Watson v Collings - [1944] HCA 33

COLLINGS AND OTHERS

DEFENDANTS. Railways (Oth.)-Appointment of officer by Commissioner with approval of Governor-

General-Effect of withdrawal of approval after appointment-Formalities of contracts made by Commissioner-Commonwealth Railways Act 1917-1936 (No. 31 of 1917-No. 87 of 1936), SS. 24, 46, 51.

Section 24 2 of the Commonwealth Railways Act 1917-1936 provides that any contract which, if made between private persons, would by law require to be in writing and signed by the parties to be charged therewith may be made by the Commonwealth Railways Commissioner in writing in his corporate name and may be varied or discharged in the same manner. Section 46 provides that the Commissioner shall appoint persons to assist in the execution of the Act, and every person SO appointed shall hold office during pleasure only. Section 51 provides, inter alia, that the Commissioner shall not, without the sanction of the Governor-General, appoint any person to an office the salary of which is more than £500 per annum.

2that, once the Governor-General has given his sanction under S. 51 and an appointment has been made pursuant thereto, the Governor-General is functus officio, and no purported withdrawal of the sanction can remove from office a person who has once been validly appointed

70 CLR 52

TRIAL OF ACTION.

Henry Edward Watson sued Senator J. S. Collings (the Minister of State for the Interior), the Commonwealth Railways Commis- sioner (Mr. Gahan), and the Commonwealth of Australia, for a declaration that he had been duly appointed to the office of secretary of the Commonwealth Railways and for an injunction restraining the Minister and the Commissioner from appointing another person to that office.

The action was heard by Rich J., in whose judgment the relevant facts and statutory provisions are sufficiently set forth.

Adams, for the plaintiff. Sholl, for the defendants.

RICH J. delivered the following written judgment :- By the statement of claim in this action, which is brought against the Minister of State for the Interior, who administers the Common- wealth Railways Act 1917-1936, the Commonwealth Railways Com- missioner, and the Commonwealth, it is alleged that one Moyes occupied the office of secretary of the Commonwealth Railways, which is a permanent office under the Commonwealth Railways Act 1917-1936, that he died on 4th June 1943, and on 8th July the Commissioner (with the sanction of the Governor-General since the office carried a salary of more than £500 per annum) appointed the plaintiff to the office, and that the defendant, the Minister of State for the Interior, Senator J. S. Collings, on 19th July required the Commissioner to appoint one Harding to the office, and on 29th July procured the sanction of the Governor-General and the Execu- tive Council to the appointment of Harding, and threatens or intends to insist on the Commissioner SO appointing Harding, and unless restrained will attempt to procure or force him to do SO. The plaintiff claims a declaration that he has been duly appointed to the office and is entitled…

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.

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Details

Case: [1944] HCA 33
Decision Date: 24 November 1944

CaseChat Overview and Summary

In this matter before the High Court of Australia, Henry Edward Watson (the plaintiff) sought a declaration that he had been duly appointed to the office of secretary of the Commonwealth Railways and an injunction to prevent the Minister of State for the Interior, Senator J. S. Collings, and the Commonwealth Railways Commissioner from appointing another person to that position. The dispute arose after the plaintiff's appointment, sanctioned by the Governor-General, was purportedly withdrawn by the Minister, who then sought to have another individual appointed.

The court was required to determine several legal issues, including the validity of the plaintiff's appointment to an office with a salary exceeding £500 per annum, the effect of the Governor-General's sanction and its subsequent withdrawal, the Commissioner's power to appoint and dismiss officers under the Commonwealth Railways Act 1917-1936, and whether the plaintiff's appointment was rendered invalid due to procedural formalities or the nature of holding office at pleasure. The court also considered the Minister's authority to interfere with the Commissioner's appointment powers.

The court reasoned that the Commissioner, as a body corporate, had the sole power to appoint and employ persons under the Act, with the only limitation being the requirement for the Governor-General's sanction for appointments exceeding £500 per annum. It found that the plaintiff's appointment, having received the Governor-General's sanction and been made by the Commissioner, was valid, and that the subsequent purported withdrawal of sanction by the Governor-General was ineffective to remove a validly appointed officer. The court held that all appointments under the Act were held at the Commissioner's pleasure, and removal was a matter for the Commissioner alone, not the Minister or the Executive Council. The court also noted that the Minister's attempt to influence the Commissioner's evidence was improper.

The court declared that the plaintiff had been duly appointed to the office of secretary of the Commonwealth Railways and was entitled to hold that office during the Commissioner's pleasure. The defendants, Senator J. S. Collings and the Commonwealth of Australia, were ordered to pay the plaintiff's costs, as well as the costs of the defendant Commissioner, who submitted to the judgment.

Orders