Commissioner for Railways (NSW) v Cavanough

The case involved Cecil Herman Cavanough, an officer employed by the Commissioner for Railways (NSW), who sued the Commissioner for unpaid salary. Cavanough had been summarily convicted of stealing an item valued at six shillings. Following this conviction, he was suspended from duty, and under section 80 of the Government Railways Act 1912 (NSW), he was deemed to have vacated his office. However, his conviction was subsequently set aside on appeal to Quarter Sessions, and he was reinstated. The dispute centred on whether Cavanough was entitled to salary for the period between his conviction and the setting aside of that conviction.

The High Court of Australia was required to determine two primary legal issues. Firstly, whether the summary conviction for stealing, under section 501 of the Crimes Act 1900 (NSW), constituted a conviction for a "felony" as contemplated by section 80 of the Government Railways Act 1912 (NSW). Secondly, the court had to consider the legal effect of a conviction being set aside on appeal, specifically whether it abrogated and obliterated the conviction entirely, thereby negating the consequence of vacating office.

The High Court, in a joint judgment, held that Cavanough was entitled to the unpaid salary. The reasoning was that when a conviction is set aside on appeal, it is avoided *ab initio*, meaning it is treated as if it never occurred. Consequently, Cavanough could not be deemed to have vacated his office under section 80 of the Government Railways Act 1912, as the prerequisite of a subsisting conviction for a felony was not met. The court noted that while the Supreme Court had reached a similar conclusion, it did so on the ground that the summary conviction was not for a felony, a point on which the High Court expressed no definitive agreement but indicated a different reasoning. The court emphasised that the reversal of a conviction means the individual is restored to their position as if they had never been charged.

The High Court varied the judgment of the Supreme Court by ordering that judgment be entered for the plaintiff on the demurrer to the defendant's second plea. Subject to this variation, the appeal was dismissed with costs.