Application for a writ of mandamus against Hassell, Roland Patrick & Ors Ex Parte Pride, Honora Mary the Commonwealth of Australia - [1984] FCA 245

Re: APPLICATION for a Writ of Mandamus against ROLAND PATRICK HASSELL; DESMOND
MATTHEW TEHAN and STANLEY McLEISH HARRIS a Repatriation Review Tribunal
Ex parte HONORA MARY PRIDE and THE COMMONWEALTH OF AUSTRALIA
No. WA G22 of 1984
Repatriation

COURT

IN THE FEDERAL COURT OF AUSTRALIA

WESTERN AUSTRALIA DISTRICT REGISTRY
GENERAL DIVISION
Toohey J.

CATCHWORDS

Repatriation - war widow's pension- summons to applicant to attend hearing by Repatriation Review Tribunal - objection by applicant's representative - request to have questions referred to Federal Court refused - writ of prohibition - whether issuing summons capable of review - whether Tribunal may require applicant to attend to give evidence - investigative function of Tribunal

Repatriation Act 1920 ss. 24AA, 107VC, 107VF, 107VG, 107VH, 107VU, 107VV, 107VY, 107VZU

Judiciary Act 1903 s.39B

HEARING

PERTH

#DATE 20:8:1984

ORDER

1. That the application for a writ of prohibition

against Roland Patrick Hassell, Desmond Matthew Tehan and stanley McLeish Harris be dismissed.

JUDGE1

The earlier history of this matter is set out in reasons for judgment delivered on 4 July 1984. I shall not repeat what is said there.
2. It is enough to say that, in proceedings before the Repatriation Review Tribunal established under the Repatriation Act 1920 ("the Act"), Mrs. Pride was served with a summons to appear as a witness at the hearing. The proceedings before the Tribunal had been initiated by Mrs. Pride, pursuant to s.107VC of the Act, for review of a decision made by the Repatriation Commission on 11 December 1981 that no sufficient reasons existed to review an earlier decision refusing her claim for a pension. In the reasons for judgment just mentioned, I dismissed an application brought by Mrs. Pride seeking a writ of mandamus against the members of the Tribunal pursuant to s.39B of the Judiciary Act 1903. At the same time I gave leave to amend the application to add relief by way of prohibition. It is with the relief sought by way of prohibition that these reasons are concerned.
3. The Commonwealth of Australia does not concede that the act of issuing a witness summons is a judicial act capable of review. It relies upon the well known dictum of Atkin L.J. in R. v. Electricity Commissioners (1924) 1 KB 171 at p 205:

"Wherever any body of persons having legal authority to determine questions affecting the rights of subjects, and having the duty to act judicially, act in excess of their legal authority they are subject to the controlling jurisdiction of the King's Bench Division exercised in these writs".

Later authority has extended the writ of prohibition to "statutory bodies exercising quasi-judicial powers affecting the rights of private persons" (R.v. Australian Stevedoring Industry Board; Ex Parte Melbourne Stevedoring Co. Pty. Ltd. (1953) 88 CLR 100 at p 118). In my view the action of the Tribunal in issuing a summons to Mrs. Pride to attend before it to give evidence in the matter of her own application was the exercise of a quasi-judicial power by…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

AGLC: Application for a writ of mandamus against Hassell, Roland Patrick & Ors Ex Parte Pride, Honora Mary the Commonwealth of Australia [1984] FCA 245
Case: [1984] FCA 245
Decision Date: 20 AUGUST 1984

CaseChat Overview and Summary

In this matter, the applicant, Honora Mary Pride, sought a writ of mandamus against the Commonwealth of Australia, Hassell, Roland Patrick, Tehan, Desmond Matthew, and Harris, Stanley McLeish, contesting the summons issued to her by the Repatriation Review Tribunal. The applicant, a war widow, was summoned to attend a hearing concerning her pension, but she objected through her representative. The Tribunal refused the request to refer the questions to the Federal Court. The applicant then sought a writ of prohibition against the respondents, claiming that the issuing of the summons was reviewable and that the Tribunal did not have the authority to require her to attend and give evidence. The central legal issue was whether the issuance of the summons was subject to judicial review and if the Tribunal possessed the power to mandate the applicant's attendance and testimony. The court considered the role and powers of the Tribunal, focusing on its investigative function. The court held that the Tribunal had the authority to issue a summons to the applicant to attend and provide evidence, as it was within the scope of the Tribunal's investigative powers. Consequently, the application for a writ of prohibition was dismissed. The court determined that the Tribunal's actions were not subject to judicial review in this instance. Therefore, the application for a writ of prohibition against the respondents was dismissed, affirming the Tribunal's authority to summon the applicant to attend and testify.

Orders

Orders of the court

1. That the application for a writ of prohibition

against Roland Patrick Hassell, Desmond Matthew Tehan and stanley McLeish Harris be dismissed.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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