BREDMEYER V THE CHIEF EXECUTIVE OF THE MINISTRY OF SOCIAL DEVELOPMENT HC WN CIV 2000 485 105

BREDMEYER V THE CHIEF EXECUTIVE OF THE MINISTRY OF SOCIAL DEVELOPMENT HC WN CIV 2000 485 105 13 November 2007IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY CIV 2000 485 105BETWEEN AUDREY BREDMEYER Applicant AND THE CHIEF EXECUTIVE OF THE MINISTRY OF SOCIAL DEVELOPMENT Respondent Hearing: 12 November 2007 Counsel: J Dean for Applicant A J Williams for Respondent Judgment: 13 November 2007 at 3.30pmRESERVED JUDGMENT OF MACKENZIE J[1] This is an application for leave to appeal to the Court of Appeal against a judgment of Gendall J delivered on 20 December 2007 on an appeal by way of case stated from the determination of the Social Security Appeal Authority under s 12Q of the Social Security Act 1964. The questions involved in the case stated relate to provisions concerning the reciprocal entitlement to benefits between New Zealand and Australia, specifically the entitlement of the appellant to New Zealand superannuation whilst residing in Australia. The issue was succinctly stated by Gendall J in these terms:[3] The appeal concerns the interpretation of the Social Welfare (Reciprocity with Australia) Order 2002, which is an Order in Council adopting an agreement on social security reached between the Governments of New Zealand and Australia. The agreement is recorded in Schedule 1 to the Order in Council. The question is whether a person who qualifies for New Zealand superannuation and resides in Australia receives no payment if he/she does not qualify for an Australian age pension.[2] The test for the grant of leave is that set out in Waller v Hider [1998] 1 NZLR 412. The appeal must raise some question of law or fact capable of bona fide and serious argument in a question involving some interest, public or private, of sufficient importance to outweigh the cost and delay of further appeal. As to the importance of the issue, it seems likely that there will be a considerable number of people in the same circumstances as the applicant, and the fact that the interpretation of the order in council giving effect to reciprocal arrangements is in issue make this a matter of sufficient public or general importance to satisfy that limb of the test. As to whether the question of law is capable of bona fide and serious argument, I consider, without examining the point in any detail, that it meets that limb of the test. It is unnecessary for me to consider the matter in detail because the respondent now does not oppose the granting of leave but rather the terms on which leave is granted, as I later describe. For these reasons, I consider that the case meets the Waller v Hider test. [3] The respondent submits, however, that leave to appeal should not be granted in respect of the whole of the judgment, but that the question on appeal should be re-framed. Two questions were posed in the case stated, and each of those was answered by Gendall J in his judgment. [4] An appeal to this Court under s 12Q of the Act is an appeal by way of case stated. A further appeal to the Court of Appeal is governed by s 12R, which incorporates s 144 of the Summary Proceedings Act 1957. That section provides that:144 Appeal to the Court of Appeal(1) Either party may, with the leave of the High Court, appeal to the Court of Appeal against any determination of the High Court on any case stated for the opinion of the High Court ...[5] The course which counsel for the respondent submits that the Court should adopt would require this Court to re-frame the question to be determined by the Court of Appeal. I do not consider that that course is permitted by s 144. The appeal for which this Court may give leave is an appeal to the Court of Appeal against the determination of the High Court on the case stated. What counsel for the respondentproposes would be an appeal essentially on only a limited aspect of the determination of the High Court. There is no express power in s 144 to grant leave to appeal in respect of a limited aspect of a determination of the High Court, or to impose conditions on the grant of leave which might limit the matters which the appellant is able to raise on an appeal. [6] I consider that the sole function of this Court on a leave application is to consider whether leave is to granted, or refused. If it is granted, then the appeal will be one against the determination of the High Court on the case stated, based on the questions answered by the High Court. I do not consider that s 144 permits this Court, in granting leave, to impose conditions which would require the Court of Appeal to consider a different question from that determined by the High Court. [7] For these reasons, leave to appeal is granted. No further order or direction as to the conduct of the appeal is appropriate. [8] Costs on the present application are reserved.A D MacKenzie JSolicitors: John Dean Law Office, Wellington, for Applicant Crown Law, Wellington, for Respondent