Coffey v Commonwealth

[1968] HCA 35

HIGH COURT OF AUSTRALIA

Owen J.

COFFEY v. THE COMMONWEALTH

(1968) 118 CLR 347

18 June 1968

Statutes

Statutes—Interpretation—Power to make regulations—Validity of regulation—"Absence from duty"—Public Service Act 1920-1966 (Cth), ss. 55, 97;* Public Service Regulations (Cth), regs. 13, 14.*

Decision

June 18.
OWEN J. delivered the following written judgment:-
This is an action for wrongful dismissal brought by the plaintiff against the Commonwealth. (at p348)

2. The facts are that in 1959 the plaintiff became an officer in the Commonwealth Public Service and was employed as a clerk in the Department of the Interior in Brisbane. At all relevant times a Mr. Huxham, the Chief Property Officer of the Department in Queensland, was, by virtue of s. 26 (1) of the Public Service Act 1922-1967 (Cth), constituted a chief officer in relation to all officers of the Department of the Interior in Queensland with certain exceptions which are not material for present purposes. (at p348)

3. On two occasions in December 1965 the plaintiff was late in attending for duty and thus committed breaches of reg. 13 of the Public Service Regulations which provides (inter alia) that -

"An officer -

. . . (c) who commences duty after the time at which he is required to commence duty on any day . . .

(d) who ceases duty before the time until which he is required to perform duty on any day . . . . . .
(f) who is, during his hours of duty, absent from duty without the express permission of the Cheif Officer or the officer in charge; . . .
commits a breach of these Regulations."

This resulted in Mr. Huxham giving the plaintiff a notice in writing on 15th February 1966 in the following terms:

"In connexion with your late attendances for duty on 8.12.65 and 13.12.65, namely 14 minutes and 7 minutes respectively, you are hereby required to perform duty between 4.51 p.m. and 5.12 p.m. on 15.2.66 under Public Service reg. 14 (1). F. W. Huxham

Chief Property Officer." (at p349)

4. Regulation 14 (1), which is in Pt II, Div. I, of the Regulations, a Division headed "Attendance and Duties of Officers", provides that:

"Where an officer . . . is absent from duty and the period of absence is or was not authorized by or under the Act or these Regulations, the Chief Officer may require the officer

. . . to perform duty at a time when the officer would not otherwise be required to perform duty for a period equal to the period during which the officer was so absent from duty." (at p349)

5. The plaintiff did not comply with the instruction set out in the notice and on the same day instituted an appeal against it, under reg. 33 (1). (at p349)

6. Regulation 33 (1) provides that:

"If any officer considers he has grounds of complaint arising out of an official instruction, or from any other cause, he may appeal, in regard thereto, to the Chief Officer . . . but he shall nevertheless, as far as possible, carry out any instruction given him until it is countermanded by competent authority." (at p349)

7. The appeal came before the Chief Officer who, on 25th February 1966, disallowed it. (at p349)

8. On the same day he gave the plaintiff the following written notice:

"I hereby charge Ronald Francis Coffey of the Department of the Interior (Queensland Branch) . . . with the commission of an offence within the meaning of s. 55 (3) of the Public Service Act 1922-1966 namely: - That the said Ronald Francis Coffey on 15th February 1966 wilfully disobeyed a lawful order, namely that he was directed to perform duty at a time when he would not normally be required to perform duty for a period equal to a period for which he had been absent from duty without authority given by the Chief Property Officer, a person having authority to give the said order. Dated this 25th February 1966. (Sgd.) F. W. Huxham Chief Property Officer, Queensland Chief Officer." (at p349)

9. At the same time the plaintiff was given the following notice in writing: (at p349)

10. "TAKE NOTICE that you have been charged with the commission
of an offence under s. 55 of the Public Service Act
1922-1966 a copy of which charge is annexed hereto AND TAKE FURTHER NOTICE that in accordance with the said section I hereby require you to forthwith state, in writing, whether you admit or deny the truth of the charge and to give any explanation, in writing, you may think fit as to such offence for my consideration AND TAKE FURTHER NOTICE that pending the determination of the charge, you will be permitted to continue in the performance of your duties subject to any subsequent action which may be considered necessary as to your suspension. Dated this 25th February 1966.

(F. W. Huxham)

Chief Property Officer, Queensland Chief Officer." (at p350)

11. These two notices were given pursuant to s. 55 (3) (c) of the Public Service Act which, by sub-s. (1) (a) of that section, makes it an "offence" for an officer wilfully to disobey or disregard a lawful order given by any person having authority to give it. (at p350)

12. It is not clear from the evidence whether, in answer to the requirement in the second of these two notices, the plaintiff assented to or denied the truth of the charge or offered any explanation in writing, although it would seem that on 8th March 1966 when asked by Mr. Huxham if he had any explanation to offer, he replied that he had no intention of discussing the matter and was told that in the circumstances Mr. Huxham was left with no alternative but to recommend to the Public Service Board that he be dismissed. Following this conversation the plaintiff was given a written notice signed by Mr. Huxham stating that the charge of wilful disobedience of a lawful order had, in his opinion, been sustained and that under s. 55 (3) (d) of the Act he had recommended to the Public Service Board that the plaintiff be dismissed from the Service. (at p350)

13. The plaintiff thereupon appealed under s. 55 (3) to an Appeal Board and in April 1966 that Board confirmed Mr. Huxham's decision. Following upon this, the plaintiff was on 22nd April 1966 dismissed from the Public Service. (at p350)

14. These are, I think, all the relevant facts bearing upon the issue of unlawful dismissal. I should perhaps add that I allowed counsel for the defendant to cross-examine the plaintiff with a view to showing that the latter's record in the Public Service was not a good one. I allowed that cross-examination because, as part of his case on damages, the plaintiff claimed that had he not been dismissed and had continued to serve until he reached the age of retirement he would have been entitled to receive a substantial pension and long service leave benefits would have accrued to him. The evidence in question seemed to me to be relevant in considering whether or not it was likely that, had he not been dismissed in April 1966, his employment in the Public Service would have been long continued. (at p351)

15. The plaintiff's claim to have been wrongfully dismissed is based, in the first place, upon a submission that reg. 14 (1) is not within the regulation-making power contained in s. 97 (1) of the Act and that the direction given to the plaintiff by Mr. Huxham on 15th February 1966 was, for this reason, not a lawful order. Section 97 (1) empowers the Public Service Board, with the approval of the Governor-General, to -

". . . make regulations, not inconsistent with this Act, prescribing all matters which are required or permitted to be prescribed, or which are necessary or convenient to be prescribed, for carrying out or giving effect to this Act, and in particular for the following, namely: -

. . . (k) for regulating the duties and conduct of officers;

. . . (m) for regulating the hours of attendance of officers. . . " (at p351)

16. In support of the submission it was argued that reg. 14 (1) is a punitive provision designed to punish an officer who absents himself from duty. Attention was drawn to s. 55 (1) which creates a number of "offences", including the commission of any breach of the provisions of the Act or any regulations made thereunder and goes on to declare that an officer who is guilty of any such "offence" "shall be liable to such punishment as is determined upon under the provisions of this section". (at p351)

17. The plaintiff, it was conceded, had committed breaches of reg. 13 and had become liable to be punished under s. 55 but it was contended that, having regard to the words in that section which I have put in italics, a regulation providing for some other or additional form of punishment could not validly be made. In support of the submission reliance was placed upon a number of decisions of this Court which are collected in Shanahan v. Scott (1957) 96 CLR 245, at p 250 . (at p351)

18. I think the short answer to these arguments is that reg. 14 (1) is not a provision imposing punishment upon an officer who commits a breach of reg. 139 Its purpose is to enable a chief officer to require an officer who has, without authority, been absent from duty during a period when he should have been at work, to make up the time lost by such absence. Accordingly, I reject this submission. (at p351)

19. Next it was submitted that reg. 14 (1) had no application to a case such as the present one because it deals only with cases in which an officer "is absent from duty" and an officer who is late in commencing duty or who ceases duty before the time when he is required to work has expired is not "absent from duty" within the meaning of the regulation. I do not agree. An officer who arrives late for work or who leaves work before the prescribed finishing time is, in my opinion, properly described as being "absent from duty" during the period when he should have been but is not performing his duties just as is an officer who, having commenced work, absents himself from it for a period during his hours of duty. (at p352)

20. For these reasons the plaintiff's action fails and the defendant Commonwealth is entitled to judgment. (at p352)

Orders

Judgment for the defendant Commonwealth. Plaintiff to pay the defendant's costs.