without proper inquiry-Justices Act 1902 (N.S. W.) (No. 27 of 1902), sec. 146 - Weights and Measures Act (N.S.W.) (16 Vict. No. 34), sec. 7, Consolidated SYDNEY,

No. 19 of 1898)-Inspector of weights and measures-Public officer-Tenure Aug. 2, 3, 9.

of office - Removal by Justices-Constitution Act 1902 (N.S.W.) (No. 32 of 1902), sec. 47-Audit Act 1902 (N.S. W.) (No. 26 of 1902), sec. 22.

By the Weights and Measures Act (N.S.W.), 16 Vict. No. 34, (Consolidated in 1898, Act No. 19), the Justices in Petty Sessions were directed (sec. 7) to appoint in their respective districts inspectors of weights and measures, who were to be entitled to fees according to the scale in the Schedule. There was no provision in the Act for the removal of an inspector from his office.

Held, (following M'Mahon v. Lennard, 6 H.L.C., 970 Darley v. The Queen, 12 Cl. &F., 520; and The Queen v. Guardians of St. Martin-in-the- Fields, 17 Q.B., 149; 20 L.J.Q.B., 423); that the office of inspector under the Act was a freehold public office tenable during life or good behaviour.

Held, further, that an inspector was not liable to dismissal at the pleasure of the Governor in Council as the holder of a public office under the Govern- ment within the meaning of sec. 47 of the New South Wales Constitution Act 1902, but could only be removed from office by the justices in Petty Sessions by whom he had been appointed, and not at their pleasure, but for good cause, and after being called upon to show cause against his removal.

Ex parte Everingham, 9 S.C.R. (N.S.W.) 250, and Ex parte Duggan, 4 N.S.W. L.R. 332, approved.

The provisions of sec. 22 of the Audit Act 1902 declaring persons who are charged by law with the duty of collecting fees or who actually collect public

9 CLR 141

moneys, and persons employed in any branch of the public service who receive fees under any statutory or other authority, to be accounting officers, and the fees collected to be public moneys, do not apply to inspectors appointed under the Weights and Measures Act, and, even if they applied to them, would not affect the tenure of their office.

Certiorari will lie to bring up an order made by justices in Petty Sessions in the exercise of their power of removal. It is not taken away by sec. 146 of the Jusices Act 1902 that section does not apply to orders made by justices in the exercise of jurisdiction independent of the Act.

The appellant was inspector of weights and measures under the Act 16 Vict. No. 34. During his term of office a Royal Commission inquired into the administration of his department, and recommended its complete re- organization. The appellant was called upon to show cause before the justices in Petty Sessions why…

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 Evans v Donaldson

Details

AGLC: Evans v Donaldson [1909] HCA 46
Case: [1909] HCA 46
Decision Date: 9 August 1909

CaseChat Overview and Summary

The case of Evans v Donaldson concerned an appeal from the Supreme Court of New South Wales regarding an order removing the appellant, an inspector of weights and measures, from his office. The appellant had been appointed by justices in Petty Sessions under the Weights and Measures Act. The dispute arose when the justices, acting upon instructions from the Government and the findings of a Royal Commission, ordered the appellant's removal without conducting a thorough inquiry into the charges against him. The appellant sought a writ of certiorari to quash this order.

The legal issues before the court were whether the office of inspector of weights and measures was a freehold public office tenable during good behaviour, and thus not subject to dismissal at pleasure. The court also had to determine if the appellant was a public officer within the meaning of section 47 of the Constitution Act 1902, and if the Audit Act 1902 applied to his position. Furthermore, the court considered whether certiorari would lie to review the order of removal, particularly in light of section 146 of the Justices Act 1902, and whether the justices had properly exercised their discretion or had instead acted as mere instruments of the Government.

The court reasoned that the office of inspector of weights and measures was a freehold public office, tenable for life or good behaviour, and not an office held at the pleasure of the Crown or the Governor in Council. It followed established legal principles from cases such as *M'Mahon v. Lennard* and *Darley v. The Queen*, which affirmed that such public offices could only be removed for good cause after an opportunity to be heard. The court found that the *Audit Act 1902* did not apply to the fees collected by the inspector, and that the acceptance of a salary did not alter the tenure of his office. The court also held that certiorari would lie to review the order, as it was not a purely ministerial act but involved a determination of a judicial nature, and that section 146 of the *Justices Act 1902* did not preclude such review in this instance.

The court concluded that the order of removal was substantially a dismissal by the Government, not a genuine exercise of discretion by the justices. The justices had failed to conduct a proper inquiry and had acted on instructions from the Government, thereby denying the appellant natural justice. Consequently, the court granted the writ of certiorari, quashing the order of removal. The decision of the Supreme Court was reversed.

Orders