Fountain v Chief Executive of the Ministry of Social Development

[2017] NZHC 77

IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY

CIV-2016-485-590 [2017] NZHC 77

IN 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

JOHN FOUNTAIN Appellant

AND

THE CHIEF EXECUTIVE OF THE MINISTRY OF SOCIAL DEVELOPMENT

Respondent

On papers
Judgment:	3 February 2017

JUDGMENT OF DOBSON J

[1]      On 8 December 2016, the appellant (Mr Fountain) filed an application for the appointment of an amicus to appear on argument of the appeal, which is set down for

20 February 2017.

[2]      Mr Fountain’s   application   has   been   opposed   and,   by   agreement,   the application is to be determined on the papers.  The matter has been referred to me in the unavailability of the Judge allocated to hear the appeal.

[3]      Mr Fountain has filed an 11 page submission dated 30 January 2017.   The respondent has filed short submissions dated 1 February 2017 expanding on the grounds given in the notice of opposition to the application.

[4]      Mr Fountain is concerned about an “inequality in arms” in argument of the

appeal.   He treats some of the arguments he wishes to raise as having broader

FOUNTAIN v CHIEF EXECUTIVE, MINISTRY OF SOCIAL DEVELOPMENT [2017] NZHC 77 [3 February

2017]

application, whilst acknowledging that there have been numerous cases considering the status of payments under the Canada Pension Plan, for the purposes of payment of New Zealand superannuation.

[5]      Although Mr Fountain characterises the need for submissions from an amicus as involving the provision of an “independent” view to the Court, it is clear from the submissions in support of his application that he anticipates submissions in support of the position he intends to argue.  Any perceived inequality of arms would not be redressed unless the amicus fulfils that purpose.

[6]      The issues sought to be argued on the appeal are not of a type, and have not arisen in this appeal in a context, that would justify the appointment of an amicus. Mr Fountain’s attempts to re-characterise the payments he is entitled to from Canada from those that New Zealand law requires to be taken into account in assessing superannuation  entitlements  raise  relatively  esoteric  points.    To  be  of  utility, Mr Fountain anticipates that an amicus would:

·    provide to the Court specialist expertise and knowledge about differences between social welfare programs of income support and social insurance programs for credibly accumulating and decumulating private savings and wealth over extremely long and variable life spans;

·  have detailed knowledge of changes to the Canadian pension plan legislation, and familiarity with authoritative case law in the Federal and Supreme Courts of Canada; and

·    be able to clarify changes in economic and legal property rights in the

Canadian Pension Plan programme

[7]      Those  expectations  are,  with  no  disrespect  to  Mr Fountain  or  the  likely candidates for any appointment, unrealistic.

[8]      I am satisfied the case is not made out for the appointment of an amicus.  The written materials on the file from Mr Fountain thus far demonstrate an ability to adequately identify and explain the arguments he wishes to raise.

Dobson J

Solicitors:

Crown Law, Wellington for respondent

Copy to: Appellant