Terence James Paget v South Australian Superannuation Board No. SCGRG 96/2412 Judgment No. 6121 Number of Pages 5 Statutes Interpretation

[1997] SASC 6121

IN THE SUPREME COURT OF SOUTH AUSTRALIA

BURLEY, J (Supreme Court Master)

Statutes - interpretation - application for dismissal of proceedings brought pursuant to s.44A of the Superannuation Act 1988 - whether right to seek review of Defendant's decision may be to the Defendant or to the Supreme Court or to both successively - Plaintiff had sought review of Defendant's decision by the Defendant - after the Defendant, on review, confirmed its original decision, Plaintiff sought a review by the Supreme Court - Defendant contended that the Court did not have jurisdiction - meaning to be attributed to s.44(1) of the Act.

Practice - whether a review under s.44 is an appeal for the purposes of the Supreme Court Rules. Federal Steam Navigation Co. Ltd. v The Department of Trade & Industry [1974] 1 WLR 505; Ormerod v Blaslov (1989) 52 SASR 263, applied.

ADELAIDE, 11 April 1997 (hearing), 22 April 1997 (decision).

#DATE 22:4:1997

#ADD 5:5:1997

Plaintiff Terence James Paget:

Counsel: Mr M F Gray QC

Solicitors: Thomsons

Defendant South Australian Superannuation Board:

Counsel: Mr N A Manetta

Solicitors: Crown Solicitor (SA)

Order: appplication dismissed.

JUDGE BURLEY

1. By application dated 3 February 1997 the defendant sought the dismissal of these proceedings, contending that the court has no jurisdiction to entertain the summons or alternatively, if there is jurisdiction, the application for review sought by the plaintiff is in reality an appeal to which the provisions of Supreme Court Rules 97 apply. The defendant contends that the plaintiff has not complied with the provisions of Supreme Court Rules 97 and that accordingly the summons should be dismissed.

2. The point relating to an alleged lack of jurisdiction is maintained by the defendant pursuant to the provisions of SCR 22.01(a). Whether or not SCR
22 applies makes no difference because, in any event, the defendant has applied to the Court for a determination of the jurisdiction point and the alternative point, before the determination of any other issue in the proceedings. This course was not opposed by the defendant and, in the circumstances I consider it appropriate to determine the two points raised by the defendant before any other issues in dispute are determined.

3. The summons has been brought pursuant to section 44 of the Superannuation Act 1988 (the Act). In essence, the plaintiff claims that he is entitled to a pay out by the defendant pursuant to the provisions of section 31 of the Act. It is common ground that the plaintiff has received a pay out calculated in accordance with the provisions of section 28 of the Act. The former provision relates to termination of employment on account of invalidity before the age of 55 years where the incapacity for work is 60% or more of total incapacity and such incapacity is permanent. The latter provision provides for a calculation of entitlement where there is a voluntary resignation. The plaintiff contends that he comes within the provisions of section 31 rather than section 28 of the Act.

4. The plaintiff has already sought and obtained from the defendant a review of its original decision whereby his superannuation entitlement was calculated in accordance with section 28 of the Act. For the purposes of the application it is sufficient to say that the defendant confirmed its original decision.

1. Section 44 of the Act is as follows: -

"44.(1) Any person who is dissatisfied with the decision of the Board under this Act may apply to the Supreme Court or to the Board for a review of the decision.

(2) On a review by the Court, the Court may - (a) confirm the Board's decision; (b) substitute any decision that should, in the Court's opinion, have been made in the first instance; (c) make any consequential or any ancillary orders.

(3) The Court is not bound by rules of evidence in proceedings under this section. (4) On a review by the Board, the Board may substitute an other decision for its original decision or conform its original decision."

5. Section 44 was the subject of amendment in 1994. By section 18 of Act no. 37 of 1994 the passage "or to the Board" was inserted immediately after the word "Court" in subsection (1) and subsection (4) was added to the section. Thus, prior to the amendment, the only avenue of review was to the Supreme Court.

6. The defendant maintains that section 44(1) of the Act enables a person dissatisfied with its decision to apply for a review to the Supreme Court or to the defendant but not to both. The defendant argues that because the plaintiff applied to it pursuant to section 44 of the Act to review its original decision and since the defendant, on the review, confirmed its original decision, it is not now open to the plaintiff to seek a review, pursuant to the provisions of section 44(1) of the Act, by the Supreme Court. It is not disputed by the defendant that the plaintiff may seek judicial review of the defendant's actions pursuant to SCR 98. However, it was submitted, correctly, that this summons does not seek a judicial review pursuant to that rule.

7. The defendant's concession that the decisions of the Board would be susceptible to judicial review does not, in my view, offer much assistance to the defendant's case on this application. The right to obtain a review provided for in section 44(1) of the Act is a much broader right of review than that which is available under the provisions of SCR 98. To say that, if the restrictive construction contended for by the defendant, is adopted by the Court on this application, the plaintiff still has an ability to apply for a judicial review under SCR 98, merely means that the plaintiff loses a very broad right to have a decision reviewed with the result that only a relatively restricted right of judicial review then remains open to him.

8. Mr Manetta, counsel for the defendant, contended that because of the use of the word "or" in the passage "to the Supreme Court or to the Board" in subsection (1), the applicant seeking the review could only apply for a review to one and not both the Supreme Court and the Board. He argued that the word "or" should bear its ordinary disjunctive meaning, although he accepted that, if an unintelligible result were produced, "or" could be read conjunctively: Jennings v Price (1984) 30 NTR 39 at 42; R v Oakes [1959] 2 QB 350 at 354. He contended that the disjunctive meaning of the word had the effect that the aggrieved person could only apply for a review to the Court (to the exclusion of the Board) or to the Board (to the exclusion of the Court). Mr M F Gray, QC, counsel for the plaintiff, did not directly dispute that the word "or" should be given its ordinary disjunctive meaning, but he contended that even where such a meaning was applied, recourse to one did not preclude recourse to the other. On that basis he contended that the plaintiff had not exhausted his rights of seeking a review under section 44 and that jurisdiction remained with this Court to entertain this action.

9. To support his contention, Mr Gray relied upon the decision of the House of Lords in Federal Steam Navigation Co. Ltd. v The Department of Trade & Industry [1974] 1 WLR 505. At page 520 of the report Lord Wilberforce said: - "My Lords, it is important to state precisely what we are asked to decide on this appeal. It is to determine the meaning of the following phrase - extracted from section 1(1) of the Oil in Navigable Waters Act 1955:

'If any oil .... is discharged from a British ship .... the owner or master of the ship shall, .... be guilty of an offence under this section.'

To say that what we have to decide is whether "or" is conjunctive or disjunctive or, putting it more bluntly, whether "or" means "and", appears to me, with respect, to be a dangerous simplification. It is the meaning of the phrase as a whole that concerns us.

The appellant asks us to say that, in this context, "or" has an alternative and exclusionary sense, so that either the master or the owner is guilty but not both. Thus, once either one or the other has pleaded or been found guilty or, maybe, has been proceeded against, proceedings against the other cannot be brought. This strange result - modus ponendo tollens - 'See how the fates their gifts allot, If A is guilty, B is not,' was rejected by the judge at the trial, and rejected unanimously by the Court of Appeal (Criminal Division) which court pungently pointed out anomalies and absurdities to which it would give rise.

I agree with these courts: for myself, indeed, to give the phrase this signification is to make it legally meaningless.

In logic, there is no rule which requires that "or" should carry an exclusive force. Whether it does so depends on the context. So one must ask what, in a legal context, is the meaning of an assertion that "A or B" is to be guilty of an offence? The law is supposed to be certain: the subject is entitled, and presumptively bound, to know what laws, particularly what criminal laws, apply to him. To say that the law which fails to satisfy these demands is void for uncertainty, is certainly a last resort, but if that conclusion is to be avoided, some intelligible meaning must be found by supplying or substituting, words within the limits of what courts may legitimately do. It seems clear enough that where the law says that something is to happen to "A or B", if what is intended is an exclusionary alternative (ie one, but not the other), the law must state either some qualification by which the affected person may be determined), or must name a third person by whom the choice may be made. The Act does neither of these expressly: so in any view some addition to the statutory words is required."

10. The effect of Lord Wilberforce's decision was that both the Master and the owner of the vessel could be tried for the events and to that extent "or" was treated as having a conjunctive meaning . However, the passage set out above is instructive. It is clear that, where there is uncertainty, "some intelligible meaning must be found by supplying or substituting words within the limits of what courts may legitimately do".

11. Mr Manetta submitted that there was no uncertainty. It was his case that "or" is disjunctive and exclusive and that therefore the section has an unambiguous meaning. Mr Gray submitted to the contrary: exclusivity could only arise if the section read "... may apply [either] to the Supreme Court or to Board ....". As a matter of ordinary English usage I think he is correct. To paraphrase Lord Wilberforce, a word (either) has to be supplied to achieve the certainty of meaning contended for by Mr Manetta. Where there is ambiguity words may be supplied but, equally, a particular meaning may be attributed to the relevant passage without the necessity to imply additional words. Mr Gray's contention was that the section should be construed so that a review to the Board did not exclude an additional review by the Court. I favour that approach if only because it preserves a person's right to have recourse to a court. To adopt Mr Manetta's construction, the Court's jurisdiction would be ousted in favour of, to paraphrase Burchett J in Colpitts v ATC (1986) 9 FCR
52 at 62, a review of Caesar's actions by Caesar.

12. Mr Gray also relied upon the decision of O'Loughlin J in Ormerod v Blaslov (1989) 52 SASR 263. That case involved the construction of section 23(1) of the Fisheries Act 1982 which is as follows: - "The Minister may, by instrument in writing, either generally or otherwise, delegate to the Director or any other officer of the Public Service of the State any of his powers under this Act other than his power of delegation."

13. Pursuant to the section the Minister by notice delegated certain powers to the Director of Fisheries and to "the persons from time to time holding or performing the duties of the Research Manager and the Fisheries Manager". His Honour came to the view that the word "or" in section 23(1) of the FisheriesAct did not require the construction that the Minister could only delegate his powers to one person to the exclusion of others. He arrived at that conclusion by looking at the relevant provisions of the Act as a whole rather than by directing a concentrated attention solely to the provisions of section 23(1).

14. In light of the above authorities, I think it is inappropriate to determine the dispute between the parties as to whether or not this Court now has jurisdiction to entertain a review solely by reference to a minute examination of the provisions of section 44 of the Act. I respectfully agree that to confine the argument to a consideration of whether "or" means "and" is to engage in "a dangerous simplification".

15. One of the questions debated before me was whether or not the words "decision of the Board" contained in section 44(1) of the Act included a decision made by the Board on review of its original decision. If it did, it is clear that the Court could then review the defendant's review of its original decision but it would also mean that the person seeking a review of a decision of the Board could apply to the Board, ad infinitum, for a review of its review decisions. In those circumstances it does not seem to me that the legislature can be taken to have meant that the "decision of the Board" referred to in section 44.(1) of the Act includes a review decision of the Board. Some additional support for that view is to be found in the wording of section 44(4) of the Act which refers to the Board's "original decision". In my opinion, that that can only refer to a decision taken by the Board prior to any request to review the same being made.

16. It seems to me that the fact that section 44(1) of the Act is confined to a review of original decisions lends strength to the plaintiff's argument that, under the section, the plaintiff may seek a review not only by the Board, but if the Board's decision on review is unfavourable, the plaintiff may seek a review of the Board's original decision by the Court. In my opinion no violence is done to the language of section 44.(1) of the Act if such a construction is adopted. It merely recognizes that the ordinary use of the English language gives rise to an ambiguity where the word "or" is used, the ambiguity arising from the lack of certainty is to whether or not the alternatives presented by the use of the word "or" are meant to be mutually exclusive. The matter is put beyond doubt where the expression "either .... or" is used. In the absence of such an expression, it is a legitimate function of the court to decide the true meaning of the section by reference to the Act as a whole.

17. The context in which section 44 of the Act occurs demonstrates that the purpose of the section is to give an aggrieved person the right to have a decision of the Board reviewed. Originally, the right of review was only to the Supreme Court but by amendment in 1994 the applicant for review was given the ability to apply to the Board for a review of its own original decision. In that context it cannot be doubted that the legislature intended that if a person chose in the first instance to seek a review of a original decision by the Board from the Board, the applicant would later have the ability to go to the Court under the provisions of section 44 for a review of the original decision if the applicant was dissatisfied with the review conducted by the Board.

18. For the foregoing reasons I hold that this Court has jurisdiction to entertain the summons brought by the plaintiff and that accordingly the application by the defendant for dismissal of the action for want of jurisdiction should be refused.

19. The alternative point raised by the defendant was that the review contemplated by section 44(1) of the Act was in reality an appeal to which the provisions of SCR 97 applied. In my view there is no substance to the defendant's alternative contention. Several authorities were cited to me in which the courts have examined the distinction between a review and an appeal. It is not necessary for me to deal with those authorities. In my view the answer to the defendant's contention is to be found in the plain wording of section 44 in itself, in particular section 44(3) which is as follows: - "The Court is not bound by rules of evidence in proceedings under this section."

20. That subsection, in my view, unquestionably demonstrates that the process of review is not one of appeal but one of taking "proceedings" which give rise to a hearing akin either to a summary hearing or to a trial as opposed to an appeal. It follows that SCR 97 does not apply to these proceedings because it relates to appeal procedures. It must also be remembered that the section provides for an aggrieved person to ask for a review of the Board's decision either from the Board or from the Court. It could never be said that the request for a review by the Board of its original decision is capable of being an appellate process. Why then should it be said that, insofar as an applicant requests the Court to review the Board's original decision, that is an appellate process? The defendant has accordingly failed to make out the alternative ground relied upon for a dismissal of the proceedings.

21. The defendant's application will be dismissed. I will hear counsel as to costs.