Coutts v Commonwealth

Regulation 628(1) is, therefore, a direction to the repository of the power to dismiss and it authorizes the specification of the grounds of retirement when the power is exercised. It gives no protection, procedural or otherwise, against dismissal but it is the means by which an officer's entitlement to invalidity benefits is assured when he is dismissed on the grounds prescribed by that regulation.

In May 1979 the late Graeme Richard Coutts ("the deceased"), who held a permanent commission as a Flight Lieutenant, was posted as an Administrative Officer to the R.A.A.F. base at Edinburgh in South Australia. He was serving in pay in that posting when, by letter of 26 October 1979, he was advised by the base's Senior Medical Officer that his "medical fitness and employment standard" were to be "formally considered". The letter afforded the deceased "an opportunity to comment on the effect of [his] medical disability on [his] medical fitness for referral to PMO/DGFHS (Principal Medical Officer/Director General Air Force Health Services) and/or the Employment Standard Committee". The deceased's response was a written statement which, although obscurely worded in some respects, made clear that he maintained that he was "fully fit for duty in the R.A.A.F. on any posting to any area". By letter of 6 December 1979 written on behalf of the Chief of Air Force Personnel, the deceased was informed that "as a result of [his] medical disability" it was "not possible" for him "to continue service" in the R.A.A.F. and that action would be taken for his "discharge under the provisions of Air Force Regulation 72(1) "Medically Unfit for Further Service" ".

Formal action to terminate the deceased's appointment was taken at a meeting of the Commonwealth Executive Council held on 27 March 1980. The minutes of that meeting record that His Excellency the Governor-General in Council approved a recommendation made on behalf of the Minister of State for Defence that "[i]n accordance with Air Force Regulations 628(1) and 72(1) the appointment" of the deceased "be terminated on medical grounds with effect the expiration of 29 April 1980". The Governor-General in Council also approved a further recommendation that "[i]n accordance with Air Force Regulation 86 Flight Lieutenant G. R. Coutts 044296 be placed on the Retired List with effect 30 April 1980". The termination of the deceased's appointment and the placing of his name on the retired list were notified in Commonwealth of Australia Gazette No. G14 of 8 April 1980.

The present proceedings were brought by the deceased against the Commonwealth in the original jurisdiction of this Court and were remitted to the Supreme Court of South Australia by consent. In them, the deceased alleged that the purported termination of his appointment was invalid for the reasons that the grounds stated in reg. 628 of the Air Force Regulations ("the Regulations") had not existed and that any power to terminate his appointment had not been exercised in accordance with the requirements of natural justice. The legal propositions underlying that allegation were spelt out in par. 11(b) of the deceased's statement of claim which asserted that the power to retire an officer pursuant to the Air Force Act 1923 Cth ("the Act") and reg. 628 or on the grounds stated in that regulation "may only be exercised if [those] grounds exist and if the power is exercised in the manner required by the said Regulation and in particular in conformity with the requirements of natural justice".

In its defence (par. 9) the Commonwealth, while denying some of the deceased's factual allegations, raised a number of points of law in the nature of a demurrer to the whole of the statement of claim. Those points of law, in which the deceased is referred to as the "plaintiff", read as follows:

(1) The plaintiff held his appointment in the Royal Australian Air Force solely at the pleasure of the Governor-General.

(2) The exercise of the powers of the Governor-General in terminating the plaintiff's appointment cannot be called in question or challenged in any way in a Court of law.

(3) That any procedures laid down by Regulation 628, by Regulation 72 and/or by any other Regulation in the Air Force Regulations relating to the termination of the appointment of an officer in the Air Force are only directory, and any failure of the defendant to comply with such Regulations does not enable the Plaintiff to call in question or to challenge the validity of the termination of his said appointment.

(4) That there was no contract of service between the plaintiff and the defendant which could be the subject of the plaintiff's claim for wrongful dismissal or for the other relief sought in his Statement of Claim herein.

The above points of law and the points of law raised by par. 11(b) of the deceased's statement of claim were referred by a Master to the Full Court of the Supreme Court of South Australia for determination as a preliminary issue. The Full Court (Walters and Matheson JJ., Jacobs J. dissenting) [31] determined them adversely to the deceased and ordered that his action be dismissed. The present appeal was brought by the deceased, by special leave, from the judgment and order of the Full Court in that regard. Subject to the effect of the provisions of reg. 628(1) to which reference is subsequently made, the deceased did not seek to deny the validity of the first and fourth of the above points of law raised by the Commonwealth and, apart from the effect of that sub-regulation, it has been common ground that the deceased's appointment in the R.A.A.F. was at the pleasure of the Governor-General and was not the subject of a civil contract between the deceased and the Commonwealth. After the argument of the appeal had been completed in this Court and judgment had been reserved, the deceased died. His widow, who is the person named as executrix of his will, has been substituted as appellant. 1. (1983) 33 S.A.S.R. 529.

The law governing the relationship between the Crown and those in the Defence Force of this country is now largely regulated by statutory instruments in the form of Acts of the Commonwealth Parliament and Regulations made thereunder. While the provisions of those statutory instruments should be read against the background of established common law rules defining the traditional relationship between the Crown and members of the armed services (cf. The Commonwealth v. Welsh [32] ; Marks v. The Commonwealth [33] ), they must be construed according to ordinary principles of statutory construction. In particular, their meaning and effect are not to be overriden or distorted because of assumed conformity with common law rules which were developed in other times to control - or to keep outside the law - the privileges and aspirations of those who served in the military forces of the Crown or the East India Company and which reflected notions of the Royal prerogative of the command of the army which are of little or no contemporary relevance in this country. It is true that the command in chief of the naval and military forces of the Commonwealth is vested by the Constitution (s. 68) in the Governor-General as the Queen's representative. That role is, however, essentially a titular one: see Sir Ninian Stephen, "The Governor-General as Commander in Chief", graduation address at the Joint Services Staff College, Canberra, 21 June 1983. It is also true that the provisions of statutory instruments governing the appointment and service of members of the Defence Force are largely structured around powers conferred upon the Governor-General. Those powers are not, however, the ancient prerogative powers of the command of the army: see per Windeyer J., Marks [34] . They are statutory powers which are exercisable by the Governor-General with the advice of the Executive Council (Acts Interpretation Act 1901 Cth, s. 16A) and which are defined and controlled by the provisions of the statutory instruments which confer them.

1. (1947) 74 C.L.R. 245, at p. 268. 2. (1964) 111 C.L.R. 549, at p. 573. 3. (1964) 111 C.L.R., at pp. 564-565.

The relevant statutory provisions in the present case are the various provisions of the Act and the Regulations which deal with the commission, appointment, cancellation of commission, termination of appointment and retirement of an officer. The relationship between particular provisions of the Regulations is at times obscure and was the subject of helpful analysis in the judgments in the Full Court of the Supreme Court. The focal provisions are those of regs. 45(1), 32 and 72(1).

Regulation 45(1) deals with the appointment and promotion of officers:

The Governor-General may in accordance with such conditions and subject to such qualifications or requirements as are provided for by these Regulations, by instrument in writing -

(a) appoint persons to be officers of the Air Force; and

and may issue commissions to persons so appointed. It can be seen that reg. 45(1) draws a distinction between the appointment of a person as an officer and the issue of his or her commission. This distinction, which is at times blurred in the Regulations, is of relevance for the purposes of the present case. While an officer is deemed to be commissioned on the date of his or her appointment (reg. 45(1AA)), the actual issue of a commission follows the appointment and, unless and until it is cancelled, the commission survives the termination of the appointment. A person's appointment is to service in pay as an officer: cf. the provisions of the present reg. 46. The commission is the formal warrant of his or her rank.

Regulation 32 corresponds with the provisions of s. 13 of the Defence Act 1903 Cth which were made applicable to members of the Air Force by s. 3(1) of the Act and s. 5 of the Defence Act. It provides:

The appointment or promotion of an officer under these Regulations shall not create a civil contract between the Crown or the Commonwealth and the officer. Regulation 72(1) provides: An officer shall hold his appointment during the pleasure of the Governor-General, but the commission of an officer shall not be cancelled except for cause and after he has had notice in writing of any complaint or charge made, and of any action proposed to be taken against him and has been given the opportunity of making such statement as he thinks fit regarding the cause.

The combined effect of the above provisions of the Regulations in their application to the deceased was that the basis of his appointment was statutory and not contractual and that his appointment to service in pay was merely during pleasure. The deceased had no statutory or contractual right to insist that his appointment as an active officer continue beyond the pleasure of the Governor-General acting with the advice of the Executive Council. While the Regulations contain no express provision authorizing the Governor-General to terminate the appointment of an active officer, a general discretionary power to terminate such an appointment at any time is plainly implicit in the provision of reg. 72(1) that an officer shall hold his or her appointment during pleasure.

The deceased's appointment, being at pleasure, could have been determined without reason being formulated or assigned: see Malloch v. Aberdeen Corporation [35] . If the purported termination of it had been merely because it was in accordance with the pleasure of the Governor-General that it not continue, the deceased would have been faced by some formidable obstacles in seeking to establish in legal proceedings that the termination was ineffective by reason of an absence of necessary grounds or of a failure to observe the requirements of procedural fairness traditionally referred to as the rules of natural justice: cf. Marks v. The Commonwealth [36] ; Reedman v. Hoare [37] ; Ridge v. Baldwin [38] . As has been seen however, the purported termination of the deceased's appointment was not expressed to be because it was the pleasure or discretionary decision of the Governor-General acting with the advice of the Executive Council that it not continue. The purported termination was expressed to be made "[i]n accordance with" the provisions of both reg. 628(1) and reg. 72(1).

1. [1971] 1 W.L.R. 1578, at pp. 1582, 1596; [1971] 2 All E.R. 1278, at pp. 1282, 1295. 2. (1964) 111 C.L.R., at p. 586. 3. (1959) 102 C.L.R. 177, at p. 181. 4. [1964] A.C. 40, at pp. 65-66.

(b) is, in the opinion of the confirming medical authority, unfit for further service; and

(c) is capable at the time of engaging in civilian employment,

the member shall be retired or discharged at the earliest possible date after the opinion of the confirming medical authority has been expressed.

There are several matters relating to the wording of reg. 628(1) of which specific mention should be made. One is that, by definition (reg. 4(1)), "member" includes "any officer". Another is that, as Jacobs J. pointed out in his judgment in the Full Court of the Supreme Court, the word "discharge" should be read as referring to a "member" who is not an officer while the word "retired" should be read as referring to an officer. A third is that, contrary to a submission advanced on behalf of the Commonwealth, the provisions of s. 628(1) are not self-executing. They do not provide that, if the specified circumstances exist, the member's service is automatically terminated. They provide that he or she "shall be retired or discharged at the earliest possible date after the opinion of the confirming medical authority has been expressed" (emphasis added). What the sub-regulation envisages is an administrative decision that the specified circumstances exist followed by subsequent administrative action retiring or discharging the member. The fourth, and most important, matter is that examination of the provisions of reg. 628(1) makes clear that they are mandatory in their nature. If the specified circumstances exist in the case of a particular officer, it is a mandatory requirement that he or she be retired. The termination of the appointment of an officer consequent upon a conclusion that the case is within the provisions of reg. 628(1) cannot properly be seen as involving the mere exercise of a discretionary power to terminate an appointment during pleasure. To the contrary, no real exercise of discretion is involved at all. If the facts of the particular case are such that it comes within those provisions, all that is involved is compliance with the requirement that the officer "shall be retired at the earliest possible date" regardless of whether other considerations might, if retirement had been discretionary and not mandatory, have balanced the scales in favour of his or her retention.

The Regulations contain no express prescription of the procedural steps to be followed in complying with the requirement that an officer to whom reg. 628(1) applies shall be retired. The appropriate procedure would appear to be termination of the officer's appointment to service in pay and transfer of his or her name to the Retired List. That is the procedure which was sought to be followed in the case of the deceased. The letter of 6 December 1979, with its reference to "Medically Unfit for Further Service" and its statement that it was not "possible" for the deceased to continue in service, plainly indicates that the conclusion was reached that the deceased's case came within the provisions of reg. 628(1) and that, that being so, it was recognized as mandatory that the deceased be retired in accordance with the requirements of that sub-regulation. The approach adopted was to retire the deceased by terminating his appointment ("in accordance with" reg. 628(1)) pursuant to the power of termination which is implicit in the provision of reg. 72(1) that an officer shall hold his or her appointment "during the pleasure of the Governor-General". It was submitted by Mr. Doyle Q.C., who appeared for the deceased on the hearing of the appeal, that that approach was mistaken in that termination of an appointment in accordance with reg. 628(1) involves the exercise of a distinct power to terminate which is implicit in the sub-regulation's requirement that the relevant officer be retired at the earliest possible date and which is different in nature from the general discretionary power implicit in reg. 72(1). While there is obvious force in that submission, it appears to me that the preferable view is that which was acted on in the case of the deceased, namely, that the provisions of reg. 628(1) operate through the power to terminate implicit in reg. 72(1). Ultimately, however, nothing turns in the present case on this point. Regardless of whether reg. 628(1) should be construed as containing an independent power to terminate an appointment in the designated circumstances or whether it should be seen as operating through the power to terminate implicit in reg. 72(1), its effect is to introduce a mandatory requirement that the appointment of an officer be terminated in any case where the designated circumstances exist. Put differently, regardless of whether reg. 628(1) operates independently or through reg. 72(1), it operates as an effective disqualification of an officer from continued service in that, where its conditions of operation are satisfied, the appointment of an officer to service in pay must be terminated as a matter of course at the earliest possible date. On either view, the question which lies at the heart of the appeal is whether the validity of a purported exercise of a power to terminate an appointment in perceived compliance with the requirements imposed by reg. 628(1) is liable to be impugned in judicial proceedings either on the ground that the particular case does not come within the provisions of reg. 628(1) at all or on the ground that requirements of procedural fairness have not been observed. Three particular considerations have been suggested as requiring, either individually or in combination, a negative answer to that question. They are: that the deceased's appointment was during pleasure, that the power to terminate it was exercisable by the Governor-General and that the deceased's appointment was to service as an officer in the Defence Force. I shall consider these particular considerations in the order in which I have mentioned them.

The fact that an appointment is during pleasure does not mean that the exercise of a statutory power to terminate it will necessarily be immune from attack even where the power is a truly discretionary one which may be exercised at any time and without reason being assigned. As Lord Wilberforce pointed out in Malloch [39] , the very possibility of dismissal without reason being given may, in some circumstances, make "it all the more important" for the person dismissed "to be able to state his case and, if denied the right to do so, to be able to have his dismissal declared void". Be that as it may however, any such immunity would logically be restricted to a termination of the appointment pursuant to the exercise of the discretionary power to dismiss at pleasure. It would not extend to a case such as the present where the statutory provisions pursuant to which the appointment is terminated operate, in a case to which they are applicable, to override the discretionary nature of the ordinary power of dismissal by requiring termination regardless of the pleasure of the person during whose pleasure the appointment is held. In such a case, the effect of the statutory provisions is to deprive the appointee of the legitimate expectation that his or her appointment will only be terminated pursuant to a discretionary decision in the exercise of which the decision-maker will be able (regardless of whether compellable) to take into account all relevant considerations, including considerations of personal circumstances and hardship. Prima facie, one would not presume a legislative intent that the person whose appointment has been terminated in purported obedience to the requirement of such statutory provisions should be deprived of the ordinary right to challenge the validity of the termination of his or her appointment on the ground that his or her case was not within the statutory provisions at all or on the ground that requirements of procedural fairness were applicable and had not been observed.

1. [1971] 1 W.L.R., at p. 1597; [1971] 2 All E.R., at pp. 1295-1296.

Nor does the fact that a statutory power is exercisable by the Governor-General in Council necessarily preclude a purported exercise of the power being made the subject of attack in judicial proceedings. It has become almost commonplace to assign to the Governor-General with the advice of the Executive Council routine administrative powers which, when exercised, may directly affect the rights and legitimate expectations of individual citizens: cf. the comments of Stephen J. in relation to the Victorian Governor in Council in F.A.I. Insurances Ltd. v. Winneke [40] . If such a power is purportedly exercised by the Governor-General with the advice of the Executive Council in pursuance of statutory provisions which are simply inapplicable to the relevant case, there is no reason in principle why the validity of its exercise should be immune from attack in the courts at the suit of a person directly affected and aggrieved: see, generally, the discussion of reviewability of decisions of a representative of the Crown in Reg. v. Toohey; Ex parte Northern Land Council [41] . Likewise, the consideration that a power is so exercisable is but one factor to be taken into account in determining whether it was the legislative intent to exclude the application of the ordinary requirements of natural justice or procedural fairness. In that regard, the following comments of Gibbs C.J. in F.A.I. Insurances Ltd. v. Winneke [42] , with which I agree, are equally in point to a purported exercise of a statutory power by the Governor-General acting with the advice of the Executive Council:

The fact that the Governor in Council is the authority which grants the approval provides no ground for excluding the rules of natural justice. In exercising the power given by s. 72 the Governor does not act personally or as a representative of the Crown exercising any of its prerogatives. He acts on the advice of his Ministers, and it is to be expected that such advice will be based upon the recommendation of the Minister in charge of the Department concerned. It would be to confuse form with substance to hold that the rules of natural justice are excluded simply because the power is technically confided in the Governor in Council. I can see no reason in principle why the rules of natural justice should not apply to an exercise of power by the Governor in Council, who is of course not above the law. See also per Stephen J. [43] , per Mason J. [44] , per Aickin J. [45] , per Wilson J. [46] and per Brennan J. [47] . 1. (1982) 151 C.L.R. 342, at p. 353ff. 2. (1981) 151 C.L.R. 170. 3. (1982) 151 C.L.R., at p. 349. 4. (1982) 151 C.L.R., at pp. 352-355. 5. (1982) 151 C.L.R., at pp. 364-369, 372. 6. (1982) 151 C.L.R., at pp. 379-380. 7. (1982) 151 C.L.R., at pp. 396-400. 8. (1982) 151 C.L.R., at pp. 414-416.

Nor does the consideration that the deceased's appointment was to service in the Defence Force necessarily lead to the consequence that the purported termination of it was immune from attack either on the grounds that the circumstances were not within reg. 628(1) or that requirements of natural justice were applicable and had not been observed. As has been said, the meaning and effect of the Regulations is not to be overriden or distorted because of assumed conformity with traditional common law rules. The Governor-General's powers to terminate the appointment of an officer are statutory. They are derived from the Regulations under which such an appointment is made. An exercise of those powers is not to be assumed to enjoy immunity from being questioned or examined in the courts of the land simply because the exercise of the old prerogative powers of the command of the army may arguably have operated to place the members of the armed services largely outside the protection of the ordinary law: see the article by Professor Nettheim, Do Members of the Armed Forces Have Any Rights in Their Employment?, Federal Law Rev., vol. 5 (1973), p. 200. In that regard, there is an obvious need "to view warily the notion that common law remedies should, upon grounds of alleged public policy, be denied to those who serve the Crown": see Groves v. The Commonwealth [48] .

The termination of the deceased's appointment brought to an end his career in the Air Force. It deprived him of the opportunity of continuing to earn his livelihood in the manner of his choice. It was purportedly effected by the exercise of a statutory power in perceived obedience to a statutory direction. It involved the formation of an opinion by the "confirming medical authority" about the deceased's fitness or unfitness for further service and, in the light of that opinion, a decision about whether the case came within the provisions of reg. 628(1). The ordinary and strong presumption is that the requirements of natural justice are applicable in respect of the exercise of such a statutory power entailing such consequences and that the person directly and adversely affected is entitled to challenge the validity of the purported exercise of the statutory power on the ground that those requirements had not been observed or on the ground that the case was not within the relevant statutory provisions at all. There is nothing in the provisions of the Regulations which expressly negates or overrides that presumption. For the reasons which have been given, the requirements of natural justice are not excluded by reason of, or by reason of a combination of, the considerations that the deceased's appointment was during the pleasure of the Governor-General, that the power to terminate the appointment was vested in the Governor-General and that the appointment which the deceased held was to service as an officer in the Defence Force of the Commonwealth. Nor, in my view, is there any other consideration or anything in the provisions of the Regulations which has that implied effect. It follows that the requirements of natural justice or procedural fairness were applicable in respect of the termination of the deceased's appointment and that the deceased was entitled to attack the validity of that purported termination in the present proceedings on the ground that those requirements had not been observed or on the ground that the provisions of reg. 628(1) were not applicable to the circumstances of his case.

In the result, I would uphold the validity of the points of law raised by the deceased in par. 11(b) of his statement of claim and I would overrule the second and third of the points of law raised by the defence in par. 9 of its defence. The first and fourth of the points of law raised in par. 9 of the defence provided of themselves no answer to the deceased's claim. That being so, the appeal should be allowed and the order of the Full Court of the Supreme Court that judgment be entered for the Commonwealth should be set aside.

The question whether the circumstances were in fact such that the provisions of reg. 628(1) required that the deceased's appointment be terminated and the question whether requirements of natural justice were in fact observed were not raised by the points of law which were referred to the Full Court of the Supreme Court. Unless the matter can be resolved by agreement between the parties, those questions remain to be determined on the hearing of the action. It would however seem appropriate to indicate that, in accordance with what was said in this Court in F.A.I. Insurances Ltd. v. Winneke [49] , natural justice required that the deceased be given an adequate opportunity of being heard by the actual decision-makers as distinct from the Governor-General acting with the advice of the Executive Council. In the present case, that would appear to have involved an entitlement of the deceased to have been afforded an appropriate opportunity of being heard at two levels. The first level was by the "confirming medical authority" on the question whether or not the opinion should be formed that the deceased was unfit for further service. The second level was by the person or persons responsible for determining whether or not, in the light of the opinion of the "confirming medical authority", the circumstances were such that reg. 628(1) required that the deceased be retired.

1. (1982) 151 C.L.R., at pp. 350, 355-356, 366, 369-372, 381-384, 400-401, 414-418. Dawson J.

Graeme Richard Coutts was an officer in the Royal Australian Air Force who was compulsorily retired upon medical grounds. He commenced an action in the Supreme Court of South Australia claiming declarations to the effect that the termination of his appointment was a nullity and claiming damages for wrongful dismissal. A point of law raised by the pleadings was heard as a preliminary issue by the Full Court of the Supreme Court of South Australia, which, by a majority, found that there was no cause of action and accordingly dismissed the claim. The matter comes before this Court by way of appeal by special leave. After this Court reserved its judgment, the plaintiff died and his widow, who was his executrix, was substituted for him as a party to the action.

It is, I think, important to appreciate how the point of law which falls for determination arose. It concerns two of the Air Force Regulations made under s. 9 of the Air Force Act 1923 Cth. The first is reg. 72, sub-reg. (1) of which provides:

An officer shall hold his appointment during the pleasure of the Governor-General, but the commission of an officer shall not be cancelled except for cause and after he has had notice in writing of any complaint or charge made, and of any action proposed to be taken against him and has been given the opportunity of making such statement as he thinks fit regarding the cause. The second is reg. 628, sub-reg. (1) of which provides: Where a member -

(b) is, in the opinion of the confirming medical authority, unfit for further service; and

(c) is capable at the time of engaging in civilian employment,

the member shall be retired or discharged at the earliest possible date after the opinion of the confirming medical authority has been expressed.

In his statement of claim the plaintiff contended that the termination of his appointment pursuant to reg. 72 was invalid in the circumstances and that the power to retire an officer pursuant to reg. 628 was subject to the rules of natural justice. The defendant in its defence contended that the plaintiff held his appointment in the Air Force solely at the pleasure of the Governor-General and that the exercise of the powers of the Governor-General in terminating the plaintiff's appointment cannot be called in question or challenged in any way in a court of law. The defendant also contended that there was no contract of service between the plaintiff and the defendant which could be the subject of the plaintiff's claim for wrongful dismissal or for other relief sought in the statement of claim.

The plaintiff's contentions were elaborated in argument. He submitted that reg. 628 was, on the facts of this case, the only source of power available to the defendant to terminate the plaintiff's appointment and that it was that regulation which was in fact used. Alternatively, he submitted that if reg. 72 was the relevant source of power, reg. 628 remained the basis of the action taken. By this latter submission I take the plaintiff to have meant that, whilst appointment at the Governor-General's pleasure involved the power to dismiss at will, if in fact the procedures laid down by reg. 628 were invoked (as they clearly were), then those procedures required the observance of the rules of natural justice and in particular required that the plaintiff be given an appropriate opportunity to put his case. It was the plaintiff's contention that he was denied this opportunity. He also submitted that any exercise of power under reg. 628 was dependent for its validity upon the existence of certain facts and that it was open to review to determine whether the conclusion that those facts existed was open.

It is, I think, possible to shorten these reasons for judgment by observing at the beginning that the plaintiff's argument was put in two distinct ways. On the one hand, as I understand the argument, it was said that reg. 628 governed the power to terminate the plaintiff's appointment either because it was the source of that power itself or because it modified the power conferred or recognized by reg. 72. Upon this view the power to terminate the plaintiff's appointment was something less than a power to dismiss at will and the appointment itself was something more than appointment at the Governor-General's pleasure.

On the other hand, it was said that even if the power to terminate the plaintiff's appointment was truly a power to terminate it at will, nevertheless the procedures under reg. 628 were invoked and those procedures by implication required the application of the rules of natural justice. In other words, before any conclusion could properly be reached under reg. 628, so it was said, the plaintiff must have been given a proper hearing. Since he was denied this, his appointment is said not to have been validly terminated. In my view it is not possible to put the argument in this alternative way. If in some manner the power to dismiss at will, which is an incident of appointment during pleasure, is modified or replaced when reg. 628(1) is invoked with the result that a hearing is required as a prerequisite to a valid dismissal, then that is one thing. But it is another thing to say that, even assuming a power to dismiss at will, the application of reg. 628(1) itself nevertheless requires a hearing and the failure to afford such a hearing invalidates any subsequent dismissal consequent upon the application of that regulation. The argument in that form does not assert reg. 628(1) as a source of the power to dismiss and denies any modification of the power found by reference to reg. 72(1). But assuming that reg. 628(1) imports the requirement of a hearing, if there is a power to dismiss at will independently of that regulation, then the termination of the plaintiff's appointment must have been effective notwithstanding the disregard of any procedure which reg. 628(1) requires. Perhaps, making the same assumption, if the plaintiff had acted before any conclusion was reached under reg. 628(1), he may have been able to invoke the aid of the Court to compel some appropriate person to afford him a hearing. But upon this argument, his dismissal having taken place, it is no longer to the point to invoke that regulation, since the failure to afford a hearing pursuant to its terms cannot affect the validity of the subsequent dismissal which, ex hypothesi, was in the exercise of a power to dismiss at will which is unaffected by reg. 628(1). The dismissal cannot in those circumstances provide the foundation for the remedies which the plaintiff seeks.

The crucial question to my mind is, therefore, whether the plaintiff held his appointment at the Governor-General's pleasure as reg. 72(1) would suggest, so that it was terminable at will, or whether the presence of reg. 628(1) affected the nature of that appointment or modified the way in which the power of dismissal might be exercised so as to require the plaintiff to be afforded a hearing.

Having regard to reg. 72(1) by itself, there is little room for doubt about the plaintiff's position. At common law Crown servants may be dismissed at pleasure and without notice. As Williams J. said in Kaye v. Attorney-General (Tas.) [50] :

Apart from statute, the employment of servants by the Crown, naval, military or civil, is at the will of the Crown, so that the Crown is entitled to dismiss them at any time without notice. Even if they are employed for a definite period, their employment is still subject to a reserval of the right of the Crown to dismiss. The rule, which has its origin in military service, is copiously supported by authority: see e.g. Ex parte Robertson; In re the Governor-General and Executive Council (N.S.W.) [51] ; In re Tufnell [52] ; Shenton v. Smith [53] ; Gould v. Stuart [54] ; Leaman v. The King [55] ; Deynzer v. Campbell [56] . It has been explicitly recognized in numerous decisions of this Court: Ryder v. Foley [57] ; Cross v. The Commonwealth [58] ; Carey v. The Commonwealth [59] ; Fletcher v. Nott [60] ; The Commonwealth v. Quince [61] ; The Commonwealth v. Welsh [62] ; Allpike v. The Commonwealth [63] ; Kaye v. Attorney-General (Tas.) [64] ; Reedman v. Hoare [65] ; Marks v. The Commonwealth [66] . 1. (1956) 94 C.L.R. 193, at p. 203. 2. (1858) 11 Moo. 288 [14 E.R. 704]. 3. (1876) 3 Ch.D. 164. 4. [1895] A.C. 229. 5. [1896] A.C. 575. 6. [1920] 3 K.B. 663. 7. [1950] N.Z.L.R. 790. 8. (1906) 4 C.L.R. 422, at pp. 435-436. 9. (1921) 29 C.L.R. 219, at p. 224. 10. (1921) 30 C.L.R. 132, at p. 135. 11. (1938) 60 C.L.R. 55, at pp. 67, 72, 74, 77-78. 12. (1944) 68 C.L.R. 227, at pp. 234, 241-242, 253. 13. (1947) 74 C.L.R. 245, at pp. 257, 262, 264, 268, 274. 14. (1948) 77 C.L.R. 62, at p. 76. 15. (1956) 94 C.L.R. 193, at pp. 198, 203. 16. (1959) 102 C.L.R. 177, at p. 181. 17. (1964) 111 C.L.R. 549, at p. 586.

Military service (and I use that term to embrace the three services) has always stood in a different position from service under a contract of employment with a private employer. As Windeyer J. pointed out in Commissioner for Railways (N.S.W.) v. Scott [67] , officers serve in accordance with their commissions and other members in accordance with their engagements. In the absence of statute, it is the prerogative power which supports the relationship between members of the armed forces and the Crown and it is a concomitant of that relationship that none of them has at common law any right of action against the Crown for breach of contract or any right to sue for pay. The relationship is not a contractual one. However, in Marks v. The Commonwealth [68] , Windeyer J. also pointed to the fact that in Australia the position of the Crown in relation to the forces is dependent upon statute and not the prerogative and, that being so, the inquiry turns to whether the relevant statute law, which in this case is the regulations, adopts, modifies or abrogates the common law position.

1. (1959) 102 C.L.R. 392, at pp. 441-442. 2. (1964) 111 C.L.R., at p. 564.

Before turning to that inquiry, it is convenient to add that an appointment at pleasure may not only be terminated at will without notice, but also without any hearing. This was adverted to by Lord Reid in Ridge v. Baldwin [1] and in Malloch v. Aberdeen Corporation [2] , Lord Wilberforce expressed agreement "as a general principle", meaning that there may be a modification of the position "by statute, or regulations, or code of employment or agreement". For my own part, I should have thought that this view is plainly correct since at common law, Crown servants aside, a master is not bound to hear his servant before he dismisses him and appointment during pleasure can hardly import a more onerous obligation.

1. [1964] A.C. 40, at p. 65. 2. [1971] 1 W.L.R. 1578, at p. 1597; [1971] 2 All E.R. 1278, at p. 1295.

In my view, it is beyond question that reg. 72(1) adopts the common law position by declaring that an officer shall hold his appointment during the pleasure of the Governor-General. I should have reached that conclusion without recourse to any particular mode of construction, but reference may be made to the observation of Dixon J. in The Commonwealth v. Welsh [3] that:

in considering the meaning and effect of the Air Force Regulations their purpose cannot be neglected, namely to provide rules to govern one of the armed forces of the Crown. The relation to the Crown of members of the armed forces is no new subject; the rules of the common law define it. The regulations are not to be read in disregard of those rules and of the long tradition to which they have contributed. In the regulation itself support is to be found for the view which I have expressed in the implicit distinction which is drawn between the termination of an appointment and the cancellation of a commission by the express requirement of notice in the latter but not in the former case. The continuation in force of a commission is, of course, not dependent upon the existence of an appointment and a commissioned officer may be placed upon the retired list: see reg. 86. 1. (1947) 74 C.L.R., at p. 268.

There is also support for this view in reg. 73(1), which also reflects the common law position that members of the services cannot abandon their duties and can be forced to serve according to their engagements. That sub-regulation provides:

An officer of the Air Force may, by writing under his hand addressed to the Chief of the Air Staff, tender the resignation of his air force office, but the resignation shall not be accepted, and is not effective, except as provided by this regulation. There follow provisions for the circumstances in which a resignation may be accepted or rejected.

Whilst there are regulations other than reg. 72(1) which contemplate the termination of the appointment of an officer, they provide the circumstances for the exercise of the power but not the power itself. The power is assumed: see, e.g., regs. 55(2), 452(2), 462(2) and 468(1). Latham C.J. adverted to this situation in Fletcher v. Nott [4] , as follows:

there is no necessary inconsistency between an officer of the Crown holding his appointment at pleasure, and the existence of rules, either contained in a statute or made under a statutory power, which purport to regulate the manner in which an officer is to be dismissed. Such rules do not legally limit the power or manner of dismissal. 1. (1938) 60 C.L.R., at p. 69.

Regulation 628(1) not only contemplates the retirement of an officer (or the discharge of an airman), but requires it "at the earliest possible date after the opinion of the confirming medical authority has been expressed". That does not mean that that regulation, any more than the others to which I have referred, provides the source of the power to determine an appointment or engagement. It provides the occasion for the exercise of the power but the power itself is to be found elsewhere. The power of dismissal is an incident of appointment during pleasure which, under reg. 72(1), is the nature of the appointment of an officer. Regulation 628(1) does not purport to modify that power of dismissal. It refers to retirement, which assumes the termination of any appointment, but it does not say how or when retirement is to take place (save that it is to be at the earliest possible date after the opinion of the confirming medical authority has been expressed). It does not say who is to exercise the power to terminate the appointment. The answers to these questions are to be found elsewhere, in the tenure of an officer's appointment which, because it is at pleasure, carries with it the power to dismiss at will.

It follows that in my view the power to dismiss at will which flows from reg. 72(1) is unaffected by the provisions of reg. 628(1). For the reasons which I have given, the plaintiff is not entitled to the relief which he seeks and this appeal should fail.