Hennessy v Ministry of Social Development [2013] NZHC 3449 (18 December 2013)

Last Updated: 25 April 2014

IN THE HIGH COURT OF NEW ZEALAND TAURANGA REGISTRY

CIV 2012-485-877 [2013] NZHC 3449

BETWEEN MAREE HENNESSY Applicant

AND MINISTRY OF SOCIAL DEVELOPMENT Respondent

Hearing: (on the papers)

Counsel: M Hennessy, Applicant in person

T I Hallett-Hook for Respondent

Judgment: 18 December 2013

_{JUDGMENT (NO. 2) OF HEATH J}

This judgment was delivered by me on 18 December 2012 at 3.30pm pursuant to

Rule 11.5 of the High Court Rules

_{Registrar/Deputy Registrar}

Solicitors:

Crown Law, PO Box 2858, Wellington

Copy to:

_{M Hennessy, Appellant in person}

HENNESSY v MINISTRY OF SOCIAL DEVELOPMENT [2013] NZHC 3449 [18 December 2013]

The application

[1] Ms Hennessy seeks to extend the time to apply for leave to appeal against a judgment that I gave on 21 November 2012.¹ If an extension were granted, she asks for leave to be given.

[2] My decision was given on an appeal, by way of case stated, by Ms Hennessy from a determination of the Social Security Appeal Authority. It was necessary for me to review the inter-relationship of various provisions of the Social Security Act

1964 and the Accident Compensation Act 2001, in the context of Ms Hennessy’s appeal.

[3] In my substantive judgment, I summarised the nature of the appeal as follows:

[1] Ms Hennessy appeals, by way of Case Stated, from a determination of the Social Security Appeal Authority (the Authority) made on 14

November 2011. The Authority declined to interfere with a decision of the Chief Executive of the Ministry of Social Development (the Chief Executive) “to establish overpayments [of various income-tested benefits] in

respect of the period [from] 5 April 2002 to 29 August 2009”, following confirmation that Ms Hennessy was entitled to weekly compensation for that

period, under the Accident Compensation Act 2001 (the 2001 Act). As a result of that decision, the sum of $76,735.36 was paid to the Ministry of

Social Development (the Ministry) by the Accident Compensation

Corporation (the Corporation), under s 252 of the 2001 Act.

[2] Put at its broadest, Ms Hennessy’s fundamental complaint is that the decision discriminates against people who elect to work part-time when otherwise eligible to receive an income-tested benefit. She asserts (and the Ministry does not dispute this) that if she had received a benefit at the level to which she was entitled during the period that she was working, she would now be better off. Ms Hennessy contends that the approach taken by the Authority provides a disincentive for a citizen to undertake part-time work when employment is available to an income-tested beneficiary.

...

[4] At the relevant time, an application for leave to appeal from a decision given under the Social Security Act was to be determined by reference to s 144 of the

_{Summary Proceedings Act 1957.}² _{Section 144(2) provided:}

¹ _{Hennessy v Chief Executive of the Ministry of Social Development [2013] NZAR 110 (HC).}

² Social Security Act 1964, s 12R and s 144(2) of the Summary Proceedings Act 1957.

144 Appeal to Court of Appeal

...

(2) A party desiring to appeal to the Court of Appeal under this section shall, within 21 days after the determination of the High Court, or within such further time as that Court may allow, give notice of his application for leave to appeal in such manner as may be directed by the rules of that Court, and the High Court may grant leave accordingly if in the opinion of that Court the question of law involved in the appeal is one which, by reason of its general or public importance or for any other reason, ought to be submitted to the Court of Appeal for decision.

....

[5] The terms of s 144(2) reflect the reality that a second tier appeal is not brought as of right because it is designed to deal with points of law of public importance, rather than to correct error.

[6] Ms Hennessy requires leave to appeal out of time. The present application is dated 21 October 2013, some 11 months from the time at which my decision was delivered. There is no evidence to substantiate an assertion by Ms Hennessy that that was caused by “fluctuations in [her] health”, though I think I can assume that her lack of income has contributed to her inability to obtain legal advice. Indeed, Ms Hennessy represented herself at the appeal before me.

[7] Having reviewed the proposed grounds of appeal, I am not satisfied that any of the questions of statutory interpretation with which I dealt raise a point of such significance that it should, in terms of the statutory test, be referred to the Court of Appeal for consideration. While there is conflicting authority on the interpretation of s 86 of the Social Security Act, to which Mr Hallett-Hook, for the Chief

Executive, has referred in his submissions in opposition to the leave application,³ I

do not consider that s 86 was sufficiently engaged on the facts of this case to justify a second appeal.

³ Compare Cowley v Chief Executive of the Ministry of Social Development HC Wellington CIV-

2008-485-381, 1 September 2008 at paras [48]–[56], Osborne v Chief Executive of the Ministry of Social Development [2010] 1 NZLR 599 (HC) at [52]–[66] and Harlen v Ministry of Social Development [2012] NZHC 669; [2012] NZAR 491 (HC) at [22]–[41].

[8] The combination of the lack of any reasonable explanation for the delay in applying for leave and the absence of any point of law of the type envisaged by s 144(2) means that the applications cannot succeed.

_{[9] In those circumstances, Ms Hennessy’s applications are each dismissed.}

_{P R Heath J}

Delivered at 3.30pm on 18 December 2013