- Bott had been a soldier in Egypt in World War II
- He was medically discharged on the grounds that he suffered from rheumatism
- He applied for a war pension on that basis, but it was denied.
- When determining his application, the Tribunal called independent medical experts to do reports. Mr Bott was not able to cross-examine them and in fact their reports were only disclosed to his representative, not him.
- The Tribunal found against Mr Bott, largely on the basis of the reports.
- Mr Bott appealed, saying (amongst other things) he had been denied natural justice as he didn’t hear the reports and that he’d established his case, and seeking a writ of mandamus.
- What Mr Bott denied natural justice?
- Was Mr Bott entitled to a writ of mandamus?
- Starke J held that Mr Bott was not denied natural justice. He held that the Tribunal was not a court of law, and it was not bound by the usual rules. Mr Bott’s representative had heard the evidence, and in the circumstances, that was fair for the tribunal.
- Rich, Dixon and McTiernan JJ held that Mr Bott was not entitled to a writ of mandamus.
- They explained that a writ of mandamus is a remedy that compels a public authority to act according to the law if they have not.
- In this case, the question was not whether the Court agreed that the decision was right, but whether it had been made according to law. Looking at the statute, the Court held that the Tribunal had acted according to law, and therefore a writ of mandamus was not available.
- Therefore Mr Bott failed in his appeal.
- “A writ of mandamus does not issue except to command the fulfilment of some duty of a public nature which remains unperformed.” (McTiernan, Dixon and Rich JJ) p. 242
- “This Court, it must be observed, has no jurisdiction or authority to consider the merits of the case: its only function is to consider whether the Repatriation Commission and the War Pensions Entitlement Appeal Tribunal performed their duties according to law.” p. 245
“But sec. 45 (2) enacts that, subject to the Act, an Appeal Tribunal shall not, in the hearing of appeals, be bound by any rules of evidence, but shall act according to substantial justice and the merits of the case” (Starke J)
- Full text is available here: http://www.austlii.edu.au/cgi-bin/download.cgi/cgi-bin/download.cgi/download/au/cases/cth/HCA/1933/30.pdf
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