Faithorn v Territory of Papua

The case of *Faithorn v Territory of Papua* involved a public servant, Barter William Faithorn, who was an assistant resident magistrate in the Territory of Papua. Faithorn was suspended by the Lieutenant-Governor, but this suspension was not approved by the Governor-General. Subsequently, the Lieutenant-Governor purported to reduce Faithorn in rank and salary under the Public Service Regulations. Faithorn initiated legal proceedings against the Territory of Papua, seeking a declaration that the order reducing his rank was invalid. Before the trial of this first action, the order was cancelled, and Faithorn was dismissed from his position by the Administrator of the Commonwealth, acting for the Governor-General, and then reappointed as a patrol officer at a reduced salary. Faithorn then commenced a second action, challenging the validity of this dismissal. Both actions were dismissed by the Central Court of the Territory of Papua.

The High Court was required to determine several legal issues. Firstly, it needed to ascertain whether the Lieutenant-Governor retained the power to reduce Faithorn in rank after his suspension had been disapproved by the Governor-General, and whether Faithorn was entitled to salary under regulation 53(8) of the Public Service Regulations in the interim. Secondly, the Court had to decide whether Faithorn was lawfully dismissed on 23 April 1938, considering that public servants in Papua held their offices during the pleasure of the Governor-General under section 17(1) of the Papua Act. Finally, the Court considered the appropriate defendant in such suits and the nature of the relief available.

A majority of the High Court (Rich, Dixon, and McTiernan JJ.) held that once Faithorn's suspension was disapproved, the Lieutenant-Governor had no power under regulation 53(14) to reduce him in rank. Consequently, up until his dismissal on 23 April 1938, Faithorn was entitled to his full salary under regulation 53(8), as his suspension had not been approved and no other punishment had been awarded. However, the Court unanimously found that Faithorn was lawfully dismissed on 23 April 1938, as he held his office during the pleasure of the Governor-General, and the regulations governing suspension did not provide otherwise within the meaning of section 17(1) of the Papua Act. The Court also affirmed that the Territory of Papua was the proper defendant and that a declaration of right was an appropriate remedy in the first action.