Markham v Williams - [1913] HCA 65

17 CLR 418

of that account, and then the latter part was necessary to make a H. OF clear negative provision with respect to the Consolidated Revenue. That distinction was the evident raison d'étre of sec. 2 of the Act of 1903, No. 8, providing for payments out of the Consoli- dated Revenue, notwithstanding the prohibition in sec. 70, when- ever the Superannuation Account has become exhausted. See also sec. 6 of the later Act.

For these reasons I am of opinion the respondent's case has failed, and the appeal should be allowed.

The judgment of GAVAN DUFFY and RICH JJ. was read by

GAVAN DUFFY J. We agree with our brother Isaacs J. in the conclusion to which he has been led by an exhaustive analysis of the legislation in New South Wales with respect to the publie service, that the compulsory retirement of an officer under the provisions of sec. 66 (3) of the Public Service Act 1902 is not a dispensation with the services of such officer by the Board within the meaning of sec. 71 of the same Act, because it is the act of the Governor that causes the retirement, and not that of the Board. We desire to add for ourselves that, even if the act could be regarded as the act of the Board, the officer SO retired would not have his services dispensed with within the meaning of sec. 71 in view of the special provision made for such a case by sec. 67 (3).

Appeal allowed. Order appealed from dis-

charged. Both questions in the special case answered in the negative. Judg- ment entered for the defendant with costs. Appellant to pay costs of the appeal. Solicitor, for the appellant, J. v. Tillett, Crown Solicitor for New South Wales.

Solicitors, for the respondent, Stephen, Jaques &Stephen.

17 CLR 419

[ MARKHAM WILLIAMS

ON APPEAL FROM THE SUPREME COURT OF Public Service of New South Wales-Right to gratuity-Person whose services are

dispensed with by Public Service Board-Officer under control of Board of Health-Public Service Act 1902 (N.S.W.) (No. 31 of 1902), sec. 71- Sydney Abattoir Act 1850 (N. S. W.) (14 Vict. No. 36), sec. -Noxious Trades and Cattle-slaughtering Act 1894 (N.S. W.) (57 Vict. No. 21), sec. 16-Sydney Abattoir and Nuisances Prevention Act 1902 (N.S W.) (No. 37 of 1902), sec. 9.

By sec. 5 of the Sydney Abattoir Act 1850, the Governor was empowered to appoint, employ, and continue in office such clerks, inspectors and other officers and servants as might be necessary, and from time to time to remove and dismiss such officers and servants. By sec. 16 of the Noxious Trades and Cattle-slaughtering Act 1894 it was enacted that on the passing of the Act the Board of Health should have the control of the Sydney Abattoir and should be the authority for administering the Sydney Abattoir Act 1850, and that for that purpose the powers and authorities vested by the latter Act in the…

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 Markham v Williams

Details

AGLC: Markham v Williams [1913] HCA 65
Case: [1913] HCA 65
Decision Date: 12 December 1913

CaseChat Overview and Summary

This case involved an appeal to the High Court of Australia from a decision of the Supreme Court of New South Wales. The appellant, Patrick Markham, had sued the Government of New South Wales for a gratuity he claimed was owed to him under section 71(b) of the Public Service Act 1902. Markham asserted that he was permanently employed in the public service and that his services were dispensed with by the Public Service Board. The defendant argued that Markham was not permanently employed in the public service and, crucially, that his services were not dispensed with by the Public Service Board.

The central legal issue before the High Court was whether Markham's services were dispensed with by the Public Service Board within the meaning of section 71 of the Public Service Act 1902. This determination was essential for establishing his entitlement to the claimed gratuity. The court also considered, but did not ultimately decide, whether Markham was permanently employed in the public service.

The High Court, in allowing the appeal and dismissing Markham's claim, reasoned that the plaintiff's services were not dispensed with by the Public Service Board. The court noted that Markham had been appointed by the Governor under the Sydney Abattoir Act 1850 and, following the establishment of the Board of Health, had come under the control of its officers. While the Board of Health had purported to dispense with his services, this action was not considered to be an act of the Public Service Board for the purposes of section 71. Consequently, Markham failed to satisfy a necessary condition for claiming the gratuity.

The High Court ordered that the appeal be dismissed, the judgment of the Supreme Court be affirmed, and judgment be entered for the defendant with costs.

Orders