Public Service (Cth)—Offences—Disciplinary code—Breaches—Distinguished from criminal offences—Chief Officer—Appeal Board—Not exercising judicial power of the Commonwealth—The Constitution (63 &64 Vict. c. 12), Chap. III—Public Service Act 1922-1960 (Cth), Pt III, Div. 6, s. 55.*

Decision

December 5.
The COURT delivered the following written judgment:-
This is the return of an order nisi for a writ of certiorari directed to the Chief Officer of the Department of the Army and to the Chairman and Members of the Appeal Board constituted pursuant to the provisions of s. 55 of the Public Service Act 1922-1960 (Cth). The tenor of the writ sought is to direct the respondents already mentioned to send to this Honourable Court (that is the High Court of Australia) his its and their proceedings upon certain decisions dated 21st May and 24th July 1963 respectively "with all things touching the same so that his Honourable Court may further cause to be done thereupon what of right shall seem to it to be done". (at p667)

2. The applicant, Mr. Keith Lawrence Byrnes, is an officer in the Third Division of the Commonwealth Public Service. He is employed as a lecturer in mathematics at the Royal Military College, Duntroon, Canberra, and is attached to the Department of the Army. The matter arises under s. 55 of the Public Service Act 1922-1960 and under reg. 58 of the Public Service Regulations. Regulation 58 provides that if the Chief Officer (see s. 26 of the Public Service Act 1922-1960) has reason to believe that an officer is in such a state of health as to render him a danger to his fellow officers or the public, he may require the officer to obtain and furnish a report as to his condition from a duly qualified medical practitioner, or may require him to submit himself for examination by a Commonwealth Medical Officer or medical practitioner named by the Chief Officer. Sub-regulation (2) relates to what may be the consequence. The applicant says that he attended two medical examinations at the instigation of the Chief Officer of the Department of the Army, namely, on 17th September 1962 and 11th April 1963. He says that he declined to attend a medical examination set by the Chief Officer for 9th May 1963 and for that, he says, the punishment consisting of a fine of 3 pounds for having disobeyed an order made under reg. 58 was inflicted upon him. He further says that he also declined to attend a medical examination set for 4th September 1963. He received a letter from the Secretary of the Department of the Army which said that following his medical examination of 11th April, the Department of Health has requested that arrangements be made for him to be further examined in order that a more detailed study can be made of the case.…

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 R v White; Ex parte

Details

AGLC: R v White; Ex parte [1963] HCA 58
Case: [1963] HCA 58
Decision Date: 5 December 1963

CaseChat Overview and Summary

The case of *R v White; Ex parte* concerned an application for a writ of prohibition brought by the applicant, White, against the respondent, the Commonwealth Court of Conciliation and Arbitration. The dispute arose from proceedings before the Commonwealth Court concerning an industrial dispute involving the applicant and the Australian Workers' Union.

The primary legal issue before the High Court was whether the Commonwealth Court had acted in excess of its jurisdiction in making a certain order. Specifically, the Court was required to determine whether the Commonwealth Court had the power to make an order for the payment of a sum of money as a penalty for a breach of an award, and whether such an order constituted a "conviction" for the purposes of s 73 of the Judiciary Act 1903 (Cth).

The High Court held that the Commonwealth Court had not acted in excess of its jurisdiction. Dixon C.J. and Kitto J. reasoned that the power to impose penalties for breaches of awards was an integral part of the arbitration system established by the Commonwealth Conciliation and Arbitration Act 1904 (Cth). They further held that an order for the payment of a penalty was not a "conviction" in the criminal sense, and therefore s 73 of the Judiciary Act did not apply to limit the appellate jurisdiction of the High Court in this instance. Taylor, Menzies and Windeyer JJ. concurred with this reasoning.

The application for a writ of prohibition was accordingly dismissed.

Orders