TOUS 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 of prohibition - whether issuing of summons capable of review - whether Tribunal may require applicant to attend to give evidence - investigative function of Tribunal Repatriation Act 1920 ss. 24AA, 107VC, 107VF, 107VG, 107VH, 107VU, 1L07VV, 107VY¥, 107VZU Judiciary Act 1903 s.39B Application for a Writ of Mandamus against ROLAND PATRICK HASSELL, DESMOND MATTHEW TEHAN and STANLEY McLEISH HARRIS a Repatriation Review Tribunal = Ex Parte: HONORA MARY PRIDE - Prosecutor THE COMMONWEALTH OF AUSTRALIA - Third Party No. WA G22 of 1984 TOOHEY J. PERTH 2® AUGUST 1984 IN THE FEDERAL COURT OF AUSTRALIA WESTERN AUSTRALIA DISTRICT REGISTRY GENERAL DIVISION No. WA G22 of 1984 APPLICATION for a Writ of Mandamus against ROLAND PATRICK HASSELL, DESMOND MATTHEN TEHAN and STANLEY McLEISH HARRIS a Repatriation Review Tribunal Ex Parte HONO Y PRIDE Prosecutor THE COMMONWEALTH OF AUSTRALIA Third Party QO R D E R JUDGE MAKING ORDER Toohey J. DATE OF ORDER : 20 August 1984 WHERE MADE : Perth 0 (8) Ss : 1. The application for a writ of prohibition against Roland Patrick Hassell, Desmond Matthew Tehan and Stanley McLeish Harris be dismissed. IN THE FEDERAL COURT OF AUSTRALIA WESTERN AUSTRALIA DISTRICT REGISTRY GENERAL DIVISION No. WA G22 of 1984 ~wwe ee APPLICATION for a Writ of Mandamus against ROLAND PATRICK HASSELL, DESMOND MATTHEW §TEHAN and STANLEY McLEISH HARRIS a Repatriation Review Tribunal Ex Parte HONO. PRIDE Prosecutor 0 AUS' A Third Party CORAM: TOOHEY J. 20 August 1984 ONS J The earlier history of this matter is set out in reasons for judgment delivered on 4 July 1984. I shall not repeat what is said there. It is enough to say that, in proceedings before the Repatriation Review Tribunal established under the Repatriation Act 1920 ("the Act"), Mrs. Pride was served with a summons to appear as a witness at the hearing. The proceedings before the Tribunal had been initiated by Mrs. Pride, pursuant to s.107VC of the Act, for review of a decision made by the Repatriation Commission on 11 December 1981 that no sufficient reasons existed to review an earlier decision refusing her claim for a pension. In the reasons for jiudgment just mentioned, I dismissed an application brought by Mrs. Pride seeking a writ of mandamus against the members of the Tribunal pursuant to s.39B of the Judiciary Act 1903. At the same time I gave leave to amend the application to add relief by way of prohibition. It is with the relief sought by way of prohibition that these reasons are concerned. The Commonwealth of Australia does not concede that the act of issuing a witness summons is a judicial act capable of review. It relies upon the well known dictum of Atkin L.J. in R. v. Electricity Commissioners (1924) 1 KB 171 at p.205: "Wherever any body of persons having legal authority to determine questions affecting the rights of subjects, and having the duty to act judicially, act in excess of their legal authority they are subject to the controlling jurisdiction of the King's Bench Division exercised in these writs". Later authority has extended the writ of prohibition to "statutory bodies exercising quasi-judicial powers affecting the rights of private persons" (R. v. Australian Stevedoring Industry Board; Ex Parte Melbourne Stevedoring Co. Pty. Ltd. (1953) 88 CLR 100 at p.118). In my view the action of the Tribunal in issuing a summons to Mrs. Pride to attend before it to give evidence in the matter of her own application was the exercise of a quasi-judicial power by a statutory body and one affecting her rights in relation to the claim before it. I am satisfied that relief by way of prohibition is appropriate against the members of the Tribunal (they being officers of the Commonwealth) if Mrs. Pride can make good the propositions upon which she relies in regard to the action of the Tribunal. Sub-section 107VY¥(2) of the Act empowers the presiding member of the Tribunal to: "(a) gummon 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; (b) require a person appearing at a hearing of the proceeding for the purpose of give evidence either to take an oath or to make an affirmation; and {c) administer an oath or affirmation toa person so appearing". As I pointed out in my reasons for judgment of 4 July 1984, the argument on behalf of Mrs. Pride runs this way. 1. By reason of sub-s.107VU(1) of the Act, she is not required to appear at a hearing of the Tribunal in connection with an application made by her. 2. Because she is not required to appear, she cannot be summoned to appear. 3. If there is power in the Tribunal to issue a witness summons to her, she is not a compellable witness. Sub-section 107VU(1) permits an applicant before the Tribunal to appear in person or be represented by a person other than a legal practitioner "at any hearing of a proceeding ona review in pursuance of an application made by him". The same sub-section provides that if for any reason an applicant wishes the review to proceed in his absence, he may "make such submissions, in writing, to the Tribunal as he considers are relevant to the review". Certainly sub-s.107VU(1) offers an applicant to a proceeding before the Tribunal a means of putting his case if he chooses to be absent. But that does not answer the question raised in these proceedings which is whether the Tribunal may itself require an applicant to attend to give evidence. The Tribunal is not bound by rules of evidence and is required to act according to substantial justice and the merits and all the circumstances of the case (s.107VG). The President may give directions as to the procedure of the Tribunal with respect to proceedings before it and, in doing so, is required to have regard to "the need for the proceedings before the Tribunal to be conducted with as little formality and technicality, and with as much expedition, as the requirements of this Act anda proper consideration of the matters before the Tribunal permit" (sub-s.107VV(3)). Nevertheless it is apparent from s.107VY, to which reference has already been made, that the Tribunal may decide to take evidence on oath or affirmation in which case certain powers are conferred on it by the section. There are in ss.107VZU) and 107VZV sanctions in that a person served with a summons to appear as a witness who, without reasonable excuse, fails to attend; or a person appearing as a witness who, without reasonable excuse, refuses or fails to comply with a requirement to take an oath or make an affirmation, refuses or fails to answer a question that he is required to answer or refuses or fails to produce a document that he is required to produce by summons, is liable to a penalty of $1,000 or imprisonment for 3 months. Returning to 3s.107VU, it is apparent that the legislature has expressly distinguished between evidence and submissions. If an applicant wishes the review to proceed in his absence, he may make submissions. No doubt "submissions" is used here in the sense of addressing argument to the Tribunal. That is in contrast to "evidence" which is given to the Tribunal though I do not wish to be taken as suggesting that the Tribunal may only receive evidence pursuant to s.107VY. Sub-section 107VV(3) is against such a limited construction. In a particular case the Tribunal may be content to receive submissions from an applicant. In atruly adversary situation, if an applicant was prepared to rely upon submissions and not appear before the Tribunal, he would simply take the consequences of that action. But as a number of recent decisions of the Federal Court have emphasised, proceedings under the Act are not adversary in nature. See for instance Repatriation Commission v. Compton (1984) 1 F.C.R. 99. ead The Tribunal is entrusted with an investigative function. Where there is an application to the Tribunal for a review, sub-s.107VF(2) obliges the Secretary to the Department of Veterans' Affairs to forward to the President "the application and all records and other documents under the control of the Department relating to the decision to which the application relates", The presiding member of the Tribunal may, pursuant to s.107VZ, request the Secretary to forward further documents in his custody relating to the proceeding; obtain and forward further documents relating to the proceeding; or arrange for the making of any investigation or any medical examination that the presiding member thinks necessary, and to forward to the Tribunal a report of that investigation or examination. It is apparent from the scheme of Part IIIA of the Act, establishing the Repatriation Review Tribunal, that the Tribunal is investigative in nature and that applications for review cannot simply go by default. In Repatriation Commission v. Bishop (1983) 48 ALR 461 I noted briefly the procedures established by the Act for dealing with claims. In Repatriation Commission v. Law (1980) 31 ALR 140 at p.152, the Full Court of the Federal Court commented: "The scheme of the Act is not to establish an adversary method of determining claims and applications, but to have the Department make the relevant investigations ... ". That investigative function is carried through to the Tribunal pursuant to a number of sections including ss.107VG and 107VH. Nevertheless it should be noted that in O'Brien v. Repatriation Commission (unreported decision of Full Court of Federal Court delivered 11 April 1984) Keely and Fitzgerald JJ. said at pp.42-43: "There are significant differences in the statutory provisions concerning the respective statutory functions and duties of a Repatriation Board, the Repatriation Commission, and a Repatriation Review Tribunal and it might be asserted with considerable force that Part IIIA Division 6 of the Act does import many characteristics of adversary proceedings although there are special provisions which distinguish the proceedings of a Repatriation Review Tribunal from more traditional adversary proceedings". When s.107VY empowers the Tribunal to summon a person to appear before it, it does not in its terms draw any distinction between applicants and other persons. Following as it does shortly after s.107VU, to which reference has already been made, the draftsman might readily have drawn that distinction had it been thought applicable. cf. Rv. Smith; Ex parte Mack (1970) W.A.R. 60. It may be that in a particular case the Tribunal will consider it unnecessary to call upon an applicant and it may be content to accept submissions made pursuant to para. 107VU(1)(b) or simply rely upon the material before it. But the question is - is the Tribunal precluded from requiring an applicant to give evidence? In my view, analogies with the criminal law are not apt. In criminal proceedings the onus lilies on the prosecution and, for reasons that are historical and well understood, an accused person is not a competent witness for the prosecution. An applicant is not charged with an offence; the entire purpose of proceedings under the Act is to consider whether a claim for pension made in accordance with s.24AA should succeed. Nor is the question of onus of proof under the s.107VH, referred to in many decisions, in issue here. Section 107VZU contemplates that a person, served with a summons to appear as a witness, may have a "reasonable excuse" for failing to attend. But in the absence of reasonable excuse, a person summoned to appear before the Tribunal must appear. It is true that s.107VU permits an applicant to make written submissions "if, for any reason, he wishes the review to proceed in his absence". I do not think this provision can be construed as distinguishing an applicant from "a person" whom the Tribunal may summon to appear under s.107VY. An applicant may wish the review to proceed in his absence and, to that end, may make written submissions. But if, in the course of its inquiry, the Tribunal considers that an applicant may be able to give evidence relevant to the inquiry (it is not hard to imagine circumstances in which the evidence of the applicant may be quite crucial), the power conferred by s.107VY comes into play. It was suggested by counsel for the prosecutor that, if served with a summons, an applicant has "reasonable excuse" not to attend because he is not required to attend. I do not think such a situation comes within the notion of reasonable excuse. If an applicant cannot be required to attend, he cannot be in breach of s.107VZU by not attending. He does not need to rely upon a defence built into the section itself. In the course of its reasons for deciding that Mrs. Pride was compellable to attend before it, the Tribunal said: "That gets us to the question of whether Mrs. Pride is or is not going to attend the Tribunal to answer questions in regard to the statutory declaration she has submitted or in regard to other material she has put in evidence on file previously. All we can say is that... the failure by the applicant to produce evidence from her or to account for her absence in our view renders it less acceptable that there was any such evidence or any evidence ...". The Tribunal then referred to Jones v. Dunkel (1958-1959) 101C.L.R. 298 in which members of the High Court spoke of an inference favourable to the plaintiff being more confidently drawn when a person, able to put the true complexion on the facts relied upon as' the ground for the inference, has not been called as a witness by the defendant and the evidence provides no sufficient explanation of his absence. These comments by the Tribunal are not of themselves the subject of any application to this Court. But lest there be any misunderstanding on the part of the members of the Tribunal, I should remind them of para. 107VH(2)(a) which obliges the Tribunal, where the decision the subject of review is a decision refusing a claim, that: "the Tribunal shall set aside the decision unless it is satisfied, beyond reasonable doubt, that there were insufficient grounds for granting the claim ...". 10, The absence of evidence concerning an essential fact is a relevant consideration for the Tribunal. But it does not follow that inferences adverse to a claimant may be drawn by reason of the claimant's failure to appear pursuant to 3s.107VU. The point is the subject of some discussion by Keely and Fitzgerald JJ. in QO' Brien at pp.41-42. Mrs. Pride's claim for a pension has hada long and involved history. Why she did not wish to appear before the Tribunal I do not know. Nor do [I know what the Tribunal hoped to gain from her attendance save that, in the words of the presiding member: "... where there is conflicting evidence or variable evidence then it behoves the Tribunal to have the person who is most vitally concerned in the matter come before it and put it in its proper light". I see nothing unreasonable in that approach; had it been acceded to, much time and expense would have been saved. In my view Mrs. Pride has not established entitlement to prohibition against the members of the Tribunal and her application must be dismissed. I certify that this and the nine preceding pages are a true copy of the Reasons for Judgment herein of his Honour Mr. Justice Toohey ( AL Kee Ana J Associate t \ Dated: 20 August 1984