Metin v Chief Executive of the Ministry of Social Development

[2016] NZHC 1708

IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY

CIV-2016-485-63 [2016] NZHC 1708

IN THE MATTER OF

an appeal by way of case stated from the

determination of the Social Security Appeal Authority at Wellington under s 12Q of the Social Security Act 1964

BETWEEN

ZACHARY METIN Appellant

AND

THE CHIEF EXECUTIVE OF THE MINISTRY OF SOCIAL DEVELOPMENT

Respondent

Hearing:	14 July 2016
Appearances:	Appellant in person M Conway for respondent
Judgment:	26 July 2016

JUDGMENT OF CULL J

Introduction

[1]      This is an appeal by way of case stated arising from a decision of the Social

Security Appeal Authority (the Authority) under s 12Q of the Social Security Act

1964 (the Act).

[2]      The Authority  has  stated  the  following  question  of  law  for  the  Court’s

determination:

Did the Authority err in law in dismissing Mr Metin’s appeal on the

grounds that in the circumstances he had not prosecuted his appeal?

Metin v The Chief Executive of The Ministry of Social Development [2016] NZHC 1708 [26 July 2016]

[3]      The answer to the question of law is “Yes” and the reasons now follow.

The facts

[4]      Mr Metin appealed to the Authority, in respect of a decision of the Chief Executive declining to provide financial assistance to him for providing care for his mother Valerie Metin, who had suffered serious injuries when hit by a car in March

2006.   He had applied for a Supported Living Payment Carers Benefit and Job Seeker Support.  The Ministry determined Mr Metin’s applications had lapsed under s 11D(8) of the Act, because he had not completed the application process within

20 working days.

[5]      Mr Metin sought to review the Ministry’s decision that his application had lapsed.  On 30 October 2014, the Benefits Review Committee [“BRC”] found it did not have jurisdiction to review the decision, because the Ministry had not made a decision or determination in respect of Mr Metin’s applications for financial assistance for the purposes of s 10A of the Act.   Mr Metin appealed the BRC’s decision to the Authority.

[6]      A notice of hearing was issued by the Authority for 14 April 2015.  Mr Metin requested an adjournment which was granted.  The Ministry of Social Development provided a report in relation to the appeal on 8 April 2015.

[7]      A further notice of hearing was sent to Mr Metin, advising him that the matter would be heard by the Authority on Monday 8 June 2015.

[8]      Mr Metin did not attend the hearing on 8 June 2015 before the Authority. The Authority took into consideration the timeline of Mr Metin’s appeal and noted that the notice of hearing for Monday 8 June at 2 pm was sent to Mr Metin by post on 15 May 2015.  It was also emailed to Mr Metin on 18 May 2015.

[9]      Following further correspondence from Mr Metin, he was advised again on

19 May 2015 that his appeal hearing would be held on Monday 8 June at 2 pm. Further confirmation was provided to him of the date and place of the hearing by email on 21 May 2015.

[10]     Although there was further email correspondence from Mr Metin, there was no indication that he was unlikely to attend the hearing or that he was likely to seek a further adjournment.

[11]     The Authority dismissed Mr Metin’s appeal for want of prosecution.

[12]     In  the  facts  of  the  case  stated,  the  Authority  specifically  recorded  that Mr Metin had not contacted the Authority to advise the reason for his absence. Further, the Authority understood that Mr Metin was now in receipt of a Job Seeker Support Benefit.

Finding of the Authority

[13]     The Authority found that Mr Metin had not prosecuted his appeal and it was therefore dismissed.   The Authority then framed the question of law for the determination of the Court, as to whether the Authority erred in law in dismissing Mr Metin’s appeal on the grounds he had not prosecuted it.

The appeal hearing by way of case stated

[14]     The appeal was scheduled for hearing in the High Court at Wellington on

14 July 2016.   Submissions were filed on behalf of the Chief Executive of the

Ministry of Social Development (the Ministry) and from Mr Metin.

[15]     Mr Metin did not attend the appeal hearing on 14 July 2016. I record that he had requested an adjournment by memorandum dated 20 June 2016 but this adjournment was declined by Court Minute dated 21 June 2016.   There was no explanation offered as to why Mr Metin could not attend the 14 July hearing.

[16]     From the material filed by Mr Metin, both in his submission filed on 13 July

2015 and for this hearing, a number of issues are raised but the two issues most relevant to this appeal are:

1.Mr Metin alleges the Authority delayed and failed in its procedure and process,  in  that  the  Authority  had  no  jurisdiction  to  frame  their

question  of  law.  He  challenges  the  question  of  law  stated  by the

Authority, seeking that this Court amend the question of law as filed.

2.Mr Metin also submits that the Authority should not have dismissed his appeal on the basis that he had not prosecuted his appeal because he:

(i)       Filed evidence in submissions; and

(ii)He  says  he  advised  the Authority  he  could  not  attend  the hearing because he did not have legal advice; and

(iii)The Authority had and has no jurisdiction to hear his case, which is complex.

[17]     Mr Metin raised a number of other issues, which are not relevant to the Authority’s decision under appeal.  The issues relating to his mother Valerie Metin’s entitlement to accident compensation, which have been considered by the District Court,1  cannot be considered part of this appeal by way of case stated from the Authority.

Should the question be amended?

[18]     The rules applying to appeals by way of case stated are set out in High Court

Rule 21.14 which provides:

HCR 21.14     Determination of questions

After hearing and determining the question of law or fact (or both) in a case stated, the court must do 1 or more of the following things:

(a)      in the case of an appeal, reverse, confirm, or amend the decision   in   respect   of   which   the   case   was   stated:

(b)      in the case of an appeal, remit the matter to the tribunal for

1      The District Court considered issues related to Valerie Metin’s accident compensation in Valerie

Metin v Accident Compensation Corporation [2014] NZACC 342.

reconsideration and decision in accordance with the opinion of the court on the question of law or fact (or both):

(c)      in every other case, remit the matter to the tribunal with the opinion of the court:

(d)      in any case, make any other order that is just.

[19]     The  first  issue  raised  by  Mr  Metin  is  that  this  Court  should  amend the question of law to include a number of his questions in his draft case stated dated

13 July 2015 and in his submissions for this appeal.

[20]     This appeal was brought under s 12Q Social Security Act 1964.  That section provides:

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.

…

[21]     Under s 12Q(6), the Chairman of the Authority settles the case, signs it and sends it to the Registrar of the High Court at Wellington.  Subsection (7) provides that the settling and signing of the case by the Chairman shall be deemed to be the statement of the case by the Authority.  For completeness, subss (6) and (7) are set out as follows:

(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, 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.

…

[22]     The Authority followed the procedure set out in s 12Q in settling the case here.

[23]     Under r 21.12(2), the High Court has the power to amend the question of law stated by the Authority.  The High Court has previously amended questions of law by

consent, to ensure that the questions reflect the true dispute between the parties.2   In the absence of consent, however, this Court has consistently held that r 21.12(2) cannot be used to recast the question of law to adopt the form of case stated by the appellant.

[24]     In  Crequer  v  Ministry  of  Social  Development,  Mallon  J  considered  an appellant’s objection to the case stated as settled by the Authority. 3 Mallon J held it is for the Authority to determine the case to be stated and the Authority is not obliged to adopt the form of case stated by the appellant.4

[25]     In Lawson v The Chief Executive of the Ministry of Social Development, Dobson J noted he had “real doubts” that r 21.12(2) can be used to “recast the question  of  law  from  the  formula  drafted  by  the  Authority  to  a  formulation considered to be preferable by an appellant.”5    Dobson J then affirmed Mallon J’s observation in Crequer, finding:6

[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 … the Chair of the Authority must retain final control over a case stated and ensure that a decision 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.

[125]    I respectfully urge that the Authority exercise the requisite rigour in requiring applications for the stating of a case to justify the gravamen of their concern as raising a genuine question of law, and that such questions of law raise some tenable basis for suggesting an error has been made.

[26]     There  are  two  further  decisions,  which  reinforce  the  position,  that  the ultimate formulation of the question of law involved in a case stated is for the Tribunal concerned.7  A “case stated” is a document recording one or more questions referred to the High Court by the original Tribunal but it is not a case which can be

referred to any or all of the parties to the litigation for other issues to be added by

2      Harlen v Chief Executive of Ministry of Social Development [2015] NZHC 2663 at [13].

3      Crequer v Ministry of Social Development [2012] NZHC 2575.

4      At [10]-[16].

5      Lawson v The Chief Executive of the Ministry of Social Development [2016] NZHC 910 at [30].

6      Crequer v Ministry of Social Development, above n 3.

7      Re Fehling [1997] NZFLR 857 (HC) at 861-862; Boulton v SSC [1995] NZFLR 625 (HC).

other parties, such as the appellant.8    In this case, I do not propose to amend the question stated by the Authority as it is the only question that can arise from the Authority’s decision.  The Authority determined that Mr Metin had not prosecuted his appeal and dismissed the appeal on that basis.  There is no further question that needs be added to the narrow scope of the Authority’s decision and question arising.

The Authority’s error

[27]     I turn now to consider the second and principal issue in the appeal, namely, whether the Authority has erred in law in dismissing Mr Metin’s appeal on the grounds that he had not prosecuted his appeal.

Authority’s statutory powers

[28]     Section  12J  of  the  Social  Security  Act  provides  that  any  applicant  or beneficiary affected has a right of appeal to the Authority against any decision or determination of the Chief Executive of the Ministry.

[29]     The Ministry has submitted that the relevant sub-section in these proceedings is s 12J(16), which provides a decision cannot be appealed to the Authority unless it has been confirmed or varied by Benefits Review Committee under s 10A.   The exception is where the decision was made by the Chief Executive personally, which does not apply here.

[30]     Section 12M prescribes the Authority’s powers in hearing and determining an

appeal.  It provides:

12M  Hearing and determination of appeal

…

(6)     The Authority shall, within the scope of its jurisdiction, be deemed to be a Commission of Inquiry under the Commissions of Inquiry Act

1908, and subject to the provisions of this Act, all the provisions of

the Act, except sections 2, 10, 11, and 12, shall apply accordingly.

(7)     Subject to subsection (2) of section 12I, in the determination of any appeal the Authority may confirm, modify, or reverse the decision or determination appealed against.

8      Boulton v SSC, above n 7, at 627.

(8)     Notwithstanding the provisions of subsection (7), the Authority may refer to the chief executive for further consideration, the whole or any part of the matter to which an appeal relates, and where any matter is so referred the Authority shall advise the chief executive of its reasons for so doing and shall give such directions as it thinks just as to the rehearing or reconsideration or otherwise of the whole or any part of the matter that is so referred.

[31]     Section 12M(6) provides the Authority is deemed to be a Commission of Inquiry under the Commissions of Inquiry Act 1908, within the scope of its jurisdiction.   Although a District Court can dismiss proceedings for want of prosecution under r 15.2 District Court Rules 2014, is this one of the powers of a Commission of Inquiry?

[32]     A Commission of Inquiry under s 4 of the Commissions of Inquiry Act, has some of the powers of a District Court, in respect of conducting and maintaining order at an inquiry.  Dismissing proceedings for want of prosecution, however, goes beyond the conduct and maintaining of order at an inquiry, as the power to dismiss relates to the ultimate disposition of the case or proceeding.

[33]     The Court of Appeal in Director-General of Social Welfare v W held the effect of ss 12M(7) and (8) is that the Authority cannot dismiss an appeal without passing on the correctness of the decision appealed against.9    The Court reinforced that the Authority under s 12M(6) is deemed to be a Commission of Inquiry, but only within the scope of its jurisdiction, which is defined by ss 12I and 12J.  Referring specifically to ss 12M(7) and (8) the Court held:

[22]      In our opinion the Authority may confirm a decision under appeal, or modify it, or reverse it by turning it round, or reverse it in the sense of revoking it either with or without a direction for rehearing.  But it must do one of those things.   It cannot simply dismiss without passing on the correctness or otherwise wholly or in part of the decision appealed against.

[34]     The Ministry has submitted that instead of dismissing the appeal for want of prosecution here, the Authority should have taken the following steps:

1.The Authority should have considered whether it had jurisdiction to determine the appeal under s 12J.  If the Authority determined it had no

9      Director-General of Social Welfare v W [2005] NZAR 258 (CA).

jurisdiction under s 12J, it should have dismissed Mr Metin’s appeal on that basis.  The Court was asked to note that the Ministry had submitted to the Authority that it did have jurisdiction to determine the appeal.

2.If  the Authority determined  it  had  jurisdiction,  the Authority could have:

(i)     Considered Mr Metin’s appeal on the basis of the report provided by the Ministry under  s 12K or the Act and  the submissions Mr Metin had provided by email; and

(ii)    Confirmed, modified or reversed the Ministry’s decision under s 12M(7) of the Act, or referred the matter back to the Ministry for consideration under s 12M(8).

[35]     I have had regard to the issues raised by Mr Metin and his submission that the Authority should not have dismissed his appeal, because he had filed evidence in submissions and had advised the Authority he could not attend the hearing as he did not have legal advice.   I have reached the view that the Authority did not have jurisdiction to dismiss Mr Metin’s appeal for want of prosecution and for that reason, it is not necessary for the Court to determine the issues raised by Mr Metin, as the matter will be remitted back to the Authority for reconsideration and a decision in accordance with ss 12J and 12M of the Act.

[36]     In the absence of Mr Metin at the hearing, I have determined this appeal on the papers, as no further oral argument or submissions were heard from the Ministry.

Conclusion

[37]     I have determined Mr Metin’s appeal as follows:

1.To the question: Did the Authority err in law in dismissing Mr Metin’s appeal on the grounds that in the circumstances he had not prosecuted his appeal? The question of law is answered “Yes”.

2.I  direct  under  r  21.14(b)  that  this  matter  is  remitted  back  to  the Authority for reconsideration and decision in accordance with ss 12J and 12M of the Act.

3.I direct under r 21.14(d) that the Authority set the matter down for hearing, with adequate notice to Mr Metin.

Cull J

Solicitors:

Crown Law, Wellington for respondent

Copy to:

The Appellant