Warnock v Chief Executive Ministry of Social Development

[2006] NZSC 45

IN THE SUPREME COURT OF NEW ZEALAND

SC 30/2006
[2006] NZSC 45

BETWEENDOREEN WARNOCK (DECEASED)

First Applicant

ANDCOMBINED BENEFICIARIES UNION INCORPORATED

Second Applicant

ANDCHIEF EXECUTIVE OF THE MINISTRY OF SOCIAL DEVELOPMENT

Respondent

Court:Tipping, McGrath and Anderson JJ

Counsel:P D McKenzie QC and A J McGurk for Applicants

K Clark for Respondent

Judgment:21 June 2006 

JUDGMENT OF THE COURT

1.The application for leave to appeal is dismissed.

2.We order that the costs of the application shall lie where they fall.

REASONS

[1]   The estate of the late Mrs Warnock wishes to challenge the conclusion reached in each of the Courts and Tribunals below[1] that the Department of Social Welfare, when making an advance to her in 1993 under s 125 of the Social Security Act 1964, was entitled to impose a requirement that she pay interest on the monies advanced.  At each level below it has been held that the Director‑General was entitled to charge interest on the basis that under s 125(2) the advance could be subject to “such terms and conditions” as the Director‑General might determine.

[1]     The Social Security Appeal Authority, the High Court and the Court of Appeal. 

[2]   These words have been held consistently and unanimously below to confer on the Director‑General a discretionary power to charge interest.  We consider this interpretation is undoubtedly correct.  The applicant therefore has no sufficient prospect of success to warrant the matter being considered by this Court. 

[3]   Furthermore, the necessary general importance of the point is at least debatable on any continuing basis in view of the fact that s 125 was repealed in 1996 with no comparable provision replacing it.

Solicitors:
Otene & Ellis, Auckland for Applicants
Crown Law Office, Wellington for Respondent