Greville v Williams [1906] HCA 97

Greville v Williams [1906] HCA 97 - HCA 1906 case summary — Zoe

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Before referring to the facts of the case - and in the view I take of it the question in this case is entirely one of fact, and does not involve any general principle - it is necessary to refer to the Statutes under which the claim arises. By the Civil Service Act 1884 various provisions were made for the regulation of the Civil Service. See. 43 of that Act provided that " Any officer shall at any time after having attained the age of sixty years be entitled to retire from the service upon the superannua- tion allowance " calculated at the rate specified in see. 48. Sec. 44 provided for persons who had not attained the age of sixty years but desired to retire owing to infirmity of mind or body, in which cases, under certain circumstances, they might retire upon a superannuation allowance upon a scale prescribed. Sec. 45 provided that the Governor might order a person to retire if it should be reported to him that the officer was unfit to perform his duties by reason of intirmity of mind or body, in which case he was entitled under certain circumstances to a superannuation allowance. Sec. 46 provided as follows : - " When the services of any officer are dispensed with in consequence of the abolition of his office and no other office can be offered to him at the same salary as hereinbefore provided" (that was a reference to sec. 8, now repealed, to which it is not necessary to refer) "or at a salary of not less than five-sixths of the same he shall be entitled to retire upon the superannuation allowance hereinafter provided." he plaintiff was an officer of the Civil Service and entitled to the benefits conferred by that Act, whatever they ave, unless they have been taken from him by subsequent legislation. For the purpose of providing a fund for the payment of super- annuation allowances provision was made by sec. 53 for estab- lishing a fund called the Civil Service Superannuation Account, which was made up partly by a contribution from the Consoli- dated Revenue of £20,000 a year for five years, and afterwards by deductions from the salaries of all officers in the service with certain exceptions, at the rate of four per cent. per annum from

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By the Public Service Act 1895 various provisions of the Civil Service Act 1884 were repealed, but sec. 46, providing for the payment of pensions to officers on the abolition of their office, was not repealed. Indeed, so far from being repealed, it was expressly kept in force, and express reference was made to it. See. 8 of the Act of 1895 provides : " As often as shall be neces- sary to carry out the directions and provisions of this Act, and to ensure the establishment and continuance of a proper standard of efficiency and economy in the Public Services, the Board shall, as far as practicable, personally inspect each department, and investigate the character of the work performed by every officer therein, and the efficiency, economy, and general working of such department. . . . And if the Board shall at any time find that a greater number of persons is employed in any department than it may determine to be necessary for the efficient working thereof such persons as are in excess may (if practicable) be transferred to any other department which, in the opinion of the Board, requires additional assistance, and if the persons so found to be in excess cannot be usefully and profitably employed in any other depart- ment, their services shall be dispensed with subject to the pro- visions of section sixty hereof." See. 60 provides that "If the services of any person permanently employed in the Public Service shall be dispensed with by the Board under the pro- visions of this Act otherwise than for an offence, then" in the case of such officers as the plaintiff, who was a contributor to the Superannuation Account, but not entitled to retire under secs. 43 and 44 of the Act of 1884, the officer should be entitled to receive a refund of his contributions to the Superannuation Account together with a gratuity calculated at a certain pre- scribed rate. Sec. 59 provided that no person, who should, after the commencement of the Act enter any department of the Public Service to which the Act applied, or who was not at

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that time a contributor to the Superannuation Account under the Act of 1884 "shall be allowed to become a contributor to or to acquire any right to any payment by way of pension, annual superannuation, retiring allowance, or gratuity out of such Superannuation Account. Nor shall any person to whom this Act applies," except as provided in sec. 60, "receive out of the Consolidated Revenue any payment by way of pension, annual superannuation, retiring allowance, or gratuity, either directly or indirectly." It was suggested, and we asked for further argument on the point, that that section might have the effect of distinctly declaring that no pension should be paid to any person in the Public Service except under the provisions of this Act. See. 60 deals with the case of persons whose ser- vices are dispensed with by the Board under the Act otherwise than for an offence. See. 62 deals with two classes of persons ; first, those who at the date of the commencement of the Act are contributors to the fund, and as to them it makes provision that they may, if they please, discontinue contributing to the fund, in which case they will be entitled to a refund of their con- tributions. It also deals with another class of persons, namely, those who, being contributors to the superannuation fund at the commencement of the Act, continue in the service after the expiration of twelve months, that is, persons whose services are not dispensed with; with respect to whom it is provided that they shall be entitled on retirement to all the benefits conferred upon contributors to the Superannuation Account by the pro- visions of Part V. of the Act of 1884, and goes on : - " For the purpose of this proviso, such rights and benefits shall be deemed to include the right to superannuation allowance under sections forty-six and forty-eight of that Act as though their office were abolished where the officer who shall retire or be removed as aforesaid shall be otherwise within the terms of section forty- eight." It is clear, therefore, that it was not intended that the only right to receive a pension should be that under sec. 60. Moreover, in sec. 59 the terms "Superannuation Account" and "Consolidated Revenue" are both mentioned; and, having regard to the other provisions for pensions, I am of opinion that the prohibition of any payment by way of pension, annual

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take effect from the first instant." The appellant, therefore, was appointed to this office by a special name, with a special status. The office was recognized by Parliament by that name in the Appropriation Act of 1894, In June 1896, therefore, the plaintiff was holder of the office of Accountant in Bankruptcy. Was that office abolished? As a matter of fact he ceased to hold office at the end of that month under these circumstances. The Public Service Board, having investigated the work of the office, reported to the Minister on the 17th June 1896: - "We. . . have . inspected the Department of Justice and so far as practicable, investigated the character of the work performed by every officer of the Department. We have also, subject to any right of appeal under sec. 15. . . graded the officers employed therein and classified the work performed by each in the manaer described in the accompanying schedule." Then followed a schedule of the officers in the Bankruptcy office, amongst which the appellant's name did not appear. On 26th June the Under Secretary of the department wrote to the appellant and informed him that the Public Service Board had recommended that he be retired from the Public Service, and that the Governor, with the advice of the Executive Council, had approved of his retirement accordingly from the 30th of that month; and, by notice in the Government Gazette of 4th July, bearing date 2nd July, it was notified that the Governor with the advice of the Executive Council had approved of the retirement of various officers mentioned, under the provisions of the Public Service Act of 1895, including " Mr. Henry James Greville, accountant and cashier." The communi- cation to him and the Government Gazette did not use the term "abolition," nor state that his office,was abolished, or that his services were dispensed with under the provisions of sec. 8 of the Act of 1895, but the neutral word "retire" was used. The word "retire" is a word used in the Act of 1884; for instance, under sec. 45, the Governor may order a person to retire on a super- annuation allowance.

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officer who held it are not wanted; he may be in excess of the number which can be further profitably employed in the depart- ment. But it by no means follows that, because that is the view taken by the Government, the office has not been abolished. It appears to me that, when an officer at the beginning of the month holds an office under a special name with a special status recog- nized by Parliament, and at the end of the month the office no longer exists, the office has been abolished. Whatever may have been the motive of the Government in abolishing it, it does not alter the fact that his office no longer exists, and in my opinion under these circumstances it must be taken to be abolished. It was suggested for the respondent that if the work attached to the office were still carried out by someone else, then the office could not be said to have been abolished. I cannot follow that argu- ment. It is very little satisfaction to a person, whose services haye been dispensed with and who claims to be dealt with as an officer whose office has been abolished, to be told that someone else is doing his work. It is suggested that the Board intended to act under the Act of 1895. Possibly it did. But the Court must deal with the official act of the Governor as recorded in the official documents, not in the light of any statement of inten- tion or motive that may be given in evidence as to what the Board intended to be the legal effect of their act. In substance the appellant's office was abolished, and he is entitled to what- ever rights are conferred upon him by sec. 46 of the Act of 1884. The Government, however, assumed to deal with him under the Act of 1895, and offered him a gratuity under that Act, and he accepted it. He afterwards took advantage of another Act passed in 1899 for the benefit of persons who seemed to have been hardly treated under the Principal Act, ie., The Public Service (Superunnuation) Act 1899, which gave the right toa pension at a reduced rate, allowance being made for any gratuity received under the Act of 1895. It was faintly suggested that, having taken advantage of these Acts, he could not set up a claim under the original Act. But a statutory claim cannot be defeated in that way, unless there is something in the nature of accord and satisfaction, or estoppel. Nothing of that kind was pleaded

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willing to forego those rights. He was retired against his will, and in every step that followed the Government appear to have acted in accordance with their own view of the position, without any regard to whether he consented or objected. The only sub- stantial question for our consideration is whether the plaintiff on his compulsory retirement became entitled to a pension under sec. 46 of the Civil Service Act 1884 as being an officer whose services were dispensed with on account of the abolition of his office. That question involves two inquiries: first, was the plaintiff's office an office within the meaning of that section ; and, secondly, was it abolished? The facts material on these inquiries may be shortly stated. The Government Gazette of January 1890 notifies the promotion of the plaintiff from the position of Chief Clerk in the Bankruptey office to that of " Accountant with rank next after the Registrar in Bankrupcy." From that date until the office was, as the plaintiff alleges, abolished, in the grading of the department on the 17th June 1896, he held the office of Accountant in Bankruptey. It may be noted that during that period the Appropriation Act of 1894 embodying estimates described the office as "Accountant in Bankruptcy" and appropriated the plaintiff's salary specifically to the office under that description. The Bankruptcy Act imposes upon the Registrar many important duties in accountancy. The official assignees' accounts and all receipts and disbursements in bank- rupt estates are directly under his control. Until 1890 the Registrar was nominally accountant as well as Registrar. But on plaintiff's appointment as accountant in that year all the accountancy work of the department, including the account- ancy duties imposed upon the Registrar under the Bank- ruptey Act were collected and placed in the hands of the plaintiff as accountant, and what we have to determine is whether the office thus constituted, and having allotted to it such definite duties, is an office within the meaning of sec. 46 of the Civil Service Act 1884. For some purposes every office held

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dispensed with before he has had time to earn his pension, definite rights in some cases and definite title to favourable con- sideration in others. Sec. 46 gives the right to a pension on abolition of office. Sec. 49 authorizes the Minister to grant a gratuity to any officer whose services have been dispensed with through no fault of his own. And one of these cases for gratuity is incidentally referred to in sec. 10 already quoted where the officer's services are dispensed with through no fault of his own in consequence of a departmental change, "departmental change" being contrasted in that section as I have already pointed out with "abolition of office." Under the Act of 1884 the Civil Service Board was charged with the duty of classifying officers as to their positions and duties. The Government acted on that classification, and Parliament voted salaries in accordance with it. It was in the power of the Board in the course of classification so to arrange duties as to necessarily involve the dispensing with an officer's services because of the breaking up and distribution of the group of well-defined duties which con- stituted his office. When that classification had been acted on by Government and by Parliament, the office was as effectually abolished, in so far as its holder was concerned, as if it had been abolished by executive minute passed in the most solemn form. In the actual working of the system it was by classification such as I have described, and not by executive minute, that offices were abolished, and it was no doubt with reference to that method of abolition of office actually in use in the working of the departments that a right of pension on the abolition of an office was given, a right depending on the existence of a state of facts, namely, that the office had, through no fault of the officer, ceased to exist. If the officer's right depended not upon the fact that his office had, through no fault of his, ceased to exist, but upon adoption by the Government of a particular form of recognizing and declaring that faet - which form they might or might not adopt at their diseretion - the officer's right would indeed be of a shadowy description. An examination therefore of the Act of 1884 leads me to the conclusion that it was in- tended to confer upon the officer, whose services were dispensed

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with on account of the abolition of his office, a real right dependent upon the fact that his office had ceased to exist and had been treated by the Board and the Government as non- existent, and not upon the circumstance that the Government had thought fit to adopt a particular form of recognizing that fact. The Act of 1895 left section 46 of the 1884 Act unrepealed, and has nowhere cut down any right the plaintiff may have had under that section. The Public Service Board, which under the Act of 1895 replaced the Civil Service Board, has even larger powers of grading and classifying officers, assigning duties, and allotting salaries, than the Civil Service Board, and it is declared by sec. 10 that the grading and classification of officers, assignment of duties, and apportionment of salaries, shall, subject to parliamentary provision for the salaries, be as so deter- mined by the Board. The Public Service Board therefore had the power to so classify the officers of a department and appor- tion their duties as to drop a particular office out of existence and leave its holder without duties or salary. And when by such grading an office capable of being abolished within the meaning of sec. 46 thus ceased to exist, it became as effectually abolished for the purposes of the section as if it had been formally abolished by executive minute. Sec. 21 of the Act of 1895 is the only section of the Statutes dealing with the Public Service which expressly empowers the Governor in Council to abolish an office

that is, the section declaring and defining the divisions under which the officers of the service are to be classified. The Special Division is to include all persons whose office the Governor in Council shall declare by notification in the Government Gazette to belong to that division. But the Board is empowered under certain circumstances to certify to the Governor in Council that it is expedient to add any office to or abolish any office in the Special Division, and upon such certificate and not otherwise the Governor in Council may add any office to or abolish any office in that division. The introduction of this power for the first time in the Act of 1895, and then for this special purpose, in my opinion, strongly corroborates the view that the abolition of office referred to in sec. 46 and other sections in the Act of 1884 included other modes of abolition of office than that by express

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fund was in existence and full operation when the 1895 Act was passed; indeed it continued to be in operation, both receiving deductions from salaries and paying allowances, until 1903, when by the Publie Service (Superannuation) Act of that year all its obligations and liabilities were passed on to the Consolidated Revenue Fund. The Act of 1895 leaves unrepealed all the sec- tions of the Act of 1884 dealing with the fund, and recognizes its existence in many sections. Sec. 59 itself, in the earlier portion, specially enacts that no person entering the service after the passing of the Act shall acquire any rights against the fund, and then it goes on to provide that no one to whom the Act applies should acquire any rights to be paid out of the Consoli- dated Revenue, as distinguished from the Superannuation Fund, unless under the provisions of the Act. One object no doubt of the Act of 1895 was to effect in the first twelve months of its operation a substantial reduction in the number of officers - an object which could not be attained without payment of a larger sum in allowances and gratuities than the fund could be fairly expected to bear. The Act directs that these payments shall be made out of the Consolidated Revenue, and the latter words of sec. 59 are merely intended to make it quite clear that the Consoli- dated Revenue Fund is free from any obligations other than those expressly imposed on it by the Act. Such being the mean- ing of sec. 59 of the Act of 1895, it cannot operate in any way to cut down the plaintiff's rights acquired under sec. 46 of the Act of 1884 by the abolition of his office under the circumstances proved in this case. And there is certainly no other portion of the Act which directly or indirectly cuts them down. For these reasons I am of opinion that the finding of Mr. Justice Pring was erroneous and should be set aside and the verdict should be entered for the plaintiff for the amount claimed. It should be made a condition that the plaintiff is to give full credit to the Government for all moneys received by him from them since his retirement, and, if amendment of the proceedings is necessary to enable that credit to be given, such amendment should be made.

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Judgment (98 paragraphs)