Case: Browne v Dunn (1893) 6 R 67
Outcome: cited
It is not considered necessary, however, to resolve any such discrepancies as may have emerged from the differing accounts; nor is it necessary to resolve whether the submissions advanced on behalf of Mr Godwin went beyond the Application filed in this Court, as supplemented by his Outline of Submissions . It is also unnecessary to resolve whether or not submissions which were sought to be advanced were not available to the Applicant by reason of questions not being put to the advocate which should have been put in accordance with the principles of Browne v Dunn (1893) 6 R 67 at 70 1 per Lord Herschell LC. For example, the advocate was never asked in cross-examination whether she had deliberately set out to obtain evidence to defeat the eligibility of the Applicant. 47 In the present case there is no basis for concluding -- as submitted on behalf of Mr Godwin -- that the delegate was " off on a frolic to disprove the Applicant's entitlement ". Such reliance as is sought to be placed, on behalf of Mr Godwin, upon the limited instructions given to the advocate in January 2007 does not support any conclusion that the advocate was conducting any review of historical records which was not within the ambit of her instructions. And, even if the solicitor's account of the conversations with the advocate prevail, those conversations do not support any conclusion that there had been an unreasonable exercise of power or an exercise of power in bad faith. 48 On behalf of Mr Godwin it is further contended that the Commission: ... has, by its decision dated 10 September 2007, decreased the rate of the applicant's pension, relying on section 31(6). In doing so, the Respondent has failed to comply with the provisions of section 31(12) and section 178(1) which prohibits the Respondent from such action within six months of a decision by the Tribunal in respect of the rate of pension. The Tribunal decided the rate of pension for the Applicant on 28 August 2007, less than two weeks before the Respondent's decision. 49 Section 31(12) of the 1986 Act provides as follows: This section applies to and in relation to a decision made before or after the commencement of this section but does not apply to or in relation to a decision of the Board referred to in subsection 154(1), or a decision of the Administrative Appeals Tribunal referred to in subsection 178(1), that is binding on the Commission by reason that the period specified in that subsection has not expired. And s 178(1) provides as follows: Period of operation of certain decisions of Administrative Appeals Tribunal (1) Where, on a review of a reviewable decision, the decision of the Administrative Appeals Tribunal expressly, or in effect: (a) assesses a rate of pension or increased rate of pension; (b) refuses to grant a pension, on the ground that the extent of the incapacity of the veteran was insufficient to justify the grant of such a pension; (c) refuses to increase the rate of a pension; or (d) reduces the rate of a pension; that decision of the Administrative Appeals Tribunal shall, subject to subsection (2), be binding on the parties to the proceedings before that Tribunal for a period of 6 months commencing on the day on which that Tribunal makes the decision. 50 The Tribunal on 28 August 2007 concluded that Mr Godwin was entitled to receive a pension at the special rate with effect from 5 May 2005. Pursuant to s 178(1), that decision was " binding ... for a period of 6 months " as from 28 August 2007. 51 The delegate when conducting his s 31 review concluded that: ... Pension is ... assessed at 10% of the general rate with effect from 2 August 2000. The Tribunal's decision said nothing as to the period prior to 5 May 2005 and s 178(1) has no application to that prior period. 52 Nor did the delegate's decision purport to diminish the effect otherwise given to the decision of the Tribunal pursuant to s 178(1). In any event, the six month period referred to in s 178(1) has expired. The decision of the delegate, it should further be noted, has previously been stayed by an order of this Court. 53 Accordingly, no breach of s 178 has been established. 54 A final submission advanced on behalf of the Commission need not be finally resolved.