Bauer Pty Ltd Counsel for Respondents: T. Riley Solicitors for Respondents: Ward Keller JUDGE1 On 4 March 1985 Gerry James Skinner, a resident of the Northern Territory, was killed in a motor vehicle accident at Sandover Highway in the Northern Territory. The deceased was a passenger in the motor vehicle which rolled over after a tyre blowout. 2. It is alleged that the deceased was a full blood tribal aboriginal who left two wives and a number of dependent children. These allegations are not admitted by the respondent, but for the purposes of the present applications before me and without prejudice to the respondent's right to insist on proof of these matters in proceedings subsequent to any decision I now make, I will accept these allegations as correct. 3. Pursuant to s. 20 of the Motor Accidents (Compensation) Act the deceased, being a resident of the Northern Territory where the accident occurred, is a "qualifying person" within the meaning of the Act. Pursuant to s. 22 where a "qualifying person" dies in an "accident" as defined by s. 4 (and again for the purposes of the argument before me I accept this to be the case) leaving a spouse who survives him or her, that spouse is entitled to a prescribed amount of death benefits. By s. 37(1) where the qualifying person is "an aboriginal native of Australia married to more than one person according to the custom of the group or tribe of aboriginal natives to which he belongs (whether or not one of those marriages is a marriage in accordance with the law in force in the Territory)" a benefit payable under the Act to a spouse shall be payable to such spouses in equal shares. 4. The present applicants are the two spouses of the deceased who claim death benefits. The respondent is the Territory Insurance Office established by the Territory Insurance Office Act, and pursuant to s. 5(c) of that Act, it is charged with the duty of administering the motor accident compensation scheme established by the Motor Accidents (Compensation) Act. Section 7 of the Motor Accidents (Compensation) Act reads so far as relevant as follows: s. 7 ".... where a resident of the Territory dies .... in or as a result of an accident that occurred in the Territory .... there is payable .... (b) to his spouse .... such benefits as are provided for in this Act." By s. 12(1) "The right of any person to, and the amount of, a benefit under this Act shall be determined by the Board." The Board is defined in s. 4 as "The Board of the office" and "office" is defined as "the Territory Insurance Office established by the Territory Insurance Office Act." By s. 36(1) The Board may delegate any of its powers or functions (other than the power of delegation) to its General Manager.

By s. 36(3) The Board may review the exercise of any delegated power and substitute for the decision of the delegate its own decision. By s. 27(1) The General Manager shall within 30 business days of the office after being requested in writing so to do by a person who claims to be entitled to a benefit or variation of a benefit under the Act and being provided with the prescribed information (a) make a decision on the person's claim; or (b) refer the matter to the Board for its determination.

and by notice in writing served on the person, advise that person of his decision or of the fact and date of the referral of the matter to the Board. By instrument dated 23 August 1985 the Board pursuant to s. 36(1) delegated to the General Manager "all of its powers and functions pursuant to the Motor Accidents (Compensation) Act 1979 save and except its powers under Section 27, 29(2), 32 and 36 of the Act, such delegation to be effective as from the first day of September 1985". 5. The applicants made their claims for death benefits on 12 June 1986. The explanation given for the delay was that the applicants as tribal aborigines were ignorant of their rights until informed of them by a legal representative. By s. 31(2) the Board may refuse to consider claims made later than 6 months after the date of the accident. 6. On 5 August 1986 the General Manager, by two documents each headed "Determination", declined to consider the claims on the basis that the applicants were out of time. Those "determinations" were received by the legal advisers of the applicants on 14 August 1986. Some point is made as to the use of the word "determination" as contrasted with the word "decision" also used in the Act, but it is difficult to attach very much significance to this because of the uncertain and erratic use of the terminology throughout the Act. 7. Throughout the Act the terms "decision" and "determination" are used. In broad terms I think the intended differentiation was between the functions of the General Manager and the Board. 8. In broad terms it would seem that the General Manager makes a "decision" (s. 27(1)(a)) and the Board makes a "determination" s. 27(2), (4), (4A); ss. 12, 21, 26, 27 and 33. But the distinction is somewhat blurred in s. 27(5) which uses the word "determine" for the actions of both the General Manager and the Board; and by s. 27(6) which uses the word "decisions" for the actions of both the General Manager and the Board. Then there is s. 27(3) which states that the Board "shall within 60 days after a matter is referred to it under this section consider and determine it by confirming the decision of the General Manager or substituting its decision for that of the General Manager" (emphasis added). Can a "decision" of this sort be referred to the Tribunal under s. 29 which uses only the word "determination"? And how is one to describe the action of the General Manager when he acts as a delegate of the Board? Is that a "decision" or a "determination"? The respondent's advisers seem to regard it as the latter if the heading of the document of 5 August 1986 is any guide. The confusion of terminology here is such that it would be dangerous to accept that the two expressions have settled and immutable meanings throughout the Act. 9. By letter dated 30 October 1986 the applicants' solicitors requested that the General Manager's "decision" of 5 August 1986 be referred to the Board pursuant to s. 27(2) for further consideration. This again was outside the time limit of 28 days prescribed for referral to the Board, and I note that the respondent claims it to be a nullity. That is not a question I am presently asked to determine. In fact, the request was refused by the respondent on 16 January 1987. 10. Considerable time then elapsed, but on 8 December 1987 solicitors now acting for the applicants requested that "the Board refer the decision of the Board Delegate to the Tribunal pursuant to s. 29(2) of the Act." That was refused by letter of the Board of 15 March 1988. 11. On 17 February 1988 the applicants' solicitors wrote to the Board requesting that it review the decision of the Board Delegate pursuant to s. 36(3). A further request was made in the alternative that the General Manager refer the applications to the Board pursuant to s. 27(1)(b). 12. Those requests were declined by letter of the Board dated 16 May 1988. 13. By Notices of Reference to the Tribunal dated 4 March 1988 the applicants sought appeal to the Tribunal by referring these matters to the Tribunal pursuant to s. 29. Those Notices were twice amended by leave and in their present form are dated 16 June 1988. 14. In summary, the Further Amended References allege that the applicants are aggrieved - (a) By the determination of the Board Delegate of 5 August 1986. (b) Further or in the alternative by the refusal of the Board on 16 January 1987 to determine the applicants' request of 30 October 1986 to refer the determination of the Board Delegate of 5 August 1986 to the Board. (c) Further or in the alternative by the refusal of the Board on 15 March 1988 of the applicants' request of 8 December 1987 to refer the decision of the Board Delegate to the Tribunal pursuant to s. 29(2). (d) Further or in the alternative by the refusal or failure of the Board on 16 May 1988 to review the determination of the Board Delegate pursuant to s. 36(3) of the Act as requested by applicants on 17 February 1988. 15. The Further Amended References then seek determinations from the Tribunal that the applicants are entitled to benefits pursuant to s. 22 of the Act. 16. To these matters the respondent raises certain preliminary jurisdictional objections. If the objections are correct, then I, sitting as the Tribunal, have no jurisdiction to hear or receive the Further Amended References. 17. One may take the objections in the same order as I have summarised the grounds in the references. 18. (a) Mr Riley submits that the decision of the General Manager on 5 August 1986 cannot go direct to the Tribunal without first going through the processes of s. 27(2). I think that is correct; even though the decision of the 5 August 1986 is called a determination. It may be rightly so called, because the General Manager has been given (with certain significant qualifications) the power of the Board pursuant to the delegation of 23 August 1985. Though not specifically referred to, it seems to me that in its terms the delegation must include the power of the Board under s. 12, so that the right of the applicants to benefits has been determined (albeit adversely to them) by the General Manager in his capacity as delegate of the Board and is a determination of the Board. But it is not such a determination which gives a right of appeal instanter to the Tribunal under s. 29. This is because s. 27(2) provides that "where the General Manager exercises a discretion under this Act "whether as a delegate or with the authority of the Board" (emphasis added) a person aggrieved may request that he refer the matter to the Board. The use of the expression "may request" does not in my view mean that an applicant has a choice either to go to the Board or the Tribunal. It cannot be suggested that the legislature, by using the expression "may" rather than "shall" has left open a choice of routes. 19. Furthermore s. 27(7) reads: "Subject to s. 29, no matter shall be referred to the Tribunal unless it has been considered by the Board". 20. "The Board" here does not mean the General Manager by delegation, because the powers of the Board under s. 27 are expressly excepted from the instrument of delegation. The powers of the Board under s. 27 include the power to review the decision of the General Manager; and the power contained in s. 27(7) to consider any matter before it is referred to the Tribunal. The direct route from the General Manager's decision to the Tribunal is therefore effectively blocked. 21. The words "subject to s. 29" mean no more than "conditional on the performance of the requirements of s. 29". See Massey-Harris and Co Ltd v Stasbourg (1941) 4 DLR 620 at 622: Prior v Hannaford [1970] VicRp 94; (1970) VR 772 at 779. 22. Finally s. 29 itself provides that a person aggrieved may refer the matter to the Tribunal "within 28 days of being served under s. 27(4) with a copy of the determination of the Board". Section 27(4) refers to "a determination referred to in subsection (3)", and subsection (3) in turn relates back to "a matter referred to it (the Board) under this section". The subsection goes on to add "or the expiration of that time"; which in the context clearly refers to s. 29(1)(b), namely "the failure of the Board to make a determination within the 60 days referred to in s. 27(3)"; and the words "or the expiration of that time, as the case may be," give the applicant in those circumstances 28 days after the expiration of that time i.e. the 60 days. Both alternatives therefore refer to the Board's determination or failure to determine under s. 27; and entry to the Tribunal is postulated on there being first a determination or failure to determine by the Board. 23. In my view therefore there is no direct entry into the Tribunal through the General Manager's exercise of discretion on 5 August 1986. 24. (b) This carries on directly into the second of the applicants' arguments that, if an appeal cannot go direct to the Tribunal but only after the process of request for referral under s. 27(2), then that process was duly carried out by the request of 30 October 1986. That request having been refused on 16 January 1987 there arose a right of appeal to the Tribunal. 25. Now it is plain that that request was not made within the time limited by s. 27(2), but the jurisdictional point is raised in this Summons only as to s. 29, as the affidavit of Mr Alderman for the respondent makes clear. I leave aside also any question as to whether there was a proper form of request to the General Manager by the applicants' solicitors letter of 30 October 1986. Assuming for the purpose of this application that the time limits of s. 27(2) could in some way be overcome, the respondent's letter of 16 January 1987 may be construed for the present argument as a refusal to refer the matter to the Board and therefore a determination of the Board. If that was a determination of the Board pursuant to s. 29(1)(a), then the applicants should have referred it to the Tribunal within 28 days of the determination of 16 January 1987. This was not done. 26. If one took a somewhat more generous view that there was no determination expressed by the letter of 16 January 1987 but rather an evasion (and I do not use that in the pejorative sense) based on the view that the request was a nullity and therefore there was a failure of the Board to make a determination, (which is what is alleged in paragraph 10 of the Applicants' references), the time limits under s. 29(1)(b) are 60 days after the matter is referred (s. 27(3)) and a further 28 days thereafter. The references first filed on 4 March 1988 remain considerably out of time. 27. This brings me therefore to the basic point which goes to the root of all of the alternative ways in which the references are put and that is the time limits imposed by s. 29. Quite simply Mr Riley argues that there is no discretion conferred by the Act on the Tribunal or any other person or organisation to extend those time limits. If he is right it is, I think, regrettable; for such a discretion is frequently conferred to prevent injustice to the individual, and at the same time hedged about with sufficient safeguards to the public purse to punish or prohibit undue, unjustifiable or unexplained delay. But such a discretion cannot be imported merely on the grounds of public policy. Both counsel have touched on the separate philosophies of public weal and private woe and of course any sort of remedial legislation must steer a course between the two. But none of this is to the point in construing this Act. The ameliorating provisions are there or they are not; or cannot legitimately be found. The Act is what it is, not what it ought to be. 28. Mr Riley submits that if there is no discretion to be found in the Act then it cannot be introduced, and the section must mean what it says. The time limits are mandatory. Mr McDonald for the applicants submits that there is authority by which the court could hold these time limits as directory only. 29. Mr Riley relies on Barker v Palmer (1881) 8 QBD 9. That was a case where the County Court Rules provided that the summons in an action brought to recover lands should be delivered to the Bailiff 40 clear days at least before the return day. The Summons was delivered to the Bailiff 39 clear days before the return day. The county court judge held that he had jurisdiction to hear the matter. Grove J. in the Queens Bench on appeal decided he had not. He was quite clear: "In construing Acts of Parliament, provisions which appear on the face of them obligatory, cannot, without strong reasons given, be held only directory. The rule is that provisions with respect to time are always obligatory unless a power of extending the time is given to the court and there is no such power here". 30. Lest if be thought that a century later more liberal approaches are in vogue Mr Riley refers me to The Queen v Police Appeal Board; Ex parte McGee

(1984) 36 SASR 455. 31. In that case the provisions of the Police Regulation Act of South Australia provided that every appeal to the Police Appeal Board "shall be instituted by Notice of Appeal ... given to the Secretary within 30 days after the decision appealed against became known to the applicant". Notice of Appeal was not given within the 30 days. It was 4 days out. The Full Court of the Supreme Court of South Australia held by majority that the provisions as to time were mandatory. Zelling J. at p 457 cited the remarks of Grove J. in Barker v Palmer (supra) and said: "The rule referred to in that case has been followed in a long series of decisions in this Court in relation to appeals under the provisions of the Justices Act which for many years laid down the preconditions for the institution of an appeal to this Court from a court of summary jurisdiction. It has also been followed in other cases such as In re Cragen, deceased where Gordon J. held that, in order to institute an appeal under s. 24 of the Commonwealth Estate Duty Assessment Act the notice of appeal must be filed in the Court appealed to within thirty days after notice of the decision of the Commonwealth Commissioner of Taxation, and as that was not done, the appeal was not duly instituted. As Bright J. said in Mayne v Hoban in relation to a justices' appeal: "Until the appeal has been created there can be no jurisdiction in the appellate Court to deal with the matter." Bright J. in a characteristically careful judgment contrasts the mandatory nature of the prerequisites for the institution of the appeal with the powers a court has to dispense with various defects once the appeal has in fact been duly instituted. Examples of the directory nature of requirements after the appeal has been duly instituted may be found in Potter v Neave; Demetriou v Demetriou and Tothill v Marklew. The only exception to the rigour of the rule is where the law has imposed a condition precedent to the institution of the appeal which it is totally impossible to comply with: see the judgment of Poole J. in Aberle v Vears. A similar distinction between the imperative nature of the requirement that the notice of appeal must be given within a specified time and the directory nature of other matters which may be cured by the court's dispensing powers if the appeal is duly instituted, can be found in the judgment of Lord Denning, M.R., in Howard v Secretary of State for the Environment. In my opinion it is far too late in the day to urge that time conditions which are precedent to the due institution of an appeal are other than mandatory." 32. Milhouse J. agreed that the limitation period was mandatory not regulatory. At p 472, he pointed out the uncertainties of applying some such doctrine as "substantial compliance" to an Act which contained positive time limits. 33. White J. in a strong dissenting judgment, upon which Mr McDonald relies, drew attention to what he saw as a modern trend to more flexibility on time limits. 34. He does however cite Halsbury 4th Edition Vol 44 Paragraph 933: "No universal rule can be laid down for determining whether provisions are mandatory or directory; in each case the intention of the legislature must be ascertained by looking at the whole scope of the statute and, in particular, at the importance of the provision

in question in relation to the general object to be secured. ... Although no universal rule can be laid down, provisions relating to the steps to be taken by the parties to legal proceedings in the widest sense have been construed with some regularity as mandatory but a requirement which appears to be in unqualified terms must be read subject to the provisions of the Act." His Honour comments at p 465 "I agree when I look at the cases, especially the older cases, that steps to be taken in legal proceedings have been construed as mandatory. Yet this flies in the face of modern practice and relaxation of time limits." 35. I am not sure whether His Honour, in referring to "modern practice" is referring to modern legislative practice or modern judicial practice. It would, I think, be correct to say that the legislature is more alert these days to the good sense and justice of relaxing strict provisions as to time and giving courts discretion to enlarge or abridge times subject to appropriate safeguards. This is proper, because, otherwise, rigid time limits will inevitably create hardship in exceptional cases. But the corollary is that it is normally for the legislature to provide the framework within which the rules can be relaxed; and not normally for a court to erect the baseless fabric of its own vision. 36. If His Honour is referring to modern judicial practice I would not, with respect, agree, and it is sufficient to refer to the remarks of Zelling J. already quoted. If, however, White J. is doing no more than making a plea for liberal interpretation of time limits where the language of the Act permits it, many would support him, but it becomes a matter of degree. For instance in R v Police Appeal Board, (supra) the case in which His Honour dissented, it is, if I may say so with respect, difficult to construe a provision which says that an appeal "shall be instituted ... within 30 days" as meaning that it could be instituted within 31 days. His Honour cites Howard v Secretary of State for the Environment (1975) 1 QB 235 as an instance of relaxation of strict rules, but even in that case the Court of Appeal held that a somewhat informal document could be construed as a Notice of Appeal provided it was within the specified time. See Denning M.R. at 243: Stamp L.J. at 243: Roskill L.J. at 244. The Court was satisfied that since the imperative part of that Act had been complied with (i.e. the making of the appeal within time) the provisions relating to grounds of appeal were directory only and the grounds could subsequently be added to clarify the substantive appeal. As Denning M.R. pointed out at p 242 grounds of appeal are frequently amended. The point is that such amendments could only be made after the correct entry, i.e. within the time limits. The same principles apply to R v Lincolnshire Appeal Tribunal Ex parte Stubbins (1917) 1 KB 1, where the Notice of Appeal was again a very informal document consisting of no more than a delivery to the Clerk of Courts of a list of persons against whom it was desired to appeal and a verbal notification to the respondent that the military representative would appeal. These things were done well within the time allowed and Lord Reading C.J. remarked, "In my judgment it is not necessary to comply with the letter when there is a compliance with the spirit of the regulations ". Again the point is that something was done in time to alert the other side and once that was done it was open to the Court, exercising a proper discretion, to allow correction of irregularities. This does not help the present applicants. 37. I would agree with His Honour White J. that Kammins Ballrooms Co Ltd v Zenith Investments (Torquay) Ltd (1971) AC 850 is a case of high authority and weight. But there were some special features about the statute there under consideration. The relevant section provided that "no application ... shall be entertained unless it is made not less than 2 nor more than 4 months after the giving of the landlord's notice under s. 25 of this Act". Their Lordships took the view that the time limits there were procedural only. 38. Sachs L.J. in his dissenting judgment in the Court of Appeal had pointed out that strange results would ensue if the landlord's argument on strict construction were correct. In the judgment of Lord Pearson at p 876 that passage from the judgment of Sachs L.J. is quoted with approval. 39. Their Lordships were critical of the terms of the Statute and particularly of s. 29, the section containing the time limitations. Lord Reid considered that it could not be read literally. p 859. Lord Morris of Borth-y-Gest considered that a combination of sections meant that s. 29 was procedural only. p 862. Lord Pearson considered that there did not seem sufficient reason for the delay imposed by the requirement that the application had to be made no less than 2 months after the giving of the landlord's notice. p 874. And, as mentioned before, he agreed with Sachs L.J. as to the strange results which would occur by a strict interpretation. Lord Diplock was of the opinion that it would seem inconsistent with the intention to encourage agreements between landlords and tenants (which he felt was the policy of the Act) to preclude parties from agreeing that a notice should have effect, notwithstanding that specified requirements were not fulfilled. The provisions were procedural only. (p 881-2). 40. This brief analysis does seem to indicate that the statute there under consideration had special features which permitted an intrusion into the apparently clear words of the section relating to time limits. 41. So far as the Motor Accidents Compensation Act is concerned, I am unable to find any ambiguity in s. 29 which could justify a reading down or differing from the clear time limits there imposed. I think it is regrettable that there is no flexibility; but that is not a matter for the court. In my view the Tribunal has no jurisdiction to entertain a reference from a refusal or failure to determine the request of 10 October 1986. 42. For completeness I add that I have examined the Limitation Act and find that it has no application. The short answer is because the power to extend limitation periods is given to "a court". The Tribunal is constituted by a Supreme Court judge but that does not make it "a court". c.f. The Queen v Police Appeal Board Ex parte McGee (supra). In any event I would think the applicants would have difficulty under s. 44(3)(b) in coming within the provisions of that Act. 43. Mr McDonald, for the applicants, submits that this is not a case of the tribunal having no jurisdiction but rather of the tribunal having jurisdiction but controlled in its exercise of jurisdiction by the provisions of s. 29. As authority for this he refers to General Motors Holdens Ltd v Di Fazio [1979] HCA 43; (1979) 141 CLR 659. That was a case where the High Court examined the effect of s. 15(1)(e) of the Industrial Conciliation and Arbitration Act 1972-1975 (SA). That subsection provided that the Industrial Court of SA had jurisdiction:- (e) "to hear and determine any question as to whether the dismissal from his employment of an employee .... was harsh unjust or unreasonable .... but the Court shall not exercise the jurisdiction conferred on it by this paragraph unless an application invoking that jurisdiction is made .... within 21 days from the day on which it is alleged that the employee was so dismissed from his employment." 44. Section 48(1) of the SA Limitation of Actions Act conferred a general power on courts to extend time prescribed or limited by an Act for instituting an action. An employee applied more than 21 days after his dismissal to extend the time in which to seek reinstatement. 45. The High Court held that s. 15(1)(e) did not deny jurisdiction to the Industrial Court if a claim was not made within 21 days; but rather prescribed or limited the time for instituting an action within the meaning of s. 48 of the Limitation of Actions Act and therefore the Industrial Court had jurisdiction to extend the time for making an application. 46. The leading judgment was given by Mason J. (as he then was) and all the other members of the Court concurred in his reasoning. 47. Mason J. adopted with approval the remarks of Bray C.J. in R v Stanley Ex parte Redaffle Restaurants Pty Ltd (1976) 13 SASR 290. That was a similar case where the employee applied out of time so far as s. 15(1)(e) of the Industrial Conciliation and Arbitration Act was concerned but sought an extension of time relying on the provisions of the Limitation of Actions Act. The Full Court of SA held that the Industrial Court would not be acting in excess of its jurisdiction in hearing an application for extension of time. 48. Bray C.J. said this of s. 15(1)(e):- "The last clause of the subsection imposes a time limit but not in words which deny jurisdiction to hear claims made after its expiry; rather, it seems to me, in words which acknowledge the existence of the jurisdiction but control its exercise." 49. It is clear that the decisions of the High Court in the former and the Full Court of SA in the latter case were based on the special wording of s. 15(1)(e) that the Court shall not exercise jurisdiction unless a claim was made within 21 days of dismissal of the employee. That is not the case here, where the existence of the Tribunal's jurisdiction under s. 29 is conditioned by a reference within the times provided. 50. Indeed the further comments of Bray C.J. in R v Stanley (supra) at 295 seem to give strong support to the present respondent. His Honour says:- "Legislation which takes the form of declaring that a court shall not in certain circumstances exercise a jurisdiction expressly conferred on it is new to

me. I have not been able to discover any other examples. It seems to me that this unusual form of words must have been chosen for a purpose: and the obvious purpose seems to me to make violation of the prescription in question an error of law indeed, but not an excess of jurisdiction. It would have been perfectly easy for Parliament to have said expressly that the Court should have no jurisdiction to entertain applications made after the expiry of the time limit. Indeed, it could easily have written into the body of the first part of the sub-section .... some such words as "if the application to the Court is made within 21 days from the date of the alleged dismissal." A phrase of that nature would probably have been held to delimit the jurisdiction conferred by the opening words of s. 15(1). Other forms of expression having a similar effect can be easily imagined." 51. Nor do I think the case of Woods v Bate (1987) 7 NSWLR 560 assists Mr McDonald's argument. That was a case where under the Liquor Act an appeal was lodged within the time prescribed for lodging but served outside the time for service. McHugh J.A. (with whom Hope J.A. agreed) took the view that the appeal came into existence once the notice of appeal was lodged (p 567). That requirement he took to be mandatory. But once the court was vested with jurisdiction in this way it was appropriate to consider provisions as to service to be directory only. Samuels J.A. took a slightly different approach holding that the appeal was "made" by performing the two acts of lodging and serving. However he was able to distinguish a "slight but not insignificant shift" in the language relating to lodging and that relating to serving which made the latter directory only. (pp 564-5). 52. The relevance of that case for the present purposes is that all Their Honours of the Court of Appeal acknowledged one mandatory provision to entry into the appeal processes under the NSW Liquor Act. Once that had been achieved it was less difficult to find that consequent provisions were directory. 53. In the present case the only entry to the Tribunal, so far as time limits are prescribed, is by those prescribed in s. 29. There is no other initial step upon which jurisdiction can be founded. Woods v Bate and similar cases illustrate that there must be some form of entry into an appeal system within the set time limits. That entry may not be strictly formal and once achieved the court may ameliorate subsequent procedural requirements. But it must be achieved. In short, if you get your foot in a time-closing door within a specified time, the court may allow the door to be re-opened. But, if you do not get even a foot in within the time provided, the door will be shut, barred and irrevocably locked. 54. (c) The next point of referral can be dealt with shortly. It consists of the request by the applicants dated 8 December 1987 to the Board to refer the decision of the Board Delegate to the Tribunal pursuant to s. 29(2). This was refused by the Board on 15 March 1988. Mr McDonald submits that the applicants can appeal against this refusal. 55. The idea is ingenious but ineffectual. Section 29(2) is clearly a matter entirely within the discretion of the Board. It "may at any time refer any matter affecting the right of any person to a benefit or the amount of a benefit under this Act". The object of the section is clearly to allow the Board of its own motion to refer such matters to the Tribunal and no doubt the intention was to provide for resolution of cases of special difficulty or perplexity. The word "may" is legitimately employed here to emphasise the discretion given. There is an obvious distinction between s. 29(1) where the right to refer to the Tribunal is given to a "person aggrieved" and s. 29(2) where the right is given to the Board. The specific references make it clear that they are mutually exclusive, i.e. the Board cannot proceed under s. 29(1) and a person aggrieved cannot proceed under s. 29(2). Such a referral is in no sense a determination or a failure to make a determination. In referring the matter, the Board would not be applying its mind to whether a determination should be made or not. It would be applying its mind to considering whether the circumstances before it warranted a referral to the Tribunal. 56. It may be open to an applicant to suggest that the Board refer a matter to the Tribunal in this way. But that is as far as he could go. He could not insist on that course nor would he have a right to refer to the Tribunal the Board's refusal to refer to the Tribunal under this subsection. 57. (d) Finally the applicants wish to refer to the Tribunal the Board's refusal to review the determination of the Board Delegate pursuant to s. 36(3). This was requested by the applicants on 17 February 1988 and refused by the Board on 16 May 1988. 58. In my view however this argument is equally fallacious. Section 36(1) gives the Board power to delegate to its General Manager. Section 36(3) gives the Board power to "review the exercise of any delegated power under this section and substitute for the decision of the delegate in respect of any matter its own decision". I leave open the question whether, if the Board did substitute its own decision, that "decision" could be referred to the Tribunal pursuant to s. 29. The point is that the Board did not take that course in these cases and it was not bound to do so. Again the use of the word "may" emphasizes the discretionary nature of the power. In exercising its discretion not to review the exercise of the delegate's power in these cases the Board was not making a determination or failing to make a determination but merely declining to proceed down a route which was designed for its own use as a means of governing the discretion of its General Manager. Indeed this seems to be the only way in which the Board could control the actions or decision of its General Manager because the procedures under s. 27 are not open to the Board but only to applicants. I do not think the context of s. 27(2) permits that the Board could be a "person aggrieved" by the decision of its General Manager. I agree with Mr Riley that s. 36(3) is no more than a procedural option open to the Board only and an applicant cannot insist that it be taken, or refer the matter to the Tribunal if it is not. 59. In my view therefore none of the processes which the applicants in their further amended references seek to have referred to the Tribunal are before the Tribunal by any of the procedures permitted under the Act and the Tribunal lacks jurisdiction to receive or hear them. 60. I make appropriate declarations in each case and I will hear counsel on the question of costs.