Ransfield v Chief Executive of the Ministry of Social Development [2018] NZHC 434 (19 February 2018)

Last Updated: 5 April 2018

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CIV-2017-404-1349 [2018] NZHC 434

BETWEEN	ARETA REREKAU TANARA MOTU MANGAI UHUUHU RANSFIELD Plaintiff
AND	CHIEF EXECUTIVE OF THE MINISTRY OF SOCIAL DEVELOPMENT First Defendant ANNE TOLLEY Second Defendant

Hearing:	19 February 2018
Appearances:	Plaintiff in person C M Hutchinson and O J G Upperton for the Defendants
Judgment:	19 February 2018

ORAL JUDGMENT OF ASSOCIATE JUDGE R M BELL

Solicitors:

Crown Law (T Bromwich/O Upperton), Wellington, for the Defendants

Copy for:

Areta Ransfield, Auckland

RANSFIELD v CHIEF EXECUTIVE OF THE MINISTRY OF SOCIAL DEVELOPMENT [2018] NZHC 434

[19 February 2018]

[1] The defendants apply to strike out Mr Ransfield’s statement of claim dated 3 July 2017. In the alternative, they apply to strike out the claim against the second defendant.

[2] Mr Ransfield is a long-term beneficiary. In this proceeding he makes complaints about the Ministry of Social Development. The legal basis for his claim is very unclear. He is seeking a vast sum for damages—$600,050. He does not seek any other relief. I treat his claim as made in tort. I do not understand that his case can be considered under any other head of law. I say that to make the point that his case does not seek judicial review under the Judicial Review Procedure Act 2016. If I did consider that he was applying for judicial review, I would have to consider whether I had jurisdiction to decide the strike-out application. That is because of the decision in Reid v New Zealand Fire Service Commission which held that a Master or Associate Judge could not hear an application to strike out proceedings under the Judicature Amendment Act 1972.¹ It may be necessary later to consider whether that decision still stands, given the changes to the law made by the Senior Courts Act 2016, especially ss 21 and 22. For this case, however, that is not necessary and can await another day.

[3] Mr Ransfield has had another proceeding running in this court. He applied under the Social Security Act 1964 for leave to appeal a decision of the Social Security Appeal Authority out of time.² In a decision of 16 January 2018, Palmer J dismissed his application. He said:³

... I consider it is highly likely there is no merit in Mr Ransfield’s appeal. If there were, the substantive relief he seeks is better considered in the general proceeding he has filed.

That was a reference to this proceeding. Palmer J noted that when the case was first called, in June 2017, Faire J had suggested to Mr Ransfield that he might like to investigate pursuing the relief he was seeking in a general proceeding rather than

¹ Reid v New Zealand Fire Service Commission (1985) 8 PRNZ 550 (HC).

² Ransfield v Chief Executive of the Ministry of Social Development [2018] NZHC 4.

³ At [15].

in his appeal.⁴ Mr Ransfield took Faire J’s suggestion at his word and began this proceeding.

[4] For general background, I adopt what Palmer J said as to the facts in that case, as also relevant to this one. The following is an extract from Palmer J’s decision:⁵

What happened

Mr Ransfield

[2] Mr Ransfield is a long-term client of MSD. In October 2006, he was served with a trespass order after threatening to go to a MSD appointment with a gun and then yelling at the appointment. He was dealt with by MSD’s Remote Client Unit (RCU) which deals with clients who cannot access services through their local Work and Income service centre. The trespass order has been regularly renewed since then, as has Mr Ransfield’s status with the RCU. On 18 September 2015, the RCU Review Panel decided Mr Ransfield was ready to return to accessing Work and Income services through his local service centre.

Grant application

[3] On 16 June 2015, Mr Ransfield applied for a grant, saying:

I have to pay a phone bill of $90.00, and I need some money for food. I will only be able to pay about $60.00. I need also $40.00 to replace my lost license to exempt [indecipherable] my vehicle for 12 months.

[4] MSD held a telephone interview with Mr Ransfield. On 18 June 2015 Work and Income recorded this as an application for $100 for food with the reason given as:

I am behind on my phone bill payments. I am making arrangements to pay this with Slingshot but now don’t have enough food money for the week. My wallet [has] gone and contained my licence, bank cards and payment card. I have also had to reapply for my licence which is $40.00 so am extra short.

[5] Work and Income granted Mr Ransfield $100 via a payment card that could only be used to buy food. On 19 June 2015, MSD returned Mr Ransfield’s call about this. An MSD file note states:

Assisted client with $100 food grant as he had a couple of urgent bills which needed paying. Client was confused and tried to use the payment card to pay a bill, rather than at the supermarket for food. Client now understands and have advised to use the card asap as it expires on the 21 June.

⁴ At [10].

⁵ At [2]–[9].

Reviews and appeals

[6] On 17 December 2015, Mr Ransfield applied for a review of MSD’s decision on the basis he had requested $40.00 for renewal of his driver’s licence, not a food grant. Mr Ransfield also complained the failure to make the $40.00 payment led to him being unable to pay his telephone and internet service account, leading to them being cut off and ultimately the loss of electrical services, equating to debts in excess of $500.

[7] On 12 May 2016, the Chief Executive’s internal review was satisfied, on the balance of probabilities, Mr Ransfield had an immediate need to renew his driver’s licence. It overturned the decision not to pay for the licence to the value of $40.00 as a recoverable Special Needs Grant, it paid that amount into Mr Ransfield’s bank account and agreed to apologise. The internal review does not appear to have addressed the question of consequential losses.

[8] Mr Ransfield then further complained to the Benefits Review Committee. He provided the Committee with documentation indicating his debts with Baycorp, following the loss of telephone, internet and electrical services, amounted to $819.37. The matter proceeded to the Benefits Review Committee. On 11 July 2016, the Committee noted Mr Ransfield had an immediate need to renew his licence and that was an essential need, to maintain the car and for his job searching. The Committee agreed the decision to grant $100 for food was correct and the decision to decline an advance payment of benefit of $40.00 was incorrect and noted it had already been overturned. The Committee declined to address the consequential loss aspect of Mr Ransfield’s argument as it was not part of the decision the Committee was reviewing.

[9] Mr Ransfield appealed the Committee’s decision to the Social Security Appeal Authority. In its decision of 8 March 2017, the Authority could identify “only one decision potentially within the Authority’s jurisdiction under ss 12I and 12J” which was “the decision not to provide a Special Needs Grant of $40 on 17 June 2015” and noted that had already been reversed.⁶ The Authority concluded it did not have jurisdiction relating to the consequential effects on Mr Ransfield of not receiving the grant at the time he applied for it.⁷

[5] At the start of this hearing, I asked Mr Ransfield to explain his case. Essentially, it concerns two main matters:

[a] he was banned under the Trespass Act 1980 from entering the local Work and Income office, and the Trespass Act notice was repeatedly renewed for a number of years until 2015; and

⁶ Re Ransfield [2017] NZSSAA 4 at [21].

⁷ At [21]–[23].

[b] the consequential losses arising from the non-payment of $40.00 to pay for his motor vehicle licence.

[6] His statement of claim has extraneous material. Some of the content is argumentative. Much of it is irrelevant. I have to say that I have difficulty in understanding some parts of it. Mr Ransfield is a lay litigant. He does not have legal qualifications, although he appears to have some experience in litigation. He suffers the disadvantage that he is not familiar with the law of torts or the ways in which claims can be brought against government agencies. He is also unfamiliar with the High Court Rules and the practice of this court relating to pleadings. Against that, the defendants are competently advised by the Crown Law Office.

[7] Mr Ransfield’s statement of claim does not comply with the High Court Rules. It does not set out distinct causes of action with distinct matters pleaded separately. It would be fruitless to require the defendants to plead meaningfully to the statement of claim. A statement of defence has been filed but the statement of claim is almost meaningless to a legally-informed mind, and is inadequate to tell the defendants of the case that they have to meet.

[8] This application has involved an enquiry to see whether the matters that Mr Ransfield is concerned about do give him any reasonably arguable causes of action against the defendants. For that, I have treated his allegations as ones which do not turn on particular facts. I have instead considered whether, as a matter of general law, the matters he is concerned about do give him any arguable causes of action.

[9] When a defendant applies to strike out a statement of claim because it does not disclose a reasonably arguable cause of action, it is standard to recite the test set out in McGechan on Procedure, paragrah HR15.1.02, which draws from the decision of the Court of Appeal in Attorney-General v Prince and the decision of the Supreme Court in Couch v Attorney-General. ⁸ The text says:

8. Attorney-General v Prince [1998] 1 NZLR 262 at 267; Couch v Attorney-General [2008] NZSC 45, [2008] 3 NZLR 725 at [33].
   • (a) Pleaded facts, whether or not admitted, are deemed to be true. This does not extend to pleaded allegations which are entirely speculative and without foundation;

(b) the cause of action or defence must be clearly untenable;

(b) it is inappropriate to strike out a claim summarily unless the court can be certain that it cannot succeed;

(c) the jurisdiction is to be exercised sparingly, and only in clear cases. This reflects the court’s reluctance to terminate a claim or defence short of trial;

(d) the jurisdiction is not excluded by the need to decide difficult questions of law, requiring extensive argument; and

(e) the court should be particularly slow to strike out a claim in any developing area of the law, perhaps particularly when a duty of care is alleged in a new situation.

The Trespass Act allegations

[10] Mr Ransfield says that the Ministry should never have issued him with a trespass notice in 2006. He claims that the Ministry “got the wrong end of the stick”. He admits to having rung the Ministry’s legal office to enquire whether he could take a gun to a meeting, but he claims that the Ministry misunderstood his intent and treated that as a threat. He also disputes the Ministry’s view of his conduct when he went to the meeting which resulted in his being escorted from the premises by Police.

[11] On the basis that at a defended hearing Mr Ransfield’s version of events might be preferred to the Ministry’s, I consider whether his dissatisfaction with being issued with a Trespass Act notice can give him any claim in tort against the Ministry. Mr Ransfield is concerned not only with about the initial notice but also the fact that when that notice expired the Ministry issued fresh notices under the Trespass Act, so that he was banned from going to his local WINZ office for some nine years.

[12] The general law is that a person entitled to lawful possession of land is entitled to grant or refuse permission to others to come onto the land. As an
example, a lessee of premises is entitled to bar anyone from entering the premises, including the lessor, unless there are terms of the lease granting the lessor rights of entry. Aside from the requirements of human rights legislation, the person entitled to possession of premises can grant or refuse permission to third parties to come onto the premises on whatever grounds they wish. The Trespass Act 1980 provides machinery by which those rights to control entry on to premises can be enforced. A notice given under the Trespass Act may bar a person from entering premises for up to two years.⁹ The notice ceases to have effect after the period stated in the notice, which may be up to two years.¹⁰ The possessor of the premises is entitled to continue to control entry on to the premises after the two years have expired and may issue a fresh notice to a person who has already been barred from the premises under an earlier notice.

[13] The law does not impose any particular duty on the owner or possessor of premises as to how they should exercise their rights to permit or bar entry onto the premises—subject of course to contractual obligations and human rights legislation. There are obligations that might arise through special undertakings: leases, easements and the like. But the law does not recognise that any duty of care is owed by the possessor of premises to the public at large in exercising their powers to permit or bar entry onto their premises.

[14] The question then arises whether the law should impose any greater obligation when a public authority that occupies premises that the public may come to to do business with that public authority. Subject to one exception, I do not regard the authority as being under any greater duty as regards the public in controlling entry onto the premises than I do a private owner or possessor of premises. That is, I do not recognise that there is any duty of care owed by the owner of premises to the public that would require the owner to grant entry to a member of the public who wishes to go there. The owner of the premises can control when to open the premises to the public and which members of the public to allow entry to. The exception is that a public authority may be liable in a way in which private bodies are not: the potential for liability for misfeasance in public

⁹ Trespass Act 1980 4(4).

¹⁰ Section 4(4).

office. Misfeasance in public office is a tort which may be committed only by public officers, not by private bodies and private citizens. It involves dishonesty in carrying out public functions. If there were targeted malice towards Mr Ransfield or powers were knowingly applied for an improper purpose, there might be a case for misfeasance in public office. There is nothing in this case, however, that suggests that there could be any basis for a claim for misfeasance in public office against any officers of the Ministry.

[15] It is important to realise that a claim of misfeasance in public office alleges serious misconduct. In Three Rivers District Council v The Bank of England (No.3), in a judgment of 20 May 2000, Lord Hutton said this:¹¹

My Lords, I consider that dishonesty is a necessary ingredient of the tort, and it is clear from the authorities that in this context dishonesty means acting in bad faith. In some cases the term "dishonesty" is not used and the term "in bad faith" or acting from "a corrupt motive" or "an improper motive" is used, or the term "in bad faith" is used together with the term "dishonesty".

The point here is that when allegations of dishonesty are made, there must be a proper foundation for alleging them.¹² That duty is imposed on lawyers under the Lawyers Conduct and Client Care Rules 2008, r 13.8. I have applied that requirement to claims of misfeasance in public office in Official Assignee v Menzies (No 4).¹³

[16] There is nothing in Mr Ransfield’s case that suggests that any officer of the Ministry acted with anything approaching dishonesty. While he is unhappy with the Ministry for barring him from the local WINZ office, he criticises that as a decision that ought not to have been made, but he does not suggest that there was any unlawfulness approaching dishonesty or any corrupt motive on the part of the Ministry officers. If he were to make any such allegations, the pleading rules require that those allegations be properly particularised and that there be some

11. Three Rivers District Council v Governor of the Bank of England (No.3) [2003] 2 AC 1 (HL) at 227.

¹² X v Y [2000] 2 NZLR 748 (HC) at [58].

¹³ Official Assignee v Menzies (No 4) HC Auckland CIV-2009-404-3391, 4 May 2011.

cogency to them. For those requirements, I refer to Ng v Harkness Law Office Ltd.¹⁴

[17] In the absence of any basis for a duty of care in negligence and any factual foundation for a claim for misfeasance in public office, I cannot see any reasonably arguable basis on which Mr Ransfield can sue the Chief Executive of the Ministry of Social Development in tort either for issuing the Trespass Act notice in 2006 or for issuing further notices in succeeding years. Or, for that matter, in reviewing its decision and telling Mr Ransfield that he could start going to the local office again. In saying that, I take on board that Mr Ransfield emphasised that he complied with the Trespass Act notices to the letter and stayed away from the local WINZ office throughout their term. He may well have an argument that he had shown by his compliance with the notices that he would not be considered a danger to Ministry staff. But those are matters that he would be able to take up in submissions to the Ministry to persuade them to change their minds. While that may be a matter he could have taken up with the Ministry, its failure to accept that does not mean that it breached any duty to him that would give him any private law claim against the Ministry for having been barred from the local office.

[18] I emphasise that the Ministry did not stop dealing with Mr Ransfield. The Ministry has a Remote Claims Unit through which it deals with clients who, for one reason or another, do not or cannot attend local offices. The Ministry continued to deal with Mr Ransfield through its Remote Claims Unit. The barring of access to the local office did not deprive Mr Ransfield of access to the services of the Ministry. Overall, I am satisfied that Mr Ransfield does not have a claim under any rule of law against the Ministry either for the initial Trespass Act notice or for the continuation of the Trespass Act notices until he was permitted re-entry.

Claim for consequential losses

[19] The other part of Mr Ransfield’s case is the decision of the Ministry not to pay him $40.00 in 2015. The question here is whether Mr Ransfield has a claim for consequential losses from the Ministry not paying him $40.00 when he first

¹⁴ Ng v Harkness Law Office Ltd [2014] NZHC 850 at [40]–[44].

asked for it. The Ministry did conduct an internal review and there was a review before the Benefits Review Committee. This resulted in the Ministry accepting that he should have been paid $40.00 and that was paid. Mr Ransfield’s case is that because he did not receive it promptly he has suffered consequential losses. He says that he got further into debt because he did not receive the funds in time.

[20] The question of consequential losses arising from non-payment of a social welfare benefit has been the subject of decisions in both New Zealand and in England. The English decisions are Rowley v Secretary of State for Department of Work and Pensions,¹⁵ and Murdoch v Department for Work and Pensions.¹⁶ The New Zealand decision is Te Ua v Secretary for War Pensions.¹⁷ The English decisions were made on strike-out applications. The New Zealand decision in Te Ua was made on the merits.

[21] The approach in those decisions is consistent. In each case, the court found that a common law duty of care would be inconsistent with the scheme of the legislation under which benefits were to be paid. In each case, legislation provided claimants with statutory rights of review and the courts held that those statutory rights of review provided the only form of recourse. To impose a common law duty of care would be inconsistent with those statutory provisions.

[22] In the English decisions, the courts noted that the duty of care alleged was a new one, and they considered first whether it was appropriate to deal with the duty of care question on a strike-out application rather than allow the case to go to a full hearing on the merits. In both cases the English courts were satisfied that there was a general principle involved which could be decided without regard to the facts which might be found at a defended hearing. The courts struck out the proceedings without requiring the proceeding to go to a full hearing even though a new duty of care was alleged. The courts were able to do that by considering the duty of care questions as a matter of principle rather than relying on the facts alleged.

15. Rowley v Secretary of State for Department of Work and Pensions [2007] EWCA Civ 598, [2007] 1 WLR 2861.

¹⁶ Murdoch v Department for Work and Pensions [2010] EWHC 1998 (QB), [2011] PTSR D3.

¹⁷ Te Ua v Secretary for War Pensions [2014] NZHC 1050.

[23] In Te Ua, Whata J dealt with the case on the final merits. He followed a similar approach to the English decisions. He found that the War Pensions Act 1954, under which Mr Te Ua was claiming benefits, had its own provisions for review. He held that imposing a common law duty of care would jar with the statutory scheme of review. He said:¹⁸

[179] I accept Ms Williams’ submissions that the present situation is analogous to various cases where the Courts have refused to find a duty of care because the legislation thoroughly covers the ground.

[180] I can also easily envisage situations where VANZ could be confronted with co-extensive public and private law processes, all seeking the same essential relief – that is to obtain an allowance or reimbursement under the Act. I can envisage situations where the Court might be called upon to remedy alleged negligence in private law proceedings and then to declare an entitlement to a pension or allowance when, at the same time, the same claim is being considered by the NRO, or the Appeals Board, or the Secretary. The negligence claim based on the failure to be properly informed of previous decisions provides a good example. Father Te Ua could have conceivably commenced a private law action at any time following the receipt of the claims panel decision. He could also, at the same time, have initiated a review to the NRO and then appeal to the Appeals Board. A further review to the Secretary could then have been sought. Any one of those statutory decision makers might reach a different view from the Court in the private law action as to the significance of the previous decision. The mind boggles as to which of the decisions, the Court or the statutory decision maker, has primacy. This is in my view an additional significant policy reason to reject a common law duty of care essentially based on the same statutory relationship established by the Act.

[181] As to general damages claims, it would seem odd to be able to sue for general damages when the underlying primary claim is capable of remedy within the statutory frame. There may be circumstances where the evidence of harm or distress engages the Court’s impulse to find a remedy. I do not propose to speculate on what those circumstances might be. But on the facts pleaded, I do not consider that the generalised claims to distress and frustration call for separate consideration by this Court in a private law context given the remedies already afforded by the Act. I elaborate further on this when I address the substantive merits of a general damages claim [later].

(Citations omitted)

[24] The position under the Social Security Act 1964 is analogous. The Social Security Act, s 10A, provides for review by a Benefits Review Committee. If a

¹⁸ Te Ua v Secretary for War Pensions [2014] NZHC 1050 at [179]- [180].

beneficiary is dissatisfied with decisions of the Benefits Review Committee there is the right of appeal to the Social Security Appeal Authority. Beyond that, there is also the right of appeal to this court on a question of law. Those review and appeal rights may not always run smoothly. If relief is granted belatedly and a beneficiary’s financial position has worsened with the delay in payment, the inadequacies of any appeal system are not a matter for the courts to address. The solution lies with the legislature. The short point is that both the English and New Zealand courts have accepted that to impose a common law duty of care would be inconsonant with the scheme of review and appeal under the Social Security Act.

[25] I must also consider whether, outside any duty of care under the law of negligence, there can be any basis for raising misfeasance in public office. I take the same approach as I have with the trespass question. Mr Ransfield does not suggest that the officers of the Ministry acted in such a way as to trigger a claim for misfeasance in public office. If he were to do so, I would require something from him far more cogent than what he has presented so far. Accordingly, I dismiss that as a serious possibility.

[26] In summary, on the two matters which Mr Ransfield wants to run, I am satisfied that he does not have a reasonably arguable cause of action against the Chief Executive of the Ministry of Social Development.

[27] There is one further matter: the question of parties. Mr Ransfield initially sued the Queen as first defendant, and the former Minister for Social Development as the second defendant. At the first case management conference, Associate Judge Osborne substituted the Chief Executive of the Ministry of Social Development for the Queen as first defendant. The Chief Executive appears to be the appropriate defendant when a claim is made for actions taken by officers of the Ministry for Social Development. They acted under the Chief Executive’s authority. In effect, they are his agents. He is responsible for their actions. He is the correct defendant to be named in a claim for damages occasioned by officers
of the Ministry. That applies, even if the officers have immunity under the State Sector Act 1988.¹⁹

[28] It was unnecessary for Mr Ransfield to sue the Minister for his claims. That is because the Chief Executive is responsible for actions of the officers. Although the Minister may have political responsibility for the Ministry, she is not the appropriate person to sue for tort claims by officers of the Ministry. Even if I had not struck out Mr Ransfield’s statement of claim, I would still have ordered the removal of the name of the Minister as a defendant.

[29] The Chief Executive has been successful in requiring Mr Ransfield’s statement of claim to be struck out. I accordingly make an order striking out his claim. Because I am satisfied that there is no basis on which he could properly sue the Chief Executive, I also dismiss the proceeding.

[30] The Chief Executive did not apply for costs.




....................................

Associate Judge R M Bell

¹⁹ Crown Proceedings Act 1950, ss 6(4A) and 14.