Stockwell v Ryder

[1906] HCA 59

4 C.L.ll.J OF AUSTRALIA.

409

[HIGH COURT OF AUSTRALIA.]

STOCK WELL

A p p e l l a n t ;

P l a in t if f ,

RYDER .

R e s p o n d e n t .

D e f e n d a n t ,

ON APPEAL FROM THE SUPREME COURT OF

QUEENSLAND.

Public servant— Wrongful dismissal—Enforced resignation—Charge— Vagueness—

H. C. OF A.

Inquiry by Board—Unfairness—Action by Governor in Council—Neglect of

1906.

duty—Maladministration—Public Service Act 1896 (Queensland) (60 Viet.

No. 15), secs. 40, 41, 42.B r i.shane,

Oci. 1, 2, 3.

The Public Service Act 1896 (Queen.sland), secs. 40-42, provides that an officer ill the Government service shall only be dismissed in the manner

Griffith C.J.,

provided by the Act, which is as follows :—The Minister or permanent head Barton and

of his department may suspend him ; the Public Service Board then hohl,

O’Connor JJ.

either by themselves or some person appointed by them for the purpose, an imjuiry into the charge made against him, and report to the Governor in Council, who may take such action as is prescribed by the Act.

The plaintiff sued the Government for wrongful dismissal, alleging that no proper inquiry had been held, because the charges made against him were not sufficiently specidc ; that detailed particulars of the charges were refused until some time after the opening of the inquirj’ ; that he was refused access to witnesses and documents until after the inquiry began, and was otherwise harassed in the conduct of his defence ; and that the Home Secretary, his departmental head by whom he had been suspended, sat as a member of the Public Service Board to consider the evidence taken by the person appointed to hold the inquiry, thus sitting as a judge in his own cause. Plaintiff recovered a verdict from the Government, which was set aside by the Full Court.

Held : In making a formal charge against an officer, for the purposes of an inquiry, it is not necessary at the outset to use more particxdarity than is prescribed by the Act. I t is sufficient for the validity of the inquiry under

470 HIGH COURT

[1906.

H. C. OF A.

the Act if the officer charged is made acquainted with the particulars of the

1906.cliarge in time to afford him a fair opportunitj' of meeting it.

Principles laid down in Osi/ood v. ydnou, L.R. 5H .L ., 636, and in Leeson Sec. 42 of the Public Service Act 1896 provides that an inquiry shall not be made by the person by whom the officer was suspended, or by whom the charge was made.

StOC’KWELT.,

V.  V. Central Council o f Medical Education and lleijistration, 43 Ch. 1)., 366,

R yder .applied.

Held, that such provision does not render the Alinister who has suspended the officer incapable afterwards of acting as a member of the Board to consider the evidence taken upon the charge.

Judgment of the Supreme Court, Stockwell v. Ryder, (1906) St. R. Qd., 274), affirmed.

A p p e a l from the Supreme Court of Queen.sland.

The plaintiff was a medical practitioner, employed in the Public Service of Queensland as medical superintendent of a large benevolent institution and hospital situated at Dunwich, on Stradboke Island, about thirty miles from Brisbane. A general departmental inquiry ŵ as held into the administration of the institution, and as a result of the report made by the board of imjuiry plaintiff was called on to resign his appointment as medical superintendent. He declined to do so, and demanded specific charges to be made and proved at a special inquiry under the Public Service Act 1896. The departmental Minister, the Home Secretary, suspended him pending the special imjuiry, which was immediately held at Dunwich before a magistrate appointed by the Public Service Board. The charges made were of “ neglect of duty ” and “ maladministration of the affairs of the Dunw'ich Benevolent Asylum these charges were notified to plaintiff, who objected to the lack of particularity in the charges, and also asked for access to all documents and reports connected with his administration of the institution since his appointnrent. He was refused access to the official records and forbidden to interview the officers or inmates at the institution. This prohibi­ tion was continued until a few hours after the imjuiry had been opened, in the case of witnesses, and some days latei- in the case of documents. An adjournment of the inquiry to Brisbane was refased; and the Board also refused to subprena some persons,

4 C.L.H.] OF AUSTRALIA.

471

including the Home Secretary, wliom tlie plaintitf desired to call

as witnesses at Dunwich ; the Board alone had power under the

^ 9 ^

Act to subpcena witnesses.

The magistrate reported the evidence Stockwell

V.

taken at the inquiry to the Public Service Board, which, under

R yd er .

the Public Service Act Amendment Act 1901, sec. 5, consisted of members of the Executive Council, including the Home Secretary himself. Tlie Board, after considering the evidence and Iiearing counsel on the plaintiff,s behalf, reported in favour of plaintiffs dismissal, and the Deputy Governor called on him to resign. He refused, and his enforced resignation was then gazetted. Plaintitf then brought an action against the Government for wrongful dismissal, the respondent being appointed nominal defendant. The Judge, upon the findings of the jury, directed judgment to be entered for the plaintitf for £2,212 10s.; this w'as set aside by the Full Court, and judgment was entered for the defendant; Stockv'dl V. Ryder (1). The plaintitf appealed to the High Court.

Stitnim and Wassell {Hobbs with them), for the appellant. Idle plaintitf was wrongfully dismissed. The inquiry was never a proper imjuiry within the meaning of the Puhlic Service Act

LS9(), under which alone he could be dismissed. No “charges” were

made against him as required by the A ct; he knew nothing of the charges he was called upon to meet. He was hampered and harassed by the Public Service Board in the preparation of his defence; and the inquiry was contrary to natural justice, because the Home Secretary, who was his departmental head, was his accuser, and also his judge as a member of the Public Service Board.

Under the Public Service Act 1890, sec. 40, an officer shall not be dismi.ssed from the service except in the manner prescribed by the Act; and under sec. 41, an officer charged with conduct showing untitness to continue in the service, or with incompetencj', or neglect of duty may be suspended by his departmental head pending an imjuiry, which, under sec. 42, shall be held by the Board into any charge made against him, when he shall be entitled to be heard personally or by his representative.

Plaintitf was never informed of any specilic “ charges.”

The

(1) (1906) St, K. Q(l., -274.

472 HIGH COURT

[1906.

H.C. OF A. cliarges made, upon which the iiKpiiiy is based, must state the

1906.specitic acts of “ incompetence” or “ neglect of duty ” or “ malad­

Stockwkj.i.

ministration otherwise there is no jurisdiction to hold an

r.

incjuiry.

No vague indefinite accusation can constitute a proper

R yder .

chaige : Beg. v. Mayor of Doncaster (1); Reg. v. Mayor of Don­ caster (2); Oa'peL v. Child (3); City of Exeter v. Glide (4). The statement of the charge merely repeats the words of sec. 41 ; that has been held an insufficient statement of the particulars of a charge. Sm ith v. Moody (5); In re P hillips’s C harity; Ex parte Newman (fi); I n re Fremington School; E x parte Ward (7); Saunders v. Jones (8); Fisher v. Jackson (9); Leeson v. General Council o f Medical Education and Registration (10); are further instances of insufficient charges.

[G r if f it h C.J.—You would make proceedings a t these de­

partmental inquiries inore strict than those held in the ordinary

Courts.

O ’C o n n o r J.—At what stage do you claim he need be in­ formed of the charge with particulars ? And can we inquire into the conduct of the procedure of this lower tribunal, as to the time when particulars were furnislied ?]

Tliis does not concern the procedure, but the jurisdiction, of the inquiry. I t is established that there is no natural justice unless tlie person accused is furnished with a definite charge stated in language clear enougli to let him know what he has to meet. Even in a police court you cannot charge a man with “ stealing the property of B.” Similarly before courts-m artial: Simmoiw on Courts-martial (pp. 161, 172-3), and committees of clubs: Fisher v. Keane (11). The facts in Osgood v. Nelson (12) are ditt'erent from this case, because there the plaintiff had expre.ssed himself satisfied with the statement of a charge of neglect of duty as set forth by his accuser. Under the Puhlic Service Act Am endm ent Act 1901, sec. 5, the members of tlie Executive Council were substituted for the Public Service Board. Thus the Home Secretary, who

(1) 2 Ld. Raym., 1564.(7) 10 Jur., 512.

(•2) Say, 37.(8) 7 Ch. D.,

4S5.

(3) 2 C. & J ., 558, at p. 572.(9) (1891) 2 Ch., 84.

(4) 4 Mod. Rep., 3:i.(10) 43 Ch. U., :166, at p. 388.

(5) (1903) 1 K.B., 50.(11) 11 Ch. 1)., 353.

(6) 9 Jar., 9.59.

(12) L.R. 5 H.L., 636.

4 C.L.U.] OF AUSTRALIA.

473

\va.s the plaintiffs accu.ser, directed the inquiry, appointed H. c. o f A.

the magistrate to take the evidence, and himself sat with

the Board to decide on the evidence taken, to recommend SiocKWEi-r,

V.

the plaintiffs dismissal, and to send on the report to himself as

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Home Secretary. No man may be Vjoth accuser and judge in his own catise. Further, even it the inquiry was a properly insti­ tuted inquiry, and even if the Home Secretary could act in a double character therein, the inquiry was unjustly and impro­ perly conducted. The Home Secretary, having control both of the inquiry and of the departmental records, refused to allow the plaintiff any particulars of the cliarges and any access to wit­ nesses or documents necessary to the preparation of his defence. He was unfairly harassed and impeded both before and during the in(|uiry. The evidence on this branch of his case amply warranted the findings of the jury in his favour, which should not be disturbed: HiU v. Zii/maek (1).

Feez {Lukin and Macleod with him), for the respondent, were not called upon.

G h if f it h C.J. Tills is an appeal from a decision of the Full Court, setting aside a verdict for the appellant in an action for wrongful dismis.sal brought by him against the Government; Stockwell V. Ryder (2). The defence is that in accordance with the provisions of tlie Public Service Act 1890 a charge was made against the plaintiff; that an im|uiry was held by the Public Service Board, and that, acting upon the recommendation of that Board, the Governor in Council awarded what is called the enforced resignation of the plaintitf, which is one of the forms of punishment enumerated in sec. 42 of the Act of 1896. Sec. 40 of that Act provides : “ An officer shall not be dismissed or suffer any detriment in respect of his office except in the manner set forth in this Act,” and sec. 41 provides : “ If an officer is charged with conduct showing his unfitness to continue in the service, or with incompetency, or neglect of duty, or with a breach of this Act or of the regulations, the Minister or permanent head of his depart­ ment may suspend him, pending an inquiry.” Sec. 42 provides that the Board shall inquire into the charge made against the

(1) 3 C.L.R., 726.

(2) (1906) St. R., Qd., 274.

VOE, IV.

.31

474 HIGH COURT

[1906.

H.C. OF A. officer, whether such officer is under suspension or not; tliat every

1906. such inquiry shall be made by the Board, or a member of the

StockwellBoard, or by some person appointed by the Board with the

V.

R yder.sanction of the Governor in Council for that purpose, and not

being the person by whom the officer was su.spended, or by whom

Giifflth C.J.

the charge was made against h im ; that the officer shall be entitled to be heard personally or by his representative a t the inqu iry ; that if the inquiry is not made by the Board col­ lectively the evidence shall be taken in writing, and shall be forwarded to the Board for consideration; that the Board shall transmit their report and recommendation, together witli the evidence to the M inister; and that upon the consideration of the x’eport and recommendation of the Board the Governor in Council may deal with the matter, and, among other things, may award enforced resignation. The essential conditions, therefore, of the award of this punishment—that is, the removal of an officer from the Public Service or from office—are that a charge shall have been made against him, that the charge shall have been inquired into by the Board, and that the Governor in Council shall have acted upon it.

I t is objected in this case, for the plaintiff, tha t although a charge was made against him, and although tha t charge was in fact inquired into by the Board, yet the finding of the Board was a nullity. Now, that proposition can only be supported on one of two grounds :—first, that there was no charge made within the meaning of the A c t; or secondly, that there was no inquiry within the meaning of the Act. The objection taken to the charge in the present case is that it was too vague. The objec­ tion to the validity of the inquiry is that it was unfairly con­ ducted—so unfairly conducted as to be contrary to the principles of natural justice, and, therefore, to be regarded as no inquiry at all.

On the first point, in my opinion, the question is concluded by authority. The charge was contained in a letter dated 15th February 1906, written by the secretary of the Public Service Board to the plaintiff in these words :—“ I have the honor by direc­ tion to inform you that the Public Service Board has delegated .Mr. Charles Augustus Mayne Morris, police magistrate, &c..

4 C.L.R.] OF AUSTRALIA.

475

Ipswich, to hold an inquiry into the following charges preferred H- C. of A.

against yon by the Hon. the Home Secretary—namely:—(1)

^

Neglect of duty, and (2) Maladministration of the affairs of the Stockwell

V.

Dunwich Benevolent Asylum.” The objection taken is that that

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charge was vague—that the charge ought to have contained specific

Grimth C.J.

details of the acts or omission.s intended to be relied upon as con­ stituting neglect, and of all the positive facts intended to be relied upon as constituting maladministration. I .should observe, perhaps, at this stage, that the office which the appellant held was that of medical superintendent of tlie Benevolent Asylum at Dunwich, an institution which contains considerably more than a thousand inmates, a great number of them olcl and infirm. He also had charge of the lazaretto, a leper hospital in the neighbour­ hood, and had other duties to perform.

The (juestion of the particularity required in the charge in an analogous proceeding was considered by the House of Lords in the case of Osgood v. Nelson (1). In that case the officer in question was an officer of the Corporation of the City of London, and he had been charged in general terms with neglect in the performance of his duty as Registrar of the Sheriffs’ Court. The case came before the House of Lords on appeal from the Court of Exchequer Chamber, and with respect to the point taken that the charge was insufficiently stated. Lord Colonsay made .some observations, which I will read (2):—“ Then it is said that the charge against him was too general in its character, it being merely that he had not performed his duties satisfactorily. I quite agree that if that had been the original charge against ]\Ir. Osgood, and if he was called before this tribunal upon an allegation that he had not properly discharged the duties of his office, he was entitled to ask, and to require, that he should be told in what respect it was supposed that he had not properlj^ discharged the duties of his office. But the matters in which it was said that he had neglected his duties, or that he had im­ properly performed them, were stated, to a certain extent, at the outset, and the rest were evolved in the course of the inquiry, and Mr. Osgood was afforded an opportunity of meeting them, and he did meet them. Whether he met them satisfactorily or

(1) L.R. 5 H.L., (i.-JC.

(2) L.R. 5 H.L., 63G, at p. 653.

476 HIGH COURT

[1906.

H.C. OF A. not is a different question.” Again, on the following page:—

1906.“ Now, if there had never been any specific statement, either

Stockwellmade by Mr. Aikinan or evolved in the course of the inquiry, I

V.

R ydek. should have thought that that finding of the Common Council

was very similar to what occurred in one of the cases which has

Griffith C.J.

been cited at the Bar, and that it would have been too vague for such a case. But when we see that there had been charges made, and matters particular!}^ evolved in the course of the inquiry, I think the general finding must be referred to those matters, and taken as being a general conclusion derived from the inquiiy into those matters.”

I think that that is a statement of the law applicable to such matters, as will appear from another authority, which I will refer to Indefly, though it deals with the matter from a slightly different point of view. But, apart from that, I am at a loss to see wh}' a Minister or an officer of the Government, exercising the power of suspension, and making a charge under sec. 41 of this Act, is required at the outset to use more particularity than the Statute has prescribed. If the result is that the person charged is not aware of the nature of the charge made against him, and has. therefore, no fair opportunity of defending himself, then it may well be that the inquiry would not have been a real imjuiry. Again, I cannot help regarding particulars of a charge of this sort as more in the nature of particulars in a pleading. Now, the charge being general neglect and malad­ ministration as ajjplied to an office sucli as the plaintiff held, it might be almost impossible, I must confess I should think it most unreasonable, at any rate, to require the Minister, when he exercises the power of su.spension, which is conferred in the same terms as the power to order an inquiry, to specify all the par­ ticular acts or omissions which induced him to take tha t course. On that point some observations by Baron M artin, who delivered the opinion of the Judges in the case of Osgood v. Nelson (1), are very relevant. He said :—“ As regards the cause alleged in the first place, it is said that Mr. Osgood was habitually absenting himself. I do not see how it can be stated otherwise than by .stating habitual non-attendance. How could habitual non-

(I) L.R. 5 H.L., 6.36, at p. 647.

4 C.L.R.]

OF AUSTRALIA.

attendance be proved, except by a man not performing Jiis duty, R- C. or A.

and not going from day to day to the duties that were imposed

1906.

upon him, and of course making excuses for his absence ?”

Stockwell

V.

I am, therefore, of opinion that the objection to the want of particularity in the formal charge fails.

R yder.

I will refer afterwards to

Griffith C.J.

the manner in which those charges were developed in the course of the inquiry. With respect to the conduct of the inquiry and what is necessaxy to be done to make an inquiry a valid one, it is sufficient to read the statement of the law made by Bowen L.J. in Leeson v. General Council o f Medical Education and Registration (1). In that case a medical gentleman had been removed from the regi.stiy in pursuance of a power to remove for what was called infamous conduct. One of the duties of the General Council was to regulate the registration of medical practitioners; and the 29th section of the Statute under which it was constituted provided :—“ If any registered medical practi­ tioner shall be convicted in England or Ireland of any felony or misdemeanour, or in Scotland of any crime or offence, or sliall after due inquiry be judged by the General Council to have been guilty of infamous conduct in any professional i‘e.spect, the General Council may, if tliey think fit, direct the registrar to erase the name of such medical practitioner from the register.” Bowen L.J. says;—“ These proceedings were in the nature of judicial proceedings, although the forum is a domestic one, and although the evidence taken before such forum differs in many respects from evidence which is adduced in a Court of Law, and in particular in the all-important respect that it is not given on oath. T'he only thing which the Courts can investigate when pi’oceediixgs of the General Medical Council of this character are brought before them is whether the domestic forum has acted honestly within its jurisdiction. The jurisdiction is defined by the Statute. There must be an iillegation before the General Medical Council of infamous conduct in some px’ofessional respect, and adjudication must be arx-ived txt after due inquiry. Tlie Statute says ixothing nxoi’e, but in saying so much it cer­ tainly imports that the substantial elements of naturiil justice must be foxxnd to have been present a t the inquiry. Thex'e must

(1) 4.3 Ch. D., 366, at p. .383.

478 HIGH COURT

[1906.

H. C. OF A. be due incjuiiy. The accused person must have notice of wliat

lie is accused. He must have an opportunity of being heard,

Stockwedl the decision must be honestly arrived at after he has liad a

V.

R yd er . full opportunity of being heard. W ith respect to the charge

made, the charge of which he has notice, it is a charge of

Griffith C.J.

infamous conduct in some professional respect, and the particulars which should be brought to his attention in order to enable him to meet tha t charge ought to be particulars of conduct which, if established, is capable of being viewed by honest persons as conduct which is infamous. That is all. We have seen that those conditions have been fulfilled by tlie imjuiry and by the tribunal which institutes it. The functions of the Court of Law are at an end. I t appears to me that we have no power to review the evidence any more tlian we have a power to say whether tlie tribunal came to the right conclusion. If, indeed, it could be shown that nothing was brought before the tribunal which would raise in the minds of honest persons the inference that infamous conduct had been established, that would go to show that the inquiry had not been a due im juiry; but if there is no blot of that kind upon the proceedings, the jurisdiction of the domestic tribunal which has been clothed by the legislature with the duty of discipline in respect of a great profession must be left untouched by Courts of Law.”

In mj ̂ opinion those doctrines are exactly applicable to the present case. I will proceed now to apply them to the facts of this case. The charge was made in the terms I have already stated. The inquiry was begun on 19th February by Mr. Morris, and plaintiff was represented by counsel. His counsel began by asking for certain documents, which were not produced then, but almo.st immediately afterwards. These documents having been put in evidence, further particulars were asked for, and after a short time—apparently on the same day—plaintiff was informed that the charges were of neglect of duty with respect to Regula­ tions 10,11,12 and 13, and maladministration. Those regulations are as follows :—

“ 10. He (the medical superintendent) will have the entire control and management of the asylum, subject to such directions as he may from time to time receive from the Colonial Secretary ;

4 C.L.R.] OF AUSTRALIA.

479

and will be held responsible for its due control and general H- C- A.

economy, and for the proper medical and general treatment of all

the inmates.

Stock wEi.L

V.

“ 11. He will be required to visit every part of the Institution daily, and the sick as often as necessary. He will inspect the

R yder.

Griffith C.J.

wards and dining-rooms from time to time, and see that the food

is properly cooked and according to the dietary scale allowed.

“ 12. He will be required to enforce the due observance of all the Regulations and By-laws respecting the personal cleanli­ ness of the inmates, the appointed hours for their meals and for their recreations, occupations, retiring to rest, rising and bathing, and also all By-laws respecting the cleanliness and proper venti­ lation of the wards, building, beds, and bedding.

“ I t is his duty to see that all inmates are employed according to their ability.

“ 18. He will be held responsible for the accurate keeping of the records relating to the admission and discharge of inmates, and the books of receipts, expenditure, and distribution of supplies.” Be.sides the information which he received by being told that he was charged with general neglect of those duties, for so I read tlie charge, there is another circumstance not at all immaterial. Shortly before this time a Departmental Committee had been appointed to inquire into the general administration of the Asylum, at which the plaintiff had been examined as a witness, and at which a great number of witne.sses were called, who gave evidence as to various alleged defects in the proper adminis­ tration of the institution. The chairman of that committee gave evidence at the trial of this case, and said that plaintift’ had been called to give evidence, and his (plaintiff’s) attention was called to any evidence which had been given, and which appeared to reflect on the administration of the institution. He says :—“ I read parts of the evidence of various witnesses. Dr. Stockwell then proceeded to give his explanation on the subject. He was called three different times. We sent in a report to the Fublic Service Board. I t was unanimous. Plaintifi' was called upon to resign . . . I called Dr. Stockwell’s attention to the expressed ignorance of the witnesses of their respective duties and responsibilities. I called his attention to the question of his

480 HIGH COURT

[1906.

H. C. OF A. visitations of the hospital wards.

I also drew his attention to

the case of the deceased Chinaman named Sam Lip. I also drew

Stockwei.i, his attention to the allegations as to intemperance on the part of

V.

R y d er . the ex-matron, also to the general cleanliness of the wards. I

also drew his attention to the ([uestion of the inspection of wards

Griffith C.J.

and messes, also to the manner in which he occupied his own time as superintendent, also to the ([uestion of the food supply, general and medical comforts. I also drew his attention to the question as to the manner in which the clinical records were kept and the medicine administered, also as to the classification of inmates, as to the duties of the various wardsnien, as to reporting of occurrences. I also called his attention to the question of enforcing cleanliness by bathing of the inmates, as to the various complaints made by the inmates of the lazarette, about visiting, as to the supply of meat, as to the keys of the dispensary, as to the enforcement of regulation 58 (examining parcels), as to the system under which extra rations were allowed to the inmates, as to the distribution of medical comforts, as to the dismissed dispenser, as to the clinical staff, as to question of the seniority of the various wardsmen, and the positions of the various officers of the institution, as to the provision for the storage of the supply of fish, as to the supply of rations to the men a t Peel Island. On all these points Dr. Stockwell gave evidence in response to invitation.” That was not contradicted. I t is quite clear, then, that plaintiff a t this time was aware that various complaints had been made in respect of these matters, and tha t they had been inquired into by a Board appointed by the Government. Moreover, it was proved that that Board having made its report, the Government had called upon him to resign, and that he had refused to do so. Thereupon he was suspended upon the charge of neglect of duty and mal­ administration now in question. Is it not a mockery to say that the plaintiff’ under those circumstances did not know what was the nature of the charge against him, even if he had received no further information ? So that, unless there is some technical rule of pleading applicable to proceedings under the Act which requires the Court to hold tha t a charge made in general terms under those circumstances is bad in law, tha t objection fails. I know of no such rule.

4 C.L.R.J OF AUSTRALIA.

481

The other point taken is that tlie inquiry was not a sufficient H- C. of a

1906.

and fair one, and one objection is that the plaintiff liad not specitic

information of the nature of the charge made against him. ell,

Stockwell

V.

to that, we have his own evidence. He said:—“I was present at the

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.second inquiry, and was repre.sented by counsel, and called wit­

Griffith C.J.

nesses. Mr. Morris was scrupulously fair on the whole. I had an opportunity of meeting all matters deposed to by witnes.ses against me. I gave evidence at length.” And in re-examination he said :— " I did not know what matters were to be brought up against me until the witness gave his evidence. Sometimes a new witness

would depose about some new matter.

I was not told the names

of any witnesses that would be called until they were called. I was never informed which part of the evidence against me was to form the basis of the charge.” I t is abundantly clear that he knew all the time the inquiry was going on exactly what was the chaige against him, and that he had an opportunity of meet­ ing it. Another point taken is that he was not allowed acce.ss to certain documents, or that he was not allowed access as soon as he wanted it, and that he was harassed in getting up his case. Suppose he was, unless the Board acted in such a ivay as to make the imjuiry a mere farce, and practically denied him substantial Justice, that would not be a ground justifying a Court of law in .saying that the im|uiry was a nullity. His legal rejiresentative —he had counsel at the imjuiry—after detailing these alleged hara.ssings, which, in my opinion, are of a somewhat trivial character, added :—“ I remember plaintiff’s counsel mentioning this matter to Mr. Morris, who was holding the imjuiry, and then an arrangement was made that I should inspect the documents in the pre.sence of Mr. M’̂ at.son, and after that there was no more trouble.”

So that the imjm'ry was shown to be brought clearly within the rule laid down by Bowen L.J., in Leeson s Case (1), and also within the rule laid down in almo.st similar terms in the Hou.se of Lords in the case of Osgood v. Nelson (2). Those being the facts,

what happened at the trial ?

The ju iy found a special verdict in

answer to specitic questions. The tix'st question was:—‘’(1) Was plaintiti at any time during or before the second inquiry charged

(1) 43 Ch. 1)., :166.

i'2) L.R. 5 H.L., 636.

482 HIGH COURT

[1906.

H. C. or A.

with or informed of—(a) Any specitic act or acts of neglect of

1906.duty on liis part ? (h) Any particular act or acts of inaladininis-

Stockwell

tratioii of the affairs of Dunwich Benevolent Asylum on his

V.

R ydek .part ? ”

Tlie jury answered the first part of that question in tlie nega­ tive. Either they did not understand the question, or the finding was absolutely contrary to the plaintiff’s own evidence, and no attention can be paid to it. I think that they could not have understood the question. The second branch of that question as to any particular acts of maladministration on his part thej' answered “ No.” Again, on the evidence it is clear that either the}’ did not understand the question or their finding was con­ trary to the evidence. I t is not an answer such as any reasonable men could give. I t was in the teeth of the evidence, because the evidence shows that all necessary information was given to him during the inquiiy.

Griffith C.J.

The second question was:—“ Was the plaintiff aware during the course of the second inquiry of the matters forming the basis of the charges of neglect and maladministration, and did he have an opportunity of meeting the same ?” and to that they answered “ No.” I t was shown by uncontradicted evidence that he knew before the inquiry was held what was the nature of the charges, and that he had full opportunity during the course of the inquiry to meet every one of them.

The third question was :—“ Did plaintiff have a full opportunity to meet and defend himself against the charges preferred against him ? ” The answer to that was “ No.” Again, unless the ju iy misunderstood tha t (question, they went in the teeth of the facts. I sujipose tliey referred to the suggestion tha t he was harassed by not getting some documents as soon as he wanted them, or not getting something that would be in the nature of legal particulars delivered in an action for negligence.

The next (question was ;—“ Was plaintiff prejudicially impeded by defendant in the jjreparation of his defence against the charges preferred against him ? ” The ju ry answered tha t question “ Yes,” and to the further inquiry—“ And if .so, how ? ” they found :—“ (a) By not being informed of any specific act or acts of neglect or maladministration, (b) By not being allowed access to official

4 C.L.R.] OF AUSTRALIA.

483

documents and not being allowed to interview officials or inmates,

H. C. OF A.

(c) By the inquiry being restricted to Dunwich and by documents

1906.

not being produced when required.”

Stock w ell

V.

I would remark that that cjuestion appears to assume that something that is called prejudicial impediment in the progress

R yder .

Griffith C.J.

of the inr^uiry would render the inquiry void. I t would not render it void unless the nature of the impediment was such as to amount to a substantial denial of justice. I have already dealt with head (a). The prejudicial impediment com­ plained of under head (h) was delay for a few days in getting information which the plaintiff said he wanted. There was no impediment at all except in the sense that he was not allowed access at the moment that he asked. One document he did not get, but it was a document that he was not entitled to receive, and, according to his evidence, he was apparently aware of its contents. As to head (c) it would be a singular thing, indeed, if it were held to be a substantial denial of justice, tliat tlie iii([uiry was held at Dunwich instead of Brisbane. Tliose findings of the jury are entirely unwarranted by the evidence. In my opinion there was absolutely no evidence to go to the jury, and the decision of the Full Court was quite right.

There is another point which was pressed strongly by j\Ir Stumim, namely, that the inquiry was unfair, because the Home Secretary, the Minister who suspended the plaintiff, was also a member of the Public Service Board who met to consider the report, that is to say, to consider the evidence taken by the Commissioner appointed to take it. The Board before thej’ came to a conclusion heard counsel for the plaintitf at great length, and gave him the fullest opportunity of adding anything that he desired, and after full consideration they made a I’eport and recommendation to the Governor, that the charge had been established. The objection taken is that the Home Secretary, being the officer who suspended the plaintiff, could not sit as a member of the Board to consider that report. I see nothing in the Statute to prohibit him. The Statute prohibits the officer, i.e., the permanent head of the department who suspends an officer, from being appointed to be the person to conduct the iji(|uiry, and there it stops. As to the suggestion that the

484 HIGH COURT

[1906.

H. C. OF A. Minister who has suspended tlte officer is incapable afterwards of

acting- as a member of the Board, of which he is by law a member,

Stock WKLLto consider the evidence taken upon the charge, I know of no

V.

principle of law to support it.

I t is not a question of a man

R ydkr.

being judge in his own cause, because the later Statute of 1!)01

Griffith C.J.

made the individual Ministers members of the Board, and it is the duty of the Home Secretary, as of other Ministers, to sit upon it. And the controver.sy is not between the Minister and the plaintitf; the controversy is between the employers of the plaintitf—the Crown—and the plaintitf. The Minister is one of the persons whose duty it is to consider whether the circum­ stances are such as to warrant his removal from the service. I t could not be for a moment contended that the Mini.ster who suspended the officer could not form a member of the Executive Council to deal with his dismis.sal. Why then, the additional duty of acting as a member of the Public Service Board being imposed by the Statute, should there be any such disability ? If there were anything in the argument, it is disposed of by the case of Leeson v. General Council o f Medical Education and Registration (I), to which I have referred. A precisely similar point was taken there, and it was overruled, but I should be sorry to think that without the authority of that case there could be anything in it. I t cannot be supposed for a moment that a doctrine of that sort applies to the administration of public affairs of a State by Ministers. I am of opinion, there­ fore, that the decision of the Supreme Court is i-ight, and that the appeal should be dismi.ssed.

B a r to n J. His Honor’s judgment has e.xpressed the substance of the views which I had formed during the argument, and under the circura.stances I dp not consider myself justified in adding

anything.

I think that the appeal should be dismissed.

O’Connor J. I am of the .same opinion, and I have very little to add. The defence of the Government in this case is that a charge was made against the idaintitf Vjy the Minister of his department of neglect of duty and maladmini.stration of the

(1) 43 Ch. ])., 366.

4 C.L.K.] OF AUSTRALIA.

485

affairs of tlie A.sa’Iutu of -w'hich lie was in cliarge; tliat the charge H. C. of a .

was inquired into duly by an Inquiry Board under the Public

Service Act, and action taken by the Government upon the report Stockwell

V.

and findings of the Board .so constituted. If the inquiry of the

R yd er .

Board is valid, that is a complete answer to the action, and the

O’Connor J.

([Uestion really for consideration is whether or not the inquiry was an inquiry within the meaning of the Act. Courts of law do not sit as Courts of Appeal from the decisions of this kind of tribunals—sometimes called domestic tribunals—appointed speciallj" for the consideration of matters entrusted to their care. One important object of the appointment of such tribunals is that their decision shall be final. Their imjuiries are to be conducted in the way which is most proper and conv^enient for arriving at a conclusion just and fair to all parties in the circumstances in which they are placed, and the law is not very exacting in its requirements as to their form of procedure. I t would be impos­ sible, considering their variety, and the different circumstances under which tliey have to act, to lay down any very definite rules as to wliat will, and what will not, in all such cases, constitute a due iiKpiiry. But tlie law lays down certain broad definite prin­ ciples for their guidance, and if the inquiry complies with those principles, a Court of justice cannot interfere with the decision. Those principles have been laid down very concisely by Bowen L.J. in Leeson’n Gase (1), referred to by my learned brother the Chief Justice. They are also stated in the case of Osgood v. JYelson (2) on the hearing in the Court below by Cockhnvn C.J. where His Lordship says:—“ Mr. Montague Chambers made several objections to the proceedings. In the first place, he said that there was no definite charge before the Coniinon Council upon which the plaintiff had been removed. No doubt the charge which eventually came before them was in general terms, viz., that the duties of registi’ar had not been properly discharged; and upon that they resolved that there was reason­ able caase for his dismissal. I agree that a charge in that vague character would not be such as justice requires; but if the plaintiff was made acquainted in the course of the inquiry with the heads of the accusation whicli were the foundation of the

(1) 4,’l Ch. 1)., .‘hJO.

(2) 10 B. & S., 119, at p. 163.

486 HIGH COURT

[1906.

H. C, OF A. general charge, that satisfies tlie rule that a

mail must know

what he is charged with in order to answer it.”That case went

.Stockwell

on appeal first of all to the Exchequer Chamber and afterwards

V.

R yd er .to the House of Lords. In the judgment of Kelly C.B. in the Exchequer Chamber, and this judgment was upheld in the House of

O’Connor J.

Lords, the learned Chief Baron says (1) :—“ I t is part and parcel of the law of England, and one of the first principles of public justice, that no man shall be convicted of any otience or of any misconduct whatever b}̂ any judicial body constituted by law without being heard in his defence. And if we had found in any stage of these proceedings, but above all before judgment was pronounced against the plaintiff, that he had been refused a hearing, or had not had a full, free, fair and ample hearing, and every opportunity to defend himself against the charges ])re- ferred against him, we should have been (juite ready to support that fundamental principle, and should have treated the pro­ ceedings as illegal and void. But there being nothing in the proceedings contrary to law or opposed to natural justice, we are all of opinion that it is not competent to us to review the decision of the Court of Common Council, and consequently the judgment of the Court of Queen’s Bench must be affirmed.” Applying these principles to the impiiry in this case, the prin­ cipal objection made by Mr. Stumm was as to the form of the charge. Now, the tribunal which is constituted to inquire into charges against a public servant arising out of his administration in a public department must take as the subject for their inve.stigation charges as they are made in the ordinary course of the administration of the department. The charge against an officer may be made by his immediate superior; it may be made in ver} ̂ full, pai’ticular term.s, it may be made in general term s; the form of it may be infinitely varied according to the circum­ stances, but the Court of inquiry or Board of inquiiy which is appointed under this Act, must deal with that charge whatever it is, and whatever its form may be. There is no doubt that before an impiiry is held there must be a definite charge again.st the officer, and that definite charge must be the subject of impiiry, whatever particulars may afterwards be furnished for

(1) 10 B. & S., 119, at p. 171.

4 C.L.R.] OF AUSTRALIA.

487

the information of the person charged.

But, it appears to me H. C. of A.

that, having regai'd to the nature of this tribunal and the

circumstances under whicli it carried on its deliberations, it was stockwell

V.

unnecessary that the charge should have been set out in the R Y r E K .

beginning with more particularity of form than that actually

O’Connor J.

used. Now, the charge here was contained in a telegram from the Minister in charge of the plaintiff’s department. I t is a telegram of 15th February 1906, and is in these w ords:—“ You are suspended for neglect of duty and maladministration of the affairs of Dunwich Benevolent Asylum pending an inquiry, which will be held a t Dunwich, Monday 19th in.st.” There can be no doubt that that was a (juite sufficiently definite charge for the in.stitution of the inquiry. The incidents and facts upon which that charge was based it was, of course, necessary to bring before the plaintiff I t was necessary also tliat he should have ev'ery opportunity of amswering it, and I think in the word.s used by Oockhiirn C.J., in the case of Osgood v. Nelson (1), that, if he was made acquainted in the course of the inquiry with the heads of the accusation and the foundation of the general charge, the specific rule, that a man must know what he is charged with in order to answer it, is complied with. I t is clear that during the inquiry, and very early in the impiiry, the plaintiff had every jjossible information, not only as to the general nature of the charges, but as to the incidents upon which those charges were founded, and had abundant opportunity of answering them. I do not intend to deal with the facts of the case, which have been very fully referred to by my learned brother the Chief JiLstice. All I think it nece.s.sary to .say about them is this: that the findings of the jury, in .so far as they are material, are entirely unju,stifled by the evidence. They are not only findings which reasonable men could not have come to upon the evidence, but they are findings which they could not arrive a t as a matter of law, and where findings are against the evidence, and are not supported by the law, they are certainly' immaterial. Under these circumstances I agree that there is nothing to shoAv that the tribunal in question did not comply with the requirements of substantial justice, both in its procedure and in its findings.

(1) 10 B. & S., 119.

488 HIGH COURT

[1906.

H.C. OF A. That being so, it is impossible for tliis Court to interfere witli

1906. those findings. As the findings stand, there was every justitica-

Stockw fi.l tion for tlie action which was taken by the Government. 1

therefore ao-ree that the appeal must be dismissed.

R ydek .

^

O’CoTinor J.

Appeal dismissed %viih costs.

Solicitors, for the appellant, Fuxton (t Hobbs.

Solicitor, for tlie respondent, Hellicar {Cro^vn Solicitor).

OvrrAmalffi-

Disc

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N. G. P.

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Fleming A

66

(1999)162

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ALR 248

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CLR^ lY#

[HIGH COURT o r AUSTRALIA.)

THE FEDERATED

AMALGAMATED

GOVERNMENT RAILWAY AND.

A p p e l l a n t s ;

TRAMWAY SERVICE ASSOCIATIOn J

AND

THE NEW SOUTH WALES RAILWAY [

R e s p o n d e n t .s .

TRAFFIC EMPLOYES

ASSOCIATION)

H. C. OF A. The Constitution (63 & 64 Viet., c. 12), ,sec.s. 51, 98, 101, 102, 104— Validity o f Com­

1906.                monwealth leyislation — Interference with State itistrnmentality — Limited power— ■ ulidity of Act yoiny heymid power—Slate railways — Reyulation of

Sydney , wayts and conditions o f employment—Jurisdiction o f President o f Common­

Avrj. 1.3, 20,

wealth Court o f Conciliation and Arbitration—Appeal from registrar—

Staling case—Commonwealth Conciliation amt Arbitration Act 1904 (Ho. 13

29, 30, 31.

of 1904), secs. 2, 4, 6, 17, 18, 19, 23, 24, 28-31, 40, 48.

M elbofbnk ,

The rule, laid down in D'Emden x. Pedder, 1 C.L.R., 91, at p. I l l , viz.,

Sept. 4,

7,

10, 11 , 12 ,that when a State attempts to give to its legLslative or executive authority an

13, 14.operation, which, if valid, would fetter, control, or interfere with the free

Sydney, exercise of the legislative or executive power of the Commonwealth, the

Dec. 17.attempt, unless expressly authorized by the Constitution, is to that extent

Griffith C.J., invalid and inoperative, is reciprocal. I t is equally true of attempted inter­

Barton and ference by the Commonwealth with State instrumentalities. The application

O'Connor JJ-of the rule is not limited to taxation.

See. 51 (xxxv.) of the Constitution does not either expressly or by necessary implication authorize such an attempt.