Bradshaw v Commonwealth - [1925] HCA 42

THE COMMONWEALTH Commonwealth Public Service-Transferred Department-Rights preserved to officer-

Removal from Service by Governor-General in Council or Board of Commissioners -Right to be called on to resign- The Constitution (63 &64 Vict. c. 12), secs. 51, 67, 70, 84-Commonwealth Public Service Act 1922 (No. 21 of 1922), secs. 45, MELBOURNE, 67-Civil Service Act 1874 (S.A.) (37 &38 Vict. No. 3), sec. 28.*

Held, that in the case of an officer of the Civil Service of South Australia who was retained in the Public Service of the Commonwealth when the Depart- ment in which he was employed was transferred to the Commonwealth, any power of removing him from the Public Service was, by virtue of sec. 67 of the Constitution and sec. 67 of the Commonwealth Public Service Act 1922, vested in the Commonwealth Board of Commissioners, not in the Governor-General.

Held, also by Knox C.J., Rich and Starke JJ. (Isaacs and Higgins JJ. dissent- ing), that in the case of such an officer no "right," within the meaning of sec. 84 of the Constitution, to be required to resign before being removed for incapacity was conferred by sec. 28 of the Civil Service Act 1874 (S.A.), and therefore that such an officer might, under sec. 67 of the Commonwealth Public Service Act 1922, be removed from the Public Service without first being required to resign. DEMURRER.

An action was brought in the High Court by Thomas Andrew Bradshaw against the Commonwealth. By his statement of claim the plaintiff alleged, in substance, that from 24th June 1878 until

Sec. 28 of the Civil Service Act 1874

the event of non-compliance, may (S.A.) provides that "the Governor

remove such officer, who shall there- may require any officer, who has become

upon be entitled to the compensation incapacitated for the performance of

provided by this Act." his duties, to resign his office, and, in

36 CLR 586

1st March 1901 he was an officer in the Public Service of the Province of South Australia, and at the latter date was employed in the Postal Department as an officer of the fourth class in charge of a telegraph station; that on 1st March 1901 the Postal Department of South Australia was taken over by the Commonwealth, and the plaintiff was thereupon transferred to the Public Service of the Commonwealth and thereafter until 12th July 1924 was continuously employed therein; that about 9th July 1924 he was notified that the Public Service Board had retired him from the Public Service of the Commonwealth as from 12th July 1924 under the provisions of the Commonwealth Public Service Act 1922, and that in accordance with that notice he was actually retired or removed from his office. The plaintiff claimed declarations that the order or certificate of the Public Service Board purporting to remove or retire him from the Public Service of the Commonwealth was null, void and inoperative, and that notwithstanding any such order or certificate he continued to be an officer of…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Bradshaw v Commonwealth

Details

AGLC: Bradshaw v Commonwealth [1925] HCA 42
Case: [1925] HCA 42
Decision Date: 2 November 1925

CaseChat Overview and Summary

This case concerned an action brought by Thomas Andrew Bradshaw against the Commonwealth of Australia. Bradshaw, formerly an officer in the Public Service of South Australia, was transferred to the Commonwealth Public Service when the Postal Department was taken over by the Commonwealth in 1901. He was subsequently retired from the Commonwealth Service in 1924 by the Public Service Board, which he alleged was unlawful. Bradshaw sought declarations that his removal was void and that he remained an officer of the Commonwealth Public Service, or alternatively, damages for wrongful dismissal. The Commonwealth's defence asserted that Bradshaw was incapacitated for his duties and was lawfully retired by the Board under the Commonwealth Public Service Act 1922. Bradshaw demurred to these defence paragraphs.

The High Court was required to determine two primary legal issues. Firstly, whether the power to remove Bradshaw from the Public Service was vested in the Governor-General or the Commonwealth Board of Commissioners. Secondly, whether Bradshaw, by virtue of section 84 of the Constitution and section 28 of the South Australian Civil Service Act 1874, possessed a preserved right to be first required to resign before being removed for incapacity.

A majority of the Court, comprising Knox C.J., Rich and Starke JJ., held that the power to remove officers from the Public Service, which was initially vested in the Governor-General by section 67 of the Constitution, had been validly altered by Parliament through section 67 of the Commonwealth Public Service Act 1922, vesting this power in the Public Service Board. Regarding the second issue, the majority found that section 28 of the South Australian Civil Service Act 1874 did not confer a "right" in the legal sense upon the officer to be called upon to resign before removal for incapacity. They reasoned that this provision was a procedural direction to the Governor and that section 84 of the Constitution preserved substantial rights, not mere procedural formalities. The difference in procedure between the South Australian Act and the Commonwealth Act was considered to be one of form, not substance, and therefore did not infringe upon Bradshaw's preserved rights. Isaacs and Higgins JJ. dissented, finding that section 28 of the South Australian Act did confer a substantive right on the officer to be given the opportunity to resign before compulsory removal, and that this right was preserved by section 84 of the Constitution.

The demurrer was overruled with costs.

Orders