HILL v CHIEF EXECUTIVE OF THE MINISTRY OF SOCIAL DEVELOPMENT [2020] NZHC 962

HILL v CHIEF EXECUTIVE OF THE MINISTRY OF SOCIAL DEVELOPMENT [2020] NZHC 962 [12 May2020]IN THE HIGH COURT OF NEW ZEALANDAUCKLAND REGISTRYI TE KŌTI MATUA O AOTEAROATĀMAKI MAKAURAU ROHECIV-2020-404-0137[2020] NZHC 962UNDER the Social Security Act 2018BETWEEN PERCY HILLAppellantAND CHIEF EXECUTIVE OF THE MINISTRYOF SOCIAL DEVELOPMENTRespondentHearing: 25 March 2020 (by telephone)Appearances: The Appellant in personK Hutchinson and G Niven for the RespondentJudgment: 12 May 2020JUDGMENT OF POWELL JThis judgment was delivered by me on 12 May 2020 at 3.30 pm pursuant toR 11.5 of the High Court RulesRegistrar/Deputy RegistrarDate:[1] The appellant, Percy Hill, has purported to file an appeal in respect of adecision by the chairperson of the Social Security Appeal Authority ("the Authority"),declining to action an appeal brought by Mr Hill.1 The question for determination inthis judgment is whether Mr Hill has filed a valid appeal and/or whether his notice ofappeal should be treated as an application to extend time for bringing an appeal.Background[2] The decision Mr Hill had sought to appeal to the Authority involved a decisionof the Benefits Review Committee dated 26 August 2019 in which he had been whollysuccessful, in that the Committee had reversed a debt of $1,332.80 owing from Mr Hillto the Ministry of Social Development. Despite the result, Mr Hill filed a notice ofappeal with the Authority purporting to challenge the decision, but the chairperson ofthe Authority ruled that as there was nothing for Mr Hill to appeal against "there [was]nothing that lies within the jurisdiction of [the] Authority arising from Mr Hill'sappeal", and advised no further action would be taken on his appeal.2[3] The directions issued by the chairperson of the Authority make it clear that thechairperson understood that what Mr Hill was seeking through his attempt to appealthe Benefits Review Committee decision was in fact to re-open an earlier, 2010,decision of the Benefits Review Committee ("the 2010 decision"). The Chairpersonhowever rejected Mr Hills submission that the decision Mr Hill had appealedconstituted some kind of "new evidence" that would allow the Authority to re-openthe 2010 decision.3[4] The 2010 decision has in fact already been the subject of a challenge in thisCourt. Between 2017 and 2018 Mr Hill attempted to obtain an extension of time toappeal a decision of the Authority dated 10 July 2017 which had dismissed Mr Hill'sbelated appeal against the 2010 decision.4 Mr Hill's application came before Downs Jwho concluded that there were no viable questions of law arising out of the 2010decision, and also noted Mr Hill had failed to explain the "six-year hiatus" between1 Directions in the matter of an appeal by Percy Hill (SSAA 109/19, 7 January 2020).2 At [15].3 At [11]-[12].4 The 2010 decision was made on 29 June 2010 and Mr Hill filed an appeal on 7 November 2016.the 2010 decision being made and attempting to lodge an appeal. As a result, Mr Hill'sapplication was dismissed.5The position of the parties[5] Against this background, Ms Hutchinson for the respondent, filed amemorandum raising a number of fundamental issues with Mr Hill's present appeal.In particular Ms Hutchinson submitted that Mr Hill had not complied with theSocial Security Act 2018 in attempting to file his appeal directly in the High Court andthat in doing so had also failed to serve the notice of appeal upon the respondent.Ms Hutchinson noted the Social Security Act and Social Security Regulations 2018provide that:(a) an appeal is commenced by written notice of appeal with the secretaryof the Authority within ten working days of the determination,6 andthe notice of appeal must then be served "promptly";7(b) the appellant must then file and serve a case stated for the HighCourt's opinion on a question of law;8(c) the Chair of the Authority must then settle and sign the case statedwhich is then sent to the Registrar of the High Court at Wellington.9[6] As a result, Ms Hutchinson submitted that Mr Hill's process was sofundamentally flawed that it could not be considered an appeal and at best could betreated as an application to extend time pursuant to s 406(4) of the Social Security Act2018. Such an extension can however only be granted if the High Court considers"there is good and sufficient reason for the delay",10 and Ms Hutchinson submittedthere is in fact no basis for doing so, noting that:(a) Mr Hill has not provided any reason for the delay in filing an appealusing the proper procedure; and5 Hill v Chief Executive Ministry of Social Development [2019] NZHC 1661 at [4]-[12].6 Social Security Act 2018 ss 405 and 406, Social Security Regulations 2018, reg 257(1).7 Social Security Regulations 2018, reg 257(2).8 Social Security Act 2018, s 406(2) and Social Security Regulations 2018, reg 258.9 Social Security Regulations 2018, reg 259.10 Social Security Act 2018, s 406(4).(b) there is in any event no prospect of the appeal succeeding and it is infact an abuse of process.[7] In response to the matters raised by Ms Hutchinson, Mr Hill did attempt toargue that he should have been given more time to bring his appeal to the High Court,and that the Authority had not advised him of the proper process for challenging thechairperson's decision. Mr Hill did not however address the failure to follow theprocess set out in the Social Security Act, nor did he explain why it was not servedupon the respondent. He likewise was unable to identify on what basis he could haveappealed the Benefits Review Committee decision that found in his favour, nor howthat decision could have been said to have opened up the 2010 decision for furtherscrutiny.Discussion[8] Mr Hill has provided no explanation for not following the proper process incircumstances where he was able to otherwise prepare and file his Notice of Appealwithin the statutory time limit for appealing. The Authority had no statutory obligationto personally advise him of the procedure to appeal, although the procedure to befollowed is in fact set out on the Authority's website.11[9] More broadly, even if there was an issue with the way in which the Authoritydealt with Mr Hill's appeal there would be no point in granting an extension of timebecause as the chairperson of the Authority noted there was in fact nothing for Mr Hillto appeal. The Benefits Review Committee decision of 26 August 2019 that Mr Hillsought to appeal to the Authority provided nothing for Mr Hill to appeal against, andin particular did not open up the 2010 decision. Finally, the judgment of Downs Jmakes it clear that whether there were any questions of law with regard to the 2010decision has in fact already been considered and rejected by this Court.11 Notes on Appeals to the High Court from a Decision of the Social Security Appeal Authoritylocated on Ministry of Justice Tribunals website: https://www.justice.govt.nz/tribunals/social-security-appeal-authority/what-happens-next/[10] In the circumstances, having heard from Mr Hill and Ms Hutchinson, havingconsidered the relevant legal framework, the background set out above and, inparticular, having read the judgment of Downs J, I am satisfied that:(a) no valid appeal has been filed by Mr Hill and to the extent it purportsto be an appeal must be dismissed;(b) Mr Hill's notice of appeal must instead be treated as an application toextend time for filing an appeal pursuant to s 406(4) of the SocialSecurity Act; but(c) there is no conceivable basis for extending time for filing the appeal;and(d) the application for extension of time is dismissed accordingly.[11] Should the respondent seek costs a memorandum is to be filed within onemonth of the date of this judgment. Mr Hill will then have one month to respondfollowing which I will determine the issue on the papers._______________________________Powell J