Evans v Donaldson

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.