Help
Well, if any agency runs sillier litigation than ACC, it has got to be WINZ. Check out this judgment from the Court of Appeal Director-General of Social Welfare v W - CA 46/03
WINZ tried to argue here that if someone applies for emergency assistance, and is declined, then there is no jurisdiction for the hearing of reviews and appeals against their decision if the emergency that has given rise to the application for assistance has passed before the review or appeal can be heard.
Effectively, this would have given them the ability to decline every application anyone ever made for emergency assistance, and not be accountable to a Benefits Review Committee, the Social Security Appeal Authority or the Courts for their actions, no matter how manifestly unjust.
Fortunately, the High Court thought better of this, but WINZ still appealed to the Court of Appeal, where they lost again.
Page 1 of 1
Ca46/03 - More Stupidity From Winz A really dumb legal appeal
#2
doppelganger 
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Posted 20 December 2004 - 09:58 PM
that is just like th eoutfits that we have to deal with
#3
MG
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Posted 21 December 2004 - 08:42 AM
The "DGSW v W" case is interesting for what it has to say about the jurisdiction of tribunals. At [24]:"In our view a proceeding before an adjudicator of a tribunal cannot be regarded as moot unless no practical benefit could be obtained from any form of relief which the Tribunal might be empowered to grant. Vindication of an appellant's position, criticism of an appropriate practice or policy in the Department, might well give rise to a practical benefit in the granting of some relief, such as by a reference back, notwithstanding the monies sought by way of a benefit were no longer needed."
And [25]: "It is a very real part of the administration of the Act that persons aggrieved at the possible wrongness of a decision should be able to call its correction into question."
By analogy, I think these dicta are directly applicable to the IPRCA. I will be citing them in a DC appeal next year against a silly DRSL jurisdiction decision.
And [25]: "It is a very real part of the administration of the Act that persons aggrieved at the possible wrongness of a decision should be able to call its correction into question."
By analogy, I think these dicta are directly applicable to the IPRCA. I will be citing them in a DC appeal next year against a silly DRSL jurisdiction decision.
#4 Guest_IDB_*
Posted 21 December 2004 - 09:29 AM
Here is the full text of the judgement:
DIRECTOR GENERAL OF SOCIAL WELFARE V W CA CA46/03 [30 June 2004]
IN THE COURT OF APPEAL OF NEW ZEALAND
CA46/03
BETWEEN DIRECTOR GENERAL OF SOCIAL
WELFARE
Appellant
AND W
Respondent
Hearing: 10 March 2004
Court: Anderson P, McGrath and Hammond JJ
Appearances: W G Liddell and R E Schmidt for Appellant
P D McKenzie QC and A J McGurk for Respondent
Judgment: 30 June 2004
Recalled and Reissued: 16 December 2004
JUDGMENT OF THE COURT
(Given by Anderson P)
Background to the appeal
Section 12M subs (7) and (8), which deal with the Authorities powers of
determination and reference, may be conveniently read with s12O subs (1) and (2)
above. Section 12M(6) which deems the Authority within the scope of its
jurisdiction to be a Commission on Inquiry under the Commissions of Inquiry Act
may be conveniently read to indicate the scope of the deeming provisions. Such
deeming is, in terms of Mr Liddell’s submission, facultative. It enables the
Authority to carry out its intended functions of hearing and determining appeals and
referring matters to, now, the Chief Executive for rehearing, reconsideration or some
other relevant action. To enable it to function appropriately, there is, through the
deeming provision, protection of the Authority’s members acting bona fide, powers
of a District Court Judge to cite parties and to conduct and maintain order at the
inquiries, power to receive evidence and summon witnesses, privileges for witnesses
and counsel and other such matters.The appealed decisions
At this point it is expedient to recite the operative parts of the Authority’s
decision.
The Department refused the application on the basis that in the Benefit
Committee’s words that the Department is not allowed to top up training
incentive allowances and the childcare subsidy is only available for children
under 5 years.
The Department itself in terms of section 12K report referred to the
Ministerial Direction that was given in respect of section 86(2) and in
particular the words “immediate need” and the various other requirements
that directed the Department have regard to when making a decision for an
advance of this nature. The Department suggested that perhaps the appellant
could miss lectures for the week, - that did not seem to us to be a viable
option. The Department also suggested that perhaps the appellant should
have foreseen this probability arising and made some provision for it which
we think is for a person in the appellant’s position rather an optimistic
suggestion. It does seem to us that the Department viewed the direction very
narrowly and while in view of the fact that the matter is now past, we do not
think it necessary to embark on any detail of the matters argued,
nevertheless, we do think in a situation such as this, a liberal interpretation of
the Act and the directions should be given. Hence, we think that in terms of
section 86(2) the Director-General through the officers of the Department
should use a wide discretion, consistent of course, with the Ministerial
Directive. Beyond that, because this appeal will have to be dismissed, we
say no more. Accordingly, the appeal is dismissed.
In the High Court Durie J held the negation of a live issue by changed
circumstances is not to be considered an absolute bar to a judicial determination of
any kind, in all Courts and in all situations. In his view, so long as an issue has been
heard, the administration of justice may require, at the very least, a nominal
determination for the purposes of costs. But, he said,
However, I need not take that further. I think the Authority in this case is
not a court in any event. Its status, by virtue of a deeming provision, is as a
commission of inquiry. The compelling point is that commissions of
inquiry, unlike most courts, are not nurtured in the adversarial tradition.
Although they may need to act as a court to resolve some issues,
commissions of inquiry fundamentally descend from an inquisitorial line
where a positive conclusion is more regularly expected. They may even act
of their own motion to seek evidence that the parties, if there are parties,
have neglected to adduce.
I think that much must depend on the nature of the particular Commission,
but it would be wrong to assume that Commissions of Inquiry are bound by
many practices peculiar to the regular courts. The rule or practice that a
court will not rush in if the issue is no longer alive must surely be a case inpoint. A commission may be duty bound to consider the matter nonetheless
for reasons peculiar to its purpose. Like a Coroner, it may be expected to
advise even if those immediately affected have resolved all matters between
them.
After some further discussion of the features of Commissions of Inquiry, the
Judge held:
The question then is whether there was some special reason for advising and
reporting in the present case, notwithstanding that the issue between the
appellant and respondent, in terms of the adversarial tradition, had become
academic. Mr McKenzie’s submissions on this aspect are entirely
convincing in my view. But for such an intervention by the Authority the
rights of appeal conferred on beneficiaries would be rendered nugatory
where assistance was urgently required. Similarly, but for some intervention
by the Authority for future guidance, appeal rights carefully given by the
Legislature, which serve as a check on arbitrary decision-making, would be
meaningless in cases of this kind. These are all sound reasons for
proceeding, in my view, and in departing from the practice in the general
courts. And the legislative concern in this respect is itself indicated by the
fact that the Commission is deemed to be a Commission of Inquiry.
Of course, it does not follow that the Authority must determine every appeal.
Obviously some appeals will be frivolous or vexatious or there may be no
point in pursuing those that are not prosecuted. In this case, however, the
Authority clearly had a view that the Department had not dealt properly with
the matter. Looking at the whole of that part of the Act that establishes the
Authority, I think it reasonably plain that the Legislature expected, in that
circumstance, that the Authority would allow the appeal in order to so report,
and in order to help perfect future performance.
Appellant’s case
The appellant’s case, albeit supported by extensive and careful submissions,
may be put quite simply. It is that Durie J decided the case in terms of his view of
the merits of the appeal before the Authority rather than by reference to the powers
the Authority had and could properly exercise. That went beyond answering the
question of law and the scope of the High Court’s powers pursuant to s112 Summary
Proceedings Act. In the process, Durie J wrongly declared the Authority to have the
status of a Commission of Inquiry with broad inquisitorial powers and further held
that the Authority need not determine every appeal. The appellant’s position is that
the Authority is deemed to be a Commission of Inquiry for facultative reasons and
then only within the scope of its jurisdiction. That jurisdiction is to sit as a judicial
authority for the determination of appeals brought pursuant to s12J of the SocialSecurity Act and s16A of the War Pensions Act 1954. It must determine every
appeal. To the extent that the merits of Ms W’s appeal to the Authority should be
relevant, the Authority was entitled to regard the issues as moot and to dismiss the
appeal. In giving ancillary advice in the body of its decision, the Authority was
fulfilling a function which did not have to be carried out by a reference pursuant to
s12M(8). Nor was it obliged to allow the appeal as a vehicle for costs. It could have
dismissed the appeal and made a reference, in which case it would have had power to award costs to Ms W notwithstanding the dismissal of her appeal. But it was not
bound to take that course.
Respondent’s submissions
For Ms W, Mr McKenzie submitted that Durie J correctly held that the
Authority was in error in dismissing the appeal in the circumstances of the case, and
correctly held that the negation of a live issue is not an absolute bar to judicial
determination in all situations. Further, that the Judge correctly held that the
Authority has the status of a Commission of Inquiry which empowers it to inquire
into and advise and report on an issue arising between the parties. Durie J was not
suggesting that the Authority had the status of a Commission of Inquiry for all
purposes so as to enable it to inquire into and report on matters which are not the
subject of an appeal. It is the implications of the Authority’s supervisory and
corrective function in terms of the statutory scheme which allow it, as a deemed
Commission of Inquiry for such purposes, to pass upon the correctness of a decision
even though, in the particular case, circumstances may have arisen which would
deprive the decision of any practical effect if modified or reversed.
Mr McKenzie further submitted that the Authority need not determine every
appeal although the circumstances when it ought not to would be limited to appeals
which were frivolous or vexatious or not prosecuted. Durie J was not purporting to
make a statement of general application but was directing his observation to those
rare cases.
It was further submitted that the s12M(8) Power of Reference is not ancillary
to the subs (7) powers but alternative to them. It would not therefore be appropriatefor the Authority to dismiss an appeal and then purport to refer the matter back to the Chief Executive. In the present case the proper course for the Authority would have been to partially allow the appeal and then give a direction to the Chief Executive as to the way in which the matter should have been dealt with in the particular circumstances. Such reference would then have provided a jurisdictional basis for a costs order.
Discussion
If the learned High Court Judge was declaring that the Authority has broad
inquisitorial powers unrelated to the true scope of an appeal under consideration by it
then we must respectfully disagree. The Authority is deemed to be a Commission of
Inquiry but only within the scope of its jurisdiction. The jurisdiction is defined by
ss12I and J although the powers within the jurisdiction are reasonably extensive. We
doubt whether Durie J was suggesting otherwise. But where we are more obviously
in disagreement with Durie J is with respect to his opinion to the effect that the
Authority’s deemed status as a Commission of Inquiry coupled with its advisory and
supervisory functions required it to allow Ms W’s appeal so that it could report to the
Chief Executive. The Authority’s facultative powers had no real relevance to the
question posed in the Case Stated. Further, and more substantially, we consider the
Judge to have erred in determining that the Authority ought properly to have allowed
the appeal but such a finding usurped the Authority’s own function. But the Judge,
nevertheless, answered the question correctly in the affirmative. This is because the
Authority did not determine the appeal before it in any of the ways the Act requires.
It did not confirm, modify or reverse the decision appealed against, and if the power
of reference is an alternative rather than an ancillary power it did not determine the
appeal in that way either.
In our view the term “reverse” appearing in s12M(7) includes “revoke”. One
of the meanings of “reverse” noted in the Concise Oxford Dictionary is “revoke or
annul”. More particularly, given the Authority’s status, by virtue of s12I(1) as a
“judicial authority”, we observe that in a legal context of appellate or reviewing
powers, “reverse” has the included meaning. Jowitts Dictionary of English Law,2 nd Edition (1977) defines “reverse” as “to undo, repeal or make void. A judgment is
said to be reversed when it is set aside by a court of appeal.” Black’s Law
Dictionary, 7 th Edition (1999) defines “reversal” as “1. An appellate court’s
overturning of a lower court’s decision.” The Dictionary of Canadian Law (1991)
defines “reverse” as “to make void, repeal or undo. A judgment is reversed when a
court of appeal sets it aside.”
Both counsel, surprisingly, resisted this suggestion from the Bench but that
inclusive meaning is necessary to give efficacy to the Authority’s functions when
dealing, for example, with a decision to discontinue the payment of a benefit. Such a
situation may often arise. It would seem very odd if, in such circumstances, by
virtue of a more restricted meaning of “reverse” the relief was a decision not to
discontinue a continuing benefit. Further, there may well be situations where a
decision should not stand but should be reheard in the light of directions, pursuant to
a subs (8) reference.
In our opinion the Authority may confirm a decision under appeal, or modify
it, or reverse it by turning it round, or reverse it in the sense of revoking it either with
or without a direction for rehearing. But it must do one of those things. It cannot
simply dismiss without passing on the correctness or otherwise wholly or in part of
the decision appealed against.
The Authority was wrong to regard the issue before it as moot merely
because the particular need for which a benefit was sought had evaporated with the
effluxion of time. The Authority’s observations about the Department’s approach
indicate that there were matters requiring investigation and comment relating to the
practices or policies being applied by the Department. The Authority’s power to
remit matters under s12M(8) and the power to award costs to an appellant on such a
reference back notwithstanding that the appeal may not have been allowed, rendered
the issues before the Authority other than moot. The appeal would not have been
nugatory if a reference back with advice would have a future practical benefit for the
Department and/or potential beneficiaries in the administration of the Act.
In our view a proceeding before an adjudicator of a Tribunal cannot be
regarded as moot unless no practical benefit could be obtained from any form of
relief which the Tribunal might be empowered to grant. Vindication of an
appellant’s position, criticism of an appropriate practice or policy in the Department,
might well give rise to a practical benefit in the granting of some relief, such as by a
reference back, notwithstanding that monies sought by way of a benefit were no
longer needed.
The power of remission is particularly significant in the scheme of the Act
where exigent and transient needs for benefits might frequently arise, but be denied
wrongly, and by reason of a perception of mootness future requests by beneficiaries
might continue to be wrongly denied. In our view the Authority has a particular
supervisory and advisory function which facilitates the due administration of the Act.
It is a very real part of the administration of the Act that persons aggrieved at the
possible wrongness of a decision should be able to call its correctness into question.
As to the outcome of the present appeal it is necessary to distinguish between
the High Court’s conclusion and some of its reasons. The certificate of result of the
appeal to the High Court is in these terms:
ON AN APPEAL against the decision by Case Stated from the Social
Security Appeal Authority 29 November 1996
IT WAS ADJUDGED on 1 st November 2002
We agree with those conclusions. The reasons and findings with which we
do not agree are the suggestion that the Authority does not have to determine every
appeal, any suggestion that as a deemed Commission of Inquiry within the scope of
its jurisdiction the Authority may inquire into matters not properly related to anappeal before it, and the merit based finding that the Authority should have allowed
the appeal. We would answer the question of law in the affirmative on the basis that
the Authority did not determine the appeal in any of the ways mandated by s12M(7)
and/or (8). It follows that the Authority’s decision not to award costs was premature
and ought be revisited in the light of the determination of the appeal by Ms W and
such appeal is remitted to it for determination in the light of the answer to the
question of law and this Court’s findings in respect of the Authority’s powers.
For these reasons the appeal is dismissed. The respondent is entitled to costs
in the sum of $6,000 together with reasonable disbursements.
DIRECTOR GENERAL OF SOCIAL WELFARE V W CA CA46/03 [30 June 2004]
IN THE COURT OF APPEAL OF NEW ZEALAND
CA46/03
BETWEEN DIRECTOR GENERAL OF SOCIAL
WELFARE
Appellant
AND W
Respondent
Hearing: 10 March 2004
Court: Anderson P, McGrath and Hammond JJ
Appearances: W G Liddell and R E Schmidt for Appellant
P D McKenzie QC and A J McGurk for Respondent
Judgment: 30 June 2004
Recalled and Reissued: 16 December 2004
JUDGMENT OF THE COURT
- The question of law “Given the findings of fact and determination made
by the Authority, did the Authority err in law in dismissing the appeal?”
is answered in the affirmative on the basis that the Authority did not
determine the appeal in any of the ways mandated by s 12M(7) and/or
(8) Social Security Act 1972. - The appeal is remitted to the Authority for determination in the light of
the answer to the question of law and this Court’s findings in respect of
the Authority’s powers. - The appeal is dismissed.
- The respondent is entitled to costs in the sum of $6,000, together with
reasonable disbursements.
(Given by Anderson P)
Background to the appeal
- In 1996 the respondent, Ms W, a solo parent of a young school boy with
special needs, was a university student seeking qualifications for entry to one of the
learned professions. She was receiving a domestic purposes benefit and some
additional allowances referable to her son’s difficulties and her university education.
There was little extra money to come and go on. Towards the end of the year the
school holidays occurred during a university term, presenting Ms W with the
problem of care for her son while she attended lectures. She learned of a school
camp which her son could attend and where his special needs could be catered for.
But that was going to cost $90. She applied to the Department of Social Welfare for
an advance payment of benefit in terms of s82(6) of the Social Security Act 1964
which then provided:
If the Director-General is satisfied that an advance payment of a benefit
would best meet the immediate needs of a beneficiary, the Director-General
may, in the Director-General’s discretion, on application by the beneficiary,
make payment in advance of any number of instalments of the benefit, or
part of it, not yet due, and recover the amount so paid in advance from
subsequent instalments of the benefit at such rate as the Director-General
determines from time to time.
- The Department was not prepared to make the advance and Ms W applied for
a review of that decision by a Benefit Review Committee. But the Department’s
decision was upheld. She then appealed to the Social Security Appeal Authority.
By the time the Authority could hear the case the school holidays had come and
gone. Although plainly sympathetic to Mrs W, the Authority decided that the appeal
would have to be dismissed. It would not accede to the submission by Ms W’scounsel that the Authority should allow the appeal notwithstanding that Ms W could
not now receive the $90 because the camp was over and make a general statement
that the Department acted wrongly in considering the initial application.
- Fortunately, in this case, the ship was not lost for the figurative ha’p’orth of
tar because Ms W went on to graduate and qualify in her profession. But in pursuing
her appeal to the Authority she had incurred costs of $546.40. She asked the
Authority for such costs but failed. The Authority held that as the appeal had been
dismissed, it had no jurisdiction to award costs in the appellant’s favour. It held that
it had jurisdiction under s12O to award costs in favour of an appellant only when an
appeal had been allowed. As we note later in this judgment the jurisdiction is
actually wider than that and extends to cases where there has been a reference back
to the chief executive under s12M(8).
- Ms W then appealed to the High Court by way of Case Stated, the question of
law being described in the following terms:
Given the findings of fact and determination made by the Authority, did the
Authority err in law in dismissing the appeal?
- Durie J answered the question affirmatively. He held that having formed the
view that the Director General had erred for the reasons that the Authority in fact
gave, the proper course was to have allowed the appeal and to have directed the
Director General on the approach that should have been taken and the reasons why.
Given the passage of time and the fact that all the members of the Authority had by
that stage left it, Durie J thought that no more could be done than to record the result
and determine Ms W’s application for costs. He held:
The appeal is allowed, the decision to dismiss the appeal is set aside, the
decision on costs is consequentially set aside, and the matter is referred back
to the Authority on the basis discussed above.
- The Director General now appeals to this Court from Durie J’s decision. It
might be thought that hearings over a period of eight years by a Review Committee,
Appeal Authority, High Court and now this Court is a disproportionate response to a
request for a $90 advance against entitlements. But in the course of its progress the
case has raised matters of general significance to beneficiaries and to theDepartment, particularly in relation to the nature and powers of the Appeal
Authority. The case has been appropriately driven on each side by important matters
of principle of which the sum in dispute is no indication.
Relevant aspects of the statutory scheme
- The establishment in 1973 of an Appeal Authority followed
recommendations in the Report of the Royal Commission of Inquiry into Social
Security 1972. Its functions are described in s12I of the Social Security Act as
follows:
12I Functions of Appeal Authority- The functions of the Appeal Authority shall be to sit as a judicial
authority for the determination of appeals in accordance with section 12J of
this Act and section 16A of the War Pensions Act 1954. - In hearing and determining any appeal, the Appeal Authority shall
have all the powers, duties, functions, and discretions that the chief
executive had in respect of the same matter.
- The functions of the Appeal Authority shall be to sit as a judicial
- Rights of appeal from decisions under a variety of Acts are defined in s12J.
Procedural requirements, including time limitations, are prescribed in s12K. Of
particular significance in this case are s12M and s12O subs (1) and (2) which deal
with hearings, determination and costs. They provide:
12M Hearing and determination of appeal- Subject to subsection (7) of section 12K of this Act, every appeal
against a decision of the chief executive shall be by way of rehearing; but
where any question of fact is involved in any appeal, the evidence taken
before or received by the chief executive bearing on the subject shall, subject
to any special order, be brought before the Authority as follows:- As to any evidence given orally, by the production of a copy of
the notes of the chief executive or of such other material as the
Authority thinks expedient: - As to any evidence taken by affidavit and as to any exhibits,
by the production of the affidavits and such of the exhibits as may
have been forwarded to the Authority by the chief executive, and by
the production by the parties to the appeal of such exhibits as are in
their custody.(2) Notwithstanding anything in subsection (1) of this section, on any
appeal against a decision or determination of the chief executive, the
Authority may rehear the whole or any part of the evidence, and shall rehear
the evidence of any witness if the Authority has reason to believe that any
note of the evidence of that witness made by the chief executive is or may be
incomplete in any material particular.
- As to any evidence given orally, by the production of a copy of
- The Authority shall have full discretionary power to hear and receive
evidence or further evidence on questions of fact, either by oral evidence or
by affidavit. - The Authority shall also have regard to any report lodged by the chief
executive under section 12K of this Act and to any matters referred to
therein and to any evidence tendered thereon, whether or not such matters
would be otherwise admissible in evidence. - In the exercise of its powers under this section the Authority may
receive as evidence any statement, document, information, or matter which
in the opinion of the Authority may assist it to deal with the matters before
it, whether or not the same would be admissible in a Court of Law. - The Authority shall, within the scope of its jurisdiction, be deemed to
be a Commission of Inquiry under the Commissions of Inquiry Act 1908,
and subject to the provisions of this Act, all the provisions of the Act, except
sections 2, 10, 11, and 12, shall apply accordingly. - Subject to subsection (2) of section 12I of this Act, in the determination
of any appeal the Authority may confirm, modify, or reverse the decision or
determination appealed against. - Notwithstanding the provisions of subsection (7) of this section, the
Authority may refer to the chief executive for further consideration, the
whole or any part of the matter to which an appeal relates, and where any
matter is so referred the Authority shall advise the chief executive of its
reasons for so doing and shall give such directions as it thinks just as to the
rehearing or reconsideration or otherwise of the whole or any part of the
matter that is so referred.
- Where an appeal is allowed in whole or in part, or the whole or any
part of the matter is referred back to the chief executive, the Authority may
allow the appellant the costs of bringing the appeal or any part thereof. - Where any appeal is not allowed, no award of costs shall be made
against the appellant unless in the opinion of the Authority the appeal was
frivolous or vexatious or one that ought not to have been brought. - The amount of costs awarded shall be stated in the order.
- Where under this section an award of costs is made and any sum
remains unpaid, the person in whose favour the award or order was made
may obtain from the Secretary of the Authority a certificate under seal of the
sum awarded. When any such certificate is filed in a District Court it may be enforced as to the amount specified therein that is still owing as if it were a
judgment of that Court.
- Subject to subsection (7) of section 12K of this Act, every appeal
- An appeal, on questions of law only, will lie to the High Court – s12Q; and to
this Court in terms of s144 Summary Proceedings Act 1957.
- The High Court’s powers on such an appeal are defined by s 12Q(10) Social
Security Act 1964, which invokes the rules of court, and by r 725 High Court Rules,
which provides as follows:
725 Determination of questions- The Court shall hear and determine the question or questions of law
arising on any case filed under this Part, and shall thereupon do any
one or more of the following things: - In the case of an appeal, reverse, confirm, or amend the
determination in respect of which the case has been stated: - In the case of an appeal, remit the matter to the tribunal for
reconsideration and determination in accordance with the opinion of
the Court on the question or questions of law: - In every other case, remit the matter to the tribunal with the
opinion of the Court thereon: - In any case, make such other order in relation to the matter as
it thinks fit.
determination and reference, may be conveniently read with s12O subs (1) and (2)
above. Section 12M(6) which deems the Authority within the scope of its
jurisdiction to be a Commission on Inquiry under the Commissions of Inquiry Act
may be conveniently read to indicate the scope of the deeming provisions. Such
deeming is, in terms of Mr Liddell’s submission, facultative. It enables the
Authority to carry out its intended functions of hearing and determining appeals and
referring matters to, now, the Chief Executive for rehearing, reconsideration or some
other relevant action. To enable it to function appropriately, there is, through the
deeming provision, protection of the Authority’s members acting bona fide, powers
of a District Court Judge to cite parties and to conduct and maintain order at the
inquiries, power to receive evidence and summon witnesses, privileges for witnesses
and counsel and other such matters.The appealed decisions
decision.
The Department refused the application on the basis that in the Benefit
Committee’s words that the Department is not allowed to top up training
incentive allowances and the childcare subsidy is only available for children
under 5 years.
The Department itself in terms of section 12K report referred to the
Ministerial Direction that was given in respect of section 86(2) and in
particular the words “immediate need” and the various other requirements
that directed the Department have regard to when making a decision for an
advance of this nature. The Department suggested that perhaps the appellant
could miss lectures for the week, - that did not seem to us to be a viable
option. The Department also suggested that perhaps the appellant should
have foreseen this probability arising and made some provision for it which
we think is for a person in the appellant’s position rather an optimistic
suggestion. It does seem to us that the Department viewed the direction very
narrowly and while in view of the fact that the matter is now past, we do not
think it necessary to embark on any detail of the matters argued,
nevertheless, we do think in a situation such as this, a liberal interpretation of
the Act and the directions should be given. Hence, we think that in terms of
section 86(2) the Director-General through the officers of the Department
should use a wide discretion, consistent of course, with the Ministerial
Directive. Beyond that, because this appeal will have to be dismissed, we
say no more. Accordingly, the appeal is dismissed.
circumstances is not to be considered an absolute bar to a judicial determination of
any kind, in all Courts and in all situations. In his view, so long as an issue has been
heard, the administration of justice may require, at the very least, a nominal
determination for the purposes of costs. But, he said,
However, I need not take that further. I think the Authority in this case is
not a court in any event. Its status, by virtue of a deeming provision, is as a
commission of inquiry. The compelling point is that commissions of
inquiry, unlike most courts, are not nurtured in the adversarial tradition.
Although they may need to act as a court to resolve some issues,
commissions of inquiry fundamentally descend from an inquisitorial line
where a positive conclusion is more regularly expected. They may even act
of their own motion to seek evidence that the parties, if there are parties,
have neglected to adduce.
I think that much must depend on the nature of the particular Commission,
but it would be wrong to assume that Commissions of Inquiry are bound by
many practices peculiar to the regular courts. The rule or practice that a
court will not rush in if the issue is no longer alive must surely be a case inpoint. A commission may be duty bound to consider the matter nonetheless
for reasons peculiar to its purpose. Like a Coroner, it may be expected to
advise even if those immediately affected have resolved all matters between
them.
Judge held:
The question then is whether there was some special reason for advising and
reporting in the present case, notwithstanding that the issue between the
appellant and respondent, in terms of the adversarial tradition, had become
academic. Mr McKenzie’s submissions on this aspect are entirely
convincing in my view. But for such an intervention by the Authority the
rights of appeal conferred on beneficiaries would be rendered nugatory
where assistance was urgently required. Similarly, but for some intervention
by the Authority for future guidance, appeal rights carefully given by the
Legislature, which serve as a check on arbitrary decision-making, would be
meaningless in cases of this kind. These are all sound reasons for
proceeding, in my view, and in departing from the practice in the general
courts. And the legislative concern in this respect is itself indicated by the
fact that the Commission is deemed to be a Commission of Inquiry.
Of course, it does not follow that the Authority must determine every appeal.
Obviously some appeals will be frivolous or vexatious or there may be no
point in pursuing those that are not prosecuted. In this case, however, the
Authority clearly had a view that the Department had not dealt properly with
the matter. Looking at the whole of that part of the Act that establishes the
Authority, I think it reasonably plain that the Legislature expected, in that
circumstance, that the Authority would allow the appeal in order to so report,
and in order to help perfect future performance.
Appellant’s case
may be put quite simply. It is that Durie J decided the case in terms of his view of
the merits of the appeal before the Authority rather than by reference to the powers
the Authority had and could properly exercise. That went beyond answering the
question of law and the scope of the High Court’s powers pursuant to s112 Summary
Proceedings Act. In the process, Durie J wrongly declared the Authority to have the
status of a Commission of Inquiry with broad inquisitorial powers and further held
that the Authority need not determine every appeal. The appellant’s position is that
the Authority is deemed to be a Commission of Inquiry for facultative reasons and
then only within the scope of its jurisdiction. That jurisdiction is to sit as a judicial
authority for the determination of appeals brought pursuant to s12J of the SocialSecurity Act and s16A of the War Pensions Act 1954. It must determine every
appeal. To the extent that the merits of Ms W’s appeal to the Authority should be
relevant, the Authority was entitled to regard the issues as moot and to dismiss the
appeal. In giving ancillary advice in the body of its decision, the Authority was
fulfilling a function which did not have to be carried out by a reference pursuant to
s12M(8). Nor was it obliged to allow the appeal as a vehicle for costs. It could have
dismissed the appeal and made a reference, in which case it would have had power to award costs to Ms W notwithstanding the dismissal of her appeal. But it was not
bound to take that course.
Respondent’s submissions
Authority was in error in dismissing the appeal in the circumstances of the case, and
correctly held that the negation of a live issue is not an absolute bar to judicial
determination in all situations. Further, that the Judge correctly held that the
Authority has the status of a Commission of Inquiry which empowers it to inquire
into and advise and report on an issue arising between the parties. Durie J was not
suggesting that the Authority had the status of a Commission of Inquiry for all
purposes so as to enable it to inquire into and report on matters which are not the
subject of an appeal. It is the implications of the Authority’s supervisory and
corrective function in terms of the statutory scheme which allow it, as a deemed
Commission of Inquiry for such purposes, to pass upon the correctness of a decision
even though, in the particular case, circumstances may have arisen which would
deprive the decision of any practical effect if modified or reversed.
appeal although the circumstances when it ought not to would be limited to appeals
which were frivolous or vexatious or not prosecuted. Durie J was not purporting to
make a statement of general application but was directing his observation to those
rare cases.
to the subs (7) powers but alternative to them. It would not therefore be appropriatefor the Authority to dismiss an appeal and then purport to refer the matter back to the Chief Executive. In the present case the proper course for the Authority would have been to partially allow the appeal and then give a direction to the Chief Executive as to the way in which the matter should have been dealt with in the particular circumstances. Such reference would then have provided a jurisdictional basis for a costs order.
Discussion
inquisitorial powers unrelated to the true scope of an appeal under consideration by it
then we must respectfully disagree. The Authority is deemed to be a Commission of
Inquiry but only within the scope of its jurisdiction. The jurisdiction is defined by
ss12I and J although the powers within the jurisdiction are reasonably extensive. We
doubt whether Durie J was suggesting otherwise. But where we are more obviously
in disagreement with Durie J is with respect to his opinion to the effect that the
Authority’s deemed status as a Commission of Inquiry coupled with its advisory and
supervisory functions required it to allow Ms W’s appeal so that it could report to the
Chief Executive. The Authority’s facultative powers had no real relevance to the
question posed in the Case Stated. Further, and more substantially, we consider the
Judge to have erred in determining that the Authority ought properly to have allowed
the appeal but such a finding usurped the Authority’s own function. But the Judge,
nevertheless, answered the question correctly in the affirmative. This is because the
Authority did not determine the appeal before it in any of the ways the Act requires.
It did not confirm, modify or reverse the decision appealed against, and if the power
of reference is an alternative rather than an ancillary power it did not determine the
appeal in that way either.
of the meanings of “reverse” noted in the Concise Oxford Dictionary is “revoke or
annul”. More particularly, given the Authority’s status, by virtue of s12I(1) as a
“judicial authority”, we observe that in a legal context of appellate or reviewing
powers, “reverse” has the included meaning. Jowitts Dictionary of English Law,2 nd Edition (1977) defines “reverse” as “to undo, repeal or make void. A judgment is
said to be reversed when it is set aside by a court of appeal.” Black’s Law
Dictionary, 7 th Edition (1999) defines “reversal” as “1. An appellate court’s
overturning of a lower court’s decision.” The Dictionary of Canadian Law (1991)
defines “reverse” as “to make void, repeal or undo. A judgment is reversed when a
court of appeal sets it aside.”
inclusive meaning is necessary to give efficacy to the Authority’s functions when
dealing, for example, with a decision to discontinue the payment of a benefit. Such a
situation may often arise. It would seem very odd if, in such circumstances, by
virtue of a more restricted meaning of “reverse” the relief was a decision not to
discontinue a continuing benefit. Further, there may well be situations where a
decision should not stand but should be reheard in the light of directions, pursuant to
a subs (8) reference.
it, or reverse it by turning it round, or reverse it in the sense of revoking it either with
or without a direction for rehearing. But it must do one of those things. It cannot
simply dismiss without passing on the correctness or otherwise wholly or in part of
the decision appealed against.
because the particular need for which a benefit was sought had evaporated with the
effluxion of time. The Authority’s observations about the Department’s approach
indicate that there were matters requiring investigation and comment relating to the
practices or policies being applied by the Department. The Authority’s power to
remit matters under s12M(8) and the power to award costs to an appellant on such a
reference back notwithstanding that the appeal may not have been allowed, rendered
the issues before the Authority other than moot. The appeal would not have been
nugatory if a reference back with advice would have a future practical benefit for the
Department and/or potential beneficiaries in the administration of the Act.
regarded as moot unless no practical benefit could be obtained from any form of
relief which the Tribunal might be empowered to grant. Vindication of an
appellant’s position, criticism of an appropriate practice or policy in the Department,
might well give rise to a practical benefit in the granting of some relief, such as by a
reference back, notwithstanding that monies sought by way of a benefit were no
longer needed.
where exigent and transient needs for benefits might frequently arise, but be denied
wrongly, and by reason of a perception of mootness future requests by beneficiaries
might continue to be wrongly denied. In our view the Authority has a particular
supervisory and advisory function which facilitates the due administration of the Act.
It is a very real part of the administration of the Act that persons aggrieved at the
possible wrongness of a decision should be able to call its correctness into question.
the High Court’s conclusion and some of its reasons. The certificate of result of the
appeal to the High Court is in these terms:
ON AN APPEAL against the decision by Case Stated from the Social
Security Appeal Authority 29 November 1996
IT WAS ADJUDGED on 1 st November 2002
- The question is: ‘Given the findings of fact and determination made by
the Authority, did the Authority err in law in dismissing the appeal?’
The answer is ‘yes’. - The appeal is allowed, the decision to dismiss the appeal is set aside, the
decision on costs is consequentially set aside, and the matter is referred
back to the Authority on the basis discussed above - Costs are awarded to the appellant on a 2B basis, without certification
for second counsel.
do not agree are the suggestion that the Authority does not have to determine every
appeal, any suggestion that as a deemed Commission of Inquiry within the scope of
its jurisdiction the Authority may inquire into matters not properly related to anappeal before it, and the merit based finding that the Authority should have allowed
the appeal. We would answer the question of law in the affirmative on the basis that
the Authority did not determine the appeal in any of the ways mandated by s12M(7)
and/or (8). It follows that the Authority’s decision not to award costs was premature
and ought be revisited in the light of the determination of the appeal by Ms W and
such appeal is remitted to it for determination in the light of the answer to the
question of law and this Court’s findings in respect of the Authority’s powers.
in the sum of $6,000 together with reasonable disbursements.
Attached File(s)
-
DG_of_DSW_V_W_CA_CA46_03.pdf (44.97K)
Number of downloads: 23
#5
Moeroa
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- Group: Members
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- LocationWellington Central City
Posted 04 August 2011 - 12:46 PM
With so many being transferred from ACC onto WINZ, this is what we face:
http://ips.ac.nz/Wel...berts.jpgAdrian Roberts
Mr Adrian Roberts is the founder and Managing Director of In-Work New Zealand, a provider of employment services for people on benefit who have a repeated history of unemployment. In-Work New Zealand works with all clients in receipt of Unemployment Benefit as well as specialising in supporting Sole Parent clients into employment. In-Work has a staff of 30 with locations in Henderson, Birkenhead, Manurewa, Pukekohe, Hamilton and New Plymouth. In-Work has provided service to approximately 16,482 clients since it began in 2001.
Prior to the inception of In-Work NZ Limited, Adrian was the Managing Director of the Hub Resource Company (Australasia) Limited, a specialist recruitment company. Previously Adrian was also a Director of Noble Recruitment, Roberts & Hoskins and Anti-Skid Systems Limited, along with DSP Australia PTY Limited in Australia.
Mr Roberts is based in Auckland. http://ips.ac.nz/Wel...%20Roberts.html
- You are here:
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- Adrian Roberts
http://ips.ac.nz/Wel...berts.jpgAdrian Roberts
Mr Adrian Roberts is the founder and Managing Director of In-Work New Zealand, a provider of employment services for people on benefit who have a repeated history of unemployment. In-Work New Zealand works with all clients in receipt of Unemployment Benefit as well as specialising in supporting Sole Parent clients into employment. In-Work has a staff of 30 with locations in Henderson, Birkenhead, Manurewa, Pukekohe, Hamilton and New Plymouth. In-Work has provided service to approximately 16,482 clients since it began in 2001.
Prior to the inception of In-Work NZ Limited, Adrian was the Managing Director of the Hub Resource Company (Australasia) Limited, a specialist recruitment company. Previously Adrian was also a Director of Noble Recruitment, Roberts & Hoskins and Anti-Skid Systems Limited, along with DSP Australia PTY Limited in Australia.
Mr Roberts is based in Auckland. http://ips.ac.nz/Wel...%20Roberts.html
#6
MG
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- Group: Members
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- Joined: 05-February 04
Posted 04 August 2011 - 09:58 PM
You missed our good friend Professor Desmond Francis Gorman, no doubt soon to become a Sir for his services to the public good of this country. Prof G has played a prominent role on the WWG, in addition to all the other taxpayer-funded jobs he has, in which he, quite properly, focuses his scientific expertise on those who depend on the state for handouts instead of earning their own livings. I understand that Prof G's next, publicly funded, research project will investigate the role of irony in public policy, just as soon as those funds become available following implementation of the WWG's recommendations to either cut, or stop completely, the payment of public funds to morally defective welfare dependents and their families.
#7
Moeroa
- Advanced Member
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- Group: Members
- Posts: 940
- Joined: 20-November 09
- LocationWellington Central City
Posted 04 August 2011 - 11:33 PM
MG, on 04 August 2011 - 09:58 PM, said:
You missed our good friend Professor Desmond Francis Gorman, no doubt soon to become a Sir for his services to the public good of this country. Prof G has played a prominent role on the WWG, in addition to all the other taxpayer-funded jobs he has, in which he, quite properly, focuses his scientific expertise on those who depend on the state for handouts instead of earning their own livings. I understand that Prof G's next, publicly funded, research project will investigate the role of irony in public policy, just as soon as those funds become available following implementation of the WWG's recommendations to either cut, or stop completely, the payment of public funds to morally defective welfare dependents and their families.
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