Wilson v Chief Executive of the Ministry of Social Development

[2014] NZHC 1518

IN THE HIGH COURT OF NEW ZEALAND CHRISTCHURCH REGISTRY

CIV 2013-485-002759 [2014] NZHC 1518

BETWEEN

RONALD WILSON

Appellant

AND

THE CHIEF EXECUTIVE OF THE MINISTRY OF SOCIAL DEVELOPMENT

Respondent

Hearing:	1 July 2014 (By telephone conference)
Appearances:	Appellant (In person) J C Holden for Respondent
Judgment:	3 July 2014

JUDGMENT OF WHATA J

[1]      In my judgment of 6 March 2014,1  I resolved that I could not recall or set aside consent orders made to the effect that Mr Wilson’s appeal was remitted back to the Social Security Appeal Authority.   In that judgment I observed, among other things:2

[11]      It is difficult not to empathise with Mr Wilson.   He has a genuine concern about the use of a single reference point to establish an “average”. The Ministry did not tell him about the proposed changes to the regulations. His submissions (if accepted at face value) highlighted that use of a single reference point to establish an average could mean that superannuitants are short changed by $15m a year.

[2]      I also observed the following as one of my reasons for rejecting recall:3

[12]      …

1      Wilson v Ministry of Social Development [2014] NZHC 386.

2 At [11].

3 At [12].

WILSON v MINISTRY OF SOCIAL DEVELOPMENT [2014] NZHC 1518 [3 July 2014]

(b)       The  failure  of  the  Ministry  to  highlight  the  impending changes to the regulations was unfortunate but was not an act of bad faith.   The Ministry was and is not trying to prevent Mr Wilson from ventilating his basic claim that the methodology was flawed.  At most it could be said that the Ministry  has  seen  a  problem and  sought  to  rectify  it  by changing the regulations.  But it has otherwise affirmed that the settlement was without prejudice to Mr Wilson’s claim that the single reference point methodology used was and is flawed.    My position  would  have  been different  had  the Ministry said that this fundamental issue was now moot.

[3]      Following that judgment I received a memorandum from Mr Wilson noting that in reference to my paragraph [11], he was not suggesting that superannuitants were  short-changed,  only  that  the  Ministry  may  have  been  improperly  paying retirees. This may include he says an over-payment.

[4]      In  relation  to  my  paragraph  [12](b)  he  also  suggested  that  in  fact  the agreement reached allowed the ongoing contesting of the methodology in the High Court.

[5]      In response to this memorandum I invited submissions from the Ministry of Social  Development  indicating  that  my  preliminary  view  is  that  neither  of  the matters raised provides a proper basis for recall. The Ministry had five working days to do so and Mr Wilson had five working days to respond.  I also indicated that I would determine the application on the papers.

[6]      The Ministry responded as required to the effect that my minute in relation to the  first  matter  properly  clarifies  the  position  and  that  the  respondent  did  not consider any further steps from the Court were required in relation to the second issue given that the Court had noted that the settlement was without prejudice in respect to the positions of the parties.

[7]      Mr Wilson, somewhat belatedly, replied on 20 May 2014 in a detailed way in the  form  of  a  further  application  noting  that  in  his  view  relevant  material  had recently been found.  He says that he has now obtained a recording of a telephone conversation that he had with a J Holden of Crown Law on 13 September 2013.  He said that the audio file was only recently discovered on 17 May 2014.

[8]      Mr Wilson then highlights the following statement made by Ms Holden in the telephone conversation:

... the position that they have reached is we’re just dealing first with the Court case – is that the Ministry is prepared to accept that the Authority erred in regard to both questions of law.

[9]      And further:

In terms of the High Court action what they are suggesting is that we get the Court to basically find for you on the two questions of law that the Authority erred in both respects and for the Court then to refer it back to the Authority for the Authority to look at again with the proper information in front of it.

[10]     The further statement is also highlighted:

That’s right I think we have to put it that the High Court ultimately has the call so what we have to do is say that the parties this is the case and ask Court to enter the judgment in that respect and to send the matter back to the Authority for reconsideration.

[11]     Mr Wilson says in his memorandum that he does not believe it would be proper  for  the Authority  to  be  required  to  respond  to  questions  relating  to  its decisions.  He says the correct course would be for this Court to adjudicate on the questions.  It would then be up to the Authority to act on the Court’s decision.

[12]     Mr  Wilson  then  repeats  his  concerns  in  what  he  considers  to  be  the extraordinary and nefarious lengths in an apparent attempt to conceal questionable methods for calculating overseas pension deductions or conspiring to allow them to introduce new regulations.

[13]     Mr Wilson therefore requests the Court to re-examine the judgment of 6

March 2014.

[14]     I then invited Ms Holden to respond to Mr Wilson’s memorandum.  In that memorandum she emphasised that there was an ongoing process of discussion with Mr Wilson, including two subsequent joint memoranda, clearly expressing the agreements that were in fact reached as between the parties.  Relevantly, Ms Holden attached a draft of the October memorandum showing marked up comments made in

response to comments made by Mr Wilson.  By way of illustration the marked up draft reads as follows:

21. The Ministry and the appellant have agreed on an amount to be paid by the Ministry to resolve the alleged underpayment, including up to

31 October 2013, such  agreement  being without  prejudice to the

par ti es’ r espe cti ve  vi ews  on  t he  corr ect  met hod  t o  be  adopted  by  t he

respondent to assess the rate of NZS payable to the appellant.   The

Mi ni st r y  i s  curr ent l y  i n  t he  pr oce ss  of  r ecalculati ng  t he   appel l ant’s

entitlement to receive the NZS.  The parties are agreed that this goes

par t  way  t o  r esol vi ng  t he  appe ll ant’s  chall enge  t o  t he   met hod  t he   respondent adopted to assess the rate of NZS to which the appellant was entitled.

22.In the meantime,  The parties agree that issue  e appeal may will  need to be reconsidered by  mitted back to  the Authority if the parties remain in disagreement as to that methodology and as to  for it to receive further residence and therefore to reconsider whether future the deductions made to  t he  appe ll ant ’s   Mr  Wil sons’  NZS payments are were  correct, having regard to the correct factual position.

[15]     This is then to be compared with the final version of that memorandum that ultimately found its way into Court. That memorandum states:

Resolution of proceeding

21.The Ministry and the appellant have agreed on an amount to be paid by the Ministry to resolve the alleged underpayment, including up to

31 October 2013, such agreement being without prejudice to the
parties’ respective views on the correct method to be adopted by the

respondent to assess the rate of NZS payable to the appellant.

22.The parties agree that issue may need to be reconsidered by the Authority   if   the   parties   remain   in   disagreement   as   to   that methodology and as to whether future deductions made to the appellant’s NZS payments are correct.

[16]     The Court then vacated the half day hearing set down for this matter as sought  by  the  parties.  This  is  then  followed  by  a  joint  memorandum  dated

22 November 2013 stating:

5.They are agreed that due to the insufficiency of evidence before the Court  concerning  the  facts  in  this  case,  and  the  difficulty  that presents for the Court, the best course of action would be for the Court to remit the matter back to the Authority for it to receive further evidence and then to consider whether the methodology used by the Ministry of Social Development in calculating Mr Wilson’s pension was correct.

6.Accordingly, the parties seek an order from the Court remitting the matter back to the Authority for it to receive further evidence from the parties and then to reconsider the appellant’s appeal in light of that evidence.

[17]     I  convened  a  telephone  conference  to  provide  both  Ms  Holden  and

Mr Wilson opportunity to comment on their respective memoranda and they did so.

[18]     Mr Wilson maintains that he proceeded at all times on the assumption that there would be a two step process, namely that this Court would resolve any jurisdictional  (including  methodological)  error  while  the  Authority  would  then resolve the substance.

Assessment

[19]     It is important to understand that there must be a very special reason justice requires that the judgment be recalled.4   I do not consider that there is a very special reason in this case.

[20]     Notwithstanding Mr Wilson’s further memorandum of 20 May 2014, I do not resile from the view I expressed in my minute of 18 March 2014.  To reiterate, none of the matters raised by Mr Wilson in his memoranda provide a proper basis for recall of my judgment of 6 March  2014.     I note again that  in relation to my paragraph [11], if I amended the judgment to reflect the submission made by Mr Wilson, it would not and does not alter the substance of the decision.   As to the second issue, I have already confirmed that the settlement was without prejudice to the ongoing testing of the methodology and no correction is needed in that regard.

[21]     For completeness, I accept that the recorded passages of the conversation suggest a two step process involving a finding that there was an error of law on the part of the Authority and then the matter would be sent back for reconsideration.  But it  is  equally plain  to  me  that  matters  evolved  from  that  stage  in  an  open  and transparent way as between the Ministry and Mr Wilson, where he was afforded the opportunity to record what he proposed by way of an agreement to resolve the

proceedings.  The fact that the first draft joint memorandum was edited to reflect his

4      Horowhenua County v Nash (No 2) [1968] NZLR 632 (SC) at 633.

comments, and that those edits largely found their way into the final version of the memorandum,  confirms  his  active  involvement  in  the  drafting  exercise.    While Mr Wilson may have been mistaken about the effect of the agreements reached, I do not think it is fair or just that he can now resile from their objective meaning.  In this regard, it is apt to record that the effect of the joint memorandum and the orders of this Court were nevertheless to hold that the Authority decision was not sustainable and that it needed to reconsider the position.  I therefore consider there is no injustice to Mr Wilson.

[22]     Accordingly, the application for recall is declined.

Solicitors:

Crown Law, Wellington