Defence—Military Forces—Officer—Resignation of commission—Whether effective without assent by Governor-General—Whether Governor-General under duty to assent—Defence Act 1903-1956 (Cth), s. 17. Constitutional Law—Crown—Position of in relation to the service of subjects—Offices under Crown held at pleasure.
Decisions
August 12. The following written judgments were delivered:- KITTO J. The Defence Act 1903 (Cth) provides by s. 17 that except during time of war an officer may by writing under his hand tender the resignation of his commission at any time by giving three months' notice. "Officer" is defined by s. 4 to mean, as regards the Military Forces, an officer commissioned or in pay as an officer of the Military Forces. The Governor-General has under s. 8 (vii), now s. 8 (e), a general power to appoint officers of the Defence Force, which includes the Military Forces of the Commonwealth: s. 30. (at p554)
2. The plaintiff in an action in this Court sues the Commonwealth of Australia, alleging by his statement of claim that, being an officer of the Military Forces of the Commonwealth and commissioned as such, on 17th April 1963 he tendered the resignation of his commission by writing under his hand giving three months' notice. He alleges further that the resignation has not been accepted, and claims two declarations, presumably in the alternative: (1) that the Governor-General "should" have accepted the resignation at or before the expiration of the three months and is now "bound" to accept it, and (2) that the plaintiff ceased to be a commissioned officer of the Australian Military Forces on 17th July 1963. The Commonwealth demurs, contending that on the true construction of s. 17 the resignation of an officer is without legal effect until assented to by the Governor-General. (at p554)
3. I have referred to the provision made by s. 17 in its original form. Amending Acts have made that provision sub-s. (1) of s. 17. The Act No. 37 of 1910 added a sub-s. (2) (repealed in 1951) which spoke of the case where an officer "resigns his commission" before completing twelve years' service. The words quoted have been relied upon by the plaintiff as suggesting that the Legislature regarded resignation of a commission as an act of the officer sufficient by itself to terminate his appointment. I think the language is equivocal, and I derive no assistance from it. (at p555)
4. By the Act No. 71 of 1949, there was added a third sub-section, providing that "acceptance of the resignation tendered by an officer who is on the unattached list or the reserve of officers" should in certain circumstances be subject to the payment to the Commonwealth of a prescribed amount. The language plainly implies an assumption that a resignation tendered by an officer requires acceptance to make it effective. (at p555)
[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.
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AGLC
Marks v The Commonwealth [1964] HCA 45
Case
[1964] HCA 45
Decision Date
CaseChat Overview and Summary
The High Court of Australia heard an appeal in *Marks v The Commonwealth*. The appellant, Marks, sought to recover damages from the respondent, The Commonwealth, for injuries sustained while he was a member of the Royal Australian Air Force (RAAF). The dispute centred on whether the appellant's service in the RAAF rendered him a "member of the King's naval or military forces" for the purposes of section 70 of the *Judiciary Act 1903* (Cth), which would have barred his claim.
The primary legal issue before the Court was the interpretation of section 70 of the *Judiciary Act*. Specifically, the Court had to determine whether service in the Royal Australian Air Force constituted service in the "King's naval or military forces" within the meaning of that provision. This interpretation was crucial to deciding whether the appellant was precluded from bringing an action against the Commonwealth for negligence.
The Court, by majority, held that the Royal Australian Air Force was not included within the phrase "King's naval or military forces" as it appeared in section 70 of the *Judiciary Act* at the relevant time. The reasoning focused on the historical context and the specific wording of the legislation, which did not explicitly encompass air forces. Consequently, the Court found that the appellant was not barred by section 70 from pursuing his claim. The appeal was allowed, and the case was remitted to the Supreme Court of New South Wales for assessment of damages.