DUNN V CHIEF EXECUTIVE OF THE MINISTRY OF SOCIAL DEVELOPMENT HC AK CIV 2006-485-002588

DUNN V CHIEF EXECUTIVE OF THE MINISTRY OF SOCIAL DEVELOPMENT HC AK CIV 2006-485- 002588 29 November 2007IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY CIV 2006-485-002588IN THE MATTER OF an application for leave to appeal to the Court of Appeal under s12R BETWEEN FRANCIS CHESTER DUNN Applicant AND CHIEF EXECUTIVE OF THE MINISTRY OF SOCIAL DEVELOPMENT Respondent Hearing: 29 November 2007 Appearances: M Hodge for Respondent S Abernethy for Applicant Judgment: 29 November 2007JUDGMENT OF COOPER JThis judgment was delivered by Justice Cooper on 29 November 2007 at 2.30 p.m., pursuant to r 540(4) of the High Court Rules Registrar/Deputy Registrar Date: Solicitors: Stevenson Campbell, PO Box 35-077, Browns Bay Crown Law Office, PO Box 2858, Wellington Copy to: S Abernethy, PO Box 56 438, Albany, Auckland[1] The applicant seeks leave to appeal to the Court of Appeal from the judgment that I delivered on 4 October 2007. In that judgment I dealt with a case stated appeal from a determination of the Social Security Appeal Authority under s 12Q of the Social Security Act 1964. The effect of my judgment was essentially to uphold conclusions that the Authority had reached that under s 70(1) of the Social Security Act 1964 the amount of Mr Dunn's United Kingdom pension should be deducted from New Zealand Superannuation payments to which he would otherwise be entitled. [2] The application for leave to appeal is founded on s 12R of the Social Security Act which applies s 144 of the Summary Proceedings Act 1957 to any determination of the High Court under s 12Q, as if that determination were made under s 107 of the Summary Proceedings Act. [3] It is well settled that in deciding whether or not to grant leave in such a case the Court must consider whether the application raises a question of law capable ofbona fide and serious argument in a case involving some interest, public or private, of sufficient importance to outweigh the delay and the cost of a further appeal:Waller v Hider [1998] 1 NZLR 412; Snee v Snee (1999) 13 PRNZ 609 (both decisions of the Court of Appeal). [4] The respondent has not raised an issue concerning the significance of this case both for Mr Dunn personally, but also for others for whom the issues raised by it are important. Broadly, it affects the entitlement to New Zealand Superannuation, or the extent of that entitlement, of what is potentially a large number of persons who have emigrated to New Zealand from the United Kingdom. The difficulty that arises however, is in respect of the requirement that to justify a further appeal there must be a question of law capable of bona fide and serious argument. [5] The issues that the applicant would seek to raise on appeal to the Court of Appeal have been addressed in very general terms in the argument that I have heard from counsel for the applicant, who did not appear when the matter was originally argued. In essence, it is now sought to challenge my judgment insofar as it concluded that the applicant's United Kingdom pension formed part of a programme,administered by the government of the United Kingdom, providing benefits, pensions or periodical allowances for any of the contingencies for which benefits, pensions or allowances might be paid under New Zealand legislation. [6] As I understand it, the applicant would seek to rehearse on further appeal arguments that his United Kingdom pension is not part of a programme providing such benefits because of a claimed 'contractual arrangement' pursuant to which he claims he paid into the United Kingdom National Insurance Fund. It would be sought also to question the meaning of "contingencies", used in s 70(1)(b) of the Act. I treated that word as referring to the attainment of the qualifying age for the receipt of benefits, following a number of other High Court authorities. Ms Abernethy did not really explain why that approach might be wrong, or how it would assist Mr Dunn's position if it was. [7] A new argument is also advanced that s 70 of the Social Security Act is discriminatory, that its application in the present case breaches his "human right to property or contract" and that by virtue of a doctrine described as "equity of the statute", the Universal Declaration of Human Rights, the New Zealand Bill of Rights Act 1990 and the Bill of Rights 1688, the Court should amend s 70 or exempt persons in Mr Dunn's category from its provisions. These broadly articulated propositions were further bolstered by reference to the International Covenant on Civil and Political Rights 1966, Articles 1 and 2 insofar as they promote freedom of economic development and the free disposal of peoples' wealth. [8] The arguments presented by Ms Abernethy would potentially be of the most wide ranging significance. Notwithstanding my conclusion that the payments that Mr Dunn made to the National Insurance Fund in the United Kingdom were largely made pursuant to statutory requirements, and that his entitlements to payments out of that Fund were also governed by statute, Ms Abernethy submitted that it would be legitimate to characterise the payments as contractual in nature and to characterise his contributions as entitling him to a property right. For an argument along those lines to succeed there would have to be a fundamental conceptual shift in what has hitherto been regarded as the essential nature of the law of contract.[9] Equally, the idea that a Court might amend a statute so as to ensure that its provisions did not apply to a class of persons to whom it plainly did apply on the terms of the statute, would require a revolution in our constitutional arrangements. Even if the Courts had such a power, one can think of few fields in which its exercise would be less likely than that related to superannuation entitlements determined on the basis of clearly articulated policy choices made by the legislature. [10] The fact that these arguments are advanced is strongly suggestive that the applicant concedes that s 70(1) of the Social Security Act 1964 stands in the way of the arguments originally run in the High Court as to why the decision of the Social Security Appeal Authority was wrong. Be that as it may, I do not consider that Ms Abernethy has raised any substantial argument that the interpretation of s 70 set out in my judgment was wrong. [11] Ms Abernethy also sought to address an issue concerning the constitutionality of Article 15 of the Convention attached to the Social Security (Reciprocity with The United Kingdom) Order 1990. In my judgment of 4 October 2007 I held that Article 15 was entirely consistent with s 70(1) of the Social Security Act. Consequently, whether or not the Article was on some basis ultra vires could not assist Mr Dunn on any appeal. [12] This is not a case where any conflict in the authorities can be pointed to. In my decision I referred to four other High Court decisions which my decision essentially followed in key aspects of its reasoning. Further, in seeking to characterise his United Kingdom pension entitlement as contractual in nature, or as having created a property right, the applicant appears to be arguing for a proposition that is contrary to the decision of the House of lords in R (on the application of Carson) v Secretary of State for Work and Pensions [2005] 4 All ER 545, the case that I mentioned at [32] and [38] of the judgment. [13] In my view all of the arguments that the applicant now wishes to pursue in the Court of Appeal are untenable and would have no chance of success. [14] For these reasons leave to appeal is declined.