RIGHT TO A PENSION

Evening Post, Volume CII, Issue 81, 3 October 1921, Page 8

RIGHT TO A PENSION

MEANING OF THE ACT

JUDGMENT .OF FULL COURT.

The question of payment by .way of pension '. to > dependents : of - partiallydisabled soldiers was ;the subject of an important • judgment by the Full- Court to-day. The case ,was one in which the wife of a soldier alleged that the determination; of the War Pensions Board that: she was not entitled to a pension was based upon a wrong principle, and in consequence the Court was' asked to issue a writ of mandamus to the board ordering it to reconsider the claim and to determine the same upon the princi- | pies laid down in the War Pensions Act and its amendments. The plaintiff was Dorothy Wheeler, wife of Charles Bertie Vaughan Wheeler, who was a member of the New Zealand Expeditionary Force. I Wheeler was suffering, from partial disablement, and was in receipt of a pension under the War Pensions Act, 1915, and its amendments. The defendants were the members of the War Pensions Board, constituted by that Act. In February, 1919, the plaintiff lodged a claim with the board for a pension for herself as a dependent of Wheeler. The ground upon which the board determined that she was not entitled, to a pension was that plaintiff's husband was not incapacitated from work, and that the board was satisfied that the plaintiff had not suffered any .loss by reason of her husband's diablement. The provision in the case oi partial disablement, contained in section 5, subsection 3, of the Act, was as follows:— "In the case of partial disablement of a member of the Forces the rates of pensions payable to the member and his dependents shall be such less rates than those specified in the second schedule hereto as are in each case determined by the board having regard: to the nature and probable duration of the disablement." By the Amendment Act of 1917, another second schedule was substituted for that contained in the Act of 1915. This schedule was headed: "Rates of Pension in case of Disablement," and was divided into four columns. The first specificd1 the rank or rating of- the member, and the second, third, and fourth specified the maximum pension per week payable respectively to the member, to his wife, and to each of his children. It was contended on behalf of the plaintiff that the effect of this legislation was to give the wife in every case of partial disablement an absolute ..right to a pension, that the board, therefore, was'bound to grant the plaintiff at least a nominal pension; and that the plaintiff was entitled to a mandamus to compel the board to reconsider the plaintiff's claim on this basis. On behalf of the defendants it was contended that as the plaintiff's claim had been determined on, its merits the decision of .the board was final, and that. the case -was not one in which the Court could . interfere by mandamus. The question to be determined, in the opinion of the Court,. was whether or not the case was one in which mandamus would lie, assuming the board to be wrong in its interpretation of the War Pensions Act. "It is clear as a general rule," the Court stated, "that where an inferior tribunal was in fact heard and determined, any matter within its jurisdiction mandamus will not issue for the purpose of reviewing the decision, and this rule holds even though such decision is erroneous, not only as to fact, but also in point of law." Several authorities were quoted by their Honours. In the present case there had not been anything which could be treated as a'refusal to exercise jurisdiction. There had been a bona fide exercise of the discretion given to the board by the Act. In the exercise of that discretion the board came to the conclusion that the plaintiff's claim I to a pension was without merit, and decided, in effect, that in these; circumstances there was nothing in the Act [ which compelled the board to grant a pension for a merely nominal amount. I This could not be regarded as being in any sense a refusal to hear and determine the claim. Unless it amounted to such a refusal, then mandamus would not lie. "We are not satisfied, however," the Court stated, "that, the decision of the board ''was erroneous in point of law. • A pension is granted under the Act as compensation to the member and his dependants for loss occasioned by partial disablement. If a member is in receipt of a pension which completely covers any loss which he and his wife and children are suffering by reason of his disablement, it cannot have been I the intension of the Legislature', we j [ think, that the board should be bound to grant a pension, if only for a nominal amount, to the wife of every such member, and to every child of such member. But that is ,the necessary result i of the plaintiff's argument. In our opinion the language of subsection 3 of ■ section 5 of the Act of 1915 is not so j clear and definite as to compel the board to adopt a construction .leading to such an absurd result. ; "The provisions of section 16 of the Act of 1915 point to the conclusion that this cannot have been the intention of the Legislature. That section authorises the board to review a determination, and for any sufficient reason to withdraw a pension, subject to the approval of the Minister. If, as contended by the plaintiff, the wife of a disabled member is entitled as of right to a pension, although her claim is entirely without merit, then, apparently, the board might treat her want of merit as a sufficient reason for reviewing its previous determination and withdrawing the pension. If this be the effect of section 16 of the Act, then it is clear that the plaintiff's contention cannot be right, and that subsection 3 of section 5 was intended merely to fix the maximum in cases where the board determines that the claimant is entitled to be granted a pension." The Court was of opinion that the plaintiff had failed to establish any right to relief, and judgment was given for the defendants, with costs on the lowest scale. At the hearing Messrs. P. Levi ani? W. Perry appeared for the plaintiff, and Mr. W. C. MacGrepor, K.C., Solici-tor-General, for the defendants.