CAMPBELL v THE CHIEF EXECUTIVE OF THE MINISTRY OF SOCIAL DEVELOPMENT [2013] NZHC 3381

CAMPBELL v THE CHIEF EXECUTIVE OF THE MINISTRY OF SOCIAL DEVELOPMENT [2013] NZHC 3381 [16 December 2013]IN THE HIGH COURT OF NEW ZEALANDWELLINGTON REGISTRYCIV-2013-485-2978[2013] NZHC 3381BETWEEN TRACY CAMPBELLAppellantAND THE CHIEF EXECUTIVE OF THEMINISTRY OF SOCIALDEVELOPMENTRespondentHearing: 4 December 2013Counsel: S J Fraser for AppellantT M Bromwich for RespondentJudgment: 16 December 2013RESERVED JUDGMENT OF MACKENZIE JI direct that the delivery time of this judgment is12.30 pm on the 16th day of December 2013.Solicitors: John Dean Law Office, Wellington, for AppellantCrown Law Office, Wellington, for Respondent[1] This is an appeal by way of case stated under s 12Q of the Social Security Act 1964 (the Act) against a decision of the Social Security Appeal Authority (the Authority).1 The Authority determined that the appellant was in a relationship in the nature of marriage during periods when her benefit entitlement was calculated on the basis that she was unmarried.[2] The respondent had decided to recover overpayments of benefit totalling some $98,000, on the basis that the appellant had been living in a relationship in the nature of marriage with Mr Goldsworthy in the periods 26 October 1995 to 20 October 1996 and 2 June 1997 to 6 April 2006. The respondent's decision wasupheld by a Benefits Review Committee. The appellant appealed to the Authority.[3] In its decision delivered on 16 October 2012, the Authority noted the discussion by Tipping J in Thompson v Department of Social Welfare as to what might amount to a relationship in the nature of marriage.2 It further noted the comments of the Court of Appeal in Ruka v Department of Social Welfare,3 and summarised the view of the majority of the Court as being that both an emotional commitment and a financial interdependence must be found to exist before a relationship could be said to be in the nature of marriage for the purposes of s 63(b) of the Act.4 The Authority then discussed the factors noted in those two cases, under the headings of cohabitation, financial interdependence, emotional commitment and family violence. The Authority was satisfied that throughout the relevant periods the appellant and Mr Goldsworthy primarily lived at the same address, shared their finances and were emotionally committed to an ongoing relationship for the foreseeable future. There may have been periods when the relationship was volatile and unsatisfactory, but the Authority held that that does not negate the proposition that they were living in a relationship in the nature of marriage.5 It accordinglyupheld the respondent's decision. It sought further submissions from the parties onthe appellant's entitlement during a period of separation from Mr Goldsworthy in1 Re Campbell [2012] NZSSAA 77.2 Thompson v Department of Social Welfare [1994] 2 NZLR 369 (HC) at 373.3 Ruka v Department of Social Welfare [1997] 1 NZLR 154 (CA) at 162, 181 and 185.4 Re Campbell, above n 1, at [15].5 At [60].1999, and on whether the discretion to recover the debt under s 86(1) and s 86A of the Act should be exercised.[4] In a second decision issued on 11 December 2012, the Authority directed that the respondent reduce the overpayment of Domestic Purposes Benefit by three months in the 1999 year. It held that the Authority should not direct the Chief Executive not to recover the debt pursuant to the powers in s 86(1) and s 86A.[5] Under s 12Q of the Act, any party dissatisfied with a determination of the Authority as being erroneous in point of law may appeal to the High Court by way of case stated for the opinion of the Court on a question of law only. The questions stated in this case are in the following terms:(a) Was there any evidence on which the Authority could base its conclusion that the appellant was in a relationship in the nature of marriage with Stephen Goldsworthy in the period 26 October 1995 to 2 June 1997 and 9 June 1997 to 6 April 2006, with the exception of a three month period in 1999?(b) Was there any evidence on which the Authority could conclude that it was appropriate for the Chief Executive to exercise his discretion to determine that the appellant was not entitled to Domestic Purposes Benefit in the periods 26 October 1995 to 2 June 1997 and 9 June 1997 to 6 April 2006 with the exception of a three month period in 1999?[6] The law as to the circumstances in which a challenge to the sufficiency of the evidence in support of a particular conclusion may amount to an error of law is described by the House of Lords in Edwards (Inspector of Taxes) v Bairstow.6 The authoritative statement on the effect of that decision in New Zealand law is that of the Supreme Court in Bryson v Three Foot Six Ltd.7 Blanchard J, delivering the judgment of the Court, said:86 Edwards (Inspector of Taxes) v Bairstow [1956] AC 14 (HL).7 Bryson v Three Foot Six Ltd [2005] NZSC 34, [2005] 3 NZLR 721.8 At [25]-[26] (footnotes omitted).An appeal cannot, however, be said to be on a question of law where the fact-finding Court has merely applied law which it has correctly understood to the facts of an individual case. It is for the Court to weigh the relevant facts in the light of the applicable law. Provided that the Court has not overlooked any relevant matter or taken account of some matter which is irrelevant to the proper application of the law, the conclusion is a matter for the fact-finding Court, unless it is clearly insupportable.An ultimate conclusion of a fact-finding body can sometimes be so insupportable – so clearly untenable – as to amount to an error of law: proper application of the law requires a different answer. That will be the position only in the rare case in which there has been, in the well-known words of Lord Radcliffe in Edwards v Bairstow, a state of affairs "in which there is no evidence to support the determination" or "one in which the evidence isinconsistent with and contradictory of the determination" or "one in which the true and only reasonable conclusion contradicts the determination".Lord Radcliffe preferred the last of these three phrases but he said that each propounded the same test. [7] Mr Fraser, for the appellant, submits that Bryson v Three Foot Six Ltd is authoritative only in respect of employment matters. He notes that the passage citedappears in a section of the judgment headed "Appellate Jurisdiction in employmentcases". The Supreme Court's comments are not limited to employment cases. While the Supreme Court in that case was concerned with an employment case, as noted in that subheading, there is nothing in the passage cited or elsewhere to indicate that its comments as to the application of Edwards (Inspector of Taxes) v Bairstow are limited to employment appeals. The Edwards test has been widely applied by courts in New Zealand, in a wide range of cases involving appeals on questions of law only. It has been applied in appeals under s 12Q of the Act.9[8] Mr Fraser submits that a different approach should be taken, on appeals against the decisions of the Authority, on the issue of the extent to which factual findings may constitute an error of law. He submits that the special nature of the matters with which the Authority is concerned and that beneficiaries are inherently vulnerable, require a different approach.9 See for example Chhima v Chief Executive, Department of Work and Income New Zealand[2006] NZFLR 690 (HC); Chief Executive of the Ministry of Social Development v R [2013] NZCA 261, [2013] NZAR 1010.[9] That submission cannot succeed, having regard to the comments of the Court of Appeal in The Chief Executive of the Department of Work and Income v Arbuthnot.10 The Court said:11Mr McGurk argued we should approach the review and appeal structure provided for by the Social Security Act not on the basis of normal appellate principles but rather by reference to the specialised nature of the jurisdiction involved.We accept that there are logistical and resource implications for beneficiaries who become involved in disputes with WINZ. But when the legislaturechose to use the well known phrase "appeal by way of rehearing" in respectof the jurisdiction of the Appeal Authority, we think it clear that the legislature used that expression in its normal meaning - a conclusion which is consistent with s 12I(1).[10] The Authority's decision is not one of these rare cases which may constitutean error of law of the type described in Edwards (Inspector of Taxes) v Bairstow. There was evidence to support the determination, on both questions stated. The evidence was not inconsistent with the determination. The challenges to the findings on the evidence which the appellant advances are directed to the sufficiency of the evidence to support the decision. A challenge of that sort does not fall within the scope of an appeal on a question of law.[11] Mr Fraser also submits that the Authority has erred in law in dealing with the case on the evidence before it, without directing further factual investigation of the case. He notes that, under s 12M(6) of the Act, the Authority is deemed to be a commission of inquiry under the Commissions of Inquiry Act 1908 and most of the provisions of that Act apply. That includes s 4C, which confers powers of investigation on the Commission. Mr Fraser submits that the information before the Authority about police reports recording violent incidents between the appellant and Mr Goldsworthy were incomplete. He submits that the Authority erred in failing to exercise its powers to obtain more accurate information.10 The Chief Executive of the Department of Work and Income v Arbuthnot CA256/05, 3 October 2006.11 At [16]-[17].[12] Ms Bromwich for the respondent submits that tribunals such as the Authority which hear appeals from administrative decisions have no general duty to make inquiries beyond the evidence that is put before them.12[13] The function of the Authority is to sit as a judicial authority for the determination of appeals.13 Like other judicial authorities, it operates ordinarily on an adversarial basis. It hears evidence presented by the parties. It has power under the Commissions of Inquiry Act to adopt inquisitorial processes if it sees fit. That is a matter for the Authority. As Doogue J said in Bhuiyan v The Minister of Immigration:14There is nothing in any judgment referred to me which indicates anything more than that the Tribunal has a discretion to exercise its powers under the Commissions of Inquiry Act when dealing with appeals under s 22 of the Act. In exercising that discretion it must act judicially. If this Court is to interfere with a decision not to exercise that discretion, as is submitted here, then the appellant must establish upon well recognised grounds that thisCourt should interfere with the discretion of the Tribunal as this Court'spowers are limited to appeals on questions of law.[14] Counsel for the appellant refers to the decision of this Court in Isak v Refugee Status Appeals Authority.15 In that case, an immigration appeal, Asher J granted judicial review on the basis of counsel error, where that error had resulted in the Refugee Status Appeals Authority not having material information or a proper understanding of the material information. The factual issue on which the Authority had insufficient information was fundamental, so that the risk of not having the evidence could lead to a very grave injustice.16[15] That case is distinguishable. The evidence which it is submitted the Authority should have obtained here was not fundamental, and the Authority had sufficient information on the relevant issue. There was evidence before the Authority of incidents of violence between the appellant and Mr Goldsworthy. Theessence of the appellant's complaint is that the material was incomplete, in that no12 See, for instance, Bhuiyan v The Minister of Immigration HC Wellington AP321/02, 2 May 2002; Khan v The Chief Executive of the Department of Labour HC Wellington AP142/98, 27 August 1999.13 Social Security Act 1964, s 12I.14 Bhuiyan v The Minister of Immigration, above n 12, at [32].15 Isak v Refugee Status Appeals Authority [2010] NZAR 535 (HC).16 At [79].inquiry had been made to determine what police records existed of reports on investigations into complaints by the appellant against Mr Goldsworthy. The appellant has applied for leave to admit further evidence, including several police reports, additional to some reports which were before the Authority. The circumstances are not such that leave can be granted. However, I have looked at the material. Those reports generally relate to a period other than that in issue before the Authority. There is no evidence that additional reports, relating to the period in question, might be available. The number of police reports about violence by Mr Goldsworthy was not a fundamental issue.[16] Also, the circumstances in which the issue arose were different. Isak v Refugee Status Appeals Authority was an application for judicial review. This is an appeal. It is incumbent on the appellant to demonstrate that the circumstances were such that the Authority was under a legal duty to exercise the power under s 4C of the Commissions of Inquiry Act, and that its failure to do so constituted an error of law.[17] The circumstances are not such that the Authority has failed in a legal duty to make inquiries for further evidence. An appeal to the Authority is, in accordance with the almost universal practice of appeal tribunals of this type, conducted largely on an adversarial basis. The primary responsibility for adducing relevant evidence rests with the parties. The Authority did not err in law in following that practice.[18] The appellant submits that there was further evidence made available to theappellant's advocate at the Authority hearing which, if produced, could have changedthe Authority's assessment of the reliability of the appellant as a witness. That does not raise any question which could lead to a finding of error of law. There is an obligation on parties to an appeal before the Authority to produce relevant evidence and information. The Authority is not, for the reasons I have given, under a general duty to inquire further. The failure by a party to adduce available and relevant evidence does not constitute an error of law. The Authority did not err in law in deciding the case on the evidence before it. I do not consider that any issues as to the sufficiency of the hearing granted to the appellant arise on this appeal. If suchissues do arise, they may give rise to a remedy in judicial review, but do not render the decision erroneous in law.17 There was an evidential foundation for its decision.[19] The appellant submits that the Authority erred in its interpretation of the law relating to a relationship in the nature of marriage. Mr Fraser submits that, in stating"[t]he degree of financial interdependence between the appellant and Mr Goldsworthy is also indicative of a strong emotional commitment to an ongoingrelationship",18 the Authority misapplied the law as stated in Ruka v Department of Social Welfare, that where financial assistance is available, there will not be a relationship unless there is also evidence of a continuing emotional commitment.19[20] He further submits that the Authority erred in its application of statements inRuka v Department of Social Welfare about the relevance of "battered women's syndrome" and "learned helplessness" on the issue of whether a relationship is in the nature of marriage.[21] The Authority did not err in those respects. The Authority's statement in [50]is a finding on the evidence, not a statement of the legal test. The Authority considered at length and separately the issues of financial interdependence and emotional commitment. Its comments about the level of violence were also factualfindings, and the appellant's challenge to them does not show any error of law. TheAuthority's decision involved the application of the relevant legal principles from the case law, to the facts as found by it. There is no error of law.[22] The first question in the case stated, set out at [5](a), is answered "yes".[23] The second question relates to the second decision of the Authority issued on 11 December 2012, referred to at [4]. The Authority had, in its first decision dated 16 October 2012, upheld the respondent's exercise of its discretion to regard theappellant as married because she was, at the relevant times, living in a relationship in the nature of marriage. The Authority therefore needed also to consider the exercise17 McFarlane v The Chief Executive of the Department of Work and Income HC Auckland AP17- PL02, 22 July 2002 at [25].18 Re Campbell, above n 1, at [50].19 Ruka v Department of Social Welfare, above n 3, at 161.by the respondent of its power under s 86 of the Act to recover the debts which arose from the appellant's receipt of benefits calculated on the basis that she was not married. The Authority required the parties to provide further information by 2 November 2012 to enable the Authority to decide whether that power had been correctly exercised by the respondent. Following receipt of further information from the respondent, and further submissions from the appellant, the Tribunal issued its second decision, on the papers, on 11 December 2012. It was not satisfied that there were circumstances warranting a direction that the debts not be recovered. It directed that the debts be recalculated in accordance with its decision, and that they be recovered.[24] The information requested from the appellant in the first decision was supplied in a document dated 2 November 2012, the date specified by the Authority.In that document, the Authority's advocate advised of difficulties in obtaining full information, and said "the submissions need to be regarded as partial". The Authority's decision was issued on 11 December 2012. No further information had been received from the Authority or the advocate.[25] The appellant submits that the Authority erred in proceeding without some information as to the appellant's affairs and financial situation. Counsel for the respondent submits that the Authority did not err in issuing its decision over five weeks after the partial submissions were received. However, counsel advises that the respondent agrees that the information identified should have been provided to the Authority, and its absence may have adversely affected the appellant. The respondent invites the Court to remit this issue to the Authority.[26] There was, as I have noted, evidence before the Authority on the issue set out in the second question. That question is accordingly answered "yes". However, in accordance with the respondent's invitation, I remit the issue of whether theoverpayment should be recovered to the Authority.Result[27] I answer both questions in the case stated "yes".[28] I remit the matter to the Authority, for reconsideration of the exercise of the power under s 86(1) to recover the debt from the appellant.[29] The respondent does not seek costs. I make no order as to costs."A D MacKenzie J"