Harrison v Chief Executive of the Ministry of Social Development [2017] NZHC 2041 (24 August 2017)

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IN THE MATTER	of an appeal
BETWEEN	G HARRISON Appellant
AND	THE CHIEF EXECUTIVE OF THE MINISTRY OF SOCIAL DEVELOPMENT _Respondent

Hearing:	16 February 2017; further submissions 16 May 2017 and 1 June 2017
Appearances:	RHK Jerram for Appellant in CIV-2016-485-232 Appellant representing herself in CIV-2016-485-52 M Conway and O Upperton for Respondent in both matters
_Judgment:	_{24 August 2017}

Harrison v The Chief Executive of the Ministry of Social Development [2017] NZHC 2041 [24 August 2017]

[1] From April 2000, Mr Graham John Harrison and Ms Cheryl Sylvia Reid, aged 62, received sickness and other benefit payments under the Social Security Act

20 August 2001 until September 2013. They occupied two different bedrooms in the four-bedroom house. Ms Reid moved out following the decision of the Benefits Review Committee (the BRC) on the matters subject to this appeal.

[2] Upon receiving information in October 2011 that Mr Harrison and Ms Reid were living together, the Chief Executive of the Ministry of Social Development exercised the powers conferred by s 12(1A) of the Act to commence an investigation into whether they were living in a relationship in the nature of marriage. The Chief Executive determined in March 2013 that the appellants were in a de facto relationship from 6 April 2000 to 12 February 2001 and 20 August 2001 to 3 March

2013, and the appellants’ should have received their benefit payments at the de facto rate. This resulted in an overpayment due to the Crown in terms of s 85A(f)(ii), comprising the difference between the benefit payments at the single rate and the lesser amount that should have been paid at the de facto rate. The Chief Executive directed this should be recovered under s 86A.

[3] Mr Harrison and Ms Reid sought a review of the decisions by the Benefits Review Committee (the BRC), under s10A of the Act. The BRC held that Ms Reid had been overpaid for the Unemployment Benefit, Unemployment – Training, Sickness Benefit, and Domestic Purposes Benefit a total sum of $21,631.39. The BRC held that Mr Harrison’s overpayment for the Sickness Benefit amounted to

[4] Mr Harrison and Ms Reid appealed to the Social Security Appeal Authority under ss 12J and 12K of the Act. In a decision dated 17 October 2014, the Authority allowed the appeals for the period 6 April 2000 to 12 February 2001 but dismissed

[5] Mr Harrison and Ms Reid now appeal by way of case stated on questions of law from the Authority’s decision to dismiss their appeal, pursuant to s 12 Q of the Act and Part 21 of the High Court Rules.

[6] An appeal by way of case stated under s 12Q of the Act confines the Court to answering the questions stated by the Authority and determining the outcome which follows from the answers given. There is no question of law where the decision- maker applied the law to the facts, provided it has not overlooked a relevant matter or taken into account an irrelevant matter.²Any appellant mounting a challenge to the factual conclusions and findings made by the body appealed from faces a high threshold.³

[8] Reading the two appeals together, the Authority has stated the following questions of law to be determined by this Court:

(a) Was there any evidence on which the Authority could conclude that Ms Reid and Mr Harrison were living in a relationship in the nature of marriage?

(b) Did the Authority err in law in finding that no weight could be attached to statements of fact contained in Mr Harrison’s lawyer’s submissions to the Benefits Review Committee and Mr Harrison’s advocate’s submissions to the Authority?

²_{Harlen v Chief Executive of the Ministry of Social
Development [2015] NZHC 2663 at [28].}

³Bryson v Three Foot Six Ltd [2005] NZSC 34, [2005] 3 NZLR 721 at [26]; Vodafone New

(e) Was there any evidence on which the Authority could conclude that the debt owed by Ms Reid did not arise as a result of an error on the part of an officer of the Ministry?

(f) Did the Authority err in law in concluding that it would not be appropriate to direct the Chief Executive to take no steps to recover the debt from Ms Reid pursuant to s 86(1) and 86A of the Act?

[9] This Court has the power to amend the questions of law at the hearing under r 21.12(2) of the High Court Rules. Questions (b) and (d)  whether counsel’s submissions should have been accepted as containing evidence and whether Mr Harrison’s rights to natural justice were breached  raise issues relating to the overall procedural fairness of the hearing which directly affect Ms Reid as well. The Ministry fairly consented to an amendment which includes Ms Reid’s decision to

rely on Mr Jerram’s submissions to the BRC⁴and not to give or call evidence herself

at the Authority hearing. This enables the Court address the issues of procedural unfairness broadly. Having regard to the way the appeals were argued, including the criticism of the Authority’s rejection of the statements of fact included in counsel’s submissions to the BRC, I amend question (b) to read:

Did the Authority err in law in finding that no weight could be attached to statements of fact contained in Ms Reid and Mr Harrison’s lawyer’s submissions to the Benefits Review Committee and Mr Harrison’s advocate’s submissions to the Authority?

[10] Understanding the significance of the questions requires an understanding of

_{the Ministry’s case against Mr Harrison and Ms Reid and their
defences. It also}

requires knowledge of how the hearings before the BRC and the Authority were conducted.

[11] The Ministry’s case before the Authority consisted of evidence collected by the Ministry’s investigator, Mr Stone Pearn, during the course of his investigation into the appellants’ relationship. This was provided to the Authority through the Chief Executive’s report pursuant to s 12K(4)(e) of the Act, setting out the considerations to which regard was had in making the decision or determination. The report contained Mr Stone Pearn’s initial determinations as well as the relevant exhibits upon which the Ministry relied. The Authority also had before it the transcripts of Mr Stone Pearn’s interviews with the appellants. Both Mr Stone Pearn and Mrs Margaret Harrison (Mr Harrison’s sister-in-law who, by coincidence, is an employee of the Ministry) gave evidence in person at the hearing.

[12] Mr Harrison and Ms Reid are said to have cohabited in the same household at three different locations over a period of approximately 13 years. The Ministry argued that the financial evidence of Mr Harrison’s payment of the mortgage, rates and insurance; Ms Reid not paying rent or board; Ms Reid paying the power bill as she consumes more power, buying dog food, “some” food for herself, and cleaning products for the house indicated financial interdependence. Significant emotional commitment is said to be apparent. A funeral notice for Mr Harrison’s father identified him as Ms Reid’s father-in-law, although also in evidence was a letter from the notice’s author stating this was no more than a mark of respect. A handwritten statement signed by Ms Reid declared that she had no interest in any property belonging to Mr Harrison and no relationship with him. The Ministry says such protection for separate property supports rather than negates the existence of a committed relationship. Mr Harrison’s and Ms Reid’s conduct and what they said in their interviews is also said to be relevant, specifically their use of the plural when referring to their activities.

appellants as partners. In support of this, she produced at the Authority hearing a

number of photographs which featured the appellants and various other family members at different family gatherings. The Ministry asserts that, cumulatively, the evidence demonstrates levels of cohabitation, financial interdependence, and emotional commitment indicating that Mr Harrison and Ms Reid were, for all the relevant time periods, in a relationship in the nature of marriage.

[14] Although Mr Harrison and Ms Reid were separately represented before the authority and on appeal, the cases they sought to argue were complementary. They say they were good friends by 2001. Ms Reid moved into Mr Harrison’s house, initially renting and soon becoming the housekeeper. They each had their own distinct responsibilities; for Ms Reid, the gardening and feeding the dogs. Ms Reid ran her own bank account in her own name, bought her own food, and aside from having her name on the power account there was no financial interdependence. There was no sexual relationship, despite a brief sexual liaison in the early 1990s. Mr Harrison ate every night at his parents’ home and largely bought his own food.

[15] Three witnesses  Mr Harrison’s brother, Bruce, and Ms Reid’s daughters, Vanessa Edgar and Kay Roughan  made statements that Mr Harrison and Ms Reid were friends and not in a de facto relationship. The appellants submit that their evidence is more direct and comprehensive than that of Margaret Harrison. There was no firm evidence of financial interdependence, aside from sharing the power account which occurred only because Ms Reid was the main user of power, and no evidence of emotional commitment. Ms Reid’s signed one-page document, created in the year that she began living with Mr Harrison, was intended to eliminate any risk of a property claim by one against the other; it stated clearly that the parties were not in a de facto relationship and should be taken at face value. Trips to Ms Reid’s land at Kawhia were undertaken as friends and companions, and do not denote a de facto relationship.

[16] The appellants say there are explanations for evidence which might which suggest they are partners:

(b) Including a reference to Ms Reid in the funeral notice for Mr Harrison’s father was not authorised by her and merely reflected someone else’s misunderstanding of the relationship.

(c) Mr Harrison was shown as Ms Reid’s partner in the patient sheet at Waikato Hospital because his name was mistakenly inserted under “partner” rather than “contact person”.

(d) The appellants both acknowledge that they attended family events together, asserting this was merely as companions.

[17] The appellants attended the BRC hearing. At the commencement of the hearing, the Committee ruled that, because of their lack of articulation skills and inability to understand and deal with process and legal issues, the evidence of the appellants would be read out by their lawyer, Mr Jerram, and form part of his submissions as counsel. The hearing continued in that manner.

[18] The proceedings before the BRC provided the opportunity for the Ministry to ask questions of counsel or the parties directly. The appellants were not questioned. There was no opportunity, however, for any questioning of any witnesses whose statements were provided by the Ministry, because they did not attend the hearing.

[19] The BRC decision contained a detailed assessment of the appellants’ evidence included in their counsel’s submissions, which is extensively referred to in the decision.

[20] At the hearing before the Authority, the Ministry opened with an examination of the investigator, Mr Stone Pearn, and then of Margaret Harrison. Each was cross-

examined by Ms Robertson (Ms Reid’s counsel) and Mr Wills (Mr Harrison’s lay advocate). When the appellants presented their case, the Chairperson ruled that the Authority would not accept any evidence from counsel’s submissions in the BRC. That was because the Authority was not being presented with evidence from the appellants themselves. The Chairperson said that the submissions contained assertions of fact that were unsupported by the statements made by the appellants to the investigator or the documentary evidence collected. Both appellants were present at the Authority hearing. They elected not to give evidence, but Mr Jerram submits this would not have prevented cross-examination by the Ministry, nor preclude questioning by the Authority. The Chairperson told Mr Harrison’s lay advocate at the hearing that the Authority would place greater weight on Margaret Harrison’s statement as she was present, while Bruce Harrison, Vanessa Edgar and Kay Roughan were not.

[21] In its decision, despite recognising that the Authority has wide powers to accept evidence that would not be admissible in a court of law, the Authority ruled that neither the Authority nor the Ministry had the opportunity to test the statements of fact made in the submissions made to the BRC, and did not consider that any weight could be attached to them.⁵

[22] The Authority noted that the appellants could have given evidence in person at the hearing before which differed from their statements to the investigator, but chose not to do so. The Authority also held that it preferred the evidence of Margaret Harrison, who gave evidence in person and was subject to questioning by the Authority and the appellants’ representative, over that of Bruce Harrison, Vanessa Edgar and Kay Roughan, noting those three did not appear in person to give

evidence before the BRC or the Authority.⁶At both hearings, the Ministry produced

summaries as opposed to transcripts of their evidence. The Authority’s decision

commenting on their non-appearance and saying it was the appellants’ responsibility

[23] The Authority found that appellants lived together in the same household at three different locations over a period of approximately 13 years,⁷and despite endeavouring to maintain separate property and bank accounts, Mr Harrison was in effect subsidising Ms Reid’s living costs.⁸The financial arrangements relating to payment of day to day expenses constituted a sharing of financial resources which indicates a degree of financial interdependence.⁹

[24] Relying primarily on the evidence of Margaret Harrison that she had always understood the appellants were partners, together with photographs she produced, and looking at further corroboration in two hospital forms and a funeral notice, the Authority found that there was emotional commitment.¹⁰Taken as a whole, the length of time the appellants had lived together and at different locations indicated significant emotional commitment that went beyond the relationship of close friends

[25] Taking into account all of the circumstances, the degree of financial interdependence and emotional commitment, Mr Harrison and Ms Reid were in a relationship in the nature of marriage for the period of 20 August 2001 and 3 March

2013.¹¹However, the relationship between 6 April 2000 and 12 February 2001 was

not satisfactorily proved to have developed into a firm commitment to an ongoing relationship.¹²The Authority directed that the overpayment for that period was to be disestablished.

[26] Ms Reid had disclosed that she was living in same house as Mr Harrison. She argued that a defence was available under s 86(9A) because the debt was caused by an error to which she did not intentionally contribute; she received the sum in

_{good faith; and she had changed her position, resulting in it being
inequitable to}

recover any overpayment. It was held, however, that the debt could not be said to be caused by an error of an officer of the Ministry because Ms Reid’s claims about her accommodation were misleading; she claimed falsely that she was paying board to Mr Harrision of up to $180 per week at various times. There was no element of error.¹³Mr Harrison had not disclosed he lived with Ms Reid. While he had disclosed rental income, he had not disclosed any income from boarders. As the elements in s 86(9A) are cumulative and there was no error, the Authority considered that it did not need to decide whether the other elements of the defence were

[27] As both appellants have the financial resources to repay the debt, the Authority determined this was not an occasion on which the Chief Executive should exercise the discretion under s 86(1) and 86A of the Act to not take steps to recover the debt.¹⁴

[28] Mr Jerram’s principal ground of appeal on behalf of Mr Harrison is adopted by Ms Reid also. Counsel’s argument focuses primarily on the way that the Authority conducted the hearing and the alleged errors arising as a result.

[29] Concerning whether there was any evidence from which the Authority could conclude there was a relationship of marriage under Question (a), Mr Jerram submits the evidence favours the appellants’ position. This is on the basis of an analysis of the evidence that separation of responsibilities, bank accounts, food, does not indicate financial interdependence. The appellants dispute that there was sufficient emotional commitment, and point to the fact that three witnesses have made statements that they were only friends and not in a de facto relationship.

[30] Mr Jerram submits on Question (b) that it was wrong of the Authority to cast aspersions on the agreed procedure at the BRC hearing in which the appellants’

_{evidence was included in counsel’s submissions. Full weight was
given to this}

evidence by the BRC and should have been accepted by the Authority, yet it was not. Criticising the presentation of evidence on behalf of the appellants by counsel and rejecting it resulted in the Authority erring in law that no weight could be attached to the statements of fact contained in the submissions to the BRC presented through the advocate to the Authority. As the Authority’s hearing was by way of rehearing, the Authority is obliged to consider all evidence, including the s 12K report, which incorporated the evidence of both appellants at the BRC hearing and the BRC decision itself. Mr Jerram submits that because the Chairperson rejected statements before the Authority containing the evidence of Mr Harrison, Ms Reid and the three supporting witnesses, an essential part of the appellants’ case was ignored by the Authority as having no value.

[31] Mr Jerram submits under Question (c) that the selective choice of the Ministry not to present Mr Bruce Harrison, Ms Edgar and Ms Roughan for questioning at BRC or the Authority hearing resulted in denying the Authority part of the evidence. Mr Jerram submits that if the Ministry had produced all the evidence in proper form  making the three supporting witnesses available for cross- examination  the outcome for Mr Harrison would have been substantially different. In such circumstances, the Authority in preferring Margaret Harrison’s evidence merely because she was the only witness, apart from the investigator, who attended the hearing. The procedural deficiencies meant the Authority’s decision was not fair and proper as it gave no weight to Mr Harrison’s evidence and did not insist on the presence of the three witnesses for questions.

[32] Regarding natural justice in Question (d), Mr Jerram submits that Mr Harrison decided not to give evidence because it was never contemplated that the appellants’ evidence at the BRC hearing could be rejected by the Authority. Mr Jerram submits the Authority illegitimately made adverse inferences against Mr Harrison for not providing a brief of evidence, when he was entitled to rely on the BRC evidence, supplemented by independent evidence from the statements of the three supporting witnesses. Moreover, Mr Harrison was in attendance at all times and available for questioning. It is submitted that the Authority’s attitude and approach to Mr Harrison and his evidence amounted to a breach of his rights to a fair and even hearing.

[33] Ms Reid relied on the submission presented by Mr Jerram in this Court, as well as the submissions that she had presented to the BRC and the Authority, to contend that the appellants were not in a nature of marriage. Ms Reid disputes that the information given by counsel on her behalf at the BRC was not supported by the information given to the investigator, and that if the appellants were required to comply with certain procedures they should have been informed of this and given the opportunity to comply. Ms Reid also attacks the validity of Margaret Harrison’s evidence, suggesting it is unreliable because of Mrs Harrison’s position as a Ministry employee, and asserts the three witnesses were given insufficient weight. Ms Reid did not directly address Question (e), but on Question (f) she submits that the information supplied by the Ministry is misleading, and gives a false impression of her financial status, the value of her property. She submits it is inappropriate to judge her ability to repay a debt on the basis of an old property valuation.

[34] The Ministry argues that the Authority’s finding that the appellants were in a relationship in the nature of marriage was open to it on the evidence and that the high threshold for challenging factual findings in a question of law appeal is not met.

[35] The Ministry submits further that no procedural unfairness arises from the appellant’s election not to give or call evidence and instead to rely on the s 12K reports and the statements made by Mr Jerram before the BRC. The Ministry says the Authority warned the appellants about the potential consequences of their decision not to call evidence, and it was a matter for the appellants to decide. Both appellants were present at the Authority hearing and could have chosen to give evidence when the Authority commented on their failure to do so. The Ministry submits it is appellants’ responsibility to provide evidence to support their case, despite the Authority’s power to summon witnesses, and would be inappropriate for the Authority to question the appellants given their unwillingness to give evidence.

[36] The Ministry contends that it is well established that the weight given to evidence is a matter of fact for the decision maker, and that the Authority’s decision to give no weight to evidence submitted other than by witnesses present at the hearing was open to it as there was no opportunity for it to test statements of fact in the submissions to the BRC. Regarding the Ministry’s decision about which witnesses would be called before the Authority, the Ministry argues that it acted consistently with the scheme of the Act and did not act inappropriately by not filing witnesses’ transcripts or having the persons available to give evidence. Section

12M(1) of the Act provides any oral evidence received by the Chief Executive shall be brought before the Authority by the production of a copy of notes of the Chief Executive or other material as the Authority thinks expedient; the Ministry submits this was satisfied by providing the notes of all interviews carried out by the investigator. It was the appellants’ responsibility to adduce evidence in support of their case. Likewise, the Ministry’s position is that the Authority was not required to

summon witnesses, its powers being facilitative, not obligatory.¹⁵The primary

responsibility for adducing relevant evidence rests with the parties; the Authority is not under a general duty to inquire further and it has no duty to summon witnesses.¹⁶

The Ministry argues that, in the absence of a request from the appellants, the Authority was not required to adjourn the hearing to enable the appellants to call the witnesses.

[37] The Ministry submits that the Authority’s decision to prefer the evidence of Margaret Harrison was open to it. It had the opportunity to test Ms Harrison’s evidence because she gave evidence before the Authority, and assessed her as an honest and reliable witness.

¹⁵_{Director-General of Social Welfare v W [2004] NZCA 305; [2005] NZAR
258 (CA) at [11].}

¹⁶Campbell v the Chief Executive of the Ministry of Social Development [2013] NZHC 3381.

[40] This question is addressed directly in Mr Jerram’s argument that the procedure adopted by the Authority was such as to deprive the appellants of a fair hearing. The essence of the argument is that the whole of the appellants’ responses to the Ministry’s claim that they were living in a relationship in the nature of marriage turned on the statements made on their behalf in the submissions put before the BRC, and on the statements of Mr Harrison’s brother and Ms Reid’s daughters. When the Authority determined that it would not take those matters into account, the hearing was completely one-sided in that the only witnesses whose evidence the Authority considered to be properly before it were the Ministry’s investigator and Ms Margaret Harrison.

Did the Authority err in law in finding that it preferred the evidence of Margaret Harrison to that of Bruce Harrison, Vanessa Edgar and Kay Roughan?

[42] If the Authority was wrong in its approach to these matters, such that it should be directed to reconsider the appeal, a question about whether there was evidence entitling the Authority to reach its primary finding on the nature of the relationship does not need to be answered. I address Questions (b), (c) and (d) together before considering Question (a).

[43] There is no dispute that the Authority is bound to observe the principles of natural justice.¹⁷For the Ministry, Ms Conway accepts that this Court is bound by

Limited that an alleged breach of the rules of natural justice that taints the substantive decision with illegality can be raised by way of an appeal on a question of law.¹⁸

[44] Ms Conway’s response to Mr Jerram’s arguments raises the issue of the adequacy of the representation of Ms Reid by counsel, and of Mr Harrison by a lay advocate, at the Authority hearing. The Ministry submits that the primary responsibility for adducing relevant evidence before the Authority rests with the parties¹⁹and that, although Mr Harrison had a lay representative, Ms Reid was represented by counsel. Ms Conway submits that both Mr Harrison and Ms Reid were present at the hearing when the Authority made it clear, on more than one

occasion, that the evidence given at the hearing by Mr Stone Pearn and Ms Margaret Harrison was the type of evidence the Authority required. The appellants’ representatives were warned that the Authority would not take account of statements from persons who were not present for questioning, or statements of fact by counsel to the BRC which were not supported by evidence.

[45] Most importantly, Ms Conway submits that the Authority made it clear that it would expect to hear evidence from Mr Harrison and Ms Reid themselves, making the point at one stage that it was very unusual, if not unheard of, for the Authority not to hear from appellants. The Authority explained to Mr Harrison’s advocate that the Ministry had raised a case that Mr Harrison needed to answer.

[46] I acknowledge that the Authority may receive information which may not be admissible in a court of law and that it has the power to summon witnesses.²⁰

Whether the Authority should make use of those powers, however, is a question for the Authority to determine having regard to the circumstances of the case. Summaries of statements made by the appellants’ supporting witnesses to the investigator had been put before the Authority. Mr Harrison’s and Ms Reid’s

_{responses to the investigator’s enquiries were also available to
the Authority through}

¹⁸Ancare New Zealand Limited v Wyeth (NZ) Limited [2009] NZCA 211. See the contrary views of the High Court in McFarlane v Chief Executive of the Department of Work and Income HC Auckland AP17-PL02, 22 July 2002 at [25] (pre-dating Ancare) and Campbell v Chief Executive of the Ministry of Social Development, above n 16, at [18] (not citing Ancare).

¹⁹_{Campbell v The Chief Executive of the Ministry of
Social Development, above n 16.}

²⁰Social Security Act 1964, ss 12I and 12M(6); Commissions of Inquiry Act 1908, s 4D.

Mr Stone Pearn’s evidence, his notes and interview transcripts. There was no breach of fairness in the Authority declining to exercise its inquisitorial powers on this occasion.

[47] I consider it to be more finely balanced whether, given Mr Harrison’s particular personal difficulties in comprehension and articulation, the Authority was required to do more than it did. Mr Harrison’s advocate informed the Authority that Mr Harrison had a learning limitation, meaning that he required constant explanation of the meaning of words. Accepting for present purposes that Mr Harrison was under a form of disability, I agree that special accommodation was required to assist

[48] Mr Harrison’s difficulties might arguably have been addressed by his having a support person at the time he was interviewed by Mr Stone Pearn. He did not ask for one, however, and I do not consider Mr Stone Pearn ought to have recognised any such need. Having read his notes and the transcript of the interview carefully, I am satisfied that Mr Harrison was able both to understand the propositions being put to him by Mr Stone Pearn in a non-confrontational and facilitative manner and that, in his own way, Mr Harrison was able to make the points which were available to be made.

[49] After careful reflection, I have accepted Ms Conway’s submission that the Authority acted with sufficient concern for Mr Harrison’s position and Ms Reid’s when it alerted their representatives at the hearing to the significance of the failure of Mr Harrison and Ms Reid particularly, to give evidence themselves. The Authority was entitled to assume that, in the absence of a request for an adjournment to enable reconsideration of the decision which had been made that the appellants would not be called as witnesses, the hearing should simply proceed. I do not consider that the Authority needed to do any more than make it plain to Ms Reid’s counsel and Mr Harrison’s advocate, as the Chairperson did, that the cases which Mr Harrison

_{and Ms Reid wished to advance to the Authority would carry little weight
if the}

²¹See the Convention on the Rights of Persons with Disabilities 2515 UNTS 3 (opened for signature 20 March 2007, entered into force 3 May 2008), arts 12 and 13; New Zealand Bill of Rights Act 1990, s 27(1); Lawson v Chief Executive of the Ministry of Social Development [2017] NZHC 967.

appellants themselves chose not to give evidence and if the supporting witnesses were not also present for questioning. It was not one of those rare cases in which the Authority ought to have exercised its power to call for evidence itself. It was entitled to assume that Mr Harrison and Ms Reid, being present, had consciously elected not to give evidence, despite the warning as to the consequences of that decision. Requiring them to do so would have been inappropriate, especially in circumstances where the Ministry carried the onus of proof.

[50] The transcript of the Authority hearing demonstrates, however, that both Ms Reid’s counsel and Mr Harrison’s lay advocate were somewhat out of their depth in presenting the appellants’ cases in response to the Ministry. On the evidence, Ms Reid’s counsel was inexperienced and, according to Ms Reid, a reluctant advocate. Both she and Mr Harrison’s lay representative clearly understood the nature of the arguments which Mr Harrison and Ms Reid wished to present. But they lacked the experience of appearing in an adversarial setting to sense that, in the face of the Authority’s very clear indications as to where the hearing was heading in terms of outcome, time should be taken to reconsider their approach. In that sense, therefore, and without ascribing any blame to counsel for the Ministry (not Ms Conway) or the Authority, I have some sympathy with Mr Jerram’s proposition that had Mr Harrison and Ms Reid been assisted by more experienced representatives, they may have taken heed of the implicit warning that they needed to give evidence themselves to have any prospect of rebutting the Ministry’s case.

[51] In the end, however, there is a fundamental reason why I do not consider any injustice occurred, notwithstanding apparent deficiencies in the representation of the appellants. The question of whether the appellants were living in a relationship in the nature of marriage is a mixed question of fact and law. It required the Authority to make an objective assessment, applying the legal principles to the facts it found to be proved. The opinions of the Chief Executive (represented by the opinion of the investigator, Mr Stone Pearn) and the BRC on the nature of the relationship were largely irrelevant in the context of a rehearing before the Authority. Similarly, the subjective views of Mr Harrison and Ms Reid on the ultimate question, rather than their statements of fact, were largely irrelevant to the Authority’s determination.

Mr Stone Pearn noted that it appeared to him that Mr Harrison and Ms Reid did not understand the legal consequences of their relationship and the living arrangements.

[52] Margaret Harrison’s evidence of what she observed and the evidence she produced to corroborate those observations was evidence of facts which were relevant. Her opinion that Mr Harrison and Ms Reid were domestic partners rather than flatmates, however, was not. Equally, the statements of Mr Bruce Harrison and Ms Reid’s daughter as to the way in which the appellants conducted themselves was relevant, but their opinions that the two of them were not “partners” were not relevant to the Authority’s determination of that question. Opinion evidence was admissible because of the Authority’s broad powers but whether it was helpful is another matter altogether.

[53] It is by no means uncommon in cases of this kind, whether in matters arising under the Act or in the context of determinations by the Family Court about whether the statutory relationship property regime applies, for the parties’ friends and family members to express their views about whether the parties are or are not in a relationship in the nature of marriage or a defacto relationship. But those persons almost inevitably have their own uninformed perceptions about what are essentially legal concepts. Their opinions as to the ultimate question (as opposed to evidence of facts from which the question may be answered) are of little benefit to the court or tribunal which is charged with applying legal principles to facts which have been determined.

[54] If a failure to give or call evidence is relied upon on appeal, it is necessary for the appellant to show what other evidence would have been called or given and to demonstrate how that would have made a difference to the outcome. Other than referring to the opinion evidence I have discussed above, Mr Jerram and Ms Reid did not argue on appeal that there was relevant evidence contradicting the Ministry’s case that would have been given had the Authority either required or permitted the appellants and their witnesses to give evidence before it. It was not suggested that the appellants would have resiled from their recorded responses to the investigator’s questions, except to the extent that they may have proffered other explanations for some of the events referred to in the report. But the Ministry’s case was made out

largely on the basis of undisputable facts established by the statements of Ms Reid and Mr Harrison themselves about their relationship and living arrangements. The true nature of the objection to the Authority’s conclusion is that Ms Reid, Mr Harrison and their families have a different view of a question which only the Authority was qualified to answer.

[55] I am satisfied, therefore, that even if the appellants’ supporting witnesses and the appellants themselves had given evidence before the Authority, the Authority’s decisions as to the facts and the legal implications would have been the same. Whether they were decisions the Authority was entitled to reach on that evidence is to be considered next.

[56] In reaching that conclusion, I have not overlooked Ms Reid’s concern that a witness was available to explain the circumstances in which she signed the written statement that Mr Harrison and she did not have a relationship. But that evidence went only to Ms Reid’s personal view of the matter in December 2001; it could not assist the Authority’s decision whether, as a matter of law, the relationship was one in the nature of marriage at relevant later times.

[57] Issues about the finding of a tribunal as to the weight to be attached to certain evidence, or what evidence should have been preferred, do not usually give rise to questions of law, but Ms Conway did not take any technical point about Questions (b) and (c). I am satisfied that there was no error of law in the Authority’s conclusion that it should prefer, to the extent that it was relevant, Margaret Harrison’s evidence on questions of fact to any conflicting views held by the appellants’ supporting witnesses. Although Ms Reid and Mr Harrison mentioned her position as a Ministry employee undermining the credibility of her evidence, nothing was made of this at the hearing before the BRC or the Authority. Moreover, given that the evidence which Mr Harrison and Ms Reid say they were deprived of giving would not have made a material difference to the way the Authority went about its deliberations, there was no breach of the appellants’ rights to natural justice in the way in which the Authority hearing was conducted.

Was there any evidence on which the Authority could conclude that Ms Reid and Mr Harrison were living in a relationship in the nature of marriage?

(b) the evidence is inconsistent with and contradictory of the determination; or

[61] Essentially, an ultimate conclusion of a fact-finding body may sometimes be so insupportable, so clearly untenable, that it amounts to an error of law, and that the proper application of the law requires a different answer.²⁴An appellant asserting

there is no evidence to support the factual finding, however, faces a high hurdle.²⁵

[62] Accordingly, unless Mr Harrison and Ms Reid can establish that their case falls into one of these three circumstances, they cannot succeed on this point.

[63] I have considered the large volume of detailed evidence gathered by Mr Stone Pearn from a variety of sources, including his interviews with Mrs Harrison, the appellants’ supporting witnesses, and Mr Harrison and Ms Reid themselves. I have summarised it in discussing the Ministry’s case and the

_{Authority’s decision.}²⁶_{Although Mr
Harrison and Ms Reid disagree strongly with}

²²_{Beer v Ministry of Social Development [2012] NZHC
205, [2012] NZAR 264 at [36].}

²⁴Bryson v Three Foot Six Ltd, above n 3, at [26]; Vodafone New Zealand Ltd v Telecom New

the Authority’s view, there was abundant evidence from which the Authority could

[64] Mr Jerram did not argue that the Authority failed to identify correctly the legal principles applicable to determining the central question of whether Ms Reid and Mr Harrison were living in a relationship in the nature of marriage. In Ruka v the Department of Social Welfare the Court of Appeal held that a relationship in the nature of marriage requires both continuing emotional commitment and a degree of

financial interdependence.²⁷It is trite also that a sexual relationship is not a

[65] I am not persuaded, therefore, that there was any error of law in the Authority’s conclusion that the appellants’ relationship was in the nature of marriage during the period 20 August 2001 to 3 March 2013. The answer to Question (a), therefore, must be “Yes”.

(9A) The chief executive may not recover any sum comprising that part of a debt that was caused wholly or partly by an error to which the debtor did not intentionally contribute if—

(ii) changed his or her position in the belief that he or she was entitled to that sum and would not have to pay or repay that sum to the chief executive; and

²⁷Ruka v the Department of Social Welfare [1997] 1 NZLR 154 (CA) per Richardson P and

²⁸Ruka v the Department of Social Welfare, above n 27, per Richardson P and Blanchard J at

Was there any evidence on which the Authority could conclude that the debt owed by Ms Reid did not arise as a result of an error on the part of an officer of the Ministry?

[68] I accept Mr Upperton’s submission on behalf of the Ministry that the Authority’s decision that the debt owed by Ms Reid did not arise from Ministry error was open to it on the evidence. While she disclosed to the Ministry that she lived with Mr Harrison, Ms Reid falsely claimed at various times she paid Mr Harrison a significant sum in weekly board. Those misleading statements, in the context of a factual background of which the Ministry had no knowledge, led to Ms Reid being treated as a tenant or boarder and, ultimately, to the overpayment.

Did the Authority err in law in concluding that it would not be appropriate to direct the Chief Executive to take no steps to recover the debt from Ms Reid pursuant to s 86(1) and 86A of the Act?

[71] Section 86(1) provides that the Chief Executive is under a duty to take all reasonably practicable steps to recover an overpayment. The duty is limited by s 86(9A), as just discussed, but if that subsection does not apply the Ministry retains a discretion not to recover the debt.²⁹Section 86A concerns deductions from other payments due to the debtor and is not relevant here.

[72] Ms Reid’s submission that the Authority erred in failing to direct the Chief Executive not take steps to recover the debt, because the Ministry had overstated the value of a property she owned, does not raise a question of law. Whether Ms Reid was in a position to make the repayment of the debt of $21,631.39 was a question of fact. The high threshold for challenging factual findings in a case stated appeal is

²⁹Cowley v Chief Executive of the Ministry of Social Development HC Wellington CIV-2008-

485-381, 1 September 2008; Beer v Ministry of Social Development, above n 22, at [13].

principle, or failed to take a relevant factor into account, or took account of an irrelevant matter, or was plainly wrong.³⁰

[74] For the reasons given, I set out the questions stated and the answers as follows:

(a) Was there any evidence on which the Authority could conclude that Ms Reid and Mr Harrison were living in a relationship in the nature of marriage? Answer: Yes

(b) Did the Authority err in law in finding that no weight could be attached to statements of fact contained in Ms Reid and Mr Harrison’s lawyer’s submissions to the Benefits Review Committee and Mr Harrison’s advocate’s submissions to the Authority? Answer: No

(c) Did the Authority err in law in finding that it preferred the evidence of Margaret Harrison to that of Bruce Harrison, Vanessa Edgar and Kay Roughan? Answer: No

(d) Were Mr Harrison and Ms Reid’s rights to natural justice breached as a result of the way the hearing before the Authority was conducted? Answer: No

(e) Was there any evidence on which the Authority could conclude that the debt owed by Ms Reid did not arise as a result of an error on the part of an officer of the Ministry? Answer: Yes

(f) Did the Authority err in law in concluding that it would not be appropriate to direct the Chief Executive to take no steps to recover

³⁰May v May (1982) 1 NZFLR 165 (CA) at 170, applied in Beer v Ministry of Social

[76] Although it has succeeded on the appeal, the Ministry does not seek any order for costs.

High Court of New Zealand Decisions

Harrison v Chief Executive of the Ministry of Social Development [2017] NZHC 2041 (24 August 2017)