[Note the shift of attitude from Liversidge where Lord Atkin was in the minority.]
[topic: the court can decide whether or not the original decision was a nullity.]
The next argument was that, by reason of the provisions of section 4 (4) of the 1950 Act, the courts are precluded from considering whether the respondent’s determination was a nullity, and therefore it must be treated as valid whether or not inquiry would disclose that it was a nullity. Section 4 (4) is in these terms:
“The determination by the commission of any application made to them under this Act shall not be called in question in any court of law.”
The respondent maintains that these are plain words only capable of having one meaning. Here is a determination which is apparently valid: there is nothing on the face of the document to cast any doubt on its validity. If it is a nullity, that could only be established by raising some kind of proceedings in court. But that would be calling the determination in question, and that is expressly prohibited by the statute. The appellants maintain [that] …if you seek to show that a determination is a nullity you are not questioning the purported determination – you are maintaining that it does not exist as a determination. It is one thing to question a determination which does exist: it is quite another thing to say that there is nothing to be questioned.
Let me illustrate the matter by supposing a simple case. A statute provides that a certain order may be made by a person who holds a specified qualification or appointment, and it contains a provision, similar to section 4 (4), that such an order made by such a person shall not be called in question in any court of law. A person aggrieved by an order alleges that it is a forgery or that the person who made the order did not hold that qualification or appointment. Does such a provision require the court to treat that order as a valid order?
It is a well established principle that a provision ousting the ordinary jurisdiction of the court must be construed strictly – meaning, I think, that, if such a provision is reasonably capable of having two meanings, that meaning shall be taken which preserves the ordinary jurisdiction of the court.
Statutory provisions which seek to limit the ordinary jurisdiction of the court have a long history. No case has been cited in which any other form of words limiting the jurisdiction of the court has been held to protect a nullity. If the draftsman or Parliament had intended to introduce a new kind of ouster clause so as to prevent any inquiry even as to whether the document relied on was a forgery, I would have expected to find something much more specific than the bald statement that a determination shall not be called in question in any court of law. Undoubtedly such a provision protects every determination which is not a nullity. But I do not think that it is necessary or even reasonable to construe the word “determination” as including everything which purports to be a determination but which is in fact no determination at all. and there are no degrees of nullity. There are a number of reasons why the law will hold a purported decision to be a nullity. I do not see how it could be said that such a provision protects some kinds of nullity but not others: if that were intended it would be easy to say so.
…I have come without hesitation to the conclusion that in this case we are not prevented from inquiring whether the order of the commission was a nullity.
[topic: reviewing the exercise of a power]
It appears from the commission’s reasons that they construed this provision as requiring them to inquire, when the applicant is himself the original owner, whether he had a successor in title. So they made that inquiry in this case and held that T.E.D.O. was the applicant’s successor in title. As T.E.D.O. was not a British national they rejected the appellants’ claim. But if, on a true construction of the Order, a claimant who is an original owner does not have to prove anything about successors in title, then the commission made an inquiry which the Order did not empower them to make, and they based their decision on a matter which they had no right to take into account.
If one uses the word “jurisdiction” in its wider sense, they went beyond their jurisdiction in considering this matter.
It was argued that the whole matter of construing the Order was something remitted to the commission for their decision. I cannot accept that argument. I find nothing in the Order to support it.
The Order requires the commission to consider whether they are satisfied with regard to the prescribed matters. That is all they have to do. It cannot be for the commission to determine the limits of its powers. Of course if one party submits to a tribunal that its powers are wider than in fact they are, then the tribunal must deal with that submission.
But if they reach a wrong conclusion as to the width of their powers, the court must be able to correct that – not because the tribunal has made an error of law, but because as a result of making an error of law they have dealt with and based their decision on a matter with which, on a true construction of their powers, they had no right to deal.
If they base their decision on some matter which is not prescribed for their adjudication, they are doing something which they have no right to do and, if the view which I expressed earlier is right, their decision is a nullity. So the question is whether on a true construction of the Order the applicants did or did not have to prove anything with regard to successors in title… The question I have to consider is not whether they made a wrong decision but whether they inquired into and decided a matter which they had no right to consider.
Edited and formatted for ease of reading. Matter in parentheses added.