CREQUER v THE CHIEF EXECUTIVE OF THE MINISTRY OF SOCIAL DEVELOPMENT HC WN CIV 2012-485-1027

CREQUER v THE CHIEF EXECUTIVE OF THE MINISTRY OF SOCIAL DEVELOPMENT HC WN CIV 2012-485-1027 [4 October 2012]IN THE HIGH COURT OF NEW ZEALANDWELLINGTON REGISTRYCIV 2012-485-1027[2012] NZHC 2575IN THE MATTER OF An appeal by way of case stated from thedetermination of the Social Security AppealAuthority at Wellington under s 12Q of theSocial Security Act 1964BETWEEN MARGOT CREQUERAppellantAND THE CHIEF EXECUTIVE OF THEMINISTRY OF SOCIALDEVELOPMENTRespondentHearing: On the papersJudgment: 4 October 2012JUDGMENT OF MALLON JContentsIntroduction ....................................................................................................................................... [1]The facts ............................................................................................................................................. [2]The process under the Social Security Act ...................................................................................... [3]The High Court Rules ....................................................................................................................... [5]Effect of Rule 21.9 ........................................................................................................................... [10]Effect of Rule 21.12 ......................................................................................................................... [17]Result ................................................................................................................................................ [18]Introduction[1] Ms Crequer wishes to appeal from a decision of the Social Security Appeal Authority. The appeal concerns how ACC weekly compensation payments received by Ms Crequer are to be treated in relation to the independent youth benefit allowance that she also receives. The appeal is by way of case stated. A preliminary question about the process for settling the case has arisen. By agreement of the parties, I am to determine that question on the basis of the written submissions that each party has filed.The facts[2] The process which has been followed began with Ms Crequer filing a case stated for her appeal. The Authority sought comments from the Ministry of Social Development on the case stated submitted by Ms Crequer and then sought comments from Ms Crequer on the Ministry's comments. It then "settled" the case stated, by substituting the 22 questions of law posed by Ms Crequer with the three questions of law suggested by the Ministry. Ms Crequer objects to the case as settled by the Authority because she submits that the Authority could only make amendments to correct any errors of fact. The Ministry submits that the Authority is not confined to correcting factual errors in settling the case stated.The process under the Social Security Act[3] The appeal is brought under s 12Q of the Social Security Act 1964. That section provides as follows:12Q Appeals to High Court on questions of law only(1) Where any party to any proceedings before the Authority is dissatisfied with any determination of the Authority as being erroneous in point of law, he may appeal to the High Court by way of case stated for the opinion of the Court on a question of law only....(3) Within 14 days after the date of the determination the appellant shall lodge a notice of appeal with the Secretary of the Authority. The appellant shall forthwith deliver or post a copy of the notice to every other party to the proceedings.(4) Within 14 days after the lodging of the notice of appeal, or within such further time as the Chairman of the Authority may in his discretion allow, the appellant shall state in writing and lodge with the Secretary of the Authority a case setting out the facts and the grounds of the determination and specifying the question of law on which the appeal is made. The appellant shall forthwith deliver or post a copy of the case to every other party to the proceedings.(5) As soon as practicable after the lodging of the case, the Secretary of the Authority shall submit it to the Chairman of the Authority.(6) The Chairman shall, as soon as practicable, and after hearing the parties if he considers it necessary to do so, settle the case, sign it, send it to the Registrar of the High Court at Wellington, and make a copy available to each party.(7) The settling and signing of the case by the Chairman shall be deemed to be the statement of the case by the Authority....(10) Subject to the provisions of this section, the case shall be dealt with in accordance with rules of Court.[4] The Authority followed the procedure set out in s 12Q(4) to (7) in settling the case here. The issue arises because there are other provisions in the High Court Rules that apply to appeals by way of case stated. As s12Q(10) provides, these rulesapply "subject to the provisions of s12Q".The High Court Rules[5] The rules applying to appeals by way of case stated are set out in Part 21 of the High Court Rules. Rule 21.1(3) provides that "[t]his part applies subject to any express provision in the enactment under which the appeal is brought or sought to bebrought." Rules 21.4 to 21.7 deal with the method of commencing an appeal orreference, the time for an appeal, what the notice of appeal must contain and the place for filing the notice.[6] Rule 21.8 provides as follows:21.8 Lodging of draft case stated(1) Every person who gives a notice of appeal must, as soon as practicable after giving that notice, lodge a draft case with—(a) the appropriate officer of the tribunal by which the decision was made or, if there is no such officer, with the person who made the decision; and(b) every party to the matter in which the question of law or fact (or both) arose.(2) Where the case stated is a reference from a tribunal, the tribunal must serve a draft case on every party to the matter in which the question of law or fact (or both) arose.[7] Rule 21.9 provides as follows:21.9 Contents of case(1) A case must state concisely—(a) the circumstances relating to the matter leading to the statement of the case; and(b) the relevant facts as determined by the tribunal (attaching copies of documents, if any) necessary to enable the court to decide the questions; and(c) where appropriate, the respective contentions of the parties with reference to the questions; and(d) the questions on which the opinion of the court is sought....(6) The draft case may be amended by the tribunal only to correct errors of fact.(7) The case must be signed by or on behalf of the tribunal.[8] Rule 21.11 provides as follows:21.11 When case deemed to be stated(1) The appellant or the party who sought the stating of a case must ensure that, when the case has been settled and signed by or on behalf of the tribunal,—(a) the case is filed in the appropriate registry; and(b) immediately after the case has been filed in the appropriate registry, the party filing it must serve a copy on every party to the matter in which the question of law or fact (or both) arose.(2) A case is deemed to have been stated when a case stated has been filed.[9] Rule 21.12 provides as follows:21.12 Power to amend case(1) The court may send a case back to the tribunal for amendment—(a) to clarify the question of law or fact (or both) on which the opinion of the court is sought; or(b) to provide any further information necessary to enable the court to dispose of the questions in the case stated.(2) The court may amend the case at the hearing.Effect of Rule 21.9[10] Ms Crequer submits that because of r 21.9(6), the Authority was not permitted to amend the draft case except to correct errors of fact. She submits that the Court has accepted a case that does not comply with this rule. This is because the Authority deleted questions of law set out in Ms Crequer's draft case stated and amended others.[11] The Ministry submits that the case law makes clear that it is for the Authority to settle the case. The parties contribute their views to this but it remains the Authority's responsibility to pose the questions of law for the appeal. The Ministry refers to cases which have considered the case stated procedure in s 107 of the Summary Proceedings Act 1957 (which is identical in material respects to s 12Q of the Social Security Act). In one of those cases the Court said that stating a case is"fundamentally a judicial act" and "the ultimate responsibility" lies on the decision maker appealed from "to ensure that the case stated ... complies in all respects with legal requirements".1 In another it was held that where the parties cannot agree upon1 Auckland City Council v Wotherspoon [1990] 1 NZLR 76 at 95.any part of the case it is "the duty" of the decision maker appealed from to "settle theform of the case".2[12] The Ministry also refers to cases concerned with s 12Q of the Social Security Act. One of those is Re Fehling where the Court held:3The appellant's rationale and belief are understandable, particularly when the Authority's case stated is labelled as filed by the appellant himself. It is alsowrong. The case stated procedure is a specialised one. While parties draft a suggested case, ultimate formulation of the question involved is for the tribunal concerned. Within the Social Security Act 1964, s 12Q(6), and more generally r 724F [now r 21.11], exemplify. It has not been at all uncommon in various contexts for tribunals to differ, and quite sharply, from parties involved as to the appropriate scope of the question of law involved.[13] The other case the Ministry refers to relating to s12Q of the Social Security Act is Boulton v SSC where the Court said:4A "case stated" is a document recording one or more questions referred tothe High Court by the original tribunal. It is not a case which can be referred to any or all of the parties to the litigation. That is the position in substance and of course in this case it is reinforced by the express statutory wording of s 12Q(6). So there is no room for consideration of any "case stated"document emanating from any other quarter such as the appellant.[14] The cases referred to by the Ministry pre-date the present High Court Rules. The former rules did not include the equivalent as r 21.9(6) of the High Court Rules which Ms Crequer relies on here. I have not located any case or commentary discussing why r 21.9(6) was introduced.[15] The Ministry submits that r 21.9(6) simply authorises the Tribunal to amend statements of fact in a draft case prior to embarking on the process of consultation envisaged by the Social Security Act and the High Court Rules. It submits that matters of fact are not really matters for consultation because they are either right or wrong. It submits that if there are errors of fact in a draft case, it makes sense that the Authority has the authority, if it chooses, to correct those errors prior to consultation. It submits that the rule should not be interpreted to interfere with aTribunal's ability to state its own case for the Court. It submits that s 12Q(3) of the2 Cowper v Takapuna City Corporation [1976] 1 NZLR 224 at 225.3 Re Fehling [1997] NZFLR 857 at 861-862.4 Boulton v SSC [1995] NZFLR 625 at 627.Social Security Act anticipates that the draft case stated is to be circulated to parties for consultation and comment before the matter is submitted to the chairperson to be settled. It submits that if Ms Crequer's interpretation of r 21.9(6) is correct, the consultation process would be redundant.[16] I accept the Ministry's submissions that r 21.9(6) cannot override the process set out in s 12Q of the Social Security Act. The High Court Rules apply subject to the provisions of s 12Q. I agree with the Ministry that s 12Q contemplates a draft case, followed by comment from the other party, followed by the settling of the case by the chairperson. I also agree that case law establishes that under s 12Q it is for the Authority to determine the case to be stated. I consider that r 21.9(6) cannot have been intended to override this established position. I therefore consider that the case stated was appropriately accepted by this Court.Effect of Rule 21.12[17] My conclusion as to the effect of r 21.9 means that it is not necessary to consider the further issue raised by Ms Crequer. That was whether this Court has power to amend the case stated under r 21.12. Ms Crequer says that it does not, referring to cases which pre-date the present High Court Rules. I simply note that the present wording of the Court's power to amend the case is wider than its predecessor and permits an amendment, although this is a power exercisable at the hearing rather than at this preliminary stage.Result[18] I therefore decline Ms Crequer's application for an order that the case statedbe returned to the Authority to be filed in accordance with the High Court Rules.Mallon JSolicitors:Crown Law, Wellington for the RespondentCopy to:Mr M Crequer, PO Box 151 Maungatapere, Northland 0152