The State (Cuthbert) v Minister for Defence

• Jurisdiction: Ireland
• Judgment Date: 20 December 1945
• Date: 20 December 1945
• Court: Supreme Court

The State (McCarthy) v. O'Donnell

THE STATE (at the prosecution of JAMES McCARTHY)

and

THOMAS O'DONNELL and the MINISTER for DEFENCE

and

THE STATE (at the prosecution of ETHEL CUTHBERT)

and

THE MINISTER for DEFENCE

High Court.

Supreme Court.

Pension - Military service - Claim for pension - Certificate of military service - Investigation of claim by Referee under Military Service Pensions Act.1934 - Statutory functions of Referee - Referee's failure to "sit with"Advisory Committee - Referee's failure to hear evidence personally - Report made to Minister - Whether Report made without or in excess of jurisdiction - Report made "final and conclusive and binding on all persons and tribunals whatsoever" - Whether this provision mandatory or only directory - Jurisdiction to grant order of certiorari - Military Service Pensions Act, 1934 (No. 43 of 1934), s. 2, s. 3, s. 5, sub-ss. 6, 7, s. 6, sub-s. 1,s. 7 s. 8, sub-ss. 1, 5, s. 9, s. 10, s. 11 - Military Service Pensions Acts,1934, Regulations, 1934 (Stat. R. & Or. 1934, No. 355) - Referee (Military Service Pensions) (Amendment) Rules, 1936 (Stat. R. & Or., 1936, No. 61) - Rules of the High Court and Supreme Court, 1926, Or. XX - Constitution of 1937, Art. 34.

The Military Service Pensions Act, 1934, authorises the Minister for Defence to grant to any person to whom the Act applies a Service Certificate, and, with the sanction of the Minister for Finance, to grant to any person who has been granted a Service Certificate a pension payable during his life. The Act applies to every person who served in "the Forces" (as defined by the Act), at the times specified and who is not a person to whom the Military Service Pensions Act of 1924 applied. The Act provides for the appointment of a Referee who is to have "all such powers, rights and privileges for enforcing the attendance of witnesses and examining them on oath (which he is hereby authorised to administer) or otherwise, and for compelling the production of documents as are vested in the High Court, or a Judge thereof in respect of the trial of an action." By s. 6, sub-s. 1, "there shall be established a committee to be styled and known as the Advisory Committee . . . to sit with the Referee and assist him in the exercise of his functions under this Act." By s. 7 "any person who claims to be a person to whom the Act applies may send to the Minister for Defence an application for the grant to him of a certificate (in the Act referred to as a Service Certificate) that he is a person to whom the Act applies." Sect. 8, sub-s. 1 provides:—"The Minister shall refer every application for a service certificate to the Referee and thereupon the Referee shall investigate such application and make a report to the Minister in accordance with this section." By sub-s. 4:—"The onus of proving before the Referee any matters of fact alleged in an application for a service certificate shall rest on the applicant and he shall be at liberty to offer such evidence as he may consider necessary to discharge such onus." Sect. 9 provides that the Referee's Report is to be "final and conclusive and binding on all persons and tribunals whatsoever."

The appellant, J. McC., who wished to obtain a pension in respect of his military service, made application in the prescribed form in the year 1935 to the Minister for Defence for a Service Certificate under the Act. In May, 1939, the appellant attended at Griffith Barracks, Dublin, for examination on oath before the Referee. The Referee, having administered an oath to the appellant, the latter was taken to another room where he was examined orally by an officer attached to the Referee's office. A transcript of the examination was subsequently forwarded to the Referee and to the Advisory Committee. Later, some of the members of the Advisory Committee heard evidence of verifying officers appointed by a committee of the unit in which the appellant claimed to have served. Some members of the Advisory Committee having advised the Referee that the appellant had not served in the Forces continuously during certain periods claimed in his application the Referee found that the appellant was not a person to whom the Act applied. Additional evidence was furnished by the appellant and was considered by some members of the Advisory Committee, who advised the Referee that the appellant's service had not been continuous. The Referee re-investigated the claim, and again found that the appellant was not a person to whom the Act applied, and reported to the Minister accordingly. The Minister for Defence having refused to grant a Service Certificate, the appellant obtained a conditional order of certiorari to quash the Report of the Referee and of mandamus to compel the Referee to hear and determine the appellant's application, the principal grounds relied on being that the Report of the Referee and the findings upon which it was based were not made in accordance with the Act and the Orders and Regulations made thereunder, and were made in disregard of the essentials of justice and were made without jurisdiction. The Minister for Defence showed cause, the Referee having died after the conditional order was made.

The second appellant, E. C., having also made application for a Service Certificate, the Referee adopted a similar procedure to that employed by him in the case of J. McC. On the 27th January, 1942, E. C. was notified of the Referee's Report to the Minister, which was adverse to her claim, but she did not apply for a conditional order of certiorari until the 29th July, 1943.

Held by the High Court (Maguire P. and Haugh J.; Martin Maguire J. dissenting), that the Referee acted within his jurisdiction in dealing with the claims in the manner in which he did and his Report was not made without jurisdiction and therefore the conditional orders of certiorari obtained by J. McC. and by E. C. must be discharged. On appeal:

Held by the Supreme Court (Sullivan C.J., Murnaghan, Geoghegan, O'Byrne and Black JJ.), reversing the decision of the High Court, that the Referee's Report was made without jurisdiction and the conditional orders of certiorarimust be made absolute.

Per Sullivan C.J. (Murnaghan, Geoghegan and O'Byrne JJ. concurring):—

1, that, as the Advisory Committee did not sit with the Referee at the investigation of the appellants' applications those applications were dealt with in a manner which was unauthorised by the Act and the Referee's Report was invalid: the respondent's contentions that the section merely required the Committee to sit with the Referee if he required them to do so, and that the section was not mandatory but merely directory, being unsustainable;

2, that the appellants' right to certiorari was not taken away by reason of the Referee's Report being made final and conclusive since the Referee acted in excess of jurisdiction.

3, that the evidence of the appellants should have been taken by the Referee or in his presence.

Per Black J:—1, The majority of the High Court were right in refusing to hold that the Referee was wrong in acting upon the basis that he could validly adjudicate in any given case though the Advisory Committee were not present with him at any stage of it (but for different reasons than those stated by the President of the High Court);

2, that the procedure adopted by the Referee amounted to a practical denial of the right of the appellants to give their evidence orally before the Referee in person, and that to deny them such a right amounted to an excess of the Referee's jurisdiction, and for this reason the conditional orders must be made absolute.

Certiorari and Mandamus.

The appellant, James McCarthy, in July, 1935, applied in the prescribed form to the Minister for Defence for a Service Certificate to enable him to obtain a pension under the Military Service Pensions Act. 1934.

In May, 1939, he was summoned to attend before the Referee, Circuit Court Judge O'Donnell, at Griffith Barracks, Dublin, for examination on oath in connection with his claim. He attended at Griffith Barracks on the 1st June, 1939, where an oath was administered to him by the Referee. He was then taken to another room and examined orally on the matters stated in his application form by an officer of the Referee, but not in the Referee's presence. A transcript of his evidence was taken and was subsequently forwarded to the Referee and to the Advisory Committee established under the Military Service Pensions Act, 1934, s. 6.

In the month of October, 1941, and in May and October, 1942, some members of the Advisory Committee heard evidence of verifying officers appointed by a local committee of the Forces in which the appellant claimed to have served.

In May, 1942, some members of the Advisory Committee advised the Referee that the appellant had not served in the Forces continuously during certain periods set out in his application.

On the 24th June, 1942, the Referee found that the appellant was not a person to whom the Act applied, and duly notified him of his finding, and also informed him that he was entitled to furnish additional evidence for the Referee's consideration.

In the month of July, 1942, the appellant forwarded certain statements as additional evidence. Some members of the Advisory Committee considered this evidence and advised the Referee that the appellant's service in the Forces had not been continuous. The Referee re-investigated the appellant's claim and again found that the appellant was not a person to whom the Act applied. He so reported to the Minister on the 30th November, 1942.

In December, 1942, the Department of Defence informed the appellant of the Referee's Report, and intimated that the Minister could not grant him a Service Certificate.

In the course of the Referee's investigations into the appellant's claim, the Advisory Committee had not at any time sat with the Referee to consider the claim or any matter connected with it.

On...