Hunkin v Siebert

This case concerned an appeal to the High Court of Australia from a decision of the Supreme Court of South Australia. The respondent, Joseph Augustine Siebert, a public servant, was suspended from his duties on 5 March 1932, following his arrest on a charge of larceny. He was subsequently acquitted of this charge and other related charges. Despite his acquittal, he was dismissed from the Public Service by order of the Governor in Council on 14 December 1932, with the dismissal purporting to take effect from the date of his initial suspension. During the period of suspension, Mr. Siebert received no salary.

The central legal issue before the High Court was whether Mr. Siebert was entitled to his salary during the period of his suspension. The appellant, the Nominal Defendant representing the Crown, argued that the Crown's power to dismiss a public servant, as reserved by section 60 of the Public Service Act 1916 (SA), implicitly included the power to suspend, and that suspension necessarily entailed the cessation of salary. The respondent contended that the Public Service Act 1916 exclusively governed the occasions and methods of suspension, and that the common law power of the Crown to dismiss did not carry with it an inherent power to suspend without pay.

The High Court, affirming the decision of the Supreme Court of South Australia, held that Mr. Siebert was entitled to his salary during the period of suspension. The Court reasoned that while the Crown possessed a common law power of suspension, the Public Service Act 1916, particularly sections 53 and 54, provided an exhaustive framework for dealing with charges against officers and their temporary suspension. The Court found that the reservation of the power to dismiss under section 60 did not, by implication, reserve a power to suspend without salary, as suspension and dismissal were distinct legal concepts. Furthermore, the Court noted that the power of dismissal could be effectively exercised without preliminary suspension, and therefore the maxim *quando lex aliquid concedit concedere videtur et illud sine quo res ipsa valere non potest* did not apply to support the Crown's argument.

Consequently, the High Court dismissed the appeal with costs, upholding the respondent's entitlement to salary for the period of his suspension.