State (Williams) v Army Pensions Board

• Jurisdiction: Ireland
• Judge: McCARTHY J.,Henchy J.
• Judgment Date: 14 February 1983
• Neutral Citation: 1983 WJSC-SC 1129
• Court: Supreme Court
• Docket Number: [S.C. No. 33 of 1981]
• Date: 14 February 1983

1983 WJSC-SC 1129

THE SUPREME COURT

Henchy J.

Hederman J.

McCarthy J.

No. 478 S.S./1980

No. 33/1981

STATE (WILLIAMS) v. ARMY PENSIONS BRD.and MIN. DEFENCE

THE STATE (WILLIAMS)

v.

ARMY PENSIONS BOARD AND MINISTER FORDEFENCE

HIGH 1980/478 SS - KEANE - 13.1.1981

Subject Headings:

DEFENCE FORCES: pension

NATURAL JUSTICE: tribunal

JUDICIAL REVIEW: certiorari

TRIBUNAL: procedure

1 Judgment of Henchy J.delivered the 14th February 1983

2 This is an appeal by Mrs. Bernadette Williams against the refusal of her application for a conditional order of certiorari quashing two reports of the Army Pensions Board ("the Board") to the Minister for Defence ("the Minister"). The two reports were to the same effect: that she or her children were not entitled on the death of her husband, who was a sergeant in the Irish Army, to any of the allowances or gratuities specified in the second schedule to the Army Pensions Act, 1962.

3 The application in the High Court was made on notice of motion and the parties cited as respondents were the Board, the Minister, Ireland and the Attorney General. In this Court, however, it was agreed that Ireland and the Attorney General were unnecessaryparties; so, by consent, they were struck out of the proceedings.

4 It was Mrs. William's case in her application to the Board that, by virtue of s. 11(1)(c) of the Army Pensions Act, 1968, she and her children were entitled to the allowances and gratuities specified. That statutory provision says that the Minister "may" grant those allowances and gratuities if her husband'sdeath

"was due to disease aggravated, accelerated, or excited by -"

(i) a wound or disease attributable to service with a United Nations Force, or

(ii) service with a United Nations Force."

5 In the High Court the Judge thought that "may" there is enabling rather than mandatory. I would think, however, that since the Board exercises an adjudicative and conclusively determinant function, and that the Minister is confined to acting in accordance with their findings, the Minister has no option but to grant the allowances and gratuities if the findings are favourable to the applicant.

6 The Judge also thought that the Board's functions in the matter are administrative rather than quasi-judicial. I inclineto the contrary view. Their functions, which are conclusively adjudicative after consideration of the evidence tendered, seem to me to have a judicial rather than an administrative flavour. When the member of a tribunal of this kind, exercising what are essentially quasi-judicial functions, misdirect themselves as to a basic matter of law, a person aggrieved by their decision may have that decision quashed on the ground that the tribunal has thereby deprived itself ofjurisdiction.

7 Mrs. Williams's primary complaint - and in my view her only valid one - is that she, who was in no position to offer any evidence as to the factors which caused or contributed to her husband's death, was deprived of an opportunity of knowing, and therefore of rebutting, the medical evidence on which the Board reported to the Minister that her claim should be rejected.

8 The statutory scheme under which the Board exercise their functions is deliberately vague as to how they are to hear and rule on a claim. Art. 8 of the relevant Regulations (S.R. & O. No. 6 of 1928) says that they "shall make such inquiries, summon such witnesses and take such evidence as they may deem necessary to report on suchapplication." They therefore have a discretion as to whether to have an oral hearing or not. In this case, in accordance with their normal practice, they decided against an oral hearing.

9 Art. 10 empowered the Board, on rejection of the claim, to reconsider the application in the light of "any additional evidence" which Mrs. Williams might submit. When her claim was turned down Mrs. Williams applied for such reconsideration, but the Board again made a report adverse to her claim, on the ground that no additional evidence had been received on her behalf.

10 I consider that the right given by Art. 10 to an applicant to have a rejected claim reconsidered by the Board in the light of additional evidence, if the Minister makes the necessary reference, indicates that the applicant is entitled to know, at least in the generality of cases, what the original evidence was, if an application is made to have it furnished. Otherwise, how could an applicant who wishes to consider applying for a re-adjudication know what sort of evidence would be additional? Additional to what? is a question Mrs. Williams could haveasked.

11 Sergeant Williams served in the Army from 1939 until his death in 1978. In the course of that 39 years of service he haddone two stints of duty with a United Nations Force, one in the Congo in 1961 and one in Cyprus in 1967. His commanding officer gave a report in which he said that active fighting service in the Congo had damaged Sergeant Williams's physical and mental health. Mrs. Williams, in her claim form, said that he had been admitted to hospital in Cyprus suffering from a suspected tropical virus. There is nothing before us to support a finding of a causal relation between his service with a United Nations Force and his death.

12 Sergeant Williams was flown home from Cyprus for medical attention. From then until his death, eleven years later, he is said to have been in receipt of regular medical treatment. The Army authorities provided hospital treatment in Dublin at different times: in the Army hospital, St. Bricin's; in the Richmond Hospital; and in St. Luke's Hospital. When he eventually died in St. Luke's Hospital the death certificate gave the cause of death as "pneumonia resulting from multiplemyeloma".

13 Considering his protracted illness between 1967 and his death in 1978, it is no wonder that the Army authorities hada voluminous medical dossier on Sergeant Williams. It consisted of three medical books (L.A.30), together with all results of tests and X-rays, and the Central Medical File held by the Director of the Army Medical Corps, containing clinical notes on his periods in hospital while in the Army. It was all made available to the Board. But not to Mrs. Williams. She was not allowed to see any of it. She was left with nothing in the way of medical evidence except her husband's death certificate.

14 When Mrs. Williams and her son sought access to the medical evidence, they were turned down by the Board. Why? Because it was not their practice to make such evidence available. The result was that the Army's side of the case was fully presented to the Board. As against that, Mrs. Williams, who was left in the dark, had nothing to offer except her completed claim form and the death certificate.

15 I consider that this one-sidedness amounted to a breach of natural justice. Mrs. Williams was unfairly and unjustifiably prevented from rebutting, if that was possible, the conclusion reached by the Board. There may be cases where, for reasons such as state security or other considerations of public policy, theBoard may be privileged from disclosing, or making full disclosure of, the evidence before them. But this is not one of those cases. Counsel for the Board and the Minister has frankly and fairly conceded that the only reason for non-disclosure is the claim of the Board to be entitled to adhere to their settled practice.

16 In my judgment the Board unintentionally breached natural justice (and the relevant Regulations) in the way I have indicated and thereby divested themselves of jurisdiction. Therefore, their reports and the Minister's consequent rulings fall to be quashed. Although there has been no conditional order of certiorari, since this matter has been heard on notice to the Board and to the Minister, and since it is implicit in the legal stance they have taken that they would not show cause if a conditional order were made, the order or certiorari should issue in absolute form.

17 In fairness to all concerned, two observations deserve to be made. First, the issue of this order should not be taken as implying any criticism of the integrity or good faith of the three distinguished officers who acted as the Board. Second, the issue of the order should not be taken as implying any suggestion thatthe reports of the Board were not correct. Mrs. Williams' success today may turn out to be merely procedural. As things stand, all she has is a hunch, at best an informed hunch, that there was a causal...