Tapp v Chief Executive of the Department of Work and Income Ca206/02

[2002] NZCA 386

IN THE COURT OF APPEAL OF NEW ZEALAND CA206/02

BETWEEN	JOYCE TAPP
Appellant

AND	THE CHIEF EXECUTIVE OF THE DEPARTMENT OF WORK AND INCOME
Respondent

Hearing:	25 November 2002
Coram:	Blanchard J Tipping J McGrath J
Appearances:	G E Minchin for Appellant W G Liddell for Respondent
Judgment:	2 December 2002

JUDGMENT OF THE COURT DELIVERED BY MCGRATH J

1. This is an application for special leave to bring an appeal out of time under R5 of the Court of Appeal (Civil) Rules 1997 (the Civil Appeal Rules).  The appellant was given leave by this Court to appeal against a decision of the High Court on appeal from the Social Security Appeal Authority on 10 December 2001.   The High Court has however held that the appeal was not thereafter brought in this Court within the time required by the Rules and that the grant of leave has lapsed.  Special leave is accordingly now required if the appeal is to proceed.

2. On 29 June 2001 Durie J dismissed an appeal by way of case stated brought by the appellant against a decision of the Social Security Appeal Authority.  His Honour held that the appellant’s community wage (sickness) benefit was liable to be abated on account of her husband’s income from government superannuation.  In particular the Court held that although the Government Superannuation Fund pension was paid in four weekly instalments under s89(1) of the Government Superannuation Fund Act 1956, for abatement purposes an instalment was to be treated as derived over the whole of the four week period to which it related.  The applicant’s position is that the pension is income only in the week in which a particular payment is received so that the benefit should be abated in that week but be unaffected for each of the other three covered by the instalment.

3. Special leave to appeal against the decision of Durie J was granted by this Court on 10 December 2001, having earlier been refused by the High Court.  An application was then brought to the High Court for dispensation from security for costs.  That application was refused by Ronald Young J who took the view that the appeal for which leave had been given had not been brought in terms of Rule 7 of the Civil Appeal Rules and that the time for doing so had expired. 

4. The applicant then applied to the High Court for leave to appeal to this Court out of time, and for dispensation from security for costs. The former application was refused by Ronald Young J on the basis that only a small number of people would potentially be affected by the decision of the Court of Appeal if leave were granted, there had already been two levels of appeal, and the argument of the appellant would lead to absurd consequences.  The application for dispensation failed as a result.  The application for special leave to appeal now before this Court followed.  The appellant did not appeal against the High Court’s decision that the time for filing a notice of appeal had expired.

5. There is affidavit evidence that the applicant’s legal advisers did not file a notice of appeal, after having obtained leave to appeal from this Court, because they assumed that it was not necessary to do so. The proceeding was a case stated under an enactment in respect of which, on their reading of R7(4), a notice of appeal was not required.

6. In his submissions on the special leave application Mr Minchin for the appellant emphasised that this Court had previously decided that special leave to appeal should be granted in this case and that, in those circumstances, the appellant should not be deprived of its appeal by errors of her advisers in relation to what the Rules required.  In reply Mr Liddell for the Chief Executive of the Department of Work and Income submitted that as a result of very recent legislative changes to s64 of the Social Security Act, confirming, in effect, the judgment of Durie J, there was no longer any possibility that the outcome of the appeal could benefit any person other than the present applicant.  He argued, by reference to the test for an appeal to this Court under s144 of the Summary Proceedings Act, that in those circumstances the question of law involved in the appeal was not now one which by reason of its general or public importance ought to be submitted to the Court of Appeal for decision.  He submitted that the basis on which leave had been granted by the Court on the earlier occasion no longer existed.

7. The Social Security Act 1964 makes provision for an appeal on a question of law from the Social Security Appeal Authority to the High Court by way of case stated (s12Q).  There is further provision for an appeal against the High Court’s determination to the Court of Appeal, by leave, in accordance with the procedure of s144 of the Summary Proceedings Act 1957 (s12R).  Section 144 requires that leave to appeal to the Court of Appeal be sought, in the first instance, from the High Court by application made within 21 days after the High Court’s determination “or within such further time as that Court may allow” (s144(2)).  Where the High Court refuses leave the party may apply for special leave to the Court of Appeal within 21 days of the refusal or such further time as the Court may allow (s144(3)). The test to be met is expressed in s144(3) as follows:

   the Court of Appeal may grant leave accordingly if in the opinion of that Court the question of law involved in the appeal is one which by reason of its general or public importance or for any other reason ought to be submitted to the Court of Appeal for decision.

It was in accordance with that provision that this Court gave the appellant special leave to appeal on 10 December 2001.

1. Part II of the Civil Appeal Rules provides for “Filing of Appeals”.  Rule 4 requires that except as otherwise provided all appeals to this Court must be brought by filing a notice of appeal.  Rule 5(1) provides that except by special leave, or where the enactment conferring the right of appeal otherwise provides, no appeal may be brought after expiration of 28 days.  Rule 6 specifies when time starts to run.

2. Under Rule 7(1) the steps that must be taken to bring an appeal are specified in terms of filing in the Court Registry and service of a notice of appeal.  But s7(4) is an exception to this general requirement.  It provides:

   (4)  A notice of appeal is not required if the proceeding is a case stated under the authority of any enactment or is a proceeding removed from the High Court under s64 of the Judicature Amendment Act 1908.

3. The applicant’s advisers have read this provision as excusing the appellant from filing a notice of appeal and understood as a result that no steps were required to bring the appeal once special leave of this Court has been obtained.  The exception in Rule 7(4), however, is directed only to cases that are stated to this Court or removed to this Court.  In those circumstances Rule 4 contemplates that the Court or other body stating or removing the case will itself bring the appeal and excuses the appellant from doing so.  In other cases, including appeals brought under s144 against determinations by the High Court on a case stated to that Court, the appeal is only brought when the appellant files the notice of appeal which must be done within the specified time.  That event is of course a critical step in the scheme of the Civil Rules as at that point the Court becomes charged with responsibility for determining the appeal.  Time then starts to run under Rule 10 for filing the case on appeal and seeking a fixture, and the Court can generally monitor the progress of the appeal. Accordingly we agree with Ronald Young J that the appellant’s failure to file a notice of appeal after special leave was granted on 10 December 2001 was in error.

4. As the Judge recognised the entitlement to file the notice of appeal arises once special leave to appeal has been given.  The Civil Appeal Rules do not however state a period within which an appellant who has been granted special leave must file and serve the notice.  The Judge decided that a grant of special leave was akin to the perfection of a judgment from which there was an appeal as of right.  Under Rules 5 and 6(2), such an appeal must be brought within 28 days of the date of perfection.  The Judge held those rules should be read as applying to the present situation so that the appellant was required to file a notice of appeal within 28 days of the grant of special leave.  She had not done so.

5. We take a different view of the scope of Rule 6 which is that on its terms it does not cover the present situation.  When granting special leave to appeal the Court granting leave has the power to fix the time by which the notice of appeal must be filed and may do so either on its own initiative or on a party’s request at the time it grants special leave.  It may also do so thereafter on application by a respondent who is concerned at delay in filing the notice of appeal.  But there is no default provision under the Rules as presently framed which fixes the period of time for bringing an appeal if the Court does not itself do so.

6. The effect of this conclusion is that, contrary to the Judge’s finding, the grant of special leave to appeal did not lapse in this case.  The Judge ought therefore to have proceeded to deal with the question of security. It is however appropriate that we should now fix the time by which the appeal must be brought and ensure expedition of the hearing.

7. The notice of motion on appeal, the case on appeal and an application for a fixture are to be filed and served by the appellant by 20 December 2002. The High Court should now urgently hear the dispensation application.   If any question of costs arises it may be dealt with at the substantive hearing of the appeal.

Solicitors

Otene & Ellis, Auckland, for Appellant
Crown Law Office, Wellington, for Respondent