Manton v Williams (Nominal Defendant)

[1907] HCA 9

4 CLR 1046

(NOMINAL DEFENDANT), Public Service Act 1895 (N.S.W.) (59 Vict. No. 25), secs. 8, 11, 60 (2)-Officer's

services dispensed with by Public Service Board-Gratuity-Permanent and temporary officer.

Sec. 11 of the Public Service Act 1895 provides that if it appears to the April 11.

Public Service Board that a person employed in the Public Service has not been appointed by the Governor, the Board shall inquire into the character of his work and the time during which he has been employed, and if they determine that his work is in its nature permanent, and that his services should be retained, he is to be considered as having become a permanent officer from the commencement of the Act; and then makes provision for compensation to officers temporarily employed whose services are dispensed

The plaintiff who had been employed in the Public Service for a number of years, having been appointed from time to time to various offices, but not by the Governor, was dealt with by the Board, after inquiry, as an officer temporarily employed, and on his services being dispensed with, received the allowances provided for such officers by sec. 11. He brought an action claiming the allowances prescribed in the case of a permanent officer whose services have been dispensed with under the Act.

The Supreme Court having held that the plaintiff must fail, as it was for the Public Service Board to determine whether persons in his position were permanently or temporarily employed, the High Court refused to grant special leave to appeal from that decision on the ground that there was no

Special leave to appeal from the decision of the Supreme Court, Manton v. Williams, 24 N.S.W. W.N., 45, refused.

MOTION for special leave to appeal.

4 CLR 1047

This was an action by the plaintiff against the defendant as nominal defendant on behalf of the Government of New South Wales, in which the plaintiff claimed to be entitled to certain allowances, as a permanent officer in the Public Service within the meaning of the Public Service Act 1895, whose services had been dispensed with under the Act. The defendant pleaded inter alia that the plaintiff was not a person permanently employed in the Public Service within the meaning of the Act. A verdict was entered for the defendant by consent, and the Full Court discharged a rule nisi to set aside the verdict: Munton V. Williams 1.

The plaintiff now moved for special leave to appeal from that decision.

The facts sufficiently appear in the judgment of Griffith C.J. Brissenden, for the plaintiff, referred to Josephson v. Young 2.

GRIFFITH C.J. The plaintiff in this case seeks special leave to appeal from a decision of the Supreme Court of New South Wales. He was in 1874 appointed as a temporary officer in the Civil Service at daily pay. Afterwards in 1883 he was formally appointed to be Inspector of Conditional Purchases on the temporary staff. He remained in that employment until some time in 1896, when his services were dispensed with by the Public Service Board. He claims that under these circumstances he was a person permanently employed in the Public Service within the meaning of sec. 60 of the Public Service Act 1895, and therefore entitled to the rights conferred upon such persons when their services are dispensed with by the Public Service Board under the provisions of that Act. The Supreme Court were of opinion that his case came within sec. 11 of the Act, which provides that if it appears to the Board that a person actually employed in the Public Service at the commencement of the Act has not been appointed by the Governor, which is this case, the Board shall inquire into the character of the work performed by such person and the time during which he has been employed, and if they determine that his employment, work or duties are such as would be properly designated permanent, and

124 N.S.W. W.N., 45. 221 N.S.W.L.R., 188. 4 CLR 1048

that the services of such person should be retained, he is to be

considered as having become a permanent officer from the com- mencement of the Act without examination, notwithstanding that he was not appointed by the Governor. The Supreme Court were of opinion that the plaintiff was a person of that class. There is no doubt that he was a person not appointed by the Governor, which apparently is sufficient to bring him within the class dealt with in that section. But it is contended that he was nevertheless in fact a person permanently employed in the service. It is clear, however, that the legislature did not consider such persons as permanently employed, because they make special provision for their case, and say that, if the Board determine that their work or duties are such as should properly be designated as permanent, they shall be considered to have become permanent officers from the commencement of the Act. The section goes on to provide that officers temporarily employed at the commence- ment of the Act, whose services are dispensed with, shall be entitled to certain rights. The legislature therefore clearly divided public servants into two classes, namely, officers permanently employed, i.e. officers described by the Civil Service Act 1884, which is to be read with this Act, as persons in receipt of a permanent salary, and other persons described as officers tem- porarily employed. I can see no reason to doubt the correctness of the decision of the Supreme Court.

I should point out also that the Public Service Act 1895, by sec. 58, retained the power of the Crown to dispense with the services of any person employed in the Civil Service, subject to the express provisions of the Civil Service Act 1884.

I think, therefore, that the plaintiff has not shown that he is entitled to anything more than he has received, and that special leave should be refused.

BARTON and ISAACS JJ. concurred.

Special leave refused. Solicitor, for the plaintiff, H. R. Way.