Foley v Ryder [1906] HCA 61

Foley v Ryder [1906] HCA 61 - HCA 1906 case summary — Zoe

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powers privileges and advantages and be liable to all such duties and responsibility as any constable duly appointed now has or hereafter may have either by the Common Law or by virtue of any Statute or Act of Council now or hereafter in force in the Colony." I will deal, first, very briefly, with the point taken that the submission of the proof of misconduct for the approval of the Government must be a submission to the Governor in Council. That was the view which commended itself to the learned Judges of the Supreme Court. This Statute clearly recognizes the exist- ence of the Governor in Council, and makes provision that certain things shall be done by the Governor in Council. This particular act is to be a submission for the approval of " the Government," so that, if the contention for the plaintiff was right, it is obvious that the legislature used different words when they intended the same thing. The word " Government " is not a term of art, and I think it is difficult to hold it to be synonymous with Governor in Council, when one has regard to the manner in which the Executive Government of the country is carried on under the system which we call Constitutional Government. The Crown, that is, the head of the Executive Government, in whose name everything is done, does not act in person; it acts through responsible officers, to whom the powers of Government are delegated, and, as a matter of fact, ninety-nine hundredths of the work of the Executive Government is done by those responsible officers on their own individual responsibility without consulting the Governor in Council. In England it is well known to everyone who knows anything of the manner in which the English Government is conducted that a very small proportion of the matters is ever submitted, or required by law to be submitted, for the approval of the Sovereign with the advice of his Privy Council. Nearly all the ordinary matters of adminis- tration are dealt with by the responsible Ministers. Some matters are required by law to be done by the Sovereign in Council, just as in Australia under the Australian Constitutions certain matters are required to be done by the Governor with the advice of his Executive Council. As to those matters that are not expressly so required to be done it appears to me that the ordinary and proper inference to be drawn is that the system that was intended to be

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not as a section dealing with the tenure of office of constables, but as a section passed with reference to this provision in the Constitution, as vesting this power of appointment, with the correlative right of dismissal, in the Commissioner of Police, subject to the qualification that he shall not exercise the power of dismissal, which is only given to him in the case of misconduct or unfitness, without consultation nor without the approval of the Executive head of his department, and I regard the section as having nothing to do with the tenure of office of the constable as between himself and the Crown. It is necessary, therefore, to consider what is the nature of the tenure of office of a constable, irrespective of the section. With respect to the tenure of office of constables and officers in the Public Service, the general rule is stated in the ease of Shenton v. Smith (1), to be that in the absence of a special contract, "servants of the Crown hold their offices during the pleasure of the Crown; not by virtue of any special prerogative of the Crown, but because such are the terms of their engagement, as is well understood throughout the public service. If any public servant considers that he has been dismissed unjustly, his remedy is not by a law-suit, but by an appeal of an official or political kind"

that is by appeal to his superior officer, or to Parliament if The only other case that I think it necessary to refer to is that of Dunn v. The Queen (2). That was a case in which a man had been employed in the public service at a salary, and an officer of the Crown, who was Commissioner and Consul- General of the Niger Protectorate in Africa, had engaged him for three years certain. The service terminated before the expiration of that time, and he presented a petition of right. Lord Esher M.R. referred to the previous case of De Dohsé v. The Queen, which has not been reported, but which was decided in the House of Lords by Lords Halsbury L.C., Blackburn, Watson and Fitzgerald, and quoting from his own judgment in the Court of Appeal said (3): - *It is said that it was lawful to make such an engagement with him (the suppliant) for seven years, because the engagement offered and proposed was not an

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that, if the engagement was for military service as a soldier, whether as officer or private, it is contrary to public policy that any such contract should be made. Now, whether that doctrine with regard to the Crown is confined to military service or not need not be decided to-day, but I do not at all accept the sug- gestion that it is so confined. All service under the Crown itself is public service, and to my mind it is most likely that the doctrine which is said to be confined to military service applies to all public service under the Crown, because all public service under the Crown is for the public benefit." Then he goes on to say : - " That case came before the House of Lords; and it seems to me that Lord Watson in his judgment almost in terms decides that what I thought would probably turn out to be the right view on the subject is correct. He says: - 'In the first place it appears to me that no concluded contract is disclosed in the statements contained in this petition of right; and in the second place I am of opinion that such a concluded contract, if it had been made, must have been held to have imported into it the condition that the Crown has the power to dismiss. Further, I am of opinion that, if any authority representing the Crown were to exclude such a power by express stipulation, that would be a violation of the public policy of the country and could not derogate from the power of the Crown.' Anything more distinct and general than that there could not be. It seems to me that the rule, as laid down by the House of Lords, is in consonance with what I suggested to be the true rule in the Court of Appeal. The case of Shenton v. Smith (1) appears to me to be really equally conclusive of the matter." Lord Herschell was of the same opinion. Lord Justice Kay, adverting to the contention that this was a doctrine which applied only to the military service, said (2): - "I do not concur in that view. It seems to me that the continued employment of a civil servant might in many cases be as detrimental to the interests of the State as the continued employment of a military officer."

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police and entered the service of the said Government and was employed by and served the said Government thereafter as a constable of police upon the terms and subject to the conditions inter alia that the said Government would pay to the plaintiff a certain yearly salary and that the plaintiff would pay to the said Government the sum of two pounds per centum per annum upon the said salary to be invested by the said Government so as to form portion of a fund called the ' Police Superannuation Fund' and that the said Government would retain the plaintiff in their service and employment until such service and employment should be determined in the manner prescribed by law as set forth in The Police Act 1863 and Rules made thereunder." The contract so set forth, if we read it according to the plaintiff's interpretation, is such a contract as no civil servant of the Crown could make, unless he were expressly authorized by Statute. For that proposition I think the case of Grant v. Secretary of State for India (1) is in point. The claim is accurately described in the head-note, which says: - "In an action against the Secretary of State for India the claim stated that plaintiff accepted a commission in the military service of the East India Company upon the basis and faith of the customs, laws, regulations, and provisions of the company's service, which were (amongst others) that an officer entering the service should continue therein so long as he was physically and mentally efficient - and that, before the removal of any officer from any appointment, he should be made acquainted in writing with the accusation preferred against him and should be sum- moned to make his defence, having a reasonable time allowed him for that purpose, and that the plaintiff was compelled to subscribe to a military fund to provide for widows and orphans of officers, and that if he had continued in the service his widow would have been entitled to an allowance out of a fund called 'Lord Clive's Fund.' That after the Indian forces had been

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duty, and in all respects physically and mentally competent to perform any duties which were or might be required of him, was, without any charge of misconduct, called upon to retire from the service, in pursuance of a general order made by the Governor General of India with the sanction of the defendant, by which order unemployed officers ineligible for employment by reason of clear misconduct, or proved physical or mental in- efficiency &c., might be required to retire upon a pension; and, upon his declining voluntarily to retire, he was compulsorily placed upon the pension-list; and the fact of his removal to the pension-list was notified in the usual way by a general order of the Commander-in-Chief published in the Gazette: - Held, on demurrer, that the claim disclosed no cause of action, for the Crown, acting by the defendant, had a general power of dismissing a military officer at its will and pleasure, that the defendant could make no contract with a military officer in derogation of such powers; and the customs, regulations, We., relied on by the plaintiff must be taken to be always subject to it, and incapable of superseding it, and further, that the publi- cation in the Gazette was an official act under the authority of the Crown, for which the defendant could not be responsible in an action for libel." Grove J., in giving judgment, after stating the material part of the statement of claim, said (1): - "I am of opinion that the East India Company, and afterwards the Crown, had the absolute power to dismiss or compel retirement of an officer in the Indian army; that the power in the nature of Crown Prerogative, conferred upon the East India Company, being for the public benefit, the safety of the realm, and possibly the existence of the Indian empire, could not be waived by contracts with officers; that the relation of an officer to the East India Company and to the Crown is not in the nature of an ordinary contract ; and, further, that the allegations and facts set out in paragraph 2 of the statement of claim do not, as stated, con- stitute a binding contract by which the East India Company abandoned or excluded their power of removal or dismissal at will, as I regard such statement as consistent with the customs, 53.

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the ordinary management of the forces, subject to be changed, if necessity or the better discipline or efficiency of the forces should so require." If the principle is the same with regard to military and with regard to civil servants, as I shall show presently that it is, that case applies, and unless there is something in this Statute which authorizes a difference in the ordinary terms of employment between civil servants and the Crown, the case is to be determined upon the principles ordinarily regulating such matters, and it is only upon clear authority on the face of the Statute that the plaintiff can be exempted from the liability to 'dismissal at the pleasure of the Crown. Does this Statute authorize such a contract? If not, there is no cause of action. Now, the Police Act 1863 contains three sections which throw a great deal of light upon this question - sees. 11,12and 15. See. 11 sets out the form of oath of service which has to be taken alike by the Commissioner, the inspectors, sub-inspectors, sergeants and constables. None of them can hold office until they take this oath and it is an oath to serve, "without favor or affection malice or ill-will for the period of . . . and until I am legally discharged" &. The next section says : - * Every person taking and subscribing such oath shall be deemed to have thereby entered into a written agreement with and shall be thereby bound to serve Her Majesty as a member of the said force and in the capacity in which he shall have taken such oath at the current rate of pay for such member and from the day on which such oath shall have been taken and subscribed until legally dis- charged. Provided that no such agreement shall be set aside cancelled or annulled for want of reciprocity. Provided also that such agreement may be cancelled at any time by the lawful discharge dismissal or other removal from office of any such person or by the resignation of any such person accepted by the Commissioner of Police or other person acting in his stead."

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which provides : - * No constable or other member of the police force shall be at liberty to resign his office or withdraw from the duties thereof unless expressly authorized in writing so to do by the Commissioner of Police or the officer under whom he may be placed or unless he shall give to such officer three months' notice of his intention so to resign or withdraw and any constable or other member who shall so resign or withdraw without such previous permission or notice shall upon conviction in a summary way before any two Justices of the Peace for every such offence forfeit a sum not exceeding twenty pounds." One would think that these sections would scarcely be in need of any judicial interpreta- tion - they are so clear. hey are clear that the contract is en- tirely a unilateral one, that, as long as a man remains in the service asa member of the police force, he is bound by it, and it can only be determined either by cancellation in the terms set out in the section by the Commissioner, acting for the Crown, or by the Commissioner being willing to accept his resignation. But there has been judicial interpretation of it in Victoria in the case of Power v. The Queen (1) decided in 1873, upon the Victorian Act of 1865. It may be as well to premise that the sections there mentioned compare with the sections in the Police Act in this way : - Sec. 9 in the Victorian Act is the equivalent of sec. 11 in the Queensland Act ; see. 10 in the Victorian Act is the equivalent of sec. 12 in the Queensland Act; and sec. 11 in the Victorian Act is the equivalent of sec. 15 in the Queensland Act. Now, in giving judgment in that case, Barry J., speaking of the policeman suing, said (2): - *' His rights depend on the nature of the contract under which he served. Members of the police force enter into an engagement to serve by taking and subscribing an oath, which is set out in the Police Regula- tion Statute 1865, No. 257, sec. 9." His Honor read see. 10 of that Act, which is section 12 of the Queensland Act, and then went on to say : - * We are of opinion that the evidence adduced at the trial of the petitioner having taken and subscribed the oath required was sufficient. The verdict found for him on the first and fifth issues will therefore be undisturbed." He then makes further reference to issues which it is not necessary to (1) 4 ASR, 144. (2) 4A.J.R., 14, at p. 145.

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created by the Statute includes a concurrence between the parties. By it the petitioner promised to serve as long as it would please Her Majesty to employ. On this condition his promise was accepted. But this does not include a mutuality or reciprocity of contract and liability. here is in fact but one contracting party, that is the petitioner. Nothing can be clearer than that the engagement entered into is unilateral only, not mutual, It binds him to serve, but does not oblige Her Majesty to retain him in her service beyond the period which cireum- stances may render necessary. The circumstances which create the necessity may be various, and while the members are not allowed to exercise the privilege of withdrawing from the force when they please without cause assigned or because at some critical emergency some distasteful duty may be allotted to them, they cannot insist on being retained should the social condition of the country render it expedient to reduce certain of the effective members of the force, or should Parliament decline to vote salaries for more than a number deemed sufficient for the maintenance of the public peace. We are of opinion, therefore, that no such contract exists as to entitle the petitioner to main- tain this suit on the first or second counts." I entirely approve of that conclusion, and I should like to mention that the case was subsequently approved by the same Full Court in the case of Green v. The Queen (1). Those three sections in the Queens- land Act - 11, 12 and 15 - being apparently abundantly clear, the question is how do they affect the construction of sec. 6, which apparently has not its equivalent in the Victorian Act. It may be said that sec. 6 taken by itself is ambiguous. That is the best that can be said for the plaintiff's view of that section. Are we to construe the doubtful section so as to obscure the sections that are otherwise clear? That would be an inversion of the principles of construction. But if we use what is clear to remove the doubt as to the ambiguous, we take the correct course. In The State of Tasmania v. The Commonwealth of Australia and State of Victoria (2) in giving judgment - I mention that case, not merely to quote my judgment, but because it puts the matter

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Thave said before, of sec. 11 and the other sections in that line there is a statutory provision which affirms the Crown's right to dismiss the plaintiff; and that statutory provision would be rendered prac- tically nugatory as regards sergeants and constables, but not as regards the Commissioner, the inspectors, and the sub-inspectors, if we adopted the construction contended for by the appellant. Any such construction that we give to sec. 6 would necessitate some~ thing in the nature of a judicial proceeding, before the contract could be determined. In taking the course I indicated in the case I have last cited we bring the three secs. 6, 12, and 15 into harmony by holding that sec. 6 does not make a statutory con- tract shorn of the ordinary term that the Crown can dismiss at pleasure. One may pause here to refer to the case of Shenton v. Smith (1). In the judgment it is said : - "It has been argued at the bar that a Colonial Government stands on a different footing from the Crown in England, with respect to obligations towards persons with whom it has dealings. Their Lordships do not go into the cases cited for proof of that proposition, for they are quite different from this case, and neither principle nor authority has been adduced to show that in the employment and dismissal of public servants a Colonial Government stands on any different footing than the Home Government. It appears to their Lord- ships that the proper grounds of decision in this case have been expressed by Stone J. in the Full Court. They consider that, unless in special cases where it is otherwise provided, servants of the Crown hold their offices during the pleasure of the Crown ; not by virtue of any special prerogative of the Crown, but because such are the terms of their engagement, as is well under- stood throughout the public service. If any public servant con- siders that he has been dismissed unjustly, his remedy is not by a law-suit, but by an appeal of an official or political kind." That passage seems to be quite sweeping in its application to all classes of publie servants whether civil or otherwise. But the matter is put entirely beyond doubt in the case of Dunn v. The Queen (2), which shows that there can be no distinction in this respect between civil and military service, and that the right to

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of military service. Lord Hsher's very plain remarks have been cited by the Chief Justice. Lord Herschell says (1): - * It seems to me that it is the public interest which has led to the term which Ihave mentioned being imported into contracts for employment. in the service of the Crown. The cases cited shew that such employment being for the good of the publie, it is essential for the public good that it should be capable of being determined at the pleasure of the Crown, except in certain exceptional cases where it has been deemed to be more for the publie good that some re- striction should be imposed on the power of the Crown to dismiss its servants." And Kay LJ. (2) says: - *I think that a general principle has been established by the cases on the subject. Some of those were no doubt cases of military service. It was argued that in such cases other considerations applied, and that it was essential for the advantage of the State that the Crown should have the right of dismissal at pleasure, but that the same con- siderations did not apply to the civil service. I do not concur in that view. It seems to me that the continued employment of a civil servant might in many cases be as detrimental to the interests of the State as the continued employment of a military officer. It is impossible not to see that in remote places on the frontiers of our territory the question of peace or war might depend on the action of a civil servant on the spot; and it seems to me that there is as much ground for the possession by the Crown of an unrestricted right of dismissal in the case of civil service as there is in the case of military service." What, then, is the reading of sec. 6 which would bring it into harmony with secs. 12 and 15? I drop sec. 11 because that is simply a section embodying the oath. It is a reasonable construction of sec. 6 to say that it isnot intended to give sergeants and constables any peculiar privilege by way of tenure. First there is nothing at all to show an intention to cut away the Crown's power of dis- missal. There is nothing to show that the authority given to the Commissioner is not merely an additional one, and unless it is shown that this was not intended, the section will be so read. That is to say, the right given to the Commissioner is (1) (1896) 1 Q.B., 116, at p. 119. (2) (1896) 1 Q.B., 116, at p. 120.

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power would be left standing in addition to the power given to the Commissioner, unless there is plain indication other- wise. I think it is the most probable view of the intention of Parliament to say this: In its earlier part sec. 6, as to the appointment of fit and proper persons as sergeants and con- stables, is obviously directory to the Commissioner. Is it not a fair interpretation, and one that avoids any possibility of conflict with secs. 12 and 15, to hold that the authority to dismiss is also coupled with a direction to submit to the Govern- ment the reasons for his action in the shape of the proof he has found sufficient, so that the Government may approve or other- wise of what he has done? That is a check on hasty action by the depositary of a delegated power, and keeps the Government in a position to correct any such hasty action, if, on considering the evidence submitted, it thinks the person should be reinstated or have any amends made to him. Thus a proper sense of re- sponsibility in the Commissioner is also secured. But all this is a purely administrative plan, and does not involve any judicial proceeding at all, nor do I think any judicial proceeding was intended. It would be strange if the sergeants and constables were placed in such a favoured position as that, while the Com- missioner, the inspectors and sub-inspectors are left outside the pale. They are clearly subject to be dismissed at pleasure. First, The Civil Service Act 1863, assented to on the same day as the Police Act, exempts from its provisions by see. 1 " officers, con- stables and other members of the police force." That includes the Commissioner, the inspectors and sub-inspectors. Secondly, they are not included in sec. 6, which is limited to sergeants and constables. But in the third place they are within secs. 11 and 12, and therefore within the principle illustrated by Power v. The Queen (1). And, apart from sees. 11 and 12, it cannot be pretended that there is any express provision to exempt them from the principle of Shenton v. Smith (2), so that the Commis- sioner and inspectors and sub-inspectors may be dismissed at will; but, it is argued, that the sergeants and constables are not to be dismissed without having the protection which their superior

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proceeding. I cannot accept any such conclusion, for I believe that this Act intends the whole of the members of the police force to be placed on the same footing in this respect, that for obyious reasons of policy applicable to such a force, they are all from the highest to the lowest liable to dismissal at pleasure in that public interest for the protection of which the Crown's Ministers are responsible. I see nothing to bind the Commis- sioner to stay his hand until the Government has approved. The section is, in my judgment, not framed with an object for the fulfilment of which that delay would be essential. The proceeding not being a judicial one, the next inquiry to my mind is, what is a sufficient submission for the approval of the Government? The Commissioner has himself no power to bring documents before the Executive. Even if the words "the Government" are to be read to mean "the Governor in Council" - which is at least doubtful - the Commissioner has done all that an officer could do by way of submitting the evi- dence, when he has handed it or forwarded it to the Minister of the Crown responsible for the Police Department. In the exercise of his judgment it is competent for that Minister to obtain an Order in Council approving of the proof as sufficient (for it is the proof which is to be submitted for that purpose); but if the Minister does not choose to take the matter further, and merely contents himself with giving his own official approval of the proof, still the Commissioner has in that case done all that the section directs him to do, and I do not see that such a state of things can possibly give the dismissed servant a cause of action. By reason of the frame and character of the section, as being part of an administrative plan or scheme, it is as a check upon the Commissioner, and not as a privilege to the constable that the provision has been devised. Arguments were addressed to us founded on other Statutes with the view of bringing this case within the decision in the case of Gould v. Stuart (1). That is a case which the Judicial Committee of the Privy Council held to be one of those referred to in Shenton v. Smith (2) as exceptions to the general rule. The principal of those Statutes cited to us

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Supreme Court on the questions expressly stated for our con- sideration. I entirely agree in the view of their Honors of the Supreme Court, that if the plaintiff had a right under see. 6, to demand that there should be a sufficient proof of his misconduct before he was dismissed, then he had a right to be heard before the Commissioner who was to determine that question. If the Act has given him a right to demand that such proof shall be given, he is entitled on his part to be present, and put the matter to proof in any manner that he thinks fit. Whether the section does give that right is the matter for our consideration. The Supreme Court also decided that the word "Government" in the section must be read as meaning "Governor with the advice of the Executive Council." I cannot assent to that reading. The expression "Governor with the advice of the Exeeutive Council," is used all through the Act in other sections. It is a term with a well-known statutory and constitutional meaning. When the word "Governor" has been used dealing with the same subject matter in different sections of the same Act, primd fucie, the word was intended in all the sections to have the same meaning - Governor with the advice of the Executive Council. In fact the word "Government" has no technical meaning in the sense in which it is used in sec. 6. It is a popular expression, and it must be taken to be used, primd facie, in the popular sense ; but when we find it contré-distinguished in sec. 6 from the other expression in the Act - * Governor with the advice of the Executive Council," it appears to me that it must mean something less than " Governor and the Executive Council," and the only meaning that can be put on it in the connection in which it stands is the Government, that is to say, the administration as represented by some Minister, who acts for the Government generally in the particular matter in question. It means, therefore, in this section, in my opinion, the Minister who has charge of the Police Department. I pass

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The plaintiff's claim rests entirely upon a contract, and he must make out that the Crown has been guilty of a breach of some contract in dismissing him. We start with the assumption, which is the foundation of the plaintiff's case, that the plaintiff has been dismissed by the Government. The question as to whether that dismissal is wrongful or not depends upon whether the terms of the contract, under which the plaintiff was employed, entitled the Government to dismiss him as they did. It is unncessary for me to repeat the authorities that have already been cited, because the principles of the law to be applied to the case of an employé in the Public Service have been definitely settled for many years, and the statement of those principles will be found in the cases of Shenton v. Smith (1); Dunn v. The Queen (2); and Gould y. Stuart (3). The result of those authorities is this : - That in every case it must be taken to be a condition of service with the Crown that the Crown has the right to put an end to the service at any time, and in any manner that it thinks fit. There is however established by Gould v. Stwart (3) this qualiti- cation that the Crown may by Statute, or in any other way, alter the terms of the contract, so that it becomes, not a contract giving the Crown the right to dismiss at pleasure, but a contract to dismiss only after certain formalities have been observed. In the case of Gould v. Stwurt (3) it was held that the ordinary form of contract between the Crown and the public servant had been altered to the extent of giving a right to the civil servant to demand that his dismissal should take place only after the observance of certain formalities, and Mr. Douglas very properly admitted that this case really turned upon the question - Was it apparent ,from this Statute - the Police Act 1863 - that the ordinary incident which I have referred to as a part of the contract between the public servant and the Government, had been altered by the terms of the Statute? Now, the terms of

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