Lynch v Miners' Pension Board

[1987] TASSC 102

Serial No B32/1987
List "B"

COURT:                 SUPREME COURT OF TASMANIA

CITATION:            Lynch v Miners' Pension Board [1987] TASSC 102; B32/1987

PARTIES:  LYNCH
  v
  MINERS' PENSION BOARD

FILE NO/S:  LCA LDR 12/1986
DELIVERED ON:  22 July 1987
JUDGMENT OF:  Cox J

Judgment Number:  B32/1987
Number of paragraphs:  8

Serial No B32/1987
List "B"
File No LCA LDR 12/1986

LYNCH v THE MINERS' PENSION BOARD

REASONS FOR JUDGMENT  COX J

22 July 1987

1. Preliminary point raised by counsel for the respondent Board on an appeal from a decision or determination of the Board as provided by s33 of the Miners' Pension Act 1932 ("the Act").

1. By s15 of the Act it is provided:–

"(1)    Where a miner –

(a)      proves to the satisfaction of the Board –

(i)       that he is incapacitated by injury or, in the case of a miner employed as such for a continuous period of 13 years, is incapacitated, whether by injury or not;

(ii)      that, by reason of his incapacity, he is unable to continue his employment as a miner; and

(iii)     that the incapacity is likely to be permanent and is of a major or effectively disabling kind;

(b)      has, if so required, submitted himself to a medical examination under subsection (3); and

(c)      has not been awarded a lump sum benefit under this Division, or a pension under the repealed Act, in respect of the incapacity,

the miner is entitled to a lump sum benefit of an amount determined in accordance with subsection (2)."

1. The following facts were agreed:–

"1By letter in December 1984 the appellant applied to the Miners Pension Board for a lump sum pension under the Act.

2The Miners Pension Board by letter to the appellant dated the first day of February, 1985 advised the appellant that the appellant did not qualify for a lump sum benefit pursuant to Section 15 of the Miners Pension Act and rejected the application.

3By letter of the 2nd December, 1985 the appellant (through his solicitors) made an application to the Miners Pension Board for a lump sum pension under the Act in the terms of the attached copy letter.

4By letter dated the 11th day of December, 1985 the Miners Pension Board advised the appellant' solicitors that the appellant's application of the 2nd December, 1985 had been considered by the Board. The appellant was requested by that letter to supply further information so that the Board could give full consideration to the application.

5The information requested by the Miners Pension Board in its letter of the 11th December, 1985 was forwarded to the Miners Pension Board on the 12th day of February, 1986.

6By letter to the appellant's solicitors dated the 14th day of May, 1986 the Miners Pension Board advised that it considered that all conditions of Section 15 could not be fulfilled and accordingly the application of the 2nd December, 1985 was rejected.

7On the 22nd day of May, 1986 the appellant filed a Notice of Appeal in the Launceston District Registry of the Supreme Court of Tasmania."

1. The preliminary point raised by counsel for the Board is that the Board having by letter dated the 1 February 1985 advised the appellant that he did not qualify for a lump sum benefit pursuant to s11 of the Act and having rejected the claim, it was thereupon functus officio and incapable of considering any fresh application. That decision or determination, it was argued, was capable of being the subject of an appeal, but the later decision of the 14 May 1986 was a nullity for the Board had no jurisdiction to entertain any fresh application.

1. The miner's "application" is not attended by any formality. There are no regulations governing the manner in which he should seek to prove to the satisfaction of the Board the matters referred to in s15(1), nor are there regulations dealing with the way in which the Board should conduct itself. In the instant case on neither occasion was there anything in the nature of a formal hearing. The appellant miner on the first occasion sent a letter to the Board accompanied by some medical reports and the Board met in his absence, decided that he did not qualify for a disablement benefit and so advised him. On the second occasion his solicitors wrote advising the Board that the appellant had now been accepted for a full invalid pension by the Social Security Appeals Tribunal and asked the Board to reconsider his entitlement in view of that information. The Board then asked for certain information before the Tribunal to be made available to it by authority of the appellant, and said that upon receipt of the information arrangements would be made to have the application reconsidered by the Board. Such information was made available and the Board, after again considering the matter without any formal hearing in the presence of the appellant, advised that it "gave long and careful consideration to the application but was unable to reverse the decision as all conditions of Section 15 could not be fulfilled".

1. The Act does not contemplate any formal hearing. It provides that if a miner proves, to the satisfaction of the Board, that the necessary conditions enumerated in s15(1) exist, he is entitled to a lump sum benefit to be determined in accordance with a formula contained in subs(2). If the miner is not satisfied with the decision of the Board he may appeal to a judge under s33 which provides that "the decision of the judge on the hearing of the appeal is final". Subsection (2) thereof provides for an appeal to be instituted, heard and determined as prescribed by regulations.

1. Counsel cited many cases concerning the finality of judgments of courts, decisions or arbitrators and determinations by statutory tribunals. These all proceed no doubt from an acceptance of the importance in the public interest of ensuring an end to disputes. I find them of little relevance to a situation such as the present. There are no parties to a claim of this kind – nothing resembling a lis. It is merely provided that if the miner can prove the existence of certain things, to the satisfaction of the Board, he will establish an entitlement. I see no reason why he cannot make as many approaches to the Board as he likes, seeking to persuade it that such conditions do exist. The Board is only functus officio when it so persuaded and the entitlement established.

1. However, there is a machinery provided for a formal determination of the issue by reference to a judge whose decisions will bring finality to the matter. Once that course is undertaken, both parties must abide the result. It was not adopted by the appellant in respect of the first decision and he was not precluded from making further representations to the Board to persuade them to his point of view. Equally the Board was not precluded (and clearly did not consider itself as precluded) from reconsidering the application and from examining any fresh material presented. If that material had enabled the appellant to prove to the Board's satisfaction that the conditions of s15 had been fulfilled, the entitlement would have been established. Apparently it did not do so and he is now entitled to have the matter heard on appeal by a judge. The preliminary point is overruled.