Bridges v Commonwealth

[1907] HCA 20

[HIGH COURT OF AUSTRALIA.]

BRIDGES..............................................................................Plaintiff;

AND

THE COMMONWEALTH ....

Defendants.

Commonwealth Public Service Art 1902 (Xo. 5 of 1902), sec. 46—Public servant

Dismissal—Procedure—Admission of offence char (fed— Power to dismiss without inquiry by board— Withdrawal of admission.

%

When an officer of the Commonwealth Public Service is suspended and, being furnished with a copy of a charge made against him, admits the charge in writing, the charge is admitted within the meaning of sec. 46 (5) of the Commonwealth Public Service Act 1902, and thereupon, on the recommenda­ tion of the Chief Officer, the consequences prescribed by the sub-section as to punishment follow as of course, and without any further proceedings.

An admission of the charge once made cannot be withdrawn as of right, but'only by permission, as an act of grace.

So held, Higgins J. dissenting.

Question of law referred to the Full Court.

Thomas Bridges, the plaintiff, brought an action in the High Court against the Commonwealth, in which by his statement of claim he alleged that up to the 5th February 1906, he was a senior assistant in the Telegraph Branch of the Postmaster- General’s Department of the Public Service of the Commonwealth, at a’salary of £120 per annum ; that on the 5th February 1906 the defendant wrongfully and unlawfully dismissed, or purported to dismiss, the plaintiff from his office and from the Service, and refused to pay him any salary after that date. The plaintiff claimed “ (a) a declaration that the plaintiff still is, or is entitled to be reinstated as, an officer in the Public Service of the defend-

ant; (b) if necessary, an order for the reinstatement of the plaintiff in the Public Service of the defendant; (c) an order for payment to the plaintiff by the defendant of all arrears of salaiy at the date of such order for payment, or alternatively,

monwealth, sum of money equivalent to the whole salary the plaintiff would

have received, or have been entitled to receive, up to the date of such order had he not been deprived of his salary as aforesaid: and (d) such other declaration or order as the Court may deem proper or necessary.”

By their defence the defendants alle

d {inter alia) that:—'“(3)

On the 21st December 1905 the plaintiff was pursuant to sec. 40 of the Commonwealth Public Service Act 1892 charged with the offence of improper conduct, and was thereupon suspended by the Chief Officer of the Department of the Postmaster-General, and, having been forthwith furnished by the Chief Officer with a copy of such chaie and required to forthwith state in writin whether he admitted or deniedthe truth of such charge and to give any explanation in writinas to such offence for the consideration of such officer, the plaintiff in writinadmitted the truth of such chare, and the said Chief Officer recommended the dismissal of the plaintiff, and the Commissioner submitted for the considera­ tion of the Governor-General a report recommending that the plaintiff be dismissed from the Pubc Service, and the Governor- General by order in council on the 23rd January 1906 dismissed the plaintiff from the said Service.”

By further particulars of the defence it Avas stated that the plaintiff on21st December 1905, admitted in writing the truth of the chare, that the Chief Officer on 21st December 1905 recommended the dismissal of the plaintiff*, and that on 10th January 1906 the Commissioner submitted for the consideration of the Governor-General a report recommending that the plaintiff be dismissed from the Public Service.

By his reply the plaintiff {inter alia) alleged that, on 23rd December 1905, by a letter addressed to the Chief Officer, he withdrew his admission of the truth of the charge and requested that a Board should be appointed to hear the charges alleged aainst him. The plaintiff further by demurrer (par. 6) said

that the facts alleged in the defence, even if true, showed no

defence to the plaintiff’s claim for that:—

“ (a) No facts, or no sufficient facts, are alleged which enabled or empowered the said Chief Officer to recommend the dismissal of the plaintiff.

“ (b) No facts, or no sufficient facts, are alleged which enabled or empowered the said Commissioner to submit for the considera­ tion of the Governor-General a report recommending that the plaintiff be dismissed from the said Public Service.

“ (c) No facts, or no sufficient facts, are alleged which enabled or empowered the Governor-General to dismiss the plaintiff from the said Public Service.

“(d) No power or authority is alleged under which the said

acts referred to in paragraphs (a) (b) and (<•) hereof, or any of them, were done by the said Chief Officer, the said Commissioner, and the said Governor-General respectively.

“ (e) There was in fact no power or authority under the said sec. 46, or at all, under which the said acts referred to in para­ graphs (a) (b) and (c) hereof, or any of them, could have been done by the said Chief (lfficer, the said Commissioner, and the said < Jovernor-General respectively.

“(f) No facts are alleged (if any could be alleged) which de­ prived the plaintiff of his right to have the charges alleged against him properly and lawfully dealt with under the said sec. 46, and

(inter alia) to have the charges alleged against him referred to a

Board of Inquiry duly constituted as provided in sub-sec. 4 of the said section for investigation and report before any recom­ mendation for his dismissal from the said Public Service could be made.

“ (g) That the charges against the plaintiff were not properly

and lawfully dealt with under the said sec. 46.”

'flie matter coming before Higgins J. it was ordered.—

“ (a) That the issues of law raised by the said demurrer to the

defence (being paragraph (i of the said reply) and

“ (b) That the following question of law that is to say:— ‘ Assuming the allegations in par. 3 of the defence and the par­ ticulars thereunder are true, and that on the 23rd December 1905

the plaintiff by letter addressed to the Chief Officer withdrew his said admission of the truth of the charge and requested that a Board should be appointed to hear the charges alleged against him, is there a good defence to the action ?’

monwealth.“ Be disposed of and decided before the trial of the issues of

fact herein, and by consent of both parties be so disposed of and

decided by the Full Court.”

Cohen, for the plaintiff. The plaintiff was entitled under sec. 46 of the Commonwealth Public. Service Act 1902 to have the charge against him inquired into by a Board.

The authority given by sec. 46 (5) to the Governor-General to dismiss an officer “ if any such charges are admitted,” can only be exercised if the charge is admitted before the Board as provided by sec. 46 (4), and not where there has been an admission made under sec. 46 (2) (6). Whether there is or is not an admission of the charge under sec. 46 (2) (b), and the offence is in the opinion of the Chief Officer a serious one, there must be an inquiry by a Board. At any time before the matter is finally dealt with an officer who has admitted a charge made against him may with­ draw his admission, just as in a criminal matter the accused may withdraw his plea at any time : R. v. Plummer (1); Archbold's

Criminal Pleading, 23rd ed., p. 186.

[He also referred to Commonwealth Public Service Act 1902, secs. 48, 49, 50; Public Service Act 1890 (Viet.), secs. 5-14,121

et seq.; Public Service Act 1895 (N.S.W.), sec. 49.]

Puffy K.C. (with him Robinson), for the defendants. There is

no analogy between a plea of guilty and an admission of the truth of a charge under sec. 46. Sec. 46 (5) covers all cases of admission of the truth of a charge because there is no limit to the smallness of the penalty which may be imposed.

Cohen in reply.

Cur. adv. wit.

Barton J. read the following judgments of Griffith C.J.,

Barton J., and O’Connor J.:—

(1) (1902) 2 K.B., 339.

Griffith C.J. This is an action brought by a public servant of the Commonwealth claiming damages for wrongful dismissal. The defendants set up by way of defence that the plaintiff, having been cluirved with an offence within the meaning of the Common-

wealth Public Service Act 1902 (No. 5 of 1902) admitted in

writing the truth of the charge, whereupon the Chief Officer of his department recommended his dismissal, that the Commissioner submitted to the Governor-General a report recommending his dismissal from the public service, and that the Governor-General thereupon dismissed him. To this defence the plaintiff demurred, substantially on the ground that he was entitled before dismissal to have the charge referred to a Board of Inquiry for investiga­ tion and report.

'The question whether he was so entitled depends upon the proper construction to be given to sec. 46 of the Act, which deals with the discipline of the Service. Sub-sec. 1 enacts that if anj" officer is guilty of a breach of the provisions of the Act or any regulation thereunder, or is guilty of any of several acts or omis­ sions specifically enumerated, “ such officer shall be guilty of an offence and shall be liable to such punishment as may be determined upon under the provisions of this section.” Having thus defined what is to be deemed an offence on the part of a public servant, the section proceeds to prescribe the manner in which the officers charged with the commission of offences are to be dealt with. These provisions, however, do not extend to officers in the Administrative Division of the Service, which includes the Permanent Heads and Chief Officers of departments and other officers specially included in that Division by the Governor-General, and with respect to whom separate, and in some respects different, provision is made by sec. 47.

Sub-sec. 2 of sec. 46 provides that an officer (not being an officer included in the Administrative Division) charged with the commission of an offence—

(a) may in the case of minor offences against discipline be

reprimanded or cautioned by the Chief Officer (i.e., the Chief Officer in the State of the department in which he is employed), or by any other officer having power to suspend in that office or place; or

(6) for any such offence whatever, (i.c., for any of the offences enumerated in sub-sec. (1),) may be temporarily suspended by the Chief Officer, or in emergent cases by any officer entrusted with power of suspension, who must in such cases report to the Chief Officer. The suspendinofficer or the Chief Officer is then required forthwith to “ furnish the offending officer with a copy of the chare on which he is suspended, and require him to forth­ with state in writing whether he admits or denies the truth of such cha, and to give any explanation in writing as to such offence for the consideration of the Chief Officer.”

A suspended officer so called upon has, therefore, three courses open to him: (1) He may admit the charsimpliciter', (2) he may deny it simpliciter; or (3) he may ive an explanation,

i.e., give his version of the facts, which may amount to ah

argumentative admission or denial of the charge itself. It is plain that this procedure is prescribed as the initial step towards ascertainin the uilt or innocence of the alled offender, with a view to the consequences which follow in either case.

Sub-sec. (3) is as follows :—

“ On consideration of such explanation if any the Chief Officer

if of opinion that the alleged offence has not been commed may

remove such suspension, or if of opinion that the alld offence

has been committed by such officer but is not of so serious a

nature that an investigation thereof should be made by a Board

of Inquiry may reprimand or caution such officer, and remove

the suspension or in his discretion fine him any sum not exceed­

inTen pounds.”

It will be observed that this sub-section deals with “ alleged ” offences—a term quite inapt to describe admitted offences—and further at the case of an accused officer who admits or denies the cha simpliciter is not expressly mentioned. But I think the introductory words must be read as meaning that the Chief Officer is to consider the reply of the accused officer, including his explanation, if any. The power of the Chief Officer under this sub-section is limited to two classes of cases: (1) those in which he is of opinion that the offence has not been committed, and (2) those in which he is of opinion that it has been com­ mitted but is not of so serious a nature as to demand an investi-

gation by a Board of Inquiry. Here it may be remarked that the words “ if of opinion that the alleged offence has not been committed ” would be absurd if applied to a case when the accused officer simply admits the charge. They appear to mean that if, notwithstanding a denial or explanation, the Chief Officer is of opinion that the alleged offence has been committed, but is of a trivial character, he may decide the question of guilt sum­ marily. They may, perhaps, include also a case when the offence is admitted and he forms the same opinion as to its character. But they do not in terms apply, nor do I think that they should be construed as applying, to a case when the offence is admitted

simpliciter, and he is of opinion that it is not one as to which

he should exercise his power of summary punishment. If the functions of the Board of Inquiry referred to in the next sub­ section were to award punishment, different considerations would arise. But, as I will show directly, the functions of the Board have nothing to do with punishment.

The case may be one of a third class, namely, (3) cases in which the Chief Officer is of opinion, notwithstanding denial, that the offence has been committed, and is of so serious a nature that an investigation should be made by a Board of Inquiry instead of being summarily decided by himself. Sub-sec. (4) accordingly proceeds to deal with this case, and provides that, if the Chief Officer considers the case to be one of that class, he may further suspend the officer and refer the charge to a Board of Inquiry for investigation and report. The sub-section then enacts as follows :—

“ And if such suspended officer does not in writing admit the truth of the charges made against him such Board shall inquire as to the truth of such charges. Every such Board shall after fully hearing the case report to the Chief Officer the proceedings and evidence taken and their opinion thereon.”

It is, I think, clear that the words “ if such suspended officer does not in writing admit the truth of the charges,” as here used, refer to an admission to be made before the Board itself. If such an admission is made, the duty of the Board to “ inquire as to the truth ” of the charge no longer continues, but they must, ex

necessitate, report the admission. If the admission is made at

the outset of the proceedings before the Board, this is all that

they need do. If, however, it is made at a later stage, they must

report the proceedi

and evidence, so far as they have gone,

w^h their opinion thereon.

monwealth.

it is contended by the plaintiff' that the duty of the Board to

report the proceediand evidence and their opinion thereon imports an obligation to take evidence and form an opinion in every case, whether the truth of the chais admitted before the Board at the outset or not. Possibly this construction is open in cases which have been referred to a Board, although I do not think it is the correct one. But it is further contended that the oblition to report, and consequently the necessity to refer the matter to a Board for report, exists in all cases, wheher the accused officer has or has not admitted the truth of the cha to

the suspendin officer. It seems to me that there is a fatal

in

this a

ment.

Thus far the l

slature has been dealing with the definition of

offences and the ascertainment of uilt, and has made two distinct provisions with reard to admissions of guilt by the accused officer. He may make an admission in writing when informed of the cha at the time of his suspension, or, havidenied the cha at that time, he may, if the charge has been referred to a Board of Inquiry, admit it in writin before the Board. It is not easy to suest why, when he has once made a written admission ofuilt, it should be necessary for him to make it an before the Board of Inquiry.

In sub-sec. (5) the Act deals with the question of punishment.

That sub-section is as follows :—

“ If any such chares are admitted or are found by the Board of Inquiry to be proved, then on the recommendation of the Chief Officer the Permanent Head may subject to the regulations impose a penalty upon such offendin officer or may deprive him of his leave of absene during a specified period, or the Commissioner may accordto the nature of the offence reduce such officer to a lower class or ade and salary or wages or the Governor- General may dismiss such officer from the Public Service or require him to resn.”

Sub-sec. (0) provides that if “ none of such charges ” are found

4 O.L.R.]

OF AUSTRALIA.

by the Board to be proved the suspension of the officer shall be

immediately removed by the Chief Officer.

It is to be observed that by sub-sec. (5) the award of punish- merit is left entirely in the hands of the designated officer, the Permanent Head, the Commissioner, or the Governor-General, as the case may be, according to the extent of the punishment recommended by the Chief Officer, and that the Board has nothing to do with the matter. This consideration, in my opinion, negatives the suggested necessity for an inquiry by a Board to enable the sentencing authority to award the punish­ ment. In either case the punishment is to be awarded on the recommendation of the Chief Officer, to whom, and not to the sentencing officer, the report of the Board, if any, is required to be made. And it is to be presumed that the sentencing authority will take proper steps to ascertain all relevant facts before awarding punishment.

We are invited by the plaintiff to hold that tbe words “ If any such charges are admitted ” refer only to an admission before a Board. That is not the primd facie meaning of the words. The r legislature having, as already pointed out, made provision for making written admissions under two separate sets of circum­ stances, introduces the provisions as to punishment with the words:—“ If any such charges are admitted.” This, I think, means admitted in accordance with the preceding provisions of the Act. It would, in my opinion, require very strong evidence from the context to show that words which are general in form ought to be limited, as suggested, to one only of the two cases of admission. But the context, so far from supporting the suggested limitation, seems to negative it. I have already pointed out that the legislature has dealt with three separate subjects, the definition of offences, the ascertainment of the truth of a charge, and the award of punishment, and that sub-sec. (5) deals with the last subject only. For that purpose it is primd

facie unimportant whether the fact of guilt is ascertained by

admission or proof, and, in the case of admission, equally unimportant whether the admission is made at one stage of the proceedings or another. This view is strongly confirmed b}7 sec. 47, which, as already stated, makes special provision for the case

HIGH COURT

! 15*07

of officers of the Administrative Division charged with offences. In their case suspension must be made by a Minister, and there is no pi’ovision for a preliminary charge and admission or denial; but a Board of Inquiry must in every case be appointed to ■ investigate and report. It is then provided that “ if such sus­ pended officer does not in writing admit the truth of the charges . . . such Board of Inquiry shall inquire into the truth of such charges, and after fully hearing the case shall report to the Com­ missioner their opinion thereon.” If, however, the officer admits in writing the truth of the charge it would be no longer necessary for them to inquire into the truth, although in some cases it might be proper for them to report their opinion. The difference between the procedure under these two sections excludes the notion that the provisions were intended to be identical, which is the conclu­ sion that would follow from the plaintiff’s argument that no effect is to be given to an admission in writing made on the occasion of a statement of the charge upon suspension.

For these reasons I am of opinion that, when an officer on being suspended and being furnished with a copy of the charge admits the charge in writing, the charge is admitted within the meaning of sub-sec. (5), and that thereupon on the recommendation of the Chief Officer the consequences prescribed by that sub-sec­ tion as to punishment follow as of course, and without any further proceedings. I think therefore that the demurrer to the defence must be overruled.

An objection was taken that sub-sec. (5) does not require or empower the Commissioner to submit to the Governor-General a report recommending the dismissal of a public servant in such a case. Sec. 5 (1) of the Act requires the Commissioner to “ submit for the consideration of the Governor-General reports as to any matters requiring to be dealt with by the Governor- General ” under the Act, and the dismissal of a public servant under sec. 46, which can only be made by the Governor-General, appears at first sight to be such a matter. If, however, sec. 5 does not apply to the case, still the recommendation of the Chief Officer under sec. 46 must be transmitted to the Governor- General through some channel; and, whether the Commissioner is the usual departmental channel for such transmission or not,

the powers of the Governor-General cannot be affected by the R-

adoption of an erroneous mode of transmission. Nor can they

be affected in any view by the advice of the Commissioner being

obtained before punishment is awarded.

A further question of law lias been referred to the Court, namely, whether an admission in writing of the truth of a charge made by the suspended officer can be withdrawn by the accused of his own motion and without the consent of the Government. In in}'' opinion it cannot. I think that, as soon as the charge has been admitted, the liability to the consequences prescribed by sub-sec. (5) of sec. 46 follows automatically. No doubt the Gov­ ernment could—nor do I doubt that in a proper case they would —allow the admission to be withdrawn. But I think that this would be as a matter of grace, and not of right. The analogy of a plea of guilty to an indictment, although, like most analogies, imperfect, is I think very close. I am, therefore, of opinion that, even if the plaintiff, as lie alleges, wrote a letter withdrawing his admission of guilt, and requesting the appointment of a Board of Inquiry, the facts alleged by the defendants show a good defence to the action.

I desire to add that I have had an opportunity of reading the judgment prepared by my Brother O’Connor, and that I entirely concur in the independent reasoning by which he arrives at the same conclusion.

There must be judgment for the defendants with costs.

Barton J. The plaintiff was an officer in the telegraph branch of the Postal Department of the Commonwealth. On the 23rd of January 1906 he was dismissed from the Public Service. The ground of action is that the dismissal as carried out was wrongful

n

o

and illegal. He claims to be reinstated and to be paid all salary which would have been payable to him but for his suspension on the 21st December 1905. In the alternative lie claims damages for the alleged wrongful and illegal dismissal. The defence is based on the 46th section of the Commonwealth Public Service Act 1902. It alleges that on the 21st of December 1905 the plaintiff was charged with improper conduct (an offence within that enactment), and was thereupon suspended by the Chief

H. C. of A. Officer; that lie was at once furnished with a copy of the charge

against him, and required to state in writiwhether lie admitted or denied the truth of the charge and to give any explanation in writin for the Chief Officer’s consideration ; that the plaintiff monwealth, admitted in writinthe truth of the chae; that the Chief

Officer recommended the dismissal of the plaintiff, and the Com­ missioner submitted for the consideration of the Governor-General in Council a report recommendin the plaintiff’s dismissal; that by Order in Council he was dismissed accordinly. There is a demurrer, by which it is set up (a) that the defence does not all any facts or any power or authority which justify (l) the Chief Officer’s recommendation, or (11.) the submission by the Commissioner of his report and recommendation, or (111.) the dis­ missal by the Governor-General in Council; and (b) that the statement of claim does not allege anything to justify the deprival of the plaintiff of his right to have the charges properly and law­ fully dealt with under sec. 46, and to have them referred to a Board of Inquiry under sub-sec. (4) of that section for investiga­ tion and report before any recommendation for the plaintiff’s dismissal could be made.

With the demurrer Higgins J. has referred to the Full Court a question of law arising out of the plainti’s reply. In this the plaintiff maintains that, assuming the alleations of the defence to be true, and assuming that two days after the charge, the written admission of its truth, and the suspension (which all occurred on the same day) the plaintiff by letter addressed to the Chief Officer withdrew his admission of the truth of the charge and requested that a Board should be appointed to hear the

charges a

inst him, there is no defence to the action.

The broad question, as Mr. Cohen put it in argument, is whether the plaintiff could be dealt with at all witht the reference of the charge against him to a Board to investigate and report not- withstanding his written admission of guilt, withdrawn or not withdrawn. The plaintiff contends that, if there is such an admission, the case must still before a Board, so that they may inquire into all the circumsnces surrounding the commis­ sion [of the offence, and may report to the Chief Officer before

he makes his recommendation to the proper authority as to R- c- 0F A-

. ,

,

punishment.

The matter cannot be decided without close consideration of the Commonwealth Public Service Act, and especially of sec. 46. That section is rather obscurely drawn, but I think the plaintiff’s contention is dependent on the obscurities, and that the text of the section as a whole is against him. The enactment is divided into

six sub-sections.

The first sets out the offences by officers which

are to be dealt with under the section. Among them is improper conduct, the offence with which the plaintiff was charged. Sub­ sec. (2) is confined, with the rest of the section, to officers other than those in the Administrative Division of the Service. The plaintiff belongs to the Clerical Division, see secs. 15 and 16. Paragraph (a) of sub-sec. (2) deals with minor offences against discipline, and we are not concerned with it in this case. By paragraph (b) the Chief Officer may temporarily suspend an officer charged with any offence mentioned in sub-sec. (1), and must then forthwith furnish him “ with a copy of the charge on which he is suspended, and require him to forthwith state in writing whether he admits or denies the truth of such charge, and to give any explanation in writing as to such offence for the con­ sideration of the Chief Officer.” It must be observed at this stage that all these requirements were fulfilled on the part of the Chief Officer, and that the plaintiff stated in writing that he admitted the truth of the charge. But he does not appear to have made any written or other “ explanation.” If by an explanation a defence is meant, he could not well couple it with his confession.

Still examining the section, one must now note that sub-sec. (3) begins with the words:—“ On consideration of such explanation, if any.” It is at first sight confined to cases in which the officer charged has given an explanation for the Chief Officer to consider. Whether an explanation without an express admission or denial of the truth of the charge—that is to say a statement leaving it to the Chief Officer, if he gives credence to it, to infer guilt or innocence from the facts stated—would compl}7 with the exigency of this sub-section, it is hard to say in view of the terms of sub­ sec. (2’ (b), and the question does not arise now. On the other

A. hand, I am of opinion that a confession of guilt, with or without explanation, is outside its terms altogether. Unless that is so we must hold that the Chief Officer is authorized to treat

admission of guilt as a fiction (see the words “ if of opinion that monwealth, tlie alleged offence has not been committed ”), or that, notwith-

standing a plea of guilty, it is still a matter for his opinion whether the confessed offender has committed the offence (see the words “ if of opinion that the alleged offence has been com­ mitted by such officer,” &c.). That is a construction too strange to be entertained for a moment. On the other hand, the con­ struction which eliminates confessions from the scope of the sub­ section is not only one of plain sense, but is fortified by the circumstance that the adjective “ alleged ” in relation to the offence is first used just where we nowT find it, and is adhered to in sub-sec. (4) also as to the question of the apipointment of a Board of Inquiry. An offence, when confessed, has ceased to be merely an “ alleged ” one. I am, therefore, of opinion that the sub-section does not extend to cases in which guilt lias been admitted.

Further, I think that the phrase, “ on consideration of such explanation, if any,” is elliptic. As the whole sub-section excludes admissions, it cannot include in its scope more than the cases in which guilt is denied, unless, indeed, it includes also the case already supposed, of an explanation not expressly admitting or denying the truth of the ch'arge, but stating facts from which the Chief Officer may infer innocence or guilt. Given this as the full scope of sub-sec. (3), it becomes sensible, and it and sub-sec. (4) become sensible and consistent when read together, as relating to offences “ alleged ” and not admitted. Taking them together, we find that they deal with three classes of cases, two of them, which I shall call («) and (6) falling under sub-sec. (31, and the third, which I shall call (c), falling under sub-sec. (4). The cases in class (a) are those in which the Chief Officer, on considering the defence, is of opinion that the offence “ alleged ” (i.e., not admitted) has not been committed by the officer. Result, removal of suspension. The cases in class (b), still under sub-sec. (3), are those in which the Chief Officer, on considering the defence, is of opinion that the offence “ alleged ” (i.e., not admitted) has in fact

been committed by the officer, but is not serious enough to require investigation by a Board of Inquiry, Result, reprimand or caution, with removal of suspension; or fine not exceeding £10 (presumably also with removal of suspension, though the sub-section fails to say so). Then comes class (c), which we find in sub-sec. (4). That class consists of the cases in which the Chief Officer is not to adjudicate or finally to measure the punishment. He must, of course, consider the defence so far as to make up his mind as to the seriousness of the charge ; and if he is then of opinion that the offence “ alleged ” (i.e., not admitted) is so serious that the question whether it has been

committed or not must be dealt with in more solemn form than it

could be under sub-sec. (3), “ he may further suspend such officer and forthwith refer the charge to a Board of Inquiry . . . for investigation and report; . . . . and if such suspended officer does not in writing' admit the truth of the charges made against him such Board shall inquire as to the truth, of such charges.” It is obviously unnecessary to assemble a Board to inquire whether a man is guilty or no, if he has long ago—when first handed a copy of the charge by the Chief Officer (sub-sec. (2) )—admitted his guilt in writing. The whole of this sub-section excludes such a notion, although when a Board has been appointed—even while it is sitting—an accused officer who has hitherto denied his guilt may admit it. If he does, inquiry into the truth of the charge will, of course, become superfluous, for then the truth would be already manifest, and the charge resolved into a fact. The sub­ section concludes with these words:—“ Every such Board shall after fully hearing the case report to the Chief Officer the pro­ ceedings and evidence taken and their opinion thereon.” These words immediately follow the mandate to the Board to “ inquire as to the truth of the charges ” where the truth is not admitted in writing, and cannot possibly be read to necessitate an inquiry where the admission has been made. There is no room for the contention that, unless a case is dealt with under sub-sec. (3), it must necessarily go to a Board under sub-sec. (4). If there has been a written admission of guilt in the first instance the case is not provided for by either of those sub-sections. It merely remains to be dealt with under sub-sec. (5).

VOL. IV.

TS

If it were necessary to show more clearly that, where guilt has been admitted in writing at the time of suspension under sub-sec. (2) (b), it is not intended that the case should be referred to a Board of Inquiry, a consideration of sec. 47 would tend to the same conclusion. That section is limited to officers in the Administrative Division (see secs. 15, 16)—the Permanent Heads and the Chief Officers of Departments, with such persons as may be also included by Order in Council on the Commissioner's recommendation. Here, as the Chief Officer obviously cannot occupy tbe position assigned to him by sec. 46 in dealing with offences, and as the Minister is, properly, not called on to under­ take judicial functions, the officer is suspended by the Minister and the Commissioner, on the charge and suspension being reported to him, thereupon appoints a Board of Inquiry. There the Board has to be appointed in all events, and therefore even if the officer has made an admission after his suspension and before the Board is appointed. This section shows that where the legislature intended a Board to inquire in all events it said so in unmistakable terms, and a comparison of the two sections will show differences in phraseology so manifest that it is impossible to contend that where they both apply to the same subject matter they are intended to prescribe identical processes. As in sec. 46, sub-sec. (4), however, where, after the appointment of n Board, the officer has not made the written admission, inquiry must be made into the truth of the charge or charges, but, as in sub-sec. (4), there is not a word to show that any inquiry is to be made after such an admission. The real difference between the two sections is the plainness with which it is provided in sec. 47 that a Board is to be appointed under any circumstances where the office is in the Administrative Division, contrasted with the restriction imposed by sec. 46 on the appointment of a Board where the officer is in any other division.

Reverting then to sec. 46, we find that sub-sec. (5) provides that:—“If any such charges are admitted or are found by the Board of Inquiry to be proved,” then on the recommendation of the Chief Officer certain penal consequences may follow. The Per­ manent Head may subject to the Regulations impose a penalty on the offender, or deprive him of leave for a period, or the Com-

missioner may, according to the nature of the offence, reduce him H- 0- or A.

to a lower class or grade, and lower salary or wages; or he may

be dismissed, or required to resign, by Order in Council.

The admission here referred to as entailing punishment may be either the admission referred to in sub-sec. (2), occurring in answer to the copy of the charge, or it may be the admission referred to in the later part of sub-sec. (4), occurring after the appointment of the Board. There is nothing in any part of the section or elsewhere in the Act to confine it to one only of these two classes of admission, and the fact that the stages at which they may occur are different does not seem to make a difference in their quality or cogency. One of them is like a plea of guilty in summary proceedings, the other like the same plea before a higher Court after committal, and there is some analogy between the processes of the section and those pursued in the ordinary administration of justice, except that in the Act punishment is awarded by the like authority in either event.

On this part of the case a subsidiary point was taken by the plaintiff that the procedure was illegal because the Commissioner had interposed a report recommending the Governor-General in Council to dismiss the plaintiff. As the Chief Officer had recommended the dismissal and the Governor-General in Council had that recommendation, apparently, before him, I think the requirements of sub-sec. (5) were satisfied, and that the inter­ position of the Commissioner’s report and recommendation could not invalidate the action taken. It is not in accordance with the practice of government that the Chief Officer of a department is in direct communication with the Executive, and neither that officer’s recommendation, nor the Commissioner’s report, could reach the Council without the intervention of a Minister. It might be as well contended that the Minister’s minute to the Executive, recommending the dismissal, vitiated the proceedings. For the reasons given I am of opinion that the defence is good,

if proved as alleged, and that the demurrer must be overruled.

As to the point of law also referred to us, I am of opinion that the Chief Officer and the higher authorities were perfectly justified in law in acting on the admission. It is not relevant

A.

that a Criminal Court (as in R. v. Plummer (1)) has jurisdiction to allow the withdrawal of a plea of guilty and the substitution of one of not guilty. That power is undoubted, but supposing the present case to be analogous in principle, as probably it is,

monwealth.the plaintiff’ would not have power to withdraw his confession

without the consent of the authorities.

He does not allege the

consent of any of them. I cannot see how the futile attempt to withdraw a confession entitles the plaintiff to be treated as if lie had never pleaded guilty. If the analogy of a criminal case is abandoned by the plaintiff, who set it up by citing R. v.

Plummer (1), still his case is no better on the reason of the

thing. I have no doubt that in a proper case the authorities would allow an unguarded admission to be withdrawn, but that does not affect the question of right which we have to determine. On this question, therefore, I think our answer should be that

the facts assumed would not, if true, impair the defence.

In the result, the plaintiff', in my judgment, fails on both

points.

O’Connor J.

The questions of law submitted for our decision

arise out of the following facts. A charge of improper conduct having been made against the plaintiff under sec. 46 of the

Commonwealth Public Service Act 1902, he was suspended by the

Chief Officer of his department, and having been furnished by that officer with a copy of the charge and required under sec. 46 sub-sec. (2) (h) to state in writing whether he admitted or denied the truth thereof and to give any7 explanation in writing he might think fit, he in writing admitted that the charge was true. That written admission was made and communicated by the plaintiff to the Chief Officer on the 21st December 1905, who on the same day took action on it and recommended the plaintiffs dismissal. Two days afterwards the plaintiff wrote to him with­ drawing the written admission. No effect was given to the withdrawal. The Chief Officer’s recommendation afterwards went on to the Public Service Commissioner, who on the 10th January7 1906 reported for the consideration of the Governor- General with the advice of the Executive Council that the

(!) (1902) 2 K.B., 339.

plaintiff should be dismissed, and lie was dismissed.

The plaintiff R C.

now contends that the dismissal was wrongful on the ground that he had not admitted in writing to any Board of Inquiry the truth of the charge, nor had it been found by a Board of Inquiry to have been proved. The defendants, conceding that the case was never referred to a Board of Inquiry, contend that the plaintiff’s written admission made in answer to the Chief Officer’s communication is an admission of the charge within the meaning of sub-sec. (5) of sec. 46. The plaintiff replies that the words “ If any such charges are admitted ” in that sub-section do not refer to such an admission, but to a written admission under sub-sec. (4), and argues that the only written admission which would justify his dismissal is a written admission made to a duly constituted Board of Inquiry. He further urges that he was entitled to withdraw his admission at any time before it had been finally acted on by the Governor-General in Council, and that, as it was withdrawn before that stage had been reached, there was not in existence any admission by him of the truth of the charge at the time when dismissal was ordered by the Executive Council. We have now to determine whether the plaintiff’s contentions are sustainable.

To my mind there is no ambiguity in the language of sec. 46. Construing the words in sub-sec. (5) “ If any such charges are admitted ” according to their ordinary meaning in the context in which they stand, they are capable of including a written admission to the Chief Officer under sub-sec. (2) (b) as well as a written admission to the Board of Inquiry. But, as an ambiguity has been suggested, it will be well to see what light can be thrown on the meaning of the words by a consideration of the purpose ami scope of the group of sections in which sec. 46 occurs and of the law as it existed in the States before the passing of the Act under consideration.

Until comparatively recent years the common law incidents of service under the Crown attached to all contracts of employment in the Public Service of the States. One of these incidents was that the public servant held office only during the pleasure of the Crown, and that it was the right of the Government to dismiss him with or without cause at any time it thought fit. But since

HIGH COURT

[1907

1874 in all Statutes regulating State Public Services this common law incident of employment under the Crown has been modified to a certain extent. The Victorian Act of 1890 and the New South Wales Act of 1895 may be taken as examples; their provisions in this respect are practically identical. They leav ■ the right of the Government to dismiss for any cause other than misconduct as at common law, but provide that no Government may dismiss a public servant for misconduct without giving him an opportunity of disproving the charge. In giving these rights the several Statutes lay down the procedure to be followed, and it was decided bjr the Privy Council in Gould v. Stuart (1) that the right of the public servant to demand that the procedure shall be followed becomes in such cases a term of the contract of employment. To make these rights effective it is essential to constitute a tribunal which shall have power to hear and deter­ mine whether the officer has been guilty of the misconduct charged. Under the Victorian and New South Wales Acts the tribunal was the permanent Board which administered the Act. Both Statutes recognized, as all our forms of criminal procedure do, that there are cases in which the accused himself may desire to admit his guilt without further inquiry, and that, in such cases, if proper safeguards are taken to ensure that the admission shall be deliberate, well considered, and definite, punishment whether by dismissal or otherwise may as fairly follow the admission as it may follow the adverse finding of a tribunal. In both Acts a written admission of the truth of the charge to the Board relieved that body of further inquiry, and punishment followed on the admission just as on a finding by the Board that the charge was proved. The Permanent Head of the department was empowered to hear and deal finally with minor offences not sufficiently grave to justify their being sent on to the Board, hut where they were grave enough for the Board to deal with that officer was obliged to send them to the Board for inquiry. And to the Board alone was given the power in such cases to receive a written admission that the charge was true. But in the Commonwealth Public Service power is for the first time given to the Chief Officer, whose position is analogous to that of the

(1) (1896) A.C., 575.

4 C.L.K.]

OF AUSTRALIA.

Permanent Head in a State service, to call upon the officers not in the Administrative Division in case of all charges whether grave or trivial to make a written statement to him in the first instance declaring that the charge is either true or not true. It is merely an extended application of the principle already recognized in the State Acts that punishment may as fairly follow an admission of guilt made under proper safeguards as it follows an adverse finding of the tribunal. In effect it gives the Chief Officer power to call upon the person charged to plead guilty or not guilty at the initiation of the proceedings. It would be obviously impracticable in the administration of a Public Service extending throughout Australia to refer the determination of the truth of every charge of misconduct to the Public Service Commissioner. Some form of local tribunal immediately available is essential, and it is by reason of the constitution of these local tribunals that the necessity for endowing the Chief Officer with this new power has arisen. Under the State Acts the Board was a permanent institution holding inquiries as part of its ordinary duties, and a reference to it would in no way disturb the daily routine of the depart ments. But in the Commonwealth Public Service a special tribunal is constituted for the hearing of each charge, one member being an elected representative of the Division to which the officer charged belongs. In a tribunal so constituted each member has his daily duties to perform, and it would seem to be only reasonable in the interests of business-like administration that the legislature would provide that the tribunal should not be assembled without some real necessity, and that there should be devised, if possible, some procedure by which in the initial stages of the charge the Head of the Department could ascertain whether it would or would not be necessary that the truth of the charge should be investigated.

Having, as it appears to me, that end in view, the legislature has in sub-sec. (2) (b) empowered the Chief Officer, an officer of high position and responsibility, to call upon persons charged, not being in the Administrative Division, to plead guilty or not guilt}’, thus sifting out at the very outset those cases in which an inquiry will be necessary from those in which it will not.

Where to the Chief Officer’s written requirement the reply is an admission of the truth of the charge the case must go on under sub-sec. (5) to the Permanent Head, the Commissioner, or the Governor-General, according to the Chief Officer’s view of the gravity of the charge and the punishment appropriate. If the answer to the Chief Officer’s requirement is a denial, the ease must go for inquiry to a Board specially constituted to investigate that particular charge. In either case the Chief Officer has before him the accused officer’s explanation of the charge, if he has thought fit to accompany his denial or admission with an explanation, and it is the Chief Officer’s duty to consider and report that explanation equally with the admission or denial of the truth of the charge.

Thus the Act ensures that the assembling of the Board of Inquiry, with the attendant inconveniences to the working of the department, will only take place where there is something for the Board to inquire into, and that it will not be constituted and called together merely for the purpose of receiving an officer’s written admission of the truth of the charge made against him.

Having regard, therefore, to the real object of the sections, which was to give a right of inquiry before dismissal or punish­ ment for misconduct, and to the procedure adopted for giving effect to those rights, and to the geographical conditions under which an Australian Public Service must be administered, I am of opinion that the legislature, with the view of carrying out without any unnecessary friction the system laid down in the Act, did intend to empower the Chief Officer to sift out cases in which inquiry into the truth of the charge was necessary from those in which it was not, by enabling him to receive and act upon a written admission of the truth of the charge. In my opinion the legislature has, in sec. 46, used apt words to carry out its intention, and therefore the words in sub-sec. (5), “ If any such charges are admitted,” include a case such as this in which the admission has been made in writing to the Chief Officer under sub-sec. (2) (6). It follows that, in my view, the Chief Officer was justified in making his recommendation on that admission without sending on the case to a Board of Inquiry.

I can see no ground for Mr. Cohen’.s second contention that the

admission of the truth of the charge must be- considered as non- existent because the plaintiff withdrew it in writing, even though that withdrawal was after the Chief Officer had taken action on it, and although the withdrawal was without that officer’s consent. Assuming for a moment that the analogy of criminal procedure applies, a plea of guilty when pleaded becomes a record of the Court and cannot be withdrawn without the consent of the tribunal. Similarly it would seem to follow that the written admission, which has become an official record, and has been acted on as such, could not be withdrawn unless by the consent of the head of the department—but I doubt whether the analogy, if it exists, between a plea of guilty in a criminal Court and the written admission under sub-sec. (2) (b) is a safe guide in the determination of the question before us. The rights of the plaintiff must be founded on the Statute, and the only matter for inquiry is what effect has the Statute given to the written admission of the officer charged ? If his statement in answer to the Chief Officer is a denial, the Act gives him a right to inquiry by a Board duly constituted. On the other hand, if his answer is an admission of the truth of the charge, the Act gives the Chief Officer a right to make a recommendation, and there is nothing in the Act which authorizes the officer to withdraw his statement merely at his own will and pleasure, or which gives his withdrawal any operation on the Chief Officer’s right to act on the original admission.

In my view, therefore, the plaintiff’s withdrawal of his written admission in no way affected the validity of the action taken by the Chief Officer, or any action which followed it. On both grounds the plaintiff must fail, and judgment must be entered for the defendants. I may add that I have had the opportunity of reading the judgment of my learned brother the Chief Justice, and I entirely concur in its reasoning.

Higgins J.

In this case I am unfortunately unable, after

much consideration, to concur with my learned colleagues. The question is as to the construction of sec. 46 of the Common icealth Public. Service Act 1602. Can the Governor-General resort to the extreme penalty of dismissal, in the case of a clerical or

HfGH COURT

[1907.

general officer, on bare admission of the offence, and without any report as to the circumstances from a Board of Inquiry ? It is clear that in the case of an officer in the Administrative Division, the Governor-General cannot do so (sec. 47 (3) ). It is also clear that if the officer in the Clerical or in the General Division deny the offence, the Governor-General cannot do so (sec. 46 (3) and (4)). Moreover, it is clear that the inquiry as to the truth of the charge is distinct from the “investigation and report” required of the Board ; for the Board’s first and main duty is to investigate and report; and it is only in the case of the suspended officer not admitting the truth of the charges that the Board has to go further and “ inquire into the truth of the charges.” This means that sub-sec. (4) of sec. 46 applies, not only to the case of denial of guilt, but also to the case of admission of guilt. The question is, can the Governor-General on the recommendation of the Chief Officer (the departmental head in the State) ignore sub-secs. (3) and (4), and forthwith recommend dismissal, if there be a bare admission of guilt. For instance, drunkenness is an offence. A man may have been made drunk by drugged liquor, by way of a practical joke. If he be charged with the offence, and if he be truthful, he will admit it. But is he, under sec. 46, entitled to have the circumstances under which he became drunk investi­ gated and stated by an impartial Board ? The Governor-General —if the argument of the defendants be accepted—will not (neces­ sarily, at all events) have anything before him but the written admission of guilt, and the recommendation of the Chief Officer. The officer charged may have accompanied his admission of guilt with a satisfactory excuse; but the Ministers will have nothing to guide them in the exercise of their discretion as to dismissal except the recommendation of the Chief Officer. If the man, untruthfully, has denied the offence he fares better; for the Board must inquire, and must consider and report any extenuating cir­

cumstances.

Does the section put this premium on lying ?

I have come to the conclusion that the section contains, in due order of its sub-sections, a complete code of procedure, and that the Chief Officer and Ministers have no right to skip over the provisions of sub-secs. (3) and (4), no right to apply the provisions of sub-sec. (5) as soon as the officer has admitted the bare fact of

the offence under sub-sec. (2). Sec. 46 (1) makes certain facts (or defaults) offences, for which an officer is liable to punishment. Under sub-sec. (2) if there be a minor offence against discipline, the Chief Officer may content himself with a reprimand or caution. If he think this penalty not sufficient, he may suspend the officer, furnish him with a copy of the charge, and ask him to state in writing “ whether he admits or denies the truth of such charge, and to (jive any explanation in writing as to such offence for the

consideration of the Chief Officer.” This evidently means that,

even if there be an admission of guilt, the Chief Officer is to take into consideration mitigating circumstances. The truth or falsity of the charge is one thing; the circumstances of the offence are other and distinct. Then under sub-secs. (3) and (4), the Chief Officer, having received the officer’s answer, has three courses open to him, which seem to exhaust all possible contingencies :— (1) If he think the alleged offence has not been committed, he

is to remove the suspension.

(2) If he think that the alleged offence has been committed, but that it is not serious enough for a Board of Inquiry, he may reprimand or caution, or he may fine the officer a sum not exceeding £10.

(3) If he think that the alleged offence is serious enough for a Board, he may refer the charge to such a Board “for investiga­ tion and report ”—“ and if such suspended officer does not in

writing admit the truth of the charges made against him such Hoard shall inquire as to the truth of such charges ” ; and “ after

fully hearing the case ” the Board is to “ report to the Chief Officer the proceedings and evidence taken and their opinion thereon.” Sub-sec. (4) is complementary to sub-sec. (3), and would, no doubt, have formed part of sub-sec. (3), but that the provision for the case of a Board required many words, and would have made sub-sec. (3) too lengthy and cumbersome; and these sub-sections cover every case, and are applicable to every case, as soon as the accused officer has sent in his written admis­ sion, or his written denial, with or without explanation. It will be observed that, if the Chief Officer believe the offence to have been committed, he has to consider any explanation offered ; and he then has to determine in his mind whether the offence is suffi-

ciently serious for a Board, or so trivial that it may be dealt with by a tine. If the Board become seised of the case, it lias to “ investigate and report.” Such words are not unfamiliar in cases in Chancery, where the Court refers a matter to a Master or a Chief Clerk for general inquiry. Tlie Board is to report its “ opinion,” after fully hearing the case. There is not one word limiting the functions of the Board, or the operation of sub-sec. (4), to the case of denial of the offence charged. On the contrary, the Board is not to inquire into the truth of the charge unless the accused fail to admit in writing the truth of the charge:— “ and if such suspended officer does not in writing admit the truth of the charges made against him, such Board shall inquire as to the truth of such charges.” I quite agree with my col­ leagues that there is no need of a second written admission before the Board ; but that does not conclude the matter. I can­ not help thinking that the use of this extreme argument for the plaintiff has tended to obscure the plaintiff’s true case. The point now is that, even if the offence be admitted, there can be no dismissal without an inquiry into the circumstances. It is not now contended that the Board must go through the form of inquiring whether the offence -was committed where the officer admits that it was committed. The contention is that in all cases, as a condition precedent to dismissal, or any of the graver penalties, the Board must investigate the circumstances, and report the proceedings and evidence and their opinion thereon. Then comes sub-sec. (5) :—“ If any such charges are admitted or are found by the Board of Inquiry to be proved, then on the recommendation of the Chief Officer ” the Permanent Head may impose a penalty, or deprive of furlough, or the Com­ missioner may reduce him ; or the Governor-General may dismiss him or require him to resign. The defendants urge that, by virtue of these words in sub-sec. (5), they have a right to dismiss on an admission of the offence under sub-sec. (2) (b), although the Chief Officer has not apjdied his mind to the exercise of the discretion vested in him by sub-secs. (3) and (4) either to fine or reprimand fhe officer, or to send the case for inquiry to a Board. That is to say, the defendants’ argument is that the power in sub-sec. (5) can be applied directly and immediately on

a mere admission of guilt under sub-sec. (2) (6) without the safe- H-

guards provided by the intervening sub-secs. (3) and (4).

I cannot

think this is to be the natural meaning of the words. I think that, before recommending dismissal, the Chief Officer must decide between inflicting a tine (or reprimand) and sending the case to a Board with a view to graver penalties. The object of the section, with its elaborate machinery, was clearly, to my mind, to prevent the despotic exercise of the power of dismissal, or of imposing an}' of the graver penalties, on the mere recommendation of the Chief Officer, and without regard to the circumstances of the offence, whether it be admitted or denied. I think that the consideration of extenuating or aggravating circumstances is necessary in the case of an offence being regarded by the Chief Officer as serious; and that it is made as necessary in the case of the offence being admitted as in the case of its being denied. It is curious—and satisfactory to myself—to find that I can agree with nearly every­ thing said by my learned colleagues on this part of the case. But our conclusions as to the construction of sec. 46 differ. The dif­ ference arises because, as I respectfully think, sufficient attention has not been given, (a) to the fact that the main and primary function of the Board is not to inquire into the truth of the charge, but to investigate and report as to all the circumstances ; (h) to the fact that the Board is not to come into action except for the graver offences, involving the graver punishments; (c) to the fact that too much strain is put on the word “ alleged ” in sub-sec. (3) —as it is often used as equivalent merely to “ charged ” in such a phrase as “ alleged offence ” ; (d) to the fact that sub-sec. (4), as to the Board, cannot be put aside by the Chief Officer unless he also put aside sub-sec. (3), with its power to fine; and (e) to the fact that any construction other than mine strikes out of the Act the power of the Chief Officer, in the case of an offence being ad­ mitted, to fine (or reprimand) instead of proceeding to recommend the graver punishment. I prefer to rest my decision on the grounds which I have stated. But I must add that, on the narrow construction of the section, I do not see how the words used in sub-sec. (5) apply to the peculiar facts in this case. On this part of the case, however, I do not speak with confidence. But the natural meaning of the words of sub-sec. (5) is that

the Governor in Council can dismiss “ it' any sucli charges are admitted ”—that is to say, if there be, at the time of the exercise of the power by the Governor in Council, no dispute between the accused and his superiors as to the fact of the commission of the monwealth.offence. Here there was such a dispute. On the 21st December

1905 the officer admitted the offence. On the same date the Chief Officer recommended his dismissal; on the 23rd December 1905 the officer withdrew his admission, and on the 23rd January 1906 the Governor in Council purported to dismiss him. We are not informed of the nature of the offence, or of the circumstances under which the admission was withdrawn. But it is quite con­ ceivable that a man may admit the charge under a mistaken impression as to its full significance, or as to the duty' imposed upon him by the regulations ; and I do not know of any principle of law which should preclude him from withdrawing an admission before it has been acted upon. A man may withdraw an offer before it has been accepted. By leave of the Court a prisoner may withdraw his plea of not guilty, or a party to an action may withdraw an admission of facts. There is no machinery provided in the Act to prevent the abuse of the power of withdrawal; for at the time of the admission of the offence the matter is still inchoate and remains within the bounds of the department. But it is obvious that the fact of previous admission would weigh heavily against the officer in the investigation. I am, therefore, of opinion that the issue of law raised by the demurrer to the defence (being paragraph 8 of the reply) and the question of law set out in paragraph (b) of the order made 8th March 1907 should be decided in favour of the plaintiff.

A subsequent application on behalf of the plaintiff for leave to

amend his reply was refused.

Demurrer overruled.

Judgment for defen­

dant with costs.

Solicitors, for plaintiff, Reynolds tfc Larkin, Melbourne.

Solicitor, for defendants, Powers, Commonwealth Crown

Solicitor.

B

L.