High Court of Australia|1938-11-03|Before: McTiernan JJ

For the reasons which I have stated both appeals should, in my opinion, be dismissed.

On these appeals two objections preliminary in their nature were raised to the competence of the suits brought by the plaintiff against the territory. The first objection was that the suits should have been brought against the Commonwealth, and the second was as to the nature of the relief claimed. Having regard to the provisions of the Claims by and against the Government Ordinance 1911 (Papua), I think these objections are untenable.

The suits are two in number. In the first the plaintiff complains of an attempt at his reduction in rank by the Lieutenant-Governor. In the second he complains of his purported removal from office by the Governor-General - a removal followed immediately by his appointment to the reduced rank. I am of opinion that his second suit should fail. I cannot agree with the view that the power vested in the Governor-General by sec. 17 (1) of the has been restricted by law. He therefore held office at the pleasure of the Governor-General. The question whether before the exercise by the Governor-General of his removal of the plaintiff the Lieutenant-Governor had validly reduced his rank has lost its substantial importance for the plaintiff. From a practical point of view it affects only the question whether he should receive the costs of his first suit. I think the attempted reduction involved an excess of power on the part of the Lieutenant-Governor. I read sub-clause 8 and sub-clause 14 of clause 53 of the as conferring powers which may be exercised alternatively but not in succession. I attach no importance to the fact that the first is expressed to vest power in the Lieutenant-Governor after inquiry before the Executive Council and the second in him when the Executive Council has formed an opinion upon inquiry. These are but the vagaries of draftsmanship, involving no substantial difference of meaning. The words in sub-clause 8 referring to the possibility of no other punishment being awarded were necessary because under sub-clause 14 the Lieutenant-Governor, having decided under sub-clause 8 not to suspend, might have awarded another punishment. I do not think that the sub-clauses contemplate the Lieutenant-Governor and the Executive Council reconsidering the case with a view of awarding further punishment after the Governor-General's pleasure has become known in relation to the Lieutenant-Governor's decision. Sub-clause 8 would have been better expressed if the order of words had been as follows: "If after full inquiry before the Executive Council the Lieutenant-Governor decides not to suspend the officer, and no other punishment is awarded, or if the suspension of the officer is not approved and confirmed by the Governor-General, the officer will be entitled to" &c. But precision and artistry in the order of clauses are not common characteristics of legislative draftsmanship in any jurisdiction.

I think that the plaintiff should have had his costs of his first suit. I think that the complications of taxation and set-off can be avoided and the same result produced by dismissing the appeals without costs but varying the judgments below by striking out the orders for costs.

These are appeals from judgments of the Central Court of the Territory of Papua pronounced for the defendant in two suits brought by an officer of the Public Service of the territory to establish his rights in respect of the office of assistant resident magistrate. Under the Claims by and against the Government Ordinance 1911 a suit may be brought against the Territory of Papua under that name by any person making any claim against it in contract or in tort.

The plaintiff, who is the appellant, was on and before 2nd November 1937 an assistant resident magistrate. On that date he was relieved from duty. The proceedings prescribed by Part VI. of the Public Service Regulations 1926 of the territory (statutory rule No. 9 of 1926) in such a case were taken, and the Lieutenant-Governor suspended the plaintiff. Sec. 18 of the Papua Act 1905 provides by its first sub-section that the Lieutenant-Governor may upon sufficient cause to him appearing suspend from office any officer of the territory. The second sub-section requires that upon doing so the Lieutenant-Governor shall forthwith report every such suspension to the Governor-General and that the suspension shall continue only until the Governor-General's pleasure therein is signified to the Lieutenant-Governor. Sub-clause 7 of clause 53 of the Public Service Regulations 1926 (Part VI.) provides that, if the officer is suspended, the Lieutenant-Governor shall without loss of time report the matter to the Governor-General for approval and confirmation, transmitting the minutes of the Executive Council of the territory, the written statements and all material documents relating to the case.

The Lieutenant-Governor complied with these provisions. The Governor-General refused to confirm the suspension. The plaintiff thereupon came within the operation of sub-clause 8 of clause 53 of the regulations. This sub-clause is as follows: "If after full inquiry before the Executive Council the Lieutenant-Governor decides not to suspend the officer, or if the suspension of an officer is not approved and confirmed by the Governor-General, and no other punishment is awarded, the officer will be entitled to the full amount of salary which he would have received if he had not been relieved from duty or suspended, even though the officer discharging the functions of the office in the meantime has been allowed to receive some portion of the salary of the office."

Even if it was within his power to do so, the Governor-General had not purported to award any other punishment. It would, therefore, appear, prima facie, that, upon the pleasure of the Governor-General refusing approval or confirmation of the suspension becoming known, the plaintiff was remitted to his former status as an assistant resident magistrate with a title to the full amount of salary. But the Lieutenant-Governor proceeded to take a course which, if open to him, would prevent the plaintiff's restoration to his former office.

The fourteenth sub-clause of clause 53 of the regulations makes the following provision: "If upon full inquiry the Executive Council are of opinion that the officer deserves punishment, but not the full penalty of suspension, the Lieutenant-Governor may remove the officer to an office of lower rank in the service, or may require him to serve in his original office at a reduced salary, either permanently or for a stated period, or may deduct a portion of salary due or about to become due to the officer, or may inflict any other punishment allowed by the regulations."

In purported exercise of the power given by this provision the Lieutenant-Governor reduced the plaintiff to an office of lower rank and salary. The plaintiff thereupon brought a suit against the Territory, seeking a declaration that he still held the office of assistant resident magistrate.

In my opinion the attempt by the Lieutenant-Governor to reduce his rank under sub-clause 14 of clause 53 of the regulations was not authorized by that sub-clause. I think that when the Lieutenant-Governor resolved to suspend the plaintiff, he gave his decision under clause 53 and that nothing further remained for him to do. His duty was performed, and he was not entitled, so to speak, to resume the case and give a new decision under sub-clause 14. It is true that sub-clause 8 speaks of the imposition of some other punishment. On a first reading of that sub-clause, it might appear that the condition expressed in the words "and no other punishment is awarded" meant that the draftsman supposed that when the Governor-General did not approve or confirm a suspension some other punishment might be imposed. On this reading, the contention is that the power given by sub-clause 14 was meant to cover cases where the Governor-General had refused his confirmation of a suspension. But I think it is a misreading of sub-clause 8. That sub-clause refers to two preliminary conditions without fulfilment of one or other of which the officer cannot obtain the benefits given by the sub-clause. They are alternative conditions. The first of them is expressed thus: "If after full inquiry before the Executive Council the Lieutenant-Governor decides not to suspend the officer." The event so described covers the condition upon which the application of sub-clause 14 depends. That sub-clause begins: "If upon full inquiry the Executive Council are of opinion that the officer deserves punishment, but not the full penalty of suspension." When sub-clause 8 goes on to say "and no other punishment is awarded," it is providing for the possibility of the Lieutenant-Governor's awarding some other punishment under sub-clause 14, having decided not to suspend. There is no reason to suppose that it is also referring to the second alternative event mentioned in sub-clause 8, viz., the Governor-General's failing to approve and confirm a suspension. The inclusion of the condition that no other punishment is awarded is fully explained by the possibility of the Lieutenant-Governor's imposing another punishment under sub-clause 14 when he decides not to suspend. An implication of a power to impose some further punishment when the Governor-General does not confirm a decision to suspend is neither needed nor justified. Such an implication is indeed opposed to the language by which sub-clause 14 is introduced. So far, therefore, the complaint of the plaintiff appears to have been well founded. It is contended, however, that his suit was misconceived.

In the first place, it is said that his cause of action was against the Commonwealth and not against the Territory of Papua. The reason given is that as an officer of the service of the territory he was appointed under sec. 17 of the Papua Act in the name of the Governor-General and that he was a servant of the Commonwealth. In my opinion this contention is fallacious. When Part IX. of the Judiciary Act 1903-1937 speaks of suits against the Commonwealth and when the Claims by and against the Government Ordinance 1911 speaks of suits against the territory each refers to a proceeding against the King, the one in right of the Commonwealth and the other in right of the Territory of Papua. As is explained in Attorney-General v. Great Southern and Western Railway Co. of Ireland[16], particularly by Lord Phillimore[17], the question whether a suit against the Crown should be brought against it in right of one Dominion, Possession, or jurisdiction rather than another depends upon the exchequer or treasury out of which the liability or claim put in suit would be discharged or satisfied. Here it is plain that the salary attached to the office to which the plaintiff lays claim and any damages for exclusion from that office would be answerable out of moneys made available to the Crown in right of the Territory of Papua. The ordinance means that suits for the establishment of such a right or claim shall be brought as against the Territory of Papua. As that territory is a territory of the Commonwealth, it is not inconceivable that a suit may also be brought under Part IX. of the Judiciary Act, but that is a matter which need not be considered.

A second objection to the form of the action was made. It was based on the nature of the prayer at the end of the statement of claim, which sought, not damages for deprivation of office, but declarations of right establishing the plaintiff in the office of assistant resident magistrate. It is a sufficient answer to this objection that it is open to the court to declare that the plaintiff's reduction in rank was contrary to law or a breach of his rights. In my opinion, at the time when the plaintiff instituted his first suit he was entitled to succeed.

But, after the issue of the writ, further steps were taken both by the Governor-General and by the Lieutenant-Governor.

Sec. 17 (1) of the Papua Act 1905 provides, among other things, that the judges, magistrates and other officers of the territory shall, unless otherwise provided by law, hold their offices during the pleasure of the Governor-General. On the view that the plaintiff held office as assistant resident magistrate at pleasure, the Governor-General terminated his appointment as an officer of the Public Service of the territory as from 20th April 1938. As from the following day, the Lieutenant-Governor thereupon appointed him a patrol officer, an office carrying a lower salary. He was paid as an assistant resident magistrate to 20th April. If the power of the Governor-General enabled him to dismiss him from the service in this way, it is evident that the plaintiff ceased to be entitled to any relief in his first suit.

The plaintiff then began a second suit. Its purpose was to establish the invalidity of the attempt to dismiss him from the service, reappointing him to a reduced rank. If the plaintiff held office altogether at the pleasure of the Governor-General, the validity of his dismissal could not, I think, be denied. Accordingly the plaintiff's contention is that sec. 17 (1) no longer has its full operation, because it has been "otherwise provided by law."

The Public Service Ordinance 1907 authorizes the making of regulations for the good order and conduct of the Public Service of the territory which are to have the force of law. The regulations of 1926 made under this power contain in Part VI. a set of provisions governing the Lieutenant-Governor's power of suspending officers and regulating in the interest of the officers the procedure by which it may be exercised. In these regulations the plaintiff seeks a foundation for the view that the Governor-General cannot terminate an officer's appointment, at all events in consequence of alleged misconduct, except as the final authority in a proceeding in accordance with the regulations. The application of the principles laid down in Gould v. Stuart[18] is seldom free from difficulty. But in the present case I think that it is clear that the regulations are confined to regulating and controlling the authority of the Lieutenant-Governor and do not touch the authority of the Governor-General. No implication or inference that the members of the Public Service of the territory do not hold office in all respects at the pleasure of the Governor-General finds a warrant in the regulations.

I am of opinion that the plaintiff's second suit could not succeed.

The two suits were heard separately and the appeals were heard as distinct proceedings. In the circumstances I think that, as, but for the subsequent action of the Governor-General, the plaintiff was entitled to succeed in his first suit, he should have received his costs of that proceeding. His appeal from the judgment in that suit was not without justification. I think a proper order to make would be to vary the judgments below by striking out the orders for costs and otherwise to dismiss the appeals without costs.

In my opinion the appeal against the judgment in the first action should be allowed, and the appeal against the judgment in the second action should be dismissed.

The question which arose in the first action was whether the Lieutenant-Governor of the territory acted in excess of his powers by removing the appellant from the office of assistant resident magistrate to that of patrol officer after the Governor-General had declined to approve of the Lieutenant-Governor's decision to suspend the appellant. In the second action the question was whether the Governor-General acted in excess of his powers by summarily dismissing the appellant from the Public Service of the territory.

These questions depend on the Papua Act 1905, the Public Service Ordinance 1907 made under it and the Public Service Regulations 1926 made under the ordinance.

The continuance of the appellant's suspension, which was made under Part VI. of the regulations, depended upon the Governor-General's approval of the suspension. The suspension was made by the Lieutenant-Governor after an inquiry before the Executive Council of the territory. The regulations provide that no officer can be suspended by the Lieutenant-Governor unless such an inquiry is held.

The Governor-General having declined to approve of the appellant's suspension, the Lieutenant-Governor removed him to an office of lower rank than that which he was holding at the time of his suspension. Then the appellant began an action in the Central Court of the Territory of Papua against the territory in which he alleged that his removal was unlawful, and he claimed relief on that footing. The Government of the territory defended the action, but, before trial, reversed the action of which the appellant complained, but without any admission of liability. It would appear that the object which the administration had in retracing its steps was to ensure that, even if the appellant succeeded in the action, he could not rely on the judgment as a title to the office from which he had been removed. The order removing him from the office was cancelled, and he was reinstated. But thereupon the Governor-General dismissed him from the office and the Lieutenant-Governor immediately appointed him to the inferior position to which he had been removed. The appellant met these measures by bringing the second action, in which he claimed relief on the footing that the Governor-General had unlawfully dismissed him. The validity of the order removing the appellant to an inferior position, after the refusal of the Governor-General to confirm his suspension, turns upon the question whether the power of imposing one or other of the punishments specified in clause 14 of reg. 53 was then available to the Lieutenant-Governor. Clause 14 is in these terms: "If upon full inquiry the Executive Council are of opinion that the officer deserves punishment, but not the full penalty of suspension, the Lieutenant-Governor may remove the officer to an office of lower rank in the service, or may require him to serve in his original office at a reduced salary, either permanently or for a stated period, or may deduct a portion of salary due or about to become due to the officer, or may inflict any other punishment allowed by the regulations." It is implicit in this clause that it is upon the inquiry that the Executive Council are to form the opinion whether the officer deserves punishment, and, if they form the opinion that he deserves punishment, whether the punishment is to be suspension or a punishment less than suspension. The terms of the regulations plainly show that this opinion is to be formed before the matter is reported to the Governor-General for his decision. It would not be so reported unless the officer were suspended by the Lieutenant-Governor. The inquiry upon which the Executive Council are to arrive at their conclusion on the question of punishment is identical with the inquiry referred to in clause 8 of reg. 53. The words in that clause, "and no other punishment is awarded," refer to the punishments less than suspension which are specified in clause 14. These words exclude any officer who deserves any such punishment from the rights, in respect of salary, which are preserved to an officer who is not punished at all or whose suspension is not approved by the Governor-General.

In my opinion, the Lieutenant-Governor acted in excess of his powers under Part VI. of the regulations in removing the appellant to the office of patrol officer after the Governor-General had declined to confirm his suspension from the office of assistant resident magistrate.

The question for decision in the second appeal is whether the Governor-General lawfully dismissed the appellant from the Public Service of the territory. Sec. 17 of the Papua Act provides that, unless otherwise provided by law, officers of the territory shall hold their offices during the pleasure of the Governor-General. But, it is contended for the appellant that, since the making of the Public Service Regulations, the Governor-General cannot dismiss an officer otherwise than by approving and confirming a suspension imposed on him by the Lieutenant-Governor. The basis of this contention is that, after the making of the Public Service Regulations, it became a condition upon which an officer held office that he would not be suspended except in the manner provided in the regulations. The regulations do not, in express terms, restrict the Governor-General's power to dismiss an officer at pleasure. They limit the powers of the Lieutenant-Governor, and subject his power of suspension to the control of the Governor-General. In my opinion, the regulations did not impliedly create any restriction on the power of dismissal which the Governor-General enjoys under sec. 17 of the Act.

I agree that the Territory of Papua was the proper defendant.

In the circumstances existing at the time the first action was brought, the appellant was entitled to a judgment granting him appropriate relief with costs, but it is unnecessary to settle the form of the judgment because of the result of the second appeal, which, in my opinion, should be dismissed. There should be no order for costs in either appeal or in either action.

Judgment of Central Court in each case varied by striking out the orders relating to costs. Otherwise each appeal dismissed without costs.

Solicitor for the respondent, H. F. E. Whitlam, Commonwealth Crown Solicitor.

[1] [1931] HCA 1; (1931) 44 C.L.R. 492, particularly at p. 509.

[5] (1907) 4 C.L.R., at pp. 1213, 1214.

[10] (1907) 4 C.L.R., at p. 1214.

[14] (1906) 4 C.L.R. 422, at p. 436.

[15] (1907) 4 C.L.R., at p. 1214.

[17] (1925) A.C., at pp. 779, 780.

Service Regulations 1926

Government Ordinance 1911

Service Ordinance 1907

Faithorn v Territory of Papua [1938] HCA 54; (1938) 60 CLR 772 (3 November 1938)

Faithorn v Territory of Papua [1938] HCA 54;

At a glance

Court

Decision date

Before

Source

Judgment (36 paragraphs)

Parties

Legislation Cited (3)

Cases Cited (2)

Faithorn v Territory of Papua [1938] HCA 54; (1938) 60 CLR 772 (3 November 1938)