Application for a writ of mandamus against Roland Patrick Hassell, Deputy President, Desmond Matthew Tehan, Services Member and Stanley McLeish Harris, member, a Repatriation Review Tribunal ex parte Pride, Honora...

[1984] FCA 188

Re: APPLICATION for a Writ of Mandamus against Rolan Patrick Hassell, Deputy
President; Desmond Matthew Tehan, Services Member; and Stanley McLeish Harris,
Member, a Repatriation Review Tribunal
Ex parte: HONORA MARY PRIDE
And: COMMONWEALTH OF AUSTRALIA
No. WA G22 of 1984
Repatriation - Statute
55 ALR 219 / 2 FCR 319

COURT

IN THE FEDERAL COURT OF AUSTRALIA

WESTERN AUSTRALIA DISTRICT REGISTRY
GENERAL DIVISION
Toohey J.(1)

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 for mandamus - question of construction - meaning of 'may' - discretion vested in Tribunal with concurrence of President - writ of mandamus inappropriate

Repatriation Act 1920 ss. 31, 107VU, 107VY, 107VZZB, 107VZZG, 107VZZH

Judiciary Act 1903 s. 39B

Broadcasting and Television Act 1942 s. 22B

Copyright Act 1968 s. 161

Administrative Appeals Tribunal Act 1974 s. 45

Income Tax Assessment Act 1936

Criminal Appeal Act 1912 (N.S.W.) s. 5B

Statute - Interpretation - "May" - Whether means "shall" - Repatriation Act 1920 (Cth), s. 107VZZG(1).*

HEADNOTE

Held, that the provisions of s. 107VZZG (1) of the Repatriation Act 1920 (Cth) , to the effect that "the Tribunal may . . . refer a question of law" to the Federal Court conferred a discretion, not a duty, upon the Tribunal.

HEARING

Perth, 1984, June 22; July 4. #DATE 4:7:1984

APPLICATION.

Application for writs of mandamus and prohibition.

R. J. Meadows, for the applicant.

M.C. Lee, for the respondent.

Cur. adv. vult.

Solicitors for the applicant: Muir Williams & Nicholson.

Solicitor for the respondent: Australian Government Solicitor.

G.F.V.

ORDER

Application dismissed.

JUDGE1

Mrs. Pride is the widow of an ex-serviceman. In 1972 the War Pensions Entitlement Appeal Tribunal (established under the Repatriation Act 1920 but now longer in existence) refused her claim for a pension on the ground that it was not satisfied that the death of her late husband was related to war service.

1. Sub-section 31(1) of the Act empowers the Repatriation Commission, where there appears sufficient reason for reviewing a decision in relation to a pension, to review that decision. Following Law v. Repatriation Commission (1980) 29 ALR 64, or it may have been the judgment of the Full Federal Court or the High Court in that matter, Mrs. Pride applied for a review of the earlier decision of the Commission. On 11 December 1981 the Commission determined that no sufficient reason existed to review the earlier decision.

2. Pursuant to s.107VC of the Act, Mrs. Pride applied to the Repatriation Review Tribunal for a review of the Commission's decision of 11 December 1981. The Tribunal began the review on 16 November 1983. On the preceding day Mrs. Pride was served with a summons to appear as a witness at the hearing. Sub-section 107VY(2) of the Act empowers the presiding member of the Tribunal to "summon a person to appear at any hearing of the proceeding to give evidence and to produce such documents (if any) as are referred to in the summons".

3. On 17 November Mr. Davies, who was Mrs. Pride's representative, submitted to the Tribunal that:
   
   

1. by reason of sub-s.107VU(1) of the Act, she was not required to appear at a hearing of the Tribunal in connection with an application made by her.

2. because she was not required to appear, she could not be summoned to appear; and

3. if there was power in the Tribunal to issue a witness summons to her, she was not a compellable witness.

1. The Tribunal rejected these submissions. Mr. Davies then requested the Tribunal, pursuant to s.107VZZG, to refer the questions the subject of his submission to the Federal Court. Sub-section 107VZZG(1) reads:
   
   

"The Tribunal may, of its own motion or at the request of the applicant or the Commission, refer a question of law arising in a proceeding before the Tribunal to the Federal Court of Australia for decision but a question shall not be so referred without the concurrence of the President of the Tribunal".

1. The Tribunal declined to make the reference to the Court on the ground that it had a discretion whether to do so and that it did not consider such a reference necessary, Mrs. Pride being a compellable witness.

2. Mrs. Pride filed in this Court a notice of appeal from what was described as "decisions" of the Tribunal not to refer the questions to the court and that she was a compellable witness before the Tribunal. Objection was taken to the notice of appeal on the ground that there had been no decision within s.107VZZH. Apparently Mrs. Pride's advisers were convinced that there was merit in the objection and the appeal was not pursued.

3. Mrs. Pride then sought an extension of time in which to file an application for a writ of mandamus against the members of the Tribunal pursuant to sub-s.39B(1) of the Judiciary Act 1903 which came into operation on 20 December 1983. The extension of time was granted - see Re Hassell & Others; Ex parte Pride (1984) 52 ALR 181. It is that application for mandamus that is now before the Court.

4. With its consent, the Commonwealth of Australia was joined as a party and it was the Commonwealth that opposed the relief sought by Mrs. Pride. As a result of certain submissions made by Mr. Lee Q.C., for the Commonwealth, Mr. Meadows, counsel for Mrs. Pride, applied to amend the application to one for a writ of prohibition as an alternative to a writ of mandamus. Against the opposition of the Commonwealth, I granted the application. It will be necessary to say something later in these reasons about the implications of allowing Mrs. Pride to seek the alternative relief.

5. The first substantive question to be answered is whether s.107VZZG obliges the Tribunal, when requested so to do, to refer a question of law arising in a proceeding before the Tribunal to the Federal Court or whether the matter is one for the discretion of the Tribunal.

6. The question is essentially one of construction. It is not resolved by resort to general principles (other than principles of construction) if the construction of the provision is clear enough. A useful starting point is the judgment of Windeyer J. in Finance Facilities Pty. Ltd. v. Federal Commissioner of Taxation (1970-1971) 127 CLR 106 at p 134:
   
   

"While Parliament uses the English language the word 'may' in a statute means may. Used of a person having an official position, it is a word of permission, an authority to do something which otherwise he could not lawfully do. If the scope of the permission be not circumscribed by context or circumstances it enables the doing, or abstaining from doing, at discretion, of the things so authorized. ... Here the scope of the permission or power given is circumscribed. Conditions precedent for its exercise are specified as alternatives. The question then is, must the permitted power be exercised if one of those conditions be fulfilled?

This does not depend on the abstract meaning of the word 'may' but of whether the particular context of words and circumstance make it not only an empowering word but indicates circumstances in which the power is to be exercised - so that in those events the 'may' becomes a 'must'".

1. Stroud's Judicial Dictionary 4th Ed. Vol. 3 p.1642 collects the relevant authorities, distinguishing those in which, as a matter of construction, may or some other enabling word was held to impose an obligatory duty and those in which it was held to do no more than create a discretionary or enabling power. To those authorities I would add two recent decisions of this Court - Re Sarina; Ex parte Wollondilly Shire Council (1980) 32 ALR 596 at p 600 and Bowling v. General Motors Holdens Ltd. (1980) 33 ALR 297 at pp 301-304.

2. On the face of it then sub-s.107VZZG(1) means just what it says - the Tribunal may, of its own motion or at the request of a party, refer a question of law to this Court. The section itself uses both "may" and "shall" in different contexts. Pursuant to sub-s.(2) the jurisdiction of the Federal Court, on reference, shall be exercised by a single judge, subject to sub-s.(3). By reason of sub-s.(3) the Chief Judge may, if in his opinion a matter of sufficient importance is involved, direct that the Court shall be constituted by not less than 3 judges. Where a question of law has been referred to the Court, the Tribunal shall not give a decision while the reference is pending or proceed in a manner or make a decision inconsistent with the opinion of the Court on the question (sub-s.(4)).

3. A provision in the terms of sub-s.107VZZG(1) is not unusual; there is a comparable provision in s.45 of the Administrative Appeals Tribunal Act 1975. See also Broadcasting and Television Act 1942 s.22B and Copyright Act 1968 s.161. On the other hand sub-s.196(2) of the Income Tax Assessment Act 1936 provides that a Board of Review "shall upon the request of the Commissioner or taxpayer" refer a question of law arising before the Board to the Supreme Court.

4. Counsel for Mrs. Pride referred to a number of decisions in which the use of the word "may" was considered. In particular he drew attention to the judgment of the Court in Ward v. Williams (1954-1955) 92 CLR 496 at pp 506-507 where the Court said:
   
   

"In construing a statute conferring a power by permissive or facultative expressions, it is important not to mistake indications or evidences, found in the context or subject matter, of an intention that a right to call for the exercise of the discretion should exist, for indications or evidences of an intention that the officer in whom the power is reposed should be under a duty, upon request and upon fulfilment of the necessary conditions, to do the thing authorised.

...

But there is one consideration which is usually accounted very strong. It is that the power is conferred upon a judicial tribunal and to be invoked by a judicial proceeding. Jurisdiction and powers are conferred on judicial bodies, usually for the enforcement of rights and the protection of interests, and permissive language will often in such a case be used not because it is intended to give the tribunal a discretion to grant or refuse the remedy, but because, although it is intended or contemplated that persons interested will be entitled to the remedy the tribunal is empowered to give, it is also intended, or at all events taken for granted, that the existence of the interest and the validity of the claim to the remedy of a person seeking it will be for the tribunal to determine".

1. These words echo what was said in Julius v. Lord Bishop of Oxford (1880) 5 App Cas 214 and what was later said by Windeyer J. in Finance Facilities Pty. Ltd. v. Federal Commissioner of Taxation.

2. Sub-section 107VZZG(1) is not a case in which the context makes "may" not only an empowering word but indicates the circumstances in which the power is to be exercised so that, in the words of Windeyer J., "the 'may' becomes a 'must'". Nor is it a case where, in the language of Ward v. Williams, it is intended or taken for granted that the existence of the interest and the validity of the claim to the remedy of the person seeking it will be for the Tribunal to determine. The sub-section is not in truth concerned with jurisdiction for the Tribunal is already seized of the matter. It does confer a power upon the Tribunal, but not directly for the enforcement of rights and the protection of interests. Those rights and those interests are for the Tribunal itself to determine, subject to the right of appeal to the Federal Court established by s.107VZZH. The role of the Tribunal is to review decisions of the Commission (s.107VC). It is not bound by technicalities, legal forms or rules of evidence (s.107VG) and is required to set aside the decision under review unless satisfied, beyond reasonable doubt, that there were insufficient grounds for granting the claim (s.107VH). Section 107VU permits representation at a proceeding before the Tribunal, but not by a legal practitioner.

3. In my view sub-s.107VZZG(1) is a machinery provision, designed to enable the Tribunal, if so minded, to obtain from the Federal Court an answer to a question of law arising in a proceeding before the Tribunal. The reference to "of its own motion or at the request of the applicant or the Commission" is, I think, intended to do no more than identify how the exercise of the discretion may be brought to the attention of the Tribunal.

4. Counsel for Mrs. Pride did not contend that there was an absolute obligation to refer any question of law at the request of one of the parties. He qualified the obligation by reference to questions of substance. It would be difficult to infer such a limitation from the language of sub-s.107VZZG(1) but, in the view I have taken of that sub-section, the question does not arise.

5. Ex parte McGavin; Re Berne (1946) 46 SR (NSW) 58 is no authority for the submissions advanced by Mr. Meadows. It was concerned with s.5B of the Criminal Appeal Act 1912 (N.S.W.) which read:
   
   

"A court of quarter sessions may submit any question of law arising on any appeal coming before it to the Court of Criminal Appeal for determination and such submission shall be dealt with as if it were an appeal under this Act, and the Court of Criminal Appeal may make any such order or give any such direction to the Court of Quarter Sessions as it thinks fit".

1. Jordan C.J. said that it was the duty of a Chairman of Quarter Sessions "to submit to the Court of Criminal Appeal any question of law which either party to the appeal may raise and ask to be so submitted, unless, in his opinion, the question is so obviously frivolous and baseless that its submission would be an abuse of process" (at p.61). But, as Mr. Lee argued, s.5B was concerned with the exercise of a judicial function and provided means by which that function might be reviewed. Sub-section 107VZZG(1) relates to what is essentially an administrative process and provides machinery by which the Tribunal may be assisted in the exercise of its functions.

2. The view that sub-s.107VZZG(1) vests a discretion in the Tribunal is reinforced by the concluding words of the sub-section - "but a question shall not be so referred without the concurrence of the President of the Tribunal". Counsel for Mrs. Pride submitted that the purpose of this qualification was to enable the President, who is a legal practitioner, to ensure that any question referred to the Court be formulated in such a way as to ensure a relevant answer. In counsel's submission, so long as the question of law is substantial, the President cannot withhold his concurrence.

3. In my view, there is no justification for reading the qualification in this way. To concur is to agree with; concurrence must be given its ordinary meaning, that the President is agreeable to the question being referred. Without that concurrence, there can be no referral. No conditions are set for the President's concurrence; see by way of comparison sub-s.107VZZB(1) which empowers the President, if of a particular opinion, to refer a decision of the Commission to the Administrative Appeals Tribunal. The very generality of the language used in sub-s.107VZZG(1) makes it clear that what is intended is the vesting of a discretion in the Tribunal, qualified only by the requirement that the President must concur with any reference.

4. Since there is no obligation on the Tribunal to refer a question of law to the Federal Court, there is no statutory duty to be performed. In R. v. War Pensions Entitlement Appeal Tribunal; ex parte Bott (1933) 50 CLR 228 at p 242 the Court said:
   
   

"A writ of mandamus does not issue except to command the fulfilment of some duty of a public nature which remains unperformed."

See also R. v. Milk Board; Ex parte Sanders (1961) VR 196 at p 200 where the relevant decisions are noted. It follows then that mandamus cannot lie against the members of the Tribunal to require them to refer to this Court the questions they were asked to refer.

1. Is it possible for the Court, within the framework of the present application, to answer the substantive questions that Mrs. Pride's representative sought to have referred? There is much to be said for such a course if it is available; a further application would only add to the time and expense that have already been consumed in this matter. Relying upon s.39B of the Judiciary Act, Mrs. Pride might have sought an injunction against the members of the Tribunal seeking to restrain them from requiring her to attend and to give evidence. Or she might have proceeded under the Administrative Decisions (Judicial Review) Act 1977 to seek a review of such decisions as were involved in the actions of the Tribunal. Mandamus is not an appropriate vehicle to obtain the answers she seeks. It was in the hope that further proceedings might be avoided that I gave leave to amend the application to include a claim for relief by way of prohibition.

2. The substantive questions were argued by counsel, though within the context of the applicant's submission that the Tribunal was bound to refer the questions raised on her behalf so long as they were matters of substance. However, when I gave leave to amend the application to add relief by way of prohibition, Mr. Lee said that he wished to make further submissions in the light of the additional relief sought. I should add that leave to amend was only sought by Mr. Meadows in the course of his reply. I indicated to counsel that, depending to some extent upon the decision I reached in regard to the meaning and operation of sub-s.107VZZG(1), I would give counsel an opportunity to be heard further. But I suggested that, with a view to avoiding undue further time and expense, counsel might be content to put in a written submission. In view of the decision I have reached regarding the sub-section, I propose to give counsel that opportunity.

3. At this stage it is appropriate to dismiss the application so far as it seeks a writ of mandamus and to give directions for the making of written submissions on the relief sought by way of prohibition. I shall hear from counsel as to the directions and form of order they think appropriate.