RANKIN V THE SECRETARY OF WAR PENSIONS HC WN CIV-2008-485-382

RANKIN V THE SECRETARY OF WAR PENSIONS HC WN CIV-2008-485-382 30 July 2008IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY CIV-2008-485-382IN THE MATTER OF AN APPEAL BY WAY OF CASE STATED FROM THE DETERMINATION OF THE SOCIAL SECURITY APPEAL AUTHORITY AT WELLINGTON UNDER S 12Q OF THE SOCIAL SECURITY ACT 1964 BETWEEN ROBERT RANKIN Appellant AND THE SECRETARY OF WAR PENSIONS Respondent Hearing: 24 July 2008 Counsel: M A Snow for Appellant A J Williams for Respondent Judgment: 30 July 2008 In accordance with r 540(4) I direct the Registrar to endorse this judgment with the delivery time of 10am on the 30 th day of July 2008.JUDGMENT OF GENDALL J[1] This is an appeal by way of a case stated from a determination of the Social Security Authority brought pursuant to s 12Q of the Social Security Act 1964. It can only be on questions of law which are stated in the case. [2] The correctly named respondent is the Secretary of War Pensions and I order that that name be substituted for the originally named respondent.[3] The appeal concerns the rate at which the appellant's war veteran's pension should be calculated. He lived and worked in Samoa from August 1950 until June 1995. Samoa gained its independence on 1 January 1962. The issue in this case is whether between 1950 and 1962 the appellant "resided in New Zealand" because, if so, the formula by which his rate of payment was to be calculated, would be more favourable to him. The Secretary of War Pensions determined that during that period, whilst living and working in Samoa, the appellant was not "resident" in New Zealand.Background facts[4] Much of the appellant's submissions centred on questions of fact and issues of general "fairness". They fall largely outside the ambit of an appeal by way of case stated. The appellant was born in New Zealand on 8 January 1926. He served in the Royal Navy and J-Force in the mid-1940s. He accepted appointment to work on secondment for the New Zealand Government in Western Samoa. He was there from 1950 until 1962 when Western Samoa gained independent status. He paid into the New Zealand Government Superannuation Fund from which he resigned when he ceased residency in Western Samoa. He did not return to New Zealand to resume residence on a permanent or long-term basis until June 1995, although he visited for varying periods ranging from a few days to three or four months. [5] He applied for a veteran's pension in June 1997 which was eventually granted. He was also entitled to a War Disablement Pension. [6] The Secretary for War Pensions based her decision and calculations on the appellant having resided in New Zealand for a total of 15 years and 10 months since attaining the age of 20. She did not consider the period spent in Samoa, between 1950 and 1962 when it gained independence, to constitute periods of residence or residing in New Zealand. [7] Pension payments were suspended from 2 February 2000 when the appellant moved to Australia, but on his return he sought to have veteran's pension resumed in September 2004. This was declined initially and in October 2004 he advised that heintended to move to live in Samoa. He applied to have his New Zealand superannuation paid to him in that country. [8] His Australian residence was not considered as time spent residing in New Zealand in order to establish whether he could be paid New Zealand Superannuation in a specific Pacific country. But in July 2005, the War Pensions Claims panel increased his War Disablement Pension to 85%, as a result of which he sought reinstatement of his veteran's pension. That was granted at 75% of the base rate but as earlier stated, the Secretary declined to take into account the period of 11 years and four months the appellant lived and worked in Samoa before 1 January 1962. [9] The Authority's findings were as follows:Generally speaking a person is not entitled to receive a Veterans Pension while they are absent from New Zealand unless they fall within certain exceptions. Section 74O of the War Pensions Act 1954 constitutes one of the exceptions to the rule. It provides for the payment of Veterans Pension in a specified Pacific country at a rate calculated under s 74P. Section 74P(1) of the Act provides for differences in the way the entitlement to be paid Veterans Pension in a specified Pacific country is calculated. Persons who have resided in New Zealand for 20 years or more since turning the age of 20 years are to be paid at the base rate. Persons who have resided in New Zealand for 10 or more years but fewer than 20 years since attaining the age of 20 years are to be paid in accordance with a formula. The Authority considered the provisions of s 74P(1)(a) and (b) require actual residence in New Zealand for the periods stated. The international arrangements and the Samoa Act 1921 make it clear that the territory of Samoa was a discrete territory with its own laws and generally speaking its own internal systems for governance, law and order and finance. The mandate arrangements and subsequently the trusteeship arrangements make it clear that ultimately the territory of Western Samoa was not merged with the territory of New Zealand. New Zealand was required to report on its stewardship over the territory. Western Samoa's ultimate independence from the trusteeship arrangement reinforces that view. The Authority could find no basis for the appellant's assertion that residence in Samoa between 1950 and 1962 constituted actual residence in New Zealand.It did not consider that there was any basis on which the appellant could claim that he had been resident in New Zealand for 20 years since attaining the age of 20 at this stage. His entitlement to Veterans Pension must be based on the formula contained in s 74P(1)(b) o the War Pensions Act 1954.[10] As a consequence, the appeal to the Social Security Appeal Authority was dismissed. [11] The questions of law stated in the case which the Court is asked to answer are as follows:(i) Did the Authority err in law in finding that "residence in New Zealand" under s 74P of the War Pensions Act 1954 requires actual residence in New Zealand? (ii) Did the Authority err in law in finding that Western Samoa did not constitute part of the territory of New Zealand between August 1950 and 1962? (iii) Was there any evidence on which the Authority could base its decision that the appellant had not been resident in New Zealand for 20 years since attaining the age of 20?Statutory provision[12] Section 74P of the War Pensions Act 1954 provides that the rate of a veteran's pension payable under s 74O is to be determined:(a) in the case of a person who has resided in New Zealand for 20 or more years since turning 20 years, the base rate: (b) in the case of a person who has resided in New Zealand for 10 or more years but fewer than 20 years since turning years, an amount calculated using the following formula: . . (c) In the case of a person who is resident in a specified Pacific country and was, immediately before this section came into force, being paid a veteran's pension .[13] The Act does not define "resided in" or "resident".Discussion[14] The appellant's submission is that Western Samoa, administered by New Zealand, initially under the League of Nations' mandate, and then since 1946 under the direction of the United Nations Trusteeship Council (it being a "non-self- governing territory"), was an integral part of New Zealand, and did not become independent from New Zealand until 1962. So, he argues he was residing in New Zealand over the relevant period. [15] Secondly, the appellant submitted that it was relevant that throughout the relevant period he was not "locally employed" but employed by the New Zealand Department of Education, seconded to the New Zealand Department of Island Territories, and that he paid into the New Zealand Government Superannuation Fund. [16] He advanced the argument that he considered his main home was in New Zealand proper, and that he had not moved to a place that was not "part of New Zealand". The appellant says he more than fulfilled the residency requirement for someone living in a specified Pacific island nation, and the law as it currently stands is discriminatory because, for example, a person teaching as a missionary overseas, or serving overseas with Volunteer Services Abroad Incorporated, or in the New Zealand Armed Forces serving overseas in a war, can count that period of time as living in New Zealand. [17] Counsel for the Secretary submitted that the plain meaning of "resided in" requires actual and physical residence in New Zealand. It is a question of fact and degree in any particular case whether that is fulfilled. For example, the fact that a person is absent from New Zealand but intends to return there does not of itself necessarily mean that the person is not resident in New Zealand. So presence, or residence is unaffected by temporary absences. But the respondent submits the authority was correct and entitled to find as a matter of fact that the appellant did not reside in New Zealand over the relevant period.[18] Secondly, counsel for the Secretary submitted that Western Samoa was not part of New Zealand from 1950 to 1962, when regard is had to the relevant interpretation statutes, administrator arrangements between New Zealand and Samoa, and by contrast to some expressed provisions which existed in relation to other Pacific islands. [19] So, for example, she contended that the Cook Islands and Niue were by in Order in Council of 1901 proclaimed to form part of New Zealand but were excluded from the definition of New Zealand in the Act's Interpretation Act 1924. Western Samoa was never formally incorporated into the territory of New Zealand by Order in Council in a manner similar to that of the Cook Islands or Niue. [20] Question (i) in the case speaks of "residence in New Zealand". Section 74P uses the term "resided in" and "who is resident". So to that extent the first question asked in this case stated is not completely accurate, but that is of no significance in determining the essential questions asked. I treat the word "residence" as "resided". [21] I turn first to question (iii) which is easily answered. [22] Provided that Western Samoa was not part of New Zealand, there was ample evidence upon which the Authority could decide that the appellant had not been resident in New Zealand for 20 years since attaining the age of 20. [23] "Residence" involves concepts of intention and personal physical presence at a dwelling place, unaffected by only temporary absence; Fowler v Minister of Social Welfare (1984) 4 NZAR 347. For the purpose of the High Court Rules, a plaintiff is "resident out of New Zealand" if that residence is the person's usual or ordinary place of abode for the time being. It is a question of fact and degree whether a person resides in a certain place; Bolton v New Zealand Insurance Co Limited (1993) PRNZ 71 (HC). Levene v Commissioners of Inland Revenue [1928] AC 217, which was concerned with whether a person was "ordinarily resident" in the United Kingdom for income tax purposes, Viscount Cave L C said that "ordinary residence" [at 255]: connotes residence in a place with some degree of continuity and apart from accidental or temporary absences so understood the expression differs little in meaning from the word "residence".[24] Henry J in Bolton v New Zealand Insurance Co adopted the remarks of Lord Scarman in Shah v Barnet London Borough Council [1983] 1 All ER 226, as to the meaning of the phrase "ordinarily resident", at page 235:Unless, therefore, it can be shown that the statutory framework or the legal context in which the words are used requires a different meaning, I unhesitatingly subscribe to the view that "ordinarily resident" refers to a man's abode in a particular place or country which he has adopted voluntarily and for settled purposes as part of the regular order of his life for the time being, whether of short or long duration.[25] In this case the appellant adopted as his abode a place at which he chose to live his life, Western Samoa, for a significant period and of permanency. The fact that the appellant commenced his period of living in Western Samoa on secondment is an issue of fact, known to the Authority. It does not affect findings that the appellant could not claim that he had been resident, or resided, in New Zealand for 20 years, or, conversely by implication he resided in Western Samoa during that period. It was a factual finding open to the authority based on all the material before it. [26] The real issue is whether, when the appellant was residing in that island territory for that period, nevertheless Western Samoa was to be treated as falling within "New Zealand".Is residing in Western Samoa at the relevant time to be treated as "residing in New Zealand"?[27] The question is what is to be included within the term "New Zealand" for the purposes of the War Pensions Act 1954. "New Zealand" is not defined in the interpretation section of the Act. It is necessary to look at the Act's Interpretation Act 1924, that being in force when the War Pensions Act 1954 was enacted. Section 4 of that Act says:The colony, this colony, the Dominion, and New Zealand, when used as a territorial description, mean the Dominion of New Zealand, comprising allthe islands and territories within the limits thereof for the time being other than the Cook Islands [and do not include [Tokelau] [or Niue] (added in 1949 and 1966).[28] In Sione v Labour Department [1972] NZLR 278, Richmond J recognised that this definition is not clear. Referring to the definition provided by the Acts Interpretation Act Richmond J said at 281:Finally one has to keep in mind the New Zealand Boundaries Act 1863 (U.K.) (reprinted in the NZ Statutes Reprint Vol II at p 125). By this Act New Zealand is deemed for all purposes to comprise all "territories, islands and countries" lying between certain degrees of longitude and parallels of latitude. It is not clear to me whether the word "territories" as used in the definition of "New Zealand" in the Acts Interpretation Act is used in the sense of an area of land or sea within the jurisdiction of the Government and Courts of New Zealand, or whether it is used in the sense of an area or tract of land.[29] From 1924-1962, the definition of Samoa in the Acts Interpretation Act 1924 was:Samoa or Western Samoa means the Territory of Western Samoa as defined in Schedule 2 to the Samoa Act 1921.which after 1961 was substituted with:Samoa or Western Samoa means the Independent State of Western Samoa.[30] The Samoa Act 1921 provided for the administration of Western Samoa by New Zealand as a mandate and the Second Schedule described Western Samoa as:The islands of Upolu and Savaii in the South Pacific Ocean together with all other islands adjacent thereto and lying between the 13th and 15 th degrees of south latitude and the 121st and 173 rd degrees of longitude west of Greenwich.By comparison, the Cook Islands were defined in the Acts Interpretation Act 1924 as:the islands and territories forming part of Her Majesty's Dominions and situated within the boundaries set forth in Schedule 1 to the Cook Islands Act 1915.[31] During the colonial era of the late 19 th century and early 20th century, the territorial limits of many countries, including New Zealand, were in a considerablestate of flux. Therefore in order to appreciate what was, or was not part of "New Zealand" at any given point during that period requires historical analysis. [32] The New Zealand Boundaries Act 1863 replaced the definition of "New Zealand" (included in the New Zealand Constitution Act 1852 (U.K.)) by extending the southern latitudinal line a further 3 degrees south. Section 2 provided:2. Boundaries of New ZealandThe colony of New Zealand shall for the purposes of the said Act [the New Zealand Constitution Act 1852] and for all other purposes whatever be deemed to comprise all territories, islands and countries lying between the 162nd degree of east longitude and the 173 rd degree of west longitude and between the 33rd and 53 rd parallels of south latitude.This area includes the main islands of New Zealand, as well as the Chatham Islands and the subantarctic islands. But it does not include Western Samoa, located well north of the 33 rd parallel of south latitude. [33] The definition of the boundaries of New Zealand has subsequently been extended on four occasions to encompass the Kermadec Group (1887), Cook Islands and Niue (1901), Ross Dependency (1923), and the Tokelau Islands (1948). [34] This is reflected in the Letters Patent constituting the office of the Governor- General of New Zealand (SR 1983/225). It states that:The "Realm of New Zealand comprises: (a) New Zealand; and (b) The self-governing state of the Cook Islands; and (c) The self-governing state of Niue; and (d) Tokelau; and (e) The Ross Dependency.The "Realm of New Zealand" may not necessarily be the same as what was the "Dominion" of New Zealand.[35] That historical path supports the conclusion that Western Samoa has never been "part of New Zealand". An analysis of the legislative history also points to this conclusion. After World War I it was mandated by the League of Nations to the King of England to be exercised by the New Zealand Government. [36] The preamble to the Samoa Act 1921 states:Whereas pursuant to the treaty of Peace with Germany signed at Versailles on the twenty-eighth day of June, nineteen hundred and nineteen, a mandate in the terms in the First Schedule to this Act has been conferred by the League of Nations upon His Majesty, to be exercised on his behalf by the Government of the Dominion of New Zealand, to administer the former German colony of Samoa: and whereas by the said mandate it is provided that the Government of the Dominion of New Zealand shall have full power of administration and legislation over the said Territory, subject to the terms of the mandate, as an integral portion of the Dominion of New Zealand. [emphasis added][37] The use of the words "as an integral part of the Dominion of New Zealand" might create an ambiguity as to whether this was intended to reflect that Western Samoa was, like the Cook Islands, "part" of New Zealand. But after the dissolution of the League of Nations, and the "trusteeship" arose from the Charter of the United Nations, the Samoa Amendment Act 1947 makes no mention of Western Samoa forming part of the "Dominion of New Zealand". The preamble to the Act reads:Whereas in consequence of the dissolution of the League of Nations, the mandate over the Territory of Western Samoa conferred by the League upon His Majesty for and on behalf of the Government of New Zealand, as recited in the principal Act, has ceased to be operative. And whereas pursuant to the Charter of the United Nations signed at San Francisco on the twenty-sixth June, nineteen hundred and forty-five, a trusteeship agreement for Western Samoa in the terms in the First Schedule to this Act was approved by the General Assembly of the United Nations on the thirteenth day of December, nineteen hundred and forty-six. And whereas by the said trusteeship agreement it is provided that the Government of New Zealand, as the administering authority, shall have full powers of administration, legislation and jurisdiction over Western Samoa, subject to the provisions of the trusteeship agreement and of the Charter of the United Nations.[38] So, the mandate which had previously existed over Western Samoa ceased to be operative; the relationship between Western Samoa and New Zealand was described in terms of a "trusteeship" agreement which under the Government of New Zealand was designated the "administering authority" for Western Samoa; andthere was no mention of Western Samoa being an "integral part of the Dominion of New Zealand". [39] The administration of the territory under the approval of the United Nations and such the "trusteeship" relationship, which existed between 1947 and 1962, could not be construed as meaning that Samoa was "part of New Zealand". It was an administration protocol applying to New Zealand and the Western Samoa territory. The agreement ended on 1 January 1962, when Her Majesty ceased to have jurisdiction in Western Samoa, which became a fully independent sovereign state under the name of the "Independent State of Western Samoa". [40] Apart from the legislative and political history, other indicators point to the conclusion that Western Samoa was never part of New Zealand. Lesa v Attorney- General [1982] 1 NZLR 165; [1983] 2 AC 20, concerned the interpretation of the British Nationality and Status of Aliens (in New Zealand) Act 1928. The Privy Council held that for the purposes of that Act, a person born or resident in Western Samoa was to be treated in the same manner in all respects as if he had been born or resident in New Zealand proper. [41] Section 7(1) of the Act provides:7(1) Subject to the provisions of this section, this Act shall apply to the Cook Islands and to Western Samoa in the same manner in all respects as if those territories were for all purposes part of New Zealand; and the term "New Zealand" as used in this Act shall, both in New Zealand and in the said territories respectively, be construed accordingly as including the Cook Islands and Western Samoa. [emphasis added][42] Lord Diplock said at 173:Subsection (1) is in two parts separated by a semi-colon. The second part after the semi-colon is merely an interpretation provision giving to the expression "New Zealand", wherever it appears in the Act of 1928, a more extended meaning than it would otherwise bear by virtue of s 4 of the Acts Interpretation Act 1924, viz "the Dominion of New Zealand, comprising all islands and territories within the limits thereof for the time being other than the Cook Islands." [emphasis added][43] A person born in Western Samoa was to be treated as a New Zealand citizen only because of the extended definition of the term "New Zealand" in that Act. That supports the conclusion that unless a statute has an extended meaning stating that "New Zealand" is to include another territory, such territory is not part of New Zealand. [44] Furthermore, the fact that "Samoa" is included in the list of "specified Pacific countries", to which a distinct regime for Veteran Pension entitlements applies, indicates without doubt that there is intended to be a distinction between "New Zealand" and "Samoa" for the purposes of the War Veterans Act. [45] Whatever is the approach adopted, no support can be found to support the argument that after World War I, and before 1962, Western Samoa was part of, and encompassed by the terms of, New Zealand.Conclusion[46] For those reasons, the answers to the questions posed in the case stated are: (a) Did the Authority err in law in finding that "residence [or residing] in New Zealand" under s 74P of the War Pensions Act 1954 requires actual residence in New Zealand? No. (b) Did the Authority err in law in finding that Western Samoa did not constitute part of the territory of New Zealand between August 1950 and 1962? No. (c) Was there any evidence on which the Authority could base its decision that the appellant had not been resident in New Zealand for 20 years since attaining the age of 20?Yes. [47] The appeal is dismissed. If questions of costs arise, the parties may submit memoranda. "J W Gendall J"Solicitors: Crown Law, Wellington