Cross v Commonwealth

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.