RANSFIELD v CHIEF EXECUTIVE OF THE MINISTRY OF SOCIAL DEVELOPMENT [2018] NZHC 434

RANSFIELD v CHIEF EXECUTIVE OF THE MINISTRY OF SOCIAL DEVELOPMENT [2018] NZHC 434[19 February 2018]IN THE HIGH COURT OF NEW ZEALANDAUCKLAND REGISTRYI TE KŌTI MATUA O AOTEAROATĀMAKI MAKAURAU ROHECIV-2017-404-1349[2018] NZHC 434BETWEEN ARETA REREKAU TANARA MOTUMANGAI UHUUHU RANSFIELDPlaintiffAND CHIEF EXECUTIVE OF THE MINISTRYOF SOCIAL DEVELOPMENTFirst DefendantANNE TOLLEYSecond DefendantHearing: 19 February 2018Appearances: Plaintiff in personC M Hutchinson and O J G Upperton for the DefendantsJudgment: 19 February 2018ORAL JUDGMENT OF ASSOCIATE JUDGE R M BELLSolicitors:Crown Law (T Bromwich/O Upperton), Wellington, for the DefendantsCopy for:Areta Ransfield, Auckland[1] The defendants apply to strike out Mr Ransfield's statement of claim dated3 July 2017. In the alternative, they apply to strike out the claim against the seconddefendant.[2] Mr Ransfield is a long-term beneficiary. In this proceeding he makescomplaints about the Ministry of Social Development. The legal basis for his claimis very unclear. He is seeking a vast sum for damages—$600,050. He does notseek any other relief. I treat his claim as made in tort. I do not understand that hiscase can be considered under any other head of law. I say that to make the pointthat his case does not seek judicial review under the Judicial Review ProcedureAct 2016. If I did consider that he was applying for judicial review, I would haveto consider whether I had jurisdiction to decide the strike-out application. That isbecause of the decision in Reid v New Zealand Fire Service Commission whichheld that a Master or Associate Judge could not hear an application to strike outproceedings under the Judicature Amendment Act 1972.1 It may be necessary laterto consider whether that decision still stands, given the changes to the law madeby the Senior Courts Act 2016, especially ss 21 and 22. For this case, however,that is not necessary and can await another day.[3] Mr Ransfield has had another proceeding running in this court. He appliedunder the Social Security Act 1964 for leave to appeal a decision of the SocialSecurity Appeal Authority out of time.2 In a decision of 16 January 2018, Palmer Jdismissed his application. He said:3 I consider it is highly likely there is no merit in Mr Ransfield's appeal. Ifthere were, the substantive relief he seeks is better considered in the generalproceeding he has filed.That was a reference to this proceeding. Palmer J noted that when the case wasfirst called, in June 2017, Faire J had suggested to Mr Ransfield that he might liketo investigate pursuing the relief he was seeking in a general proceeding rather than1 Reid v New Zealand Fire Service Commission (1985) 8 PRNZ 550 (HC).2 Ransfield v Chief Executive of the Ministry of Social Development [2018] NZHC 4.3 At [15].in his appeal.4 Mr Ransfield took Faire J's suggestion at his word and began thisproceeding.[4] For general background, I adopt what Palmer J said as to the facts in thatcase, as also relevant to this one. The following is an extract from Palmer J'sdecision:5What happenedMr Ransfield[2] Mr Ransfield is a long-term client of MSD. In October 2006, he wasserved with a trespass order after threatening to go to a MSD appointmentwith a gun and then yelling at the appointment. He was dealt with by MSD'sRemote Client Unit (RCU) which deals with clients who cannot accessservices through their local Work and Income service centre. The trespassorder has been regularly renewed since then, as has Mr Ransfield's status withthe RCU. On 18 September 2015, the RCU Review Panel decidedMr Ransfield was ready to return to accessing Work and Income servicesthrough his local service centre.Grant application[3] On 16 June 2015, Mr Ransfield applied for a grant, saying:I have to pay a phone bill of $90.00, and I need some money forfood. I will only be able to pay about $60.00. I need also $40.00to replace my lost license to exempt [indecipherable] my vehiclefor 12 months.[4] MSD held a telephone interview with Mr Ransfield. On 18 June 2015Work and Income recorded this as an application for $100 for food with thereason given as:I am behind on my phone bill payments. I am makingarrangements to pay this with Slingshot but now don't have enoughfood money for the week. My wallet [has] gone and contained mylicence, bank cards and payment card. I have also had to reapplyfor my licence which is $40.00 so am extra short.[5] Work and Income granted Mr Ransfield $100 via a payment card thatcould only be used to buy food. On 19 June 2015, MSD returnedMr Ransfield's call about this. An MSD file note states:Assisted client with $100 food grant as he had a couple of urgentbills which needed paying. Client was confused and tried to usethe payment card to pay a bill, rather than at the supermarket forfood. Client now understands and have advised to use the card asapas it expires on the 21 June.4 At [10].5 At [2]–[9].Reviews and appeals[6] On 17 December 2015, Mr Ransfield applied for a review of MSD'sdecision on the basis he had requested $40.00 for renewal of his driver'slicence, not a food grant. Mr Ransfield also complained the failure to makethe $40.00 payment led to him being unable to pay his telephone and internetservice account, leading to them being cut off and ultimately the loss ofelectrical services, equating to debts in excess of $500.[7] On 12 May 2016, the Chief Executive's internal review was satisfied,on the balance of probabilities, Mr Ransfield had an immediate need to renewhis driver's licence. It overturned the decision not to pay for the licence to thevalue of $40.00 as a recoverable Special Needs Grant, it paid that amount intoMr Ransfield's bank account and agreed to apologise. The internal reviewdoes not appear to have addressed the question of consequential losses.[8] Mr Ransfield then further complained to the Benefits ReviewCommittee. He provided the Committee with documentation indicating hisdebts with Baycorp, following the loss of telephone, internet and electricalservices, amounted to $819.37. The matter proceeded to the Benefits ReviewCommittee. On 11 July 2016, the Committee noted Mr Ransfield had animmediate need to renew his licence and that was an essential need, tomaintain the car and for his job searching. The Committee agreed the decisionto grant $100 for food was correct and the decision to decline an advancepayment of benefit of $40.00 was incorrect and noted it had already beenoverturned. The Committee declined to address the consequential loss aspectof Mr Ransfield's argument as it was not part of the decision the Committeewas reviewing.[9] Mr Ransfield appealed the Committee's decision to the SocialSecurity Appeal Authority. In its decision of 8 March 2017, the Authoritycould identify "only one decision potentially within the Authority'sjurisdiction under ss 12I and 12J" which was "the decision not to provide aSpecial Needs Grant of $40 on 17 June 2015" and noted that had already beenreversed.6 The Authority concluded it did not have jurisdiction relating to theconsequential effects on Mr Ransfield of not receiving the grant at the time heapplied for it.7[5] At the start of this hearing, I asked Mr Ransfield to explain his case.Essentially, it concerns two main matters:[a] he was banned under the Trespass Act 1980 from entering the localWork and Income office, and the Trespass Act notice wasrepeatedly renewed for a number of years until 2015; and6 Re Ransfield [2017] NZSSAA 4 at [21].7 At [21]–[23].[b] the consequential losses arising from the non-payment of $40.00 topay for his motor vehicle licence.[6] His statement of claim has extraneous material. Some of the content isargumentative. Much of it is irrelevant. I have to say that I have difficulty inunderstanding some parts of it. Mr Ransfield is a lay litigant. He does not havelegal qualifications, although he appears to have some experience in litigation. Hesuffers the disadvantage that he is not familiar with the law of torts or the ways inwhich claims can be brought against government agencies. He is also unfamiliarwith the High Court Rules and the practice of this court relating to pleadings.Against that, the defendants are competently advised by the Crown Law Office.[7] Mr Ransfield's statement of claim does not comply with the High CourtRules. It does not set out distinct causes of action with distinct matters pleadedseparately. It would be fruitless to require the defendants to plead meaningfully tothe statement of claim. A statement of defence has been filed but the statement ofclaim is almost meaningless to a legally-informed mind, and is inadequate to tellthe defendants of the case that they have to meet.[8] This application has involved an enquiry to see whether the matters thatMr Ransfield is concerned about do give him any reasonably arguable causes ofaction against the defendants. For that, I have treated his allegations as ones whichdo not turn on particular facts. I have instead considered whether, as a matter ofgeneral law, the matters he is concerned about do give him any arguable causes ofaction.[9] When a defendant applies to strike out a statement of claim because it doesnot disclose a reasonably arguable cause of action, it is standard to recite the testset out in McGechan on Procedure, paragrah HR15.1.02, which draws from thedecision of the Court of Appeal in Attorney-General v Prince and the decision ofthe Supreme Court in Couch v Attorney-General. 8 The text says:8 Attorney-General v Prince [1998] 1 NZLR 262 at 267; Couch v Attorney-General [2008] NZSC45, [2008] 3 NZLR 725 at [33].(a) Pleaded facts, whether or not admitted, are deemed to be true. Thisdoes not extend to pleaded allegations which are entirely speculative andwithout foundation;(b) the cause of action or defence must be clearly untenable;(b) it is inappropriate to strike out a claim summarily unless the courtcan be certain that it cannot succeed;(c) the jurisdiction is to be exercised sparingly, and only in clear cases.This reflects the court's reluctance to terminate a claim or defenceshort of trial;(d) the jurisdiction is not excluded by the need to decide difficultquestions of law, requiring extensive argument; and(e) the court should be particularly slow to strike out a claim in anydeveloping area of the law, perhaps particularly when a duty of careis alleged in a new situation.The Trespass Act allegations[10] Mr Ransfield says that the Ministry should never have issued him with atrespass notice in 2006. He claims that the Ministry "got the wrong end of thestick". He admits to having rung the Ministry's legal office to enquire whether hecould take a gun to a meeting, but he claims that the Ministry misunderstood hisintent and treated that as a threat. He also disputes the Ministry's view of hisconduct when he went to the meeting which resulted in his being escorted from thepremises by Police.[11] On the basis that at a defended hearing Mr Ransfield's version of eventsmight be preferred to the Ministry's, I consider whether his dissatisfaction withbeing issued with a Trespass Act notice can give him any claim in tort against theMinistry. Mr Ransfield is concerned not only with about the initial notice but alsothe fact that when that notice expired the Ministry issued fresh notices under theTrespass Act, so that he was banned from going to his local WINZ office for somenine years.[12] The general law is that a person entitled to lawful possession of land isentitled to grant or refuse permission to others to come onto the land. As anexample, a lessee of premises is entitled to bar anyone from entering the premises,including the lessor, unless there are terms of the lease granting the lessor rights ofentry. Aside from the requirements of human rights legislation, the person entitledto possession of premises can grant or refuse permission to third parties to comeonto the premises on whatever grounds they wish. The Trespass Act 1980 providesmachinery by which those rights to control entry on to premises can be enforced.A notice given under the Trespass Act may bar a person from entering premisesfor up to two years.9 The notice ceases to have effect after the period stated in thenotice, which may be up to two years.10 The possessor of the premises is entitledto continue to control entry on to the premises after the two years have expired andmay issue a fresh notice to a person who has already been barred from the premisesunder an earlier notice.[13] The law does not impose any particular duty on the owner or possessor ofpremises as to how they should exercise their rights to permit or bar entry onto thepremises—subject of course to contractual obligations and human rightslegislation. There are obligations that might arise through special undertakings:leases, easements and the like. But the law does not recognise that any duty of careis owed by the possessor of premises to the public at large in exercising theirpowers to permit or bar entry onto their premises.[14] The question then arises whether the law should impose any greaterobligation when a public authority that occupies premises that the public may cometo to do business with that public authority. Subject to one exception, I do notregard the authority as being under any greater duty as regards the public incontrolling entry onto the premises than I do a private owner or possessor ofpremises. That is, I do not recognise that there is any duty of care owed by theowner of premises to the public that would require the owner to grant entry to amember of the public who wishes to go there. The owner of the premises cancontrol when to open the premises to the public and which members of the publicto allow entry to. The exception is that a public authority may be liable in a wayin which private bodies are not: the potential for liability for misfeasance in public9 Trespass Act 1980 4(4).10 Section 4(4).office. Misfeasance in public office is a tort which may be committed only bypublic officers, not by private bodies and private citizens. It involves dishonestyin carrying out public functions. If there were targeted malice towards MrRansfield or powers were knowingly applied for an improper purpose, there mightbe a case for misfeasance in public office. There is nothing in this case, however,that suggests that there could be any basis for a claim for misfeasance in publicoffice against any officers of the Ministry.[15] It is important to realise that a claim of misfeasance in public office allegesserious misconduct. In Three Rivers District Council v The Bank of England(No.3), in a judgment of 20 May 2000, Lord Hutton said this:11My Lords, I consider that dishonesty is a necessary ingredient of the tort,and it is clear from the authorities that in this context dishonesty meansacting in bad faith. In some cases the term "dishonesty" is not used and theterm "in bad faith" or acting from "a corrupt motive" or "an impropermotive" is used, or the term "in bad faith" is used together with the term"dishonesty".The point here is that when allegations of dishonesty are made, there must be aproper foundation for alleging them.12 That duty is imposed on lawyers under theLawyers Conduct and Client Care Rules 2008, r 13.8. I have applied thatrequirement to claims of misfeasance in public office in Official Assignee vMenzies (No 4).13[16] There is nothing in Mr Ransfield's case that suggests that any officer of theMinistry acted with anything approaching dishonesty. While he is unhappy withthe Ministry for barring him from the local WINZ office, he criticises that as adecision that ought not to have been made, but he does not suggest that there wasany unlawfulness approaching dishonesty or any corrupt motive on the part of theMinistry officers. If he were to make any such allegations, the pleading rulesrequire that those allegations be properly particularised and that there be some11 Three Rivers District Council v Governor of the Bank of England (No.3) [2003] 2 AC 1 (HL) at227.12 X v Y [2000] 2 NZLR 748 (HC) at [58].13 Official Assignee v Menzies (No 4) HC Auckland CIV-2009-404-3391, 4 May 2011.cogency to them. For those requirements, I refer to Ng v Harkness Law OfficeLtd.14[17] In the absence of any basis for a duty of care in negligence and any factualfoundation for a claim for misfeasance in public office, I cannot see any reasonablyarguable basis on which Mr Ransfield can sue the Chief Executive of the Ministryof Social Development in tort either for issuing the Trespass Act notice in 2006 orfor issuing further notices in succeeding years. Or, for that matter, in reviewing itsdecision and telling Mr Ransfield that he could start going to the local office again.In saying that, I take on board that Mr Ransfield emphasised that he complied withthe Trespass Act notices to the letter and stayed away from the local WINZ officethroughout their term. He may well have an argument that he had shown by hiscompliance with the notices that he would not be considered a danger to Ministrystaff. But those are matters that he would be able to take up in submissions to theMinistry to persuade them to change their minds. While that may be a matter hecould have taken up with the Ministry, its failure to accept that does not mean thatit breached any duty to him that would give him any private law claim against theMinistry for having been barred from the local office.[18] I emphasise that the Ministry did not stop dealing with Mr Ransfield. TheMinistry has a Remote Claims Unit through which it deals with clients who, forone reason or another, do not or cannot attend local offices. The Ministrycontinued to deal with Mr Ransfield through its Remote Claims Unit. The barringof access to the local office did not deprive Mr Ransfield of access to the servicesof the Ministry. Overall, I am satisfied that Mr Ransfield does not have a claimunder any rule of law against the Ministry either for the initial Trespass Act noticeor for the continuation of the Trespass Act notices until he was permitted re-entry.Claim for consequential losses[19] The other part of Mr Ransfield's case is the decision of the Ministry not topay him $40.00 in 2015. The question here is whether Mr Ransfield has a claimfor consequential losses from the Ministry not paying him $40.00 when he first14 Ng v Harkness Law Office Ltd [2014] NZHC 850 at [40]–[44].asked for it. The Ministry did conduct an internal review and there was a reviewbefore the Benefits Review Committee. This resulted in the Ministry acceptingthat he should have been paid $40.00 and that was paid. Mr Ransfield's case isthat because he did not receive it promptly he has suffered consequential losses.He says that he got further into debt because he did not receive the funds in time.[20] The question of consequential losses arising from non-payment of a socialwelfare benefit has been the subject of decisions in both New Zealand and inEngland. The English decisions are Rowley v Secretary of State for Department ofWork and Pensions,15 and Murdoch v Department for Work and Pensions.16 TheNew Zealand decision is Te Ua v Secretary for War Pensions.17 The Englishdecisions were made on strike-out applications. The New Zealand decision in TeUa was made on the merits.[21] The approach in those decisions is consistent. In each case, the court foundthat a common law duty of care would be inconsistent with the scheme of thelegislation under which benefits were to be paid. In each case, legislation providedclaimants with statutory rights of review and the courts held that those statutoryrights of review provided the only form of recourse. To impose a common lawduty of care would be inconsistent with those statutory provisions.[22] In the English decisions, the courts noted that the duty of care alleged wasa new one, and they considered first whether it was appropriate to deal with theduty of care question on a strike-out application rather than allow the case to go toa full hearing on the merits. In both cases the English courts were satisfied thatthere was a general principle involved which could be decided without regard tothe facts which might be found at a defended hearing. The courts struck out theproceedings without requiring the proceeding to go to a full hearing even though anew duty of care was alleged. The courts were able to do that by considering theduty of care questions as a matter of principle rather than relying on the factsalleged.15 Rowley v Secretary of State for Department of Work and Pensions [2007] EWCA Civ 598, [2007]1 WLR 2861.16 Murdoch v Department for Work and Pensions [2010] EWHC 1998 (QB), [2011] PTSR D3.17 Te Ua v Secretary for War Pensions [2014] NZHC 1050.[23] In Te Ua, Whata J dealt with the case on the final merits. He followed asimilar approach to the English decisions. He found that the War Pensions Act1954, under which Mr Te Ua was claiming benefits, had its own provisions forreview. He held that imposing a common law duty of care would jar with thestatutory scheme of review. He said:18[179] I accept Ms Williams' submissions that the present situation isanalogous to various cases where the Courts have refused to find a duty ofcare because the legislation thoroughly covers the ground.[180] I can also easily envisage situations where VANZ could beconfronted with co-extensive public and private law processes, all seekingthe same essential relief – that is to obtain an allowance or reimbursementunder the Act. I can envisage situations where the Court might be calledupon to remedy alleged negligence in private law proceedings and then todeclare an entitlement to a pension or allowance when, at the same time, thesame claim is being considered by the NRO, or the Appeals Board, or theSecretary. The negligence claim based on the failure to be properlyinformed of previous decisions provides a good example. Father Te Uacould have conceivably commenced a private law action at any timefollowing the receipt of the claims panel decision. He could also, at thesame time, have initiated a review to the NRO and then appeal to theAppeals Board. A further review to the Secretary could then have beensought. Any one of those statutory decision makers might reach a differentview from the Court in the private law action as to the significance of theprevious decision. The mind boggles as to which of the decisions, the Courtor the statutory decision maker, has primacy. This is in my view anadditional significant policy reason to reject a common law duty of careessentially based on the same statutory relationship established by the Act.[181] As to general damages claims, it would seem odd to be able to suefor general damages when the underlying primary claim is capable ofremedy within the statutory frame. There may be circumstances where theevidence of harm or distress engages the Court's impulse to find a remedy.I do not propose to speculate on what those circumstances might be. Buton the facts pleaded, I do not consider that the generalised claims to distressand frustration call for separate consideration by this Court in a private lawcontext given the remedies already afforded by the Act. I elaborate furtheron this when I address the substantive merits of a general damages claim[later].(Citations omitted)[24] The position under the Social Security Act 1964 is analogous. The SocialSecurity Act, s 10A, provides for review by a Benefits Review Committee. If a18 Te Ua v Secretary for War Pensions [2014] NZHC 1050 at [179]-[180].beneficiary is dissatisfied with decisions of the Benefits Review Committee thereis the right of appeal to the Social Security Appeal Authority. Beyond that, thereis also the right of appeal to this court on a question of law. Those review andappeal rights may not always run smoothly. If relief is granted belatedly and abeneficiary's financial position has worsened with the delay in payment, theinadequacies of any appeal system are not a matter for the courts to address. Thesolution lies with the legislature. The short point is that both the English and NewZealand courts have accepted that to impose a common law duty of care would beinconsonant with the scheme of review and appeal under the Social Security Act.[25] I must also consider whether, outside any duty of care under the law ofnegligence, there can be any basis for raising misfeasance in public office. I takethe same approach as I have with the trespass question. Mr Ransfield does notsuggest that the officers of the Ministry acted in such a way as to trigger a claimfor misfeasance in public office. If he were to do so, I would require somethingfrom him far more cogent than what he has presented so far. Accordingly, I dismissthat as a serious possibility.[26] In summary, on the two matters which Mr Ransfield wants to run, I amsatisfied that he does not have a reasonably arguable cause of action against theChief Executive of the Ministry of Social Development.[27] There is one further matter: the question of parties. Mr Ransfield initiallysued the Queen as first defendant, and the former Minister for Social Developmentas the second defendant. At the first case management conference, AssociateJudge Osborne substituted the Chief Executive of the Ministry of SocialDevelopment for the Queen as first defendant. The Chief Executive appears to bethe appropriate defendant when a claim is made for actions taken by officers of theMinistry for Social Development. They acted under the Chief Executive'sauthority. In effect, they are his agents. He is responsible for their actions. He isthe correct defendant to be named in a claim for damages occasioned by officersof the Ministry. That applies, even if the officers have immunity under the StateSector Act 1988.19[28] It was unnecessary for Mr Ransfield to sue the Minister for his claims. Thatis because the Chief Executive is responsible for actions of the officers. Althoughthe Minister may have political responsibility for the Ministry, she is not theappropriate person to sue for tort claims by officers of the Ministry. Even if I hadnot struck out Mr Ransfield's statement of claim, I would still have ordered theremoval of the name of the Minister as a defendant.[29] The Chief Executive has been successful in requiring Mr Ransfield'sstatement of claim to be struck out. I accordingly make an order striking out hisclaim. Because I am satisfied that there is no basis on which he could properly suethe Chief Executive, I also dismiss the proceeding.[30] The Chief Executive did not apply for costs....Associate Judge R M Bell19 Crown Proceedings Act 1950, ss 6(4A) and 14.