Cross v Commonwealth - [1921] HCA 9

THE COMMONWEALTH Defence-Military Forces-Officer-Cancellation of commission-Action against

Commonwealth-Right to show cause against cancellation-Mandatory or directory provision-Sufficiency of notice-Defence - Act 1903-1918 (No. 20 of 1903-No. 47 of 1918), sec. 16.

Sec. 16 of the Defence Act 1903-1918 provides that " Officers shall hold their appointments during the pleasure of the Governor-General, but the commis- sion of an officer shall not be cancelled without the holder thereof being notified in writing of any complaint or charge made and of any action proposed to be taken against him, nor without his being called upon to show cause in relation

Held, that it is a sufficient compliance with the provision in that section that the officer shall be called on to show cause if the officer is in the first instance afforded an opportunity of stating in writing or verbally any reason why his

Held. also, that the provisions of that section which are introduced by the word " but are directory only, and do not constitute conditions precedent to the exercise by the Governor-General of the right to cancel a commission.

A Court of Inquiry under the Defence Act having been held to inquire into an accusation against the plaintiff, an officer of the Commonwealth Military Forces, a letter was written to and received by the plaintiff informing him that the Court of Inquiry had found the offence charged to have been proved, and that the Adjutant-General had issued instructions that he, the plaintiff, was to be called upon to show cause under sec. 16 of the Defence Act why his commission should not be cancelled. The letter went on to clearly define the offence charged, and stated that the matter was to be treated as urgent.

Held, that the letter was a sufficient compliance with the provision in sec. 16 of the Act that the officer should be called upon to show cause in relation to the charge.

29 CLR 220

H. HEARING of points of law.

An action was brought by Algernon Reginald Pegus Cross against the Commonwealth, the pleadings in which are sufficiently stated in the judgment hereunder.

An application was now made to dispose of the points of law raised in pars. 7 and 8 of the defence, and was heard by Knox C.J. The matter was argued as a demurrer to the whole statement of claim.

Evatt, for the plaintiff. E. M. Mitchell and Bowie Wilson, for the defendant. [During argument reference was made to Shenton v. Smith 1 Ryder v. Foley 2; Gould v. Stuart 3; Davis v. Spence 4: Mason v. Bolton's Library 5; Williamson v. The Commonwealth 6; Sydney Corporation v. Harris 7; Vestry of St. James, Clerken- well, v. Feary 8; Defence Act 1903-1918, secs. 13. 16, 44, 109.]

Cur. adv. vult.

KNOX C.J. read the following judgment :-This was an applica- tion to dispose of the points of law raised in pars. 7 and 8 of the statement of defence in this…

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 Cross v Commonwealth

Details

AGLC: Cross v Commonwealth [1921] HCA 9
Case: [1921] HCA 9
Decision Date: 30 March 1921

CaseChat Overview and Summary

This case concerned an action brought by Algernon Reginald Pegus Cross against the Commonwealth of Australia. Mr. Cross, an officer in the Commonwealth Military Forces, sought a declaration that his commission had not been validly cancelled and claimed salary or damages. The dispute arose from the cancellation of his commission following a Court of Inquiry that found he had written an article deemed subversive to discipline. The matter was heard by Knox C.J. on points of law raised in the defence, argued as a demurrer to the statement of claim.

The central legal issues before the court were whether the notice provided to Mr. Cross was a sufficient compliance with section 16 of the Defence Act 1903-1918, which stipulated that an officer's commission should not be cancelled without the holder being notified of any complaint or charge and being called upon to show cause. Additionally, the court had to determine whether the provisions within section 16, introduced by the word "but," were mandatory or merely directory, and if their non-observance would invalidate the cancellation or give rise to a cause of action for damages.

Knox C.J. held that the letter dated 28th January 1919, informing Mr. Cross that he was to be called upon to show cause why his commission should not be cancelled and clearly defining the offence, constituted a sufficient compliance with the requirement to be "called upon to show cause." The Chief Justice reasoned that the officer needed only an opportunity to state reasons in writing or verbally against cancellation, which Mr. Cross had availed himself of in his subsequent reply. Furthermore, the court determined that the provisions in section 16 introduced by "but" were directory only and not conditions precedent to the Governor-General's power to cancel a commission. Consequently, failure to strictly adhere to these provisions did not invalidate the cancellation or create a right to damages.

The action was dismissed, and judgment was entered for the defendant, the Commonwealth, with costs.

Orders