Taylor v Commonwealth

[1917] HCA 31

250 HIGH COURT

[1917.

[HIGH COURT OF AUSTRALIA.]

TAYLOR

P l .m ntiff ;

AND

THE COMMONWEALTH

D efendants.

H. C. O F A. Public Service (Commonwealth)—Offence by officer—Investigation—Reference to

1917.                 Board of Inquiry—Report—Penalty— Condition precedent—-Suspension of officer — Commonwealth Public Service Act I902-I9L5 (No. 5 of 1902—No. 37 o/1915),

M e l b o t j k n e ,

sec. 46.

Jwie, 26, 29.

AVhere an officer of the Public Service of the Commonwealth i.? charged with an offence under sec. 46 of the Commonwealth Public Service Act 1902-19L5, the charge may be referred to a Hoard of Inquiry under sub-sec. 4 of that section notwithstanding that the officer has not been suspended under sub-sec. 2 or further suspended under sub-sec. 4.

Isaacs J.

Williamson v. The Commonwealth, 5 C.L.R., 174, distinguished.

Therefore, where an officer charged with such an offence was permitted by the Chief Officer to continue in the performance of his duties pending the determination of the charge and voluntarily assented to so continue.

Held, that the subsequent proceedings and report of the Board of Inquiry in relation to the charge, and the consequent reduction of the officer in status and salary^ were not ultra vires.

H earing oe Ac t io n .

/

An action was brought in the High Court by William Taylor, an officer of the Public Service of the Commonwealth, against the Commonwealth, seeking a declaration that the proceedings and report of a Board of Inquiry, appointed under sec. 46 (4) of the Commonwealth Public Service Act 1902-1915, and the action of the Pubhc Service Commissioner thereon, were ultra vires and without authority, and that he was still a line inspector in the Department of the Postmaster-General at a salary of £228 a year.

23 C.L.R.]

OF AUSTRALIA.

The action was heard by Isaacs J., in whose judgment hereunder the material facts appear.

‘ ‘

T a y l o r

V.

S<;huU, for the plaintiff.

T h e

Co m m o n - \VE.\ETH.

klann, for the defendants.

Cur. adv. vidt.

hSAAC.s J. read the following judgm ent:—The plaintiff Wilham

June 20.

Taylor is an officer employed in the General Division of the Com­ monwealth Public Service. In November 191,5 he was a line inspector in the Postmaster-General’s Department receiving £228 a year. From 19th May 1915 to 7th July of that year he had been supervising the work of line construction between Footscray and Sunshine. On 8th November the Chief Officer, Melbourne, charged him with negligence or carelessness in the discharge of his duties in failing to see that the work was carried out in accordance with standard practice and that satisfactory progress was made. He wa.s not suspended, but all the rest of the procedure required by sec. 4G of the Commonwealth Public Service Act was followed. The Chief Officer at once, by letter of 8th November, gave him written notice of the charge, setting it out formally, and required him to forthwith state in writing whether he admitted or denied the truth of the charge, and to give any explanation in writing he might think fit as to the matter for the Chief Officer’s consideration. The letter added these words ; “ You will be permitted to continue in tlie performance of the discharge of your duties pending the deter­ mination of the chai'ge.” On 13th November the plaintiff replied by letter stating ; “ In reference to the charge made against me, I absolutely deny the charge and demand that a Hoard of Inquiry be appointed to investigate it, as all work carried out by me between the dates mentioned was by instructions received from the Assistant Engineer, Metropolitan Division.” On 7th January 191(1 the Chief Officer, having considered the ex])lanation, formally stated that the alleged offence “ is in my opinion of so serious a nature that an investigation thereof should be made by a Board of Inquiry,” and with the written approval of the Public Service Inspector

252 HIGH COURT

[1917.

H.C. OF A. appointed a Board of Inquiry, consisting of three persons named,

If*l7.	and referred the charge to tlie Board for investigation and rqiort.
T a y i.o r	On 12th January notification was given to tlie plaintiff. On 14th

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February and on several subsequent days the Board sat.

On 22nd

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Co m m o n ­

March a majority of the Board found the charge proved, the third member dissenting. On i l th May the Acting Public Service Com­

w e a l t h .

Isaacs .T.

missioner reduced the plaintiff in status and salary, by I'educing him to the position of line foreman at a salary of £210 per annum as from the date upon which he should take up that position.

On 9th October 1916 the plaintiff instituted these proceedings, in which he seeks a declaration by this Court that the proceedings of the Board, and its report, and the action of the Acting Public Service Commissioner were all ultra vires, and without authority, and that consequently the plaintiff is in law still a line inspector at the salary of £228 a year.

This claim is based on two grounds—one of law, and the other of fact.

The point of law is that as there was no suspension of the plaintiff there has been an absence of an indispensable condition stipulated by the Legislature in sec. 46. The objection of fact is that although the Chief Officer expressly stated he considered the matter serious enough for investigation by a Board of Inquiry, he really did not so consider it, either because he never gave the point any consideration but acted on the plaintiff’s own demand for a Board, or else he did consider it and came to the contrary conclusion when he permitted the plaintiff to continue his duties. The objec­ tion rests purely on suggestion without any evidence to support it, and is contrary to the express and responsible statement of the Chief Officer. Further it is quite consistent to think a charge sufficiently serious to require investigation by a Board, and yet not so serious as to demand the entire suspension from duty of the officer involved. I have no hesitation in finding this issue of fact against the plaintiff. That leaves the one point of law, namely, whether the simple absence of suspension entirely vitiates the whole proceedings. I t is true there is no issue of estoppel raised, nor have I to consider whether it could in any circumstances be successfully raised ; I there­ fore have not considered such a question. But the broad facts remain

23 C.L.R.] OF AUSTRALIA,

253

tliat tlie Chief Oflicev in making the charge intimated his permission

H. C. OF A.

1917.

to the plaintiff to continue his duties pending the determination

of the charge; that the plaintiff did continue his duties without

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V.

remonstrance, and did liimself demand a Board of Inquiry notwith­

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Co m m o n ­

standing that he was not suspended. No doubt, if the law requires

w e a l t h .

suspension in all cases, these facts do not cure the defect; but they

Isaacs J.

show that if his voluntary assent by conduct to continue his duties, added to the Chief Officer’s permission to so continue, would satisfy the law, then the law has been satisfied.

It was argued for the plaintiff that, notwithstanding the amend­ ing provision of 1911, there must still in all cases be a suspension of an officer as a condition to the investigation of a charge by a Board of Inquiry. On the other hand, it was contended for the Common- v/̂ ealtli that the Chief Officer may of his own volition, if he thinks the charge not so serious as to require suspension, dispense with sus­ pension altogether, and require the officer to continue his duties pending the determination of the charge, whether the officer be willing to do so or not.

'I’here is a middle course, which may be the true interpretation of the section as it now stands. On sec. 4G as originally framed, the

case of

illinmson v. The CommoniveuJth (1) was decided in 1907

by my learned brother Ilicjcjins. The judgment in that case pro­ ceeded oil the view' that, upon the true construction of the section as it then stood, suspension was an indispensable condition pre­ cedent to punishment. The learned Justice said (2) : “ It will be noticed that the whole machinery is made to hinge on an initial suspension of the officer.” From that point the procedure w'as traced down to its finality. So tl'e law stood for about four years, during which time no doubt the decision w'as observed in the course of administration. Then, when Parliament w'as in various directions amending the Act it took occasion by sec. 5 of Act No. 2(5 of 1911 to alter sec. ffi of the original Act. That alteration took the form of inserting as a proviso to sub-sec. 2 these words : “ Provided that where the Chief Officer is satisfied that the charge is not of such a serious nature as to require a suspension of the officer, he may permit

(I) ."i C.L.K., 174.

(2) 5 C.L.R., at p. 180.

254 HIGH COURT

[1917.

H. C. OF .A.

to continue in tlie performance of his duties pending the determination of the cliarge.” It is quite true, as learned counsel

T a y l o r

for the plaintiff has observed, that the proviso is inserted at the end

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T h e

of sub-sec. 2, which provided only for the “ temporary ” suspension

Co m m o n ­

w e a l t h .which ends with departmental action short of sending the case to a

Board. But that, though an element in construing the amendment,

Isaacs J-

is not the only element, or even the chief one.

The principal element

is the language of the I;egislature. The test in such a case as the present, where no question of legislative power arises, is “ What have they said ? ” not “ Where have they said it ■ ” And having regard to the words used by the Legislature, I am bound to reject the interpretation relied on by the plaintiff. The decision in Williamson's Case regarded “ suspension ” as an indispensable condition until the charge was finally disposed of one way or the other. Suspension was either “ temporary ” suspension or “ further ” suspension, but “ suspension ” in some form had to exist until the charge was determined. Now, when Parliament turned its atten­ tion to the subject in 1911 it manifestly treated the decision in Williamson’s Case as correct upon the law then existing, and it resolved to alter the law regarding suspension. It introduced the alteration at the earliest point b}̂ inserting the amendment at the end of sub-sec. 2, but it used language which carried on the altera­ tion to the termination of the proceedings. It has not used the expression “ temporary ” suspension but “ suspension,” which may include suspension all the way if the other words require i t ; and then it does use the widest words wheir it extends the continued per­ formance of duties down to “ the determination of the charge.” Reading those words in their natural sense (see R. v. Smith (1) and cases there cited) and without any qualifying context, and remember­ ing they are inserted in 1911 after Williamson s Case, I find it impossible to cut them down as the plaintiff suggests. That suggestion is to limit the words “ determination of the charge ” to the determination of the charge by the Chief Officer if he does in fact determine it. But that is iirserting words not found in the enactment. I t also admittedly refers to a “ determination ” not included in sub-sec. 2 and only found in sub-sec. 3, and yet it dechnes

(1) (1910) 1 K.B., 17, at p. 25.

23 C.L.R.] OF AUSTRALIA.

255

to go on and include the determination included in sub-secs. 1 and 5

H. C. OF A.

1917.

though these are just as consequential on sub-sec. 2 and just as ’

naturally referable to the phrase under consideration as is the

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V.

alternative!)' possible determination in sub-sec. 3. In addition,

T hk

Co m m o n -

if we are to act on the familiar principle of choosing as between two WEALTH.

possible constructions that which is more reasonable and con­

Isaacs J.

venient, the balance turns against the plaintiff’s view. I, therefore, reject his contention that the “ further suspemsion ” referred to in sub-sec. I is still always essential where a Board is appointed, not­ withstanding there may now be no initial suspension to which the suspension insisted on can be regarded as a “ further ” suspension. “ Determination of the charge ” at the end of sub-sec. 2 means any determination of the charge which may take place under any of the provisions which follow that sub-section. 1 consequently decide against the plaintiff’. Bnt 1 desire to add that I do not decide that the full argument pressed for the defendants is necessarily correct. 1 mean that I do not decide that point, because the facts are such that 1 am not called upon to decide whether the Chief Officer can force an accused officer to continue his duties against that officer’s will. As the law according to the case referred to .stood before 1911, neither side could separately, and both sides together were unable conjointly, to dispense with suspension. Parliament has now enabled the Chief Officer to “ permit ” the accused officer to continue in the performance of his duties; the law does not say the Chief Officer may “ compel ” or “ direct ” the officer to continue ; and it may be that Parliament has empowered the Chief Officer to consent on the part of the Commonwealth if he thinks no public injury will arise, leaving the officer himself to continue or not as he thinks he will or will not be benefited or injured by so doing.

As I have said, the facts of this case show the plaintiff assented voluntarily to continue his duties, and so, whichever wav it is, his ca.se is met. But 1 have thought it desirable to indicate the alter­ native view that is certainly possible, so as to prevent anv miscon­ ception as to the extent of my decision.

Judgment will be entered for the defendant.

I give no costs, because, though 1 determine the case against the

256 HIGH COURT

fl917.

H. C. OF A.

plaintiff, it cannot be said the matter was not bond fide open to argu­

1017..-^ment. Tire Commonwealtli, as the employer, is free to frame its

T a y l o r

regulations in its own way, and as in this case the provision might

V.

The

have been framed so as to exclude all possible doubt, and as this is a

(.’OMMON-

^VEALTH.ruling which enures for the benefit of the Commonwealth in cases

other than the present, I think justice will be met by leaving both

Isaacs J.

sides to bear their own costs.

Judfpnent for the defendants.

Solicitors for the plaintiff, Louqhretj & Douglas.

Foil

R V Weaver

0931145 Solicitor for the defendants, Gordon H. Castle, Crown Solicitor

CLR fcl

for the Commonwealth.

B. L.

[HIGH COURT OF AUSTRALIA.]

HJS MAJESTY THE KING . . .

Appellan t ;

.4ND

SNOW

R espondent.

ON Al’REAL FROM THE SUPREME COURT OF

SOUTH AUSTRALIA.

H.

C. OF A.

1917.

—'Trading %vUh the Enemy— Meaning at common law—Commercial intercourse—(Join-

munications upon busities.s matters— Trading with the Enemy Acts 1914 (rVo..

9 and No. 17 of 1914), secs. 2, 3—Imperial Proclamations of ~>th August 1914

May 28-31.

and t)th September, 1914.

M f.l u o u r n e ,

June 7.The term trading with the enemy " at common law and as used in the

llarton A.C.J.,

Trading with the Enemy Acts 1914 includes all commercial intercourse with the

leaac-ij,

enemj'.

Gavan Unify, Powers and Rich J.T.

The Panariellos, 84 L.J. P., 140; 85 L.J. P., 112, considered and followed.