the appeal lacked merit was correct. As the Deputy Registrar noted, Mr Hill’s grounds of appeal on s 253(6) of the Accident Compensation Act and his explanation for the delay were addressed by Downs J. Section 252(6) is not aimed at benefit eligibility.[6]
[6]High Court judgment, above n 1, at [8]–[9].
Mr Hill’s ground of appeal relating to the unsigned decision of the Committee is equally hopeless. The decision was clearly endorsed by the three members. I add that the Authority did not rest its decision to refuse leave on that point, noting that a hearing before it is a merits review. It refused leave because of the extraordinary delay and want of merit. This point raises no tenable question of law.
Mr Hill filed his appeal against the Committee’s decision over six years out of time without reasonable justification and failed to raise any point of law. A reasonable and solvent litigant would not pursue it.
I am also satisfied that Deputy Registrar was entitled to conclude that Mr Hill was not impecunious based on the information available. As the Supreme Court noted in Reekie, it may be appropriate to investigate whether it is reasonable for another person or family trust to provide funding.[7] The Deputy Registrar requested information relating to other potential sources of funding but did not receive it.
[7]Reekie v Attorney-General, above n 4, at [43].
Mr Hill’s appeal raises no exceptional circumstances or matters of public interest that may justify dispensing with security for costs.
Result
The application to review the Deputy Registrar’s decision dated 22 November 2019 declining to dispense with security for costs is dismissed.
Security for costs in the sum of $7,060 must be paid into Court within 20 working days of the date of this judgment.
Solicitors:
Crown Law Office, Wellington for Respondent
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