Cosway v Commonwealth

The plaintiff, Thomas Mark Cosway, a former employee of the State of Victoria, brought an action against the Commonwealth of Australia. Cosway claimed that his rights were impaired when, after being appointed to the Commonwealth Public Service following the Commonwealth's acquisition of the Williamstown dockyard, his status and remuneration were reduced. He sought to enforce these claimed rights under section 84 of the Constitution, section 60 of the Commonwealth Public Service Act 1902-1918, and section 45 of the Commonwealth Public Service Act 1922-1939, as well as an alleged condition in the agreement for the acquisition of the dockyard. The case was heard by McTiernan J.

The court was required to determine whether Cosway had a right of action under the specified constitutional and legislative provisions, and whether the Commonwealth had breached any condition of the dockyard acquisition agreement or made any representations that were subsequently departed from. Specifically, the court needed to ascertain if Cosway's transfer from his position as blacksmith foreman in the Commonwealth Public Service to a blacksmith role, with a consequent reduction in salary and status, was unlawful or in breach of any protected rights. The court also considered whether the transfer itself was authorised under section 20 of the Commonwealth Public Service Act.

McTiernan J. found that section 84 of the Constitution did not apply because the Williamstown dockyard was acquired by purchase, not by the transfer of a department, and Cosway was not in the State service at the establishment of the Commonwealth. Similarly, section 60 of the Commonwealth Public Service Act 1902-1918 was deemed inapplicable as the Act did not provide for the transfer of officers from State to Commonwealth service in the manner Cosway's employment was managed; he had resigned from the State service before being appointed to the Commonwealth service. Section 45 of the Commonwealth Public Service Act 1922-1939 was also found not to apply as Cosway was not transferred to the Commonwealth Public Service. The court also held that there was no evidence of any breach of a condition in the acquisition agreement or any departure from representations made by an authorised Commonwealth representative. The allegation that the transfer under section 20 of the Commonwealth Public Service Act was unauthorised was also dismissed.

Consequently, the action brought by the plaintiff was dismissed with costs.