Hill v Chief Executive of the Ministry of Social Development [2020] NZCA 619 (3 December 2020)

Last Updated: 8 December 2020

IN THE COURT OF APPEAL OF NEW ZEALAND I TE KŌTI PĪRA O AOTEAROA

CA433/2019 [2020] NZCA 619

	BETWEEN	PERCY HILL Applicant
	AND	CHIEF EXECUTIVE OF THE MINISTRY OF SOCIAL DEVELOPMENT Respondent

Court:	Brown and Courtney JJ
Counsel:	Applicant in person N J Wills and G Niven for Respondent
Judgment: (On the papers)	3 December 2020 at 3 pm

JUDGMENT OF THE COURT

1. The application for an extension of time to comply with r 43 of the Court of Appeal (Civil) Rules 2005 is declined.
2. Mr Hill’s appeal is deemed abandoned.

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REASONS OF THE COURT

(Given by Courtney J)

• [1] This is an application for an extension of time under r 43 of the Court of Appeal (Civil) Rules 2005.
• [2] A good deal of the application is concerned with a previous decision of Miller J, on a Registrar’s review, refusing dispensation for security for costs.^[1] That decision was delivered on 11 May 2020. Security has not been paid. The present application is not an opportunity to revisit that decision, which was final.
• [3] So far as the application pertains to r 43, Mr Hill maintains that his appeal, in which he seeks to challenge a debt of $17,884.60 owing to the Chief Executive of the Ministry of Social Development, has merit and blames the judicial system for 14 years of delay. He contends that COVID-19 restrictions in the Auckland area have hindered his ability to prepare the case on appeal, and he complains that there is no reason for urgency in disposition of his case. He emphasises that he is self-represented and claims that he “has been consistent with every demand” of the courts. In a supporting affidavit he deposes to a family emergency concerning the health of his mother, who died in September 2020.
• [4] The Chief Executive observes that Mr Hill previously sought an adjournment of the hearing of this application, citing his wish to file in the Family Court a challenge to a decision related to the death of his mother. Brown J made the following observations:^[2]

[2] However Mr Hill has not complied with the obligation under r 43 of the Court of Appeal (Civil) Rules 2005 to file a case on appeal and apply for the allocation of a fixture. He has been granted several extensions of time to comply with the rule, namely on 9 October, 19 November, 17 December 2019, 15 January, 14 February, 13 March and 15 April 2020.

[3] The final date for complying with r 43 was 18 May 2020. By operation of r 43(1) Mr Hill’s appeal was deemed abandoned on 19 May 2020.

• [5] Having regard to the circumstances asserted by Mr Hill, Brown J granted a short adjournment, intended to ensure that the r 43 application would be determined this year. He directed an exchange of submissions which was to conclude on 20 November. In response, Mr Hill renewed his application for adjournment, unsuccessfully.
• [6] The Chief Executive also observes that the dispute began in June 2010 and includes a six-year delay on Mr Hill’s side. The appeal first reached this Court in August 2019 and Mr Hill has yet to comply with his obligations under r 43. There is no reason to suppose that he will do so, and any extension will likely be futile given that he seems unlikely to pay security for costs.
• [7] Finally, the Chief Executive submits that the appeal plainly has no merit, referring to the judgment of Downs J that is the subject of the appeal and the judgment of Miller J on the security for costs question.^[3] Miller J concluded that the grounds of appeal were hopeless and raised no tenable question of law justifying a second appeal.^[4] The Chief Executive points out that the decision of Downs J declined an extension of time to allow Mr Hill to bring an appeal to the High Court. Ultimate success in having the debt reviewed would require that Mr Hill go much further. He would have to succeed in an extended chain of extensions of time before he could relitigate the 2010 decision of the Benefits Review Committee.
• [8] We consider that, COVID-19 and his family circumstances notwithstanding, Mr Hill has had ample time and opportunity to comply with his obligations under r 43. There is no reason to assume that he will in fact comply if an extension is granted. Nor is there any reason to suppose that he will pay security for costs, as he has been ordered to do. Those are sufficient reasons to refuse the extension. We would nonetheless be slow to bring the appeal to an end if it appeared to have any merit, but for the reasons given by Downs and Miller JJ it does not.
• [9] The application for an extension to comply with r 43 is declined. It follows that Mr Hill’s appeal is deemed abandoned.

Solicitors:
Crown Law Office, Wellington for Respondent

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^[1] Hill v Chief Executive of the Ministry of Social Development [2020] NZCA 157 [Decision of Miller J].

^[2] Hill v Chief Executive of the Ministry of Social Development CA433/2019, 14 October 2020.

^[3] Hill v Chief Executive of the Ministry of Social Development [2019] NZHC 1661 [Decision of Downs J].

^[4] Decision of Miller J, above n 1, at [10]–[11].