BREDMEYER V THE CHIEF EXECUTIVE OF THE MINISTRY OF SOCIAL DEVELOPMENT SC 14/2009
The Court held that Article 9(3) must be read in its plain and ordinary meaning so that the cap on New Zealand Superannuation is the amount of Australian age pension that would in fact be payable; the applicant's suggested construction requiring an assumed entitlement despite means-testing is a strained...
Source-derived case information.
- Citation
- SC 14/2009
- Parties
- Applicant: Audrey Bredmeyer; Respondent: The Chief Executive of the Ministry of Social Development
- Court
- Supreme Court
- Jurisdiction
- New Zealand
- Judgment Date
- 30 March 2009
- Procedural Posture
- Leave to Appeal to the Supreme Court / Application for Leave to Appeal Dismissed
- Outcome
- application for leave to appeal dismissed
- Legal Topics
- New Zealand Superannuation, Australian Age Pension, Interpretation of Reciprocal Social Security Agreement, Means Testing, Reciprocity Order, Costs
Source-derived case record
Summary, issues, holding and outcome
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Parties
Audrey Bredmeyer
Applicant
The Chief Executive of the Ministry of Social Development
Respondent
Procedural Posture
Leave to Appeal to the Supreme Court / Application for Leave to Appeal Dismissed
Legal Issues
- 1 Whether Article 9(3) of the March 2001 Agreement requires treating an applicant as entitled to the Australian age pension for the purpose of capping New Zealand Superannuation even where the Australian pension would not in fact be payable because it is means-tested
- 2 Whether that interpretation is consistent with the Social Welfare (Reciprocity with Australia) Order 2002 and Parliamentary intent
- 3 Whether the applicant's proposed construction is a strained interpretation contrary to the plain and ordinary meaning of the Agreement
Ratio Decidendi
The Court held that Article 9(3) must be read in its plain and ordinary meaning so that the cap on New Zealand Superannuation is the amount of Australian age pension that would in fact be payable; the applicant's suggested construction requiring an assumed entitlement despite means-testing is a strained interpretation, contrary to the statutory scheme and prior authority and therefore untenable.
Court Disposition
application for leave to appeal dismissed
Orders
- Leave application dismissed
- Costs awarded to the respondent of $2,500 NZD
Full Case Text
Judgment text and source record
1 paragraphs
BREDMEYER V THE CHIEF EXECUTIVE OF THE MINISTRY OF SOCIAL DEVELOPMENT SC 14/2009 30 March 2009IN THE SUPREME COURT OF NEW ZEALAND SC 14/2009 [2009] NZSC 28BETWEEN AUDREY BREDMEYER Applicant AND THE CHIEF EXECUTIVE OF THE MINISTRY OF SOCIAL DEVELOPMENT Respondent Court: Elias CJ, Blanchard and Wilson JJ Counsel: J A Dean for Applicant U R Jagose for Respondent Judgment: 30 March 2009JUDGMENT OF THE COURT The application for leave to appeal is dismissed, with costs of $2,500 to the respondent. REASONS[1] Article 9(3) of the March 2001 Agreement on Social Security between the Government of New Zealand and the Government of Australia provides, in material part, that where a resident of Australia is entitled to New Zealand Superannuation "the amount the person is entitled to receive shall not exceed the amount of Australian age pension that would have been payable to that person if he or she was entitled to receive on Australian age pension". The Benefit Review Committee, theSocial Security Appeal Authority, 1 the High Court 2 and the Court of Appeal 3 have all held (where relevant, unanimously) that the effect of these words is to cap the rate of New Zealand Superannuation payable at the rate of the Australian Age Pension which would, in fact, be payable if the claimant were not eligible for New Zealand Superannuation. The applicant, a New Zealand resident living in Australia, wishes to argue again, however, on an appeal to this Court, that the effect of the word "if" is to require the assumption that those in the position of the applicant are entitled to the Australian benefit even though, in reality, they are not because that benefit is means- tested. [2] It is not surprising that this argument has been consistently rejected. It requires the adoption of a strained interpretation in substitution for the plain and ordinary meaning of the words. It would result in inequity by advantaging New Zealand residents who have lived for many years in Australia over Australian residents, contrary to the expressed objective of the Social Welfare (Reciprocity with Australia) Order 2002 4 of enhancing "equitable access" to social security benefits. As the Court of Appeal demonstrated, 5 it would also defeat the intention of the New Zealand Parliament. [3] The argument which the applicant seeks to advance is not a tenable one. The application for leave to appeal is therefore dismissed, with costs of $2,500 to the respondent. The respondent did not seek costs in the Courts below, and may or may not wish to enforce this costs order.Solicitors: John Dean Law Office, Wellington for Applicant Crown Law, Wellington for Respondent1 [2006] NZSSAA 57.2 High Court, Wellington, CIV-2007-485-105; 20 September 2007, Gendall J.3 [2008] NZCA 557, Arnold, Ellen France and Baragwanath JJ; 17 December 2008.4 This Order enacted the Agreement as secondary legislation.5 At paras [42] to [50].