Fred Jackson v. Attorney General

CACV000058/1979

-----------------

Coram: McMullin & Leonard, JJ.A. & Yang, J.

Date of Judgment: 13 May 1980

-----------------

JUDGMENT

-----------------

McMullin, J.A.:

1. This is an appeal from the decision of Cons J. in proceedings taken before him by way of construction summons relating to certain provisions of the Pensions Ordinance and Regulations (Cap. 89).

2. The plaintiff is the Chief Fire Officer employed by the Hong Kong Government. He sought on behalf of himself and a number of expatriate officers employed in the Fire Services of that Government, declarations in the following terms:

3. The plaintiff obtained the first and was refused the second of these declarations.

4. In the course of the argument Mr. Litton for the appellant asked for leave to amend the second declaration by prefacing the text as it stands with the words: "If pensions be granted in accordance with the regulations as they presently stand ...". No objection was taken to this and leave was given to amend.

5. The grounds of appeal were as follows:

6. There was no respondent's notice and these were the only grounds argued before us when the case came on for hearing on the 13th February this year. At the conclusion of the arguments, upon the same day we reserved judgment. In deliberating upon the matter the members of the court became exercised as to the possibility that a point of fundamental importance bearing upon the jurisdiction of the court at first instance had been overlooked.

7. Accordingly a letter was addressed to counsel on both sides in the case inviting them to return for further argument. This letter conveniently summarises the doubt which had arisen and the area to which counsel's researches were directed. The relevant part of the letter is in the following terms:

8. In view of the authorities there cited it is a remarkable fact that the Crown had not at the outset raised any point as to the court's jurisdiction. I feel considerable sympathy for Mr. Litton who at the resumed hearing said that although he was aware of these authorities he was of the view that they did not go to jurisdiction. He was, counsel said, aware that under section 5(1) of the Pensions Ordinance it was clear that his clients had no absolute right to the payment of any pension. He maintained however that on such a construction summons as had been taken before Cons, J. the power of a court to make a declaratory order were available to any person whose interests were capable, in a practical sense, of being affected thereby even although the Crown's representative, in this case the Commissioner of Pensions, would not be obliged to act upon any interpretation of the relevant regulations which the court might see fit to propound.

9. What it comes down to in the end is the contention that since the proper construction of a statute is a question of law for the courts to determine, the power given to the court to make declaratory judgments by Order 15 rule 16 are wide enough to include the making of orders of a purely advisory character. In view of the Crown's continued opposition and its enlistment of the point raised by this court itself, I do not think that we should assume that any such advice would necessarily be accepted. Certainly the Commissioner would not be bound to act upon it. But even if it had been intimated to us that the Crown itself sought an authoritative interpretation of these regulations and that it would see to it that its officer abided by any interpretation which we saw fit to give, the present state of authority seems to me not to favour such a course. (See Tindall v. Wright⁽¹⁾). For my own part I am satisfied that we have no power to give such an advisory opinion.

10. I have had the advantage of considering the judgment prepared by Loenard, J.A. and I fully agree with his analysis of the cases and with the conclusions which he draws from them. I am content to conclude my opinion on the basis of three only of the relevant decisions.

11. In Nixon v. A.G.⁽²), upon which Mr. Barlow now relies, we find circumstances which at first sight bear a marked similarity to those in the present case. The plaintiffs were four retired civil servants who claimed to be entitled to a superannuation allowance calculated in manner prescribed by the provisions of section 2 of the Superannuation Act 1859 as amended by section 1 and section 3(1) of the Superannuation Act of 1909. The Act of 1909 was a consolidating statute which is to be read together with several earlier such Acts including the Superannuation Act of 1834. Section 30 of the latter Act contains provisions which, it is conceded, are similar in character to the provisions of section 5(1) of the Pensions Ordinance inasmuch as it is declared in both provisions that claimants are given no absolute right to the payments with which the legislation is concerned and that nothing in the legislation is to affect the right, in the one case of the Crown and in the other of His Majesty's Treasury Commissioners, to dismiss any officer at any time without compensation.

12. There is however a legislative distinction between the two jurisdictions which has given Mr. Litton same assistance in his argument. In the Superannuation Act 1887 section 9 provides:

"The decision of the Treasury on any question which arises as to the application of any section of this Act to any person, or as to the amount of any allowance or gratuity under this Act, or as to the reckoning of any service for such allowance or gratuity, shall be final."

13. By section 2 of the Act 1834 it is likewise provided that the decision of the Commissioners of the Treasury as to who is to be entitled to payments under the legislation is to be final. There are no equivalent provisions in the Hong Kong legislation.

14. However, in dismissing the claims for declarations Clauson J. at first instance seems to have based himself primarily on the consideration that the legislation gave no legal right to the claimants in a superannuation allowance. He said: (page 573)

"My view so far as this point is concerned, is that the action must entirely fail, because it is now well settled that the rights, so called, of a civil servant under the Superannuation Acts are rights which are not rights of a legal character and cannot be enforced by a judgment of this Court."

The case went on appeal and eventually found itself in the House of Lords. A careful reading of the judgments in the Court of Appeal and in the House of Lords will, I think, reveal that all the judges in the higher tribunals were equally firmly of the view that the absence of a legal right to superannuation allowance would on its own disable any attempt to obtain a declaration of right from the court. No doubt the legislative difference to which I have referred strengthened the case against the granting of declarations in Nixon's Case but I do not think it can be contended that in the absence of those provisions the result would have been any different.

15. Mr. Litton maintains nevertheless that we have a discretionary power to give an advisory interpretation. It is of interest that the same proposition was urged by way of alternative before Clauson J. Reliance had been placed upon the case of Eastern Trust Company v. McKenzie. Mann & Co. Ltd.⁽³⁾. But as to that the learned judge said: (page 574)

"I can find nothing in that judgment that even remotely suggests that, where there is not a legal right between the suppliant and the Crown, it would be proper that the Courts should be invited to give some sort of advice to the Crown."

Immediately thereafter he referred to the fact that the rules of court permitted the giving of a declaration despite the fact that no consequential relief had been claimed and he concluded:

"If I am right in the view which I have expressed on the first point that a retired civil servant has, under the Superannuation Acts, no rights in the nature of legal rights as against the Crown, then the whole basis of the foundation of the jurisdiction to make such a declaration as is asked is gone, and it is impossible for me to grant the relief which is sought by way of declaration."

The judgments in the Court of Appeal deal principally with the question of "entitlement" and "legal right" under the legislation and this question of advisory opinions does not seem to have been dealt with. Nor is it dealt with in the short judgment of Viscount Dunedin in the House of Lords [(1931) A.C. 190].

16. As against all this Mr. Litton has relied primarily upon Guaranty Trust Co. of New York v. Hannay & Co.⁽⁴⁾. There is no doubt that the ambit of the court's power to make declarations of right in the absence of any claim for consequential relief has there been very widely stated. The majority opinion in that case, which has many times since been considered but has never been overruled, is sufficient authority for the rule that the court may grant a declaration at the instance of a party interested in the subject matter of the declaration even in the absence of a legal cause of action. The very amplitude of the power discerned by the majority in Guaranty Trust Co. makes it seem at first sight somewhat puzzling that that case was not discussed in the arguments or in the judgments in any of the courts dealing with the Nixon Case. The relevant order (Order 25 rule 4) was certainly within the contemplation of Clauson J. for he adverts to the substance of it and we must assume that it was equally present to the minds of the judges in the superior courts. Before us Mr. Barlow for the Attorney General has been sufficiently impressed by the support afforded to the plaintiff in the present case by the decision in Guaranty Trust Company to suggest that it has effectively, if not in express terms, been overruled by the decision in Nixon. Mr. Litton naturally strongly resists any such implication and I must say that I agree with him. Such an opinion would only be forced upon this court if it were quite clear that the two cases were in direct collision, at least upon the question of jurisdiction. I do not think that they are in collision.

17. The facts in Guaranty Trust Co. are quite different from those in the present case but that does not, of course, affect the validity of the general principles stated. The plaintiffs in that case were an American company who had purchased a bill of exchange in good faith concerning the purchase of cotton from an American dealer. The defendants who were an English company accepted the bill with its attached documents and paid it at maturity. The bill turned out to be a forgery and no cotton had been shipped under it. The defendants sued the plaintiffs in America to recover the amount of the bill and it was admitted that the English law applied to the case. The American company, the plaintiffs, thereupon sought declarations in the English court to the effect that they had not represented that the bill of lading was genuine merely by presenting it with the bill of lading attached and that they were not obliged to repay the amount of the bill. They also claimed an injunction to restrain the defendants from proceeding with their action in the United States. The defendants thereupon applied to strike out the claim for the declarations on the ground that they disclosed no cause of action. Bailhache J. dealt with the matter in chambers and dismissed that application.

18. On appeal Pickford L.J. and Bankes L.J. upheld the judge's ruling and held that there was power in the court under Order 25 rule 5 (corresponding to our present Order 15 rule 16) to make such a declaration. Buckley L.J. dissented.

19. I think it may said that the best support for the all embracing character of the rule for which Mr. Litton contends is to be found in the judgment of Bankes L.J. in an extended passage which appears between pages 570 and 572 of the report. The learned judge enters upon a close analysis of the language of the rule. He notes firstly that the rule has two branches and he finds that the power given to make a declaratory order is distinct from the power to make a declaration of right. The latter implies a right justiciable between parties to a suit i.e. a legal right in the strict sense. The respondents in that case were not claiming anything of that kind. They were merely asking the court to define their obligations to the defendants. He then goes on, (page 571):

"In my opinion the clue to the real meaning of the rule is to be found in the opening words. It deals with actions and proceedings. For the present purpose it is only necessary to consider an action. An action is a civil proceeding commenced by a writ (Judicature Act, 1873, s.100) and in every action there must be a plaintiff who is a person seeking relief (Judicature Act, 1873, s.100), or, to use the language of Order XVI., r.l, a person in whom a right to relief is alleged to exist. It is the person, therefore, who is seeking relief, or in whom a right to relief is alleged to exist, whose application to the Court is not to be defeated because he applies merely for a declaratory judgment or order, and whose application for a declaration of his right is not to be refused merely because he cannot establish a legal cause of action. It is essential, however, that a person who seeks to take advantage of the rule must be claiming relief. What is meant by this word relief? When once it is established, as I think it is established, that relief is not confined to relief in respect of a cause of action it seems to follow that the word itself must be given its fullest meaning. There is, however, one limitation which must always be attached to it, that is to say, the relief claimed must be something which it would not be unlawful or unconstitutional or inequitable for the Court to grant or contrary to the accepted principles upon which the Court exercises its jurisdiction. Subject to this limitation I see nothing to fetter the discretion of the Court in exercising a jurisdiction under the rule to grant relief, and having regard to general business convenience and the importance of adapting the machinery of the Courts to the needs of suitors I think the rule should receive as liberal a construction as possible."

20. If I were to rest upon that passage alone without the assistance of any later interpretation I confess I would find myself inclined to favour the view that the power given by our order and rule is as wide as Mr. Litton suggests. He would also have the support of the case of Hanson v. Radcliffe Urban District Council⁽⁵⁾ (a case not cited before us) where Lord Sterndale M.R. at page 507 said that the power of a court to make a declaration under the rule was almost unlimited, adding that it was only limited by its own discretion.

21. Neither counsel in the present case in dealing with the Guaranty Trust Co. case sought to urge the claims of any of the many later decisions in which that case has been considered. It is in the latest of those cases Malone v. Commissioner of Police (No. 2)⁽⁶⁾ however, that I find, in the judgment of Sir Robert Megarry V-C, a commentary upon this part of the judgment of Lord Justice Bankes which, to my mind, effectively explains it and limits the wide reach of the words used by that learned judge in such a way as to make it clear that there is no collision between the decisions in the Guaranty Trust Co. and Nixon Cases.

22. At page 707 the learned Vice-Chancellor says:

23. In Malone the plaintiff had been seeking a declaration that the tapping of telephone conversations was in breach of a certain article in an international convention for the protection of human rights and fundamental freedoms. He also claimed declarations that there was no protection under English law for such violations. It was contended on behalf of the plaintiff that the wording of Order 15 rule 16 was wide enough to enable the court to make declarations not only as to legal rights but also as to moral or international obligations. In refusing the declarations the learned Vice-Chancellor rejected that contention.

24. To my mind what the plaintiff was seeking in that case was in the nature of a purely advisory judgment of the court. No doubt if such declarations had been made they might have been of some practical use to the plaintiff inasmuch as he might have relied upon them either in proceedings in an international tribunal or else to exert moral pressure against the repetition of such alleged violations by the police.

25. In our case too it might be said that a ruling by this court in favour of the interpretation of the Pensions Regulations for which the plaintiffs contend might be effective in securing an alteration in the view of the government authorities as to the meaning of those regulations. I do not think however that we have any right or authority to give such an advisory opinion. I would dismiss the appeal but without making any order for costs.

Representation:

Henry Litton, Q.C., and W. Stone instructed by (J.S.M.) for the applicant.

B. Barlow and A. Nandi for the Attorney General/respondent.

(1) (1932) 38 T.L.R. 521.

(2) (1930) 1 Ch. 566.

(3) (1915) A.C. 750.

(4) (1915) 2 K.B. 536.

(5) (1922) 2 Ch. 490.

(6) (1979) 2 Keekly Law Reports 686.

-----------------

Coram: McMullin & Leonard, JJ.A. & Yang, J.

Date of Judgment: 13 May 1980

-----------------

JUDGMENT

-----------------

Leonard, J.A.:

26. This is an appeal from the refusal of the Cons, J. to grant the second of two declarations prayed in an originating summons in which Mr. Fred Jackson and those on behalf of whom he sues sought clarification as to the manner in which pensions which they expect to be paid under the provisions of the Pensions Ordinance and Regulations (Cap. 89) should be computed.

27. Cons J. was asked to declare firstly that on a true construction of the Pensions Ordinance and the Regulations made there under the plaintiff's service in the United Kingdom as a fire officer in the National Fire Service and/or in local authority Fire Brigades prior to appointment to a pensionable office in Hong Kong is "public service" within the meaning of section 2 of the Ordinance and secondly, that such service should be taken into account in computing pension under the Pensions Regulations.

28. The nature of the service in the United Kingdom of Mr. Jackson and those on whose behalf he sued was not in dispute. Indeed it was common case that this service was "public service" within the meaning of section 2 of the Ordinance. Having heard full argument concerning the second declaration sought there arose in the minds of this court doubts as to whether or not jurisdiction existed to grant the declaration sought in the originating summons and we called the parties back.

29. In the course of argument Mr. Litton on behalf of the appellant sought and was granted leave to amend the second declaration sought. He now seeks a declaration in the following terms:

The application for this amendment was not resisted and we granted it.

30. On the face of it then the originating summons as amended calls for declarations as to the construction of the Ordinance and Regulations and a further declaration that the appellants come within the provisions of Regulation 4. For the purposes of this judgment it is not necessary for me to set out Regulations 3, 4, 7 and 10 in extenso. Suffice it to say that if on a true construction of the Ordinance and the Regulations the appellants are not to be regarded as officers "transferred" to the Colony, they may expect that their pensions will be computed in a manner more favourable to them than if they are regarded as officers transferred to the service of the Colony. What concerns me is whether or not this court has any jurisdiction to make declarations in any way affecting the manner in which a public officer may expect his pension to be computed.

31. Section 3 of the Pensions Ordinance provides that pensions may be granted by the Governor (or Governor-in-Council) in accordance with the Regulations made under the Ordinance. No right to a pension is created by this section. It is permissive; it enables the Governor to grant pensions; it does not oblige him to do so. In the proviso to it pensions are expressed to be "grantable". The Regulations may from time to time be amended, added to or revoked by the Governor-in-Council with the sanction of the Secretary of State.

32. By subsection 4 of the section:

"A pension .. granted to an officer under this Ordinance shall be computed in accordance with the provisions relating to such officer which are in force at the actual date of his retirement."

33. My initial worry as to jurisdiction arose from this provision. I doubted whether the court had jurisdiction to make a declaration in the terms requested in the light of the Regulations as they now stand that is whether the court was entitled to assume that the regulations governing computation of pensions would remain unchanged until the actual date of the retirement of the various officers concerned. It appeared to me that any assumption by the court that the Regulations would remain unchanged until the actual date of Mr. Jackson's retirement might be said to be a usurpation of the legislative function conferred on the Governor-in-Council with the sanction of the Secretary of State by section 3(1) of the Ordinance. I can however appreciate Mr. Jackson's position. He will retire in a few short weeks and one can well sympathize with his desire to know where he stands. He has plans to make for his retirement. The few short weeks that will pass before this community loses his services is so short a period as to enable me to say that he has not initiated these proceedings too soon. If jurisdiction exists otherwise I would not be prepared to hold that it is taken away by section 3(4) of the Ordinance.

34. The difficulty as to jurisdiction arises rather from the fact that the award of pensions and their amount lies in the absolute discretion of the Crown. Section 5(1) of the Ordinance reads:

"No officer shall have an absolute right to compensation for past services or to pension, gratuity, or any other allowance; nor shall anything in this Ordinance affect the right of the Crown to dismiss any officer at any time and without compensation."

This section apparently has its genesis in section 30 of the Superannuation Act 1834 and it is repeated in section 79 of the Superannuation Act 1965. The former section was the subject of comment in Nixon v. A.G.⁽¹⁾. That case concerned three civil servants who at the time of action had already retired from the civil service. They claimed a declaration that each was entitled as of right to have the amount of his superannuation allowances calculated in manner prescribed. The defendant pleaded that none of the plaintiffs was entitled as of right to any pension and that the action which, as I have indicated, was for a declaration as to the manner of computation was not maintainable. Clauson J. at first instance held that the power of the court to make a declaratory order in regard to rights extended only to rights legally enforceable and that the right to a pension was not a legally enforceable right nor was the right to have it computed in a particular manner so enforceable. Following Cooper v. The Queen⁽²⁾ and Yorke v. The Queen⁽³⁾ he refused the relief claimed. He was aware that the matter was to be carried further and referred to Considine v. McInerney⁽⁴⁾ in which Lord Buckmaster when speaking of the expectations enjoyed by civil servants of receiving allowances under the Superannuation Acts had said:

"This expectation, though it might be relied on with full certainty, was none the less not a legal right and no claim for it could be enforced by any legal proceedings."

He also referred to Wigg v. A.G. for the Irish Free State⁽⁵⁾ in which the authority of Cooper v. The Queen and Yorke was recognised. On appeal it was argued that the words "absolute right" indicated the presence of some justiciable right and the suggestion of a contractual right "with the King through the Secretary of State" was mooted. Summarising the stand taken by the Attorney General Lord Hanworth M.R. noted:

"His two defences are that the decision of the Commissioners of the Treasury both as to whether a person is entitled to a superannuation allowance and as to the basis upon which it shall be calculated is final and conclusive and that no court of law has jurisdiction in these matters which depend on the grace and bounty of the Crown ..."

On the meaning of the words "absolute right" he observed

"An attempt was made to suggest that the use of the word 'absolute' left it possible that a conditional right remained to the civil servants, but I cannot accept that view. In my judgment the word is used so that a right in any form may be negatived. The section destroys the possibility of a claim of legal right."

He considered that words could not be more explicit than were those used in section ...(illegible) of the Superannuation Act of 1834:

""Provided always, and be it further enacted, that nothing in this Act contained shall extend or be construed to extend to give any person an absolute right to compensation for past services, or to any superannuation or retiring allowance under this Act, or to deprive the Commissioner of His Majesty's Treasury, and the heads or principal officers of the respective departments, of their power and authority to dismiss any person from the public service without compensation."

The similarity of this wording and the wording of section 5 of our Ordinance does not need to be stressed. The report of the speeches delivered in the House of Lords is to be found in (1931) A.C. 184. Viscount Dunedin observed at page 191:

"My Lords, to get out of a provision that you are not to have an absolute right a positive provision that you are to have a right, is an argument which has only to be stated to be rejected."

In his opening remarks he had urged the House to

"show what you think of the merits of the case by deciding the case at once, and, indeed, if you did not do so, I think you would be forcing yourselves to indulge in a process of tautology, because it is quite impossible to say anything more than has been already said in the very long and very careful judgments of the Court of Appeal in this case. For myself, I think the matters mooted can be disposed of in a very few sentences and I propose to do so."

The final paragraph of his judgment reads:

"My Lords that ends the matter, except for what is called the second question, namely, whether, even if there is not any right to a pension, nevertheless, if the pension is granted, it must be granted according to certain scales laid down in the acts. My opinion upon that is that there is no second question; it is only the first question put in another way, because, if you have not a right to sue at all to say that you are to recover your pension as such, it does seem to me perfectly impossible to say that you have a right to say that your pension must be such and such. Therefore the second question, I think has only to be stated to show that it does not exist."

With this Lord Warrington of Clyffe. Lord Tomlin, and Lord Thankerton agreed.

35. Mr. Litton in the course of his able argument was at pains to emphasize that his clients accepted that they had no right to pension and that the court could not make declarations as to payment of pension. What he sought to argue was the construction of a statute which is a matter of law. What was before us, he suggested, was no more than a construction summons permitted by Order 5 rule 4. He stressed that the real and only issue between the parties was whether the joint effect of Regulations 3 and 7 of the Pensions Regulations took the case of the appellants outside Regulation 4 and brought it within Regulation 10. The Crown he conceded was entitled to withhold pension in toto or in part but it was not entitled to misconstrue the Pensions Regulations. He sought to distinguish Nixon's Case from the case before us on the basis that the Superannuation Acts vested jurisdiction for the interpretation of the provisions indicating the manner of computation of pensions in the hands of the Commissioners of Treasury. This is a valid distinction but it does not affect the validity of the decision as to the meaning of section 30 of the Superannuation Act 1834. Again he stressed that in Nixon's Case there was an assertion of a legal right but agreed that here there was none.

36. For the contention that he was entitled to have the question of construction resolved he relied heavily on Guaranty Trust Company of New York v. Hannay Co.⁽⁶⁾ and in particular that passage from the judgment of Bankes L.J. commencing at page 570 and reading:

"          The question as to the construction of the language of the rule is a difficult one. The rule is framed in two branches. It first provides that no action shall be open to objection on the ground that a merely declaratory judgment or order is sought thereby. It then goes on to say that the Court may make binding declarations of right whether consequential relief is or could be claimed or not. The first question to decide is whether the rule is dealing with declaratory judgments and orders as one thing, and declarations of right as another and distinct thing, or whether the declaratory judgments and orders referred to are judgments and orders in the form of declarations of right. I think the framers of the rule must have had the previously existing practice in mind, and have provided both for the case of declaratory judgments and orders which are declarations of right and those which are not. If the other interpretation is put upon the rule I should be prepared to hold that what the respondents are asking for in their action is not a declaration of right at all. It is quite true that the extension made by the rule has entirely altered the character of the right which it is permissible for a plaintiff to ask to have a declaration upon; but in my opinion the expression 'declaration of right' in the rule must be read in the sense which it has always previously borne, that is to say, a declaration of some right which the plaintiff maintains that he has as against the person or persons whom he has made parties to his suit. Here the respondents are claiming nothing of the kind. What they are asking is that the Court shall define their obligations to the defendants. I don't think that the alteration in the character of the right which a plaintiff is entitled to assert under the rule can have the effect contended for of altering the expression 'declaration of right' either into a declaration of the rights of the parties or into a declaration as to the obligations of either party. These considerations are not, however, in my opinion sufficient to dispose of this appeal, because I think that the rule contemplates the making of declaratory judgments and orders which may not be declarations of right."

Later he has this to say (page 572):

"It is the person, therefore, who is seeking relief, or in whom a right to relief is alleged to exist, whose application to the Court is not to be defeated because he applies merely for a declaratory judgment or order, and whose application for a declaration of his right is not to be refused merely because he cannot establish a legal cause of action. It is essential, however, that a person who seeks to take advantage of the rule must be claiming relief. What is meant by this word relief? When once it is established, as I think it is established, that relief is not confined to relief in respect of a cause of action it seems to follow that the word itself must be given its fullest meaning ... Subject to this limitation I see nothing to fetter the discretion of the Court in exercising a jurisdiction under the rule to grant relief, and having regard to general business convenience and the importance of adapting the machinery of the Courts to the needs of suitors I think the rule should receive as liberal a construction as possible."

In commenting on this passage from the Guaranty Trust Co. Case in Malone v. Commissioner of Police of the Metropolis (No. 2)⁽⁷⁾ (the telephone tapping case) Sir Robert Megarry V-C. had this to say:

37. I respectfully agree with this passage and consider that as judicial courts what we deal with are justiciable issues not mere questions of construction nor academic questions. There is no jurisdiction in the court to make a declaration in respect of a hypothetical or academic question nor to act in an advisory capacity whether between subject and subject as in In re Clay⁽⁸⁾ or between subject and the Crown as in Barnato, Decd.⁽⁹⁾. In the latter case Lord Greene M.R. had this to say at page 269:

"Both Mr. Christie and Mr. Jopling have argued that the question which they wished the court to decide is not a future question and is not a hypothetical question. First, it was said that the Crown has expressed an opinion that in certain events it will be entitled to make a claim. That expression of opinion Mr. Christie wished to lift into the order of things where the Crown makes a claim. The Crown has made no claim, for the every simple reason that it is not entitled to make a claim. It will be entitled to make some claim, or it may be it will think itself entitled to make a claim in the event of the tenant for life dying before the expiration of five years, but the fact that they have expressed an opinion does not, in my opinion, amount to the same thing as is present in such cases as we have been referred to where an actual instant claim by the Crown was concerned. Secondly, Mr. Jopling emphasized the fact that for the trustees this was a practical instant question, because, he said, without guidance from the court on this doubtful question, the trustees will be unable to act in the way they would like to act. Unfortunately, it is not only trustees who may find themselves in that kind of difficulty owing to the uncertain construction of some taxing Act. Any ordinary subject may find himself in precisely the same difficulty, and if these trustees could ask the court to bring the Crown here and insist upon deciding a doubtful question which may or may not arise between them according to events, merely because they want guidance as to the ordering of their affairs, I can see no end to the litigation that would inevitably follow. But the argument, in my opinion, is fallacious, and for this reason, that although the trustees at the moment require guidance, the question which it is suggested we ought to decide is a question as between the trustees and the Crown, and that is a purely hypothetical and future question. The fact that it is a doubtful question and may or may not arise no doubt is embarrassing for the trustees in deciding on their present course; but the actual question which we are asked to decide is a purely hypothetical and future question."

I know of no case in which a declaration was granted in which there was not a justiciable issue before the court. In the case of Dyson⁽¹⁰⁾ what was in issue was whether Dyson was obliged under penalty to submit certain particulars to the Inland Revenue. A similar question was brought before the court in Burghes⁽¹¹⁾. In Guaranty Trust v. Hannay what was in issue was whether the plaintiffs were under a legal liability to pay bills for which the defendants (having sued in New York) sought to make them responsible. Hanson v. Radcliffe Urban District Council⁽¹²⁾ the case in which Lord Sternadale M.R. indicated that in his opinion that

"the power of the court to make a declaration, where it is a question of defining the right of two parties, is almost unlimited; I might say only limited by its own discretion."

was a case in which the validity of a notice terminating or professing to terminate the engagement of the plaintiff as a teacher was in issue. In Pyx Granite Co. Ltd. v. The Ministry of Housing & Local Government⁽¹³⁾ in which Lord Denning M.R. said at page 571:

"The wide scope of it (the remedy by declaration) can be seen from the speech of Viscount Kilmuir L.C. in Vine v. National Dock Labour Board (1957) A.C. 488, from which it appears that if a substantial question exists which one person has a real interest to raise, and the other to oppose, then the court has a discretion to resolve it by a declaration, which it will exercise if there is good reason for so doing."

What was in issue was whether development which the plaintiff proposed to carry out on its land was authorised by the Malvern Hills Act, 1924 and consequently whether two ministrial decisions refusing them permission to do so were valid. In all these cases then there was a justiciable issue.

38. As I see it in the present case there is none. Mr. Jackson has the expectancy of a pension but no more. He is not entitled to a declaration as to the manner in which this expectancy will be computed. Any declaration by this court as to the proper construction of the Pensions Ordinance or as to whether the appellants are officers transferred to the service of this Colony in the meaning of that expression as used in the Regulations or whether they come within the provisions of Regulation 4 would as I see it either be valueless or else be an invasion of the right of the Crown. Admittedly we are not asked to decide whether or not Mr. Jackson's expectancy should be fulfilled but rather the manner in which it should be fulfilled if it is fulfilled at all. I do not consider that this court has jurisdiction so to do. I say so in full recognition of the fact that courts have given great flexibility to the rule, particularly in commercial cases; using it to define rights, powers, privileges, immunities, duties and liabilities but never so far as I am aware has it been stretched to enable the courts to construe an instrument statutory or otherwise where such construction can give rise to nothing more than an expectancy.

39. Mr. Barlow conceded that Cox v. Green⁽¹⁴⁾ was decided on discretion rather than jurisdiction. The observation of Plowman J. at page 220-221

"However wide 0.15 r. 16 may be, it does not seem to me that it is so wide as to make justiciable disputes which are not justiciable. ...... there must at least be a justiciable dispute between the parties to bring it into operation. In my judgment, the issue between the plaintiff and the defendant here are not justiciable disputes at all. The issue between them does not concern any right of property; it does not concern any right of contract; it does not concern any legal right."

seems to me to go equally to jurisdiction and to be peculiarly in point. Once it is conceded, as it is here, that Mr. Jackson has no right to pension, I cannot see that the issues between him and the Crown are justiciable disputes at all. The issues do not concern any right of property, any right of contract or any legal or equitable right. For these reasons I would refuse the relief claimed and dismiss this appeal.

40. In view of the course the appeal has taken I would make no order as to costs.

Representation:

Henry Litton, Q.C. and W. Stone (J.S.M.) for appellant.

B.G.J. Barlow and Miss Nandi, Counsel for Crown/respondent.

(1) (1930) 1 Ch. 566.

(2) 14 Ch. D. 311.

(3) (1915) 1 K.B. 852.

(4) (1916) 2 A.C. 162.

(5) (1927) A.C. 674.

(6) (1915) 2 K.B. 536.

(7) (1979) 2 All E.R. 620.

(8) (1919) 1 Ch. 66.

(9) (1949) 1 Ch. 258.

(10) (1911) 1 K.B. 410, (1912) 1 Ch. 159.

(11) (1911) 2 Ch. 139 from (1912) 1 Ch. 173.

(14) (1966) 1 Ch. 216.

-----------------

Coram: McMullin and Leonard, JJ.A. and Yang, J.

Date of Judgment: 13 May 1980

-----------------

JUDGMENT

-----------------

Yang, J.:

41. I have had the advantage of reading a draft of my brother Leonard's judgment and am in full agreement with it. I was, until Malone's Case was drawn to my attention, prepared to accept Mr. Litton's cogent and attractive arguments on the issue of jurisdiction. He sought to distinguish Nixon's Case from the present case on the basis that Nixon had claimed a declaration of a legal right when none existed, and that under the Superannuation Acts the final determination of all questions was entrusted to the Lords Commissioners of the Treasury to the exclusion of any right to bring any questions before a Court of Law. In the case now before us, Mr. Litton contended, the appellants are not asking for a declaration of a legal right but merely for a proper construction of the Pensions Ordinance and Regulations. It was also argued that the Pensions Ordinance and Regulations do not contain any provisions similar to that of the Superannuation Acts giving the Lords Commissioners of the Treasury exclusive jurisdiction over questions as to who was entitled and how far any civil servant was entitled to a superannuation allowance. He relied instead on the Guaranty Trust Company Case, which seemed to be in his favour.

42. Malone's Case is in my view the complete answer to the Guaranty Trust Company Case, and I respectfully agree with the passages in Sir Robert Megarry's judgment already cited. I also refer to another passage in the same judgment, at page 628d:

"I shall not discuss the engaging examples which emerged in argument, ranging from moral obligations to the decisions of referees in football matches. I shall only say that I cannot believe that the court could, or should, grant a declaration that, for instance, a referee was right (or wrong) in awarding a penalty kick. The short answer to counsel for the plaintiff on the present point is that declarations will be made only in respect of matters justiciable in the courts;".

43. I too would dismiss the appeal.