Wilson v Chief Executive of the Ministry of Social Development [2014] NZHC 1518 (3 July 2014)

Last Updated: 7 July 2014

IN THE HIGH COURT OF NEW ZEALAND CHRISTCHURCH REGISTRY

CIV 2013-485-002759 [2014] NZHC 1518

BETWEEN	RONALD WILSON Appellant
AND	THE CHIEF EXECUTIVE OF THE MINISTRY OF SOCIAL DEVELOPMENT Respondent

Hearing:	1 July 2014 (By telephone conference)
Appearances:	Appellant (In person) J C Holden for Respondent
Judgment:	3 July 2014

_{JUDGMENT OF WHATA J}

[1] In my judgment of 6 March 2014,¹ I resolved that I could not recall or set aside consent orders made to the effect that Mr Wilson’s appeal was remitted back to the Social Security Appeal Authority. In that judgment I observed, among other things:²

[11] It is difficult not to empathise with Mr Wilson. He has a genuine concern about the use of a single reference point to establish an “average”. The Ministry did not tell him about the proposed changes to the regulations. His submissions (if accepted at face value) highlighted that use of a single reference point to establish an average could mean that superannuitants are short changed by $15m a year.

[2] I also observed the following as one of my reasons for rejecting recall:³

_{[12] ...}

¹ _{Wilson v Ministry of Social Development [2014] NZHC 386.}

² _{At [11].}

³ _{At [12].}

WILSON v MINISTRY OF SOCIAL DEVELOPMENT [2014] NZHC 1518 [3 July 2014]

(b) The failure of the Ministry to highlight the impending changes to the regulations was unfortunate but was not an act of bad faith. The Ministry was and is not trying to prevent Mr Wilson from ventilating his basic claim that the methodology was flawed. At most it could be said that the Ministry has seen a problem and sought to rectify it by changing the regulations. But it has otherwise affirmed that the settlement was without prejudice to Mr Wilson’s claim that the single reference point methodology used was and is flawed. My position would have been different had the Ministry said that this fundamental issue was now moot.

[3] Following that judgment I received a memorandum from Mr Wilson noting that in reference to my paragraph [11], he was not suggesting that superannuitants were short-changed, only that the Ministry may have been improperly paying retirees. This may include he says an over-payment.

[4] In relation to my paragraph [12](b) he also suggested that in fact the agreement reached allowed the ongoing contesting of the methodology in the High Court.

[5] In response to this memorandum I invited submissions from the Ministry of Social Development indicating that my preliminary view is that neither of the matters raised provides a proper basis for recall. The Ministry had five working days to do so and Mr Wilson had five working days to respond. I also indicated that I would determine the application on the papers.

[6] The Ministry responded as required to the effect that my minute in relation to the first matter properly clarifies the position and that the respondent did not consider any further steps from the Court were required in relation to the second issue given that the Court had noted that the settlement was without prejudice in respect to the positions of the parties.

[7] Mr Wilson, somewhat belatedly, replied on 20 May 2014 in a detailed way in the form of a further application noting that in his view relevant material had recently been found. He says that he has now obtained a recording of a telephone conversation that he had with a J Holden of Crown Law on 13 September 2013. He said that the audio file was only recently discovered on 17 May 2014.

[8] Mr Wilson then highlights the following statement made by Ms Holden in the telephone conversation:

... the position that they have reached is we’re just dealing first with the Court case – is that the Ministry is prepared to accept that the Authority erred in regard to both questions of law.

[9] And further:

In terms of the High Court action what they are suggesting is that we get the Court to basically find for you on the two questions of law that the Authority erred in both respects and for the Court then to refer it back to the Authority for the Authority to look at again with the proper information in front of it.

[10] The further statement is also highlighted:

That’s right I think we have to put it that the High Court ultimately has the call so what we have to do is say that the parties this is the case and ask Court to enter the judgment in that respect and to send the matter back to the Authority for reconsideration.

[11] Mr Wilson says in his memorandum that he does not believe it would be proper for the Authority to be required to respond to questions relating to its decisions. He says the correct course would be for this Court to adjudicate on the questions. It would then be up to the Authority to act on the Court’s decision.

[12] Mr Wilson then repeats his concerns in what he considers to be the extraordinary and nefarious lengths in an apparent attempt to conceal questionable methods for calculating overseas pension deductions or conspiring to allow them to introduce new regulations.

[13] Mr Wilson therefore requests the Court to re-examine the judgment of 6

March 2014.

[14] I then invited Ms Holden to respond to Mr Wilson’s memorandum. In that memorandum she emphasised that there was an ongoing process of discussion with Mr Wilson, including two subsequent joint memoranda, clearly expressing the agreements that were in fact reached as between the parties. Relevantly, Ms Holden attached a draft of the October memorandum showing marked up comments made in

response to comments made by Mr Wilson. By way of illustration the marked up draft reads as follows:

21. The Ministry and the appellant have agreed on an amount to be paid by the Ministry to resolve the alleged underpayment, including up to

31 October 2013, such agreement being without prejudice to the

par ti es’ r espe cti ve vi ews on t he corr ect met hod t o be adopted by t he

respondent to assess the rate of NZS payable to the appellant. The

Mi ni st r y i s curr ent l y i n t he pr oce ss of r ecalculati ng t he appel l ant’s

entitlement to receive the NZS. The parties are agreed that this goes

par t way t o r esol vi ng t he appe ll ant’s chall enge t o t he met hod t he respondent adopted to assess the rate of NZS to which the appellant was entitled.

22. In the meantime, The parties agree that issue e appeal may will need to be reconsidered by mitted back to the Authority if the parties remain in disagreement as to that methodology and as to for it to receive further residence and therefore to reconsider whether future the deductions made to t he appe ll ant ’s Mr Wil sons’ NZS payments are were correct, having regard to the correct factual position.

[15] This is then to be compared with the final version of that memorandum that ultimately found its way into Court. That memorandum states:

Resolution of proceeding

21. The Ministry and the appellant have agreed on an amount to be paid by the Ministry to resolve the alleged underpayment, including up to

31 October 2013, such agreement being without prejudice to the

parties’ respective views on the correct method to be adopted by the

respondent to assess the rate of NZS payable to the appellant.

22. The parties agree that issue may need to be reconsidered by the Authority if the parties remain in disagreement as to that methodology and as to whether future deductions made to the appellant’s NZS payments are correct.

[16] The Court then vacated the half day hearing set down for this matter as sought by the parties. This is then followed by a joint memorandum dated

22 November 2013 stating:

5. They are agreed that due to the insufficiency of evidence before the Court concerning the facts in this case, and the difficulty that presents for the Court, the best course of action would be for the Court to remit the matter back to the Authority for it to receive further evidence and then to consider whether the methodology used by the Ministry of Social Development in calculating Mr Wilson’s pension was correct.

6. Accordingly, the parties seek an order from the Court remitting the matter back to the Authority for it to receive further evidence from the parties and then to reconsider the appellant’s appeal in light of that evidence.

[17] I convened a telephone conference to provide both Ms Holden and

Mr Wilson opportunity to comment on their respective memoranda and they did so.

[18] Mr Wilson maintains that he proceeded at all times on the assumption that there would be a two step process, namely that this Court would resolve any jurisdictional (including methodological) error while the Authority would then resolve the substance.

Assessment

[19] It is important to understand that there must be a very special reason justice requires that the judgment be recalled.⁴ I do not consider that there is a very special reason in this case.

[20] Notwithstanding Mr Wilson’s further memorandum of 20 May 2014, I do not resile from the view I expressed in my minute of 18 March 2014. To reiterate, none of the matters raised by Mr Wilson in his memoranda provide a proper basis for recall of my judgment of 6 March 2014. I note again that in relation to my paragraph [11], if I amended the judgment to reflect the submission made by Mr Wilson, it would not and does not alter the substance of the decision. As to the second issue, I have already confirmed that the settlement was without prejudice to the ongoing testing of the methodology and no correction is needed in that regard.

[21] For completeness, I accept that the recorded passages of the conversation suggest a two step process involving a finding that there was an error of law on the part of the Authority and then the matter would be sent back for reconsideration. But it is equally plain to me that matters evolved from that stage in an open and transparent way as between the Ministry and Mr Wilson, where he was afforded the opportunity to record what he proposed by way of an agreement to resolve the

_{proceedings. The fact that the first draft joint memorandum was edited to reflect his}

⁴ Horowhenua County v Nash (No 2) [1968] NZLR 632 (SC) at 633.

comments, and that those edits largely found their way into the final version of the memorandum, confirms his active involvement in the drafting exercise. While Mr Wilson may have been mistaken about the effect of the agreements reached, I do not think it is fair or just that he can now resile from their objective meaning. In this regard, it is apt to record that the effect of the joint memorandum and the orders of this Court were nevertheless to hold that the Authority decision was not sustainable and that it needed to reconsider the position. I therefore consider there is no injustice to Mr Wilson.

[22] Accordingly, the application for recall is declined.

Solicitors:

Crown Law, Wellington