HARLEN V THE CHIEF EXECUTIVE OF THE MINISTRY OF SOCIAL DEVELOPMENT [2016] NZCA 118

Oliver's final changes – 11 April 2016 at 12.28 pmHARLEN V THE CHIEF EXECUTIVE OF THE MINISTRY OF SOCIAL DEVELOPMENT [2016] NZCA 118 [12 April 2016]IN THE COURT OF APPEAL OF NEW ZEALANDCA4/2016[2016] NZCA 118BETWEEN KATHRYN ANNE HARLENApplicantAND THE CHIEF EXECUTIVE OF THEMINISTRY OF SOCIALDEVELOPMENTRespondentCourt: Harrison, Wild and Cooper JJCounsel: F Joychild QC and G Whiteford for ApplicantJ Foster for RespondentJudgment:(On the papers)12 April 2016 at 2.30 pmJUDGMENT OF THE COURTA Application for leave to appeal declined.B Application for extension of time to file appeal declined.C There is no order as to costs.____________________________________________________________________REASONS OF THE COURT(Given by Harrison J)Introduction[1] Kathryn Harlen has applied to this Court for leave to appeal against a decision of the High Court,1 as well as an extension of time to file that appeal.1 Harlen v Chief Executive of the Ministry of Social Development [2015] NZHC 2663.[2] Mrs Harlen had fraudulently obtained the Domestic Purposes Benefit (DPB) for several years in the 1990s. The Chief Executive of the Ministry of Social Development exercised his discretion to recover overpayments by way of benefit deduction. The Social Security Appeal Authority (the Authority) dismissed Mrs Harlen's appeal against the Chief Executive's decision. The High Court's dismissal of Mrs Harlen's appeal on a case stated against the Authority's decisionresolved the latest in a long series of challenges by her to the legality of the Chief Executive's decision.[3] Questions have arisen about this Court's jurisdiction to consider Mrs Harlen'sapplications. Both parties have consented to determination of these jurisdictional issues on the papers.Background[4] Mrs Harlen received the DPB and associated benefits, allowances and grants from January 1994 until June 1999. She was not entitled to over $117,000 of these payments because she was living in a relationship in the nature of a marriage throughout the relevant period. In early 2001 Mrs Harlen was convicted on four charges of fraudulent receipt of benefits. She unsuccessfully appealed her conviction and sentence to this Court.2[5] In 2000 the Chief Executive exercised his discretion under s 86 of the Social Security Act 1964 to recover overpayments by way of deductions from Mrs Harlen'sbenefit. That initial decision has spawned these reviews and appeals:(a) On 4 November 2004 the Benefits Review Committee upheld theChief Executive's decision.(b) On 28 February 2005 Mrs Harlen appealed to the Authority which issued an interim decision on 20 April 2009 and a final decision on 23 February 2010 dismissing her appeal.32 R v Harlen (2001) 18 CRNZ 582 (CA).3 Harlen v Ministry of Social Development [2010] NZSSAA 02.(c) Mrs Harlen appealed to the High Court under s 12Q of the Social Security Act; on 4 April 2012 Courtney J allowed the appeal and remitted the proceeding back to the Authority for reconsideration.4(d) On 16 December 2013 the Authority dismissed Mrs Harlen's appealfor a second time.5(e) On 29 October 2015 Faire J dismissed Mrs Harlen's appeal against theAuthority's second decision.6[6] Against that background, Mrs Harlen has now applied to this Court for leave to appeal Faire J's decision as well as for an extension of time to file that appeal.Decision[7] Appeals to this Court from determinations of the High Court on case stated appeals from the Authority are governed by s 12R of the Social Security Act. However, Mrs Harlen's ongoing dispute has coincided with the introduction of theCriminal Procedure Act 2011 (CPA). Appeals brought under s 12R from 1 July 2013 onward are governed by the CPA whereas appeals brought prior to that date are governed by the Summary Proceedings Act 1957. The different regimes are relevant for present purposes in that the new procedure requires leave to be sought directly from this Court;7 under the old regime, leave to appeal to this Court was to be sought from the High Court.8[8] Section 397 of the CPA is the decisive transitional provision:397 Proceedings commenced before commencement date(1) This section applies to proceedings—(a) commenced before the commencement date; and4 Harlen v Ministry of Social Development [2012] NZHC 669, [2012] NZAR 491.5 Harlen v Ministry of Social Development [2013] NZSSAA 108.6 Above n 1.7 Criminal Procedure Act 2011, s 303.8 Summary Proceedings Act 1957, s 144.(b) not finally determined (including any rehearing, retrial, or appeal) before the commencement date.(2) Subject to sections 399 and 400, and to the other provisions of this subpart, the proceeding must continue in accordance with the law as it was before the commencement date.(Emphasis added.)[9] The present dispute was not finally determined by 1 July 2013. It follows that the earlier version of s 12R of the Social Security Act applies:12R Appeals to Court of AppealThe provisions of section 144 of the Summary Proceedings Act 1957 shall apply in respect of any determination of the High Court under section 12Q of this Act as if the determination were made under section 107 of the Summary Proceedings Act 1957.[10] Prior to repeal, s 144 of the Summary Proceedings Act provided:144 Appeal to Court of Appeal(1) Either party may, with the leave of the High Court, appeal to the Court of Appeal against any determination of the High Court on any case stated for the opinion of the High Court under section 107 of this Act or against any determination of the High Court on a question of law arising in any general appeal:Provided that, if the High Court refuses to grant leave to appeal to the Court of Appeal, the Court of Appeal may grant special leave to appeal.(Emphasis added.)[11] Mrs Harlen's applications must fail for want of jurisdiction. This Court may grant special leave if the High Court refuses to grant leave to appeal Faire J'sdecision. But Mrs Harlen cannot leapfrog the procedural prerogative of the High Court. She must file applications in the appropriate forum for leave to appeal to this Court.99 See Morgan v Chief Executive of the Ministry of Social Development [2014] NZHC 1610.[12] Compliance with procedural rules, as well as the presumption against the retroactive application of the law, is particularly important when the mechanism for transition has received careful attention from the legislature. In Foodstuffs South Island Ltd v Queenstown Lakes District Council, this Court observed about s 397 of the CPA:10A transitional provision of this nature is consistent with the general principle of statutory interpretation that proceedings should continue to be determined in accordance with the law as it existed when they commenced.[13] While Mrs Harlen's substantive application falls within the province of administrative law rather than the largely criminal context contemplated by both the old and new statutory regimes, s 397 cannot tenably be construed to limit its application to criminal proceedings only.11Results[14] The applications are declined.[15] There is no order as to costs.Solicitors:Davenport City Law, Auckland for ApplicantCrown Law Office, Wellington for Respondent10 Foodstuffs South Island Ltd v Queenstown Lakes District Council [2013] NZCA 458, (2013) 17 ELRNZ 367 at [16(a)] (footnote omitted).11 At [17].