Lucy v THe

Lucy v THe - [1923] HCA 32 - HCA 1923 case summary — Zoe

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of the Constitution, which, while providing that he should " become subject to the control of the Executive Government of the Commonwealth," went on to declare that, since he was retained in the Service of the Commonwealth, he should " preserve all his existing and accruing rights." The rest is immaterial, as I do not find any provision in the State law whereby he was "entitled to retire from office on any pension or retiring allowance." The retire- ment in this case was not caused by any action of the Government under sec. 73 of the Commonwealth Public Service Act, that is, retire- ment "before he attains the age of sixty-five years," but by a notification that the plaintiff would have to retire under sec. 74, which is in these words: " Every officer shall retire on attaining the age of sixty-five years unless he is required to continue to perform his duty in the Public Service as hereinafter provided and is able and willing so to do." Nevertheless, as the Crown admitted at the Bar that there had been a wrongful removal, I say nothing further as to that. But sec. 74 is, as decided by Le Leu's Case (1), subject to sec. 60 of the Act. There is a passage in the first judgment in that case which has given me considerable hesitation. It is as follows (2): - * The plaintiff thus establishes that under the law of South Australia age, apart from incapacity, is not a ground for removal, and that he could not on the facts of this case be lawfully retired or, to use the words of the statute, removed from office, except for incapacity. He had therefore, in our opinion, an existing right which he enjoyed when transferred to the Commonwealth Service, and which was preserved by sec. 60 of the Commonwealth Public Service Act. It was said, however, that this right was destroyed by see. 74 of that Act, which provides that every officer shall retire on attaining the age of sixty-five years unless required to continue in the Service ; the argument being that: ' officer' in sec. 74 means a "transferred ' officer as well as an ' appointed ' officer, and in this connection the definition of ' officer' in sec. 2 was relied on. It is apparent that, if sec. 74 be construed as relating to all ' transferred' officers, its provisions so far as officers transferred from the South Australian Service are concerned are inconsistent with those of

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sec. 60 of the Act, which purports to preserve the right of officers to remain in the Service until removal for incapacity. In opinion, the contention submitted on behalf of the Commonwealth on this point is opposed to the well-recognized rule of construction which requires that all parts of a statute shall, if possible, be con- strued so as to be consistent, one with the other. In the present case this can be done by reading sec. 74 as applying only to those officers who had not a right preserved to them by sec. 60 to remain in the Service after attaining the age of sixty-five years. We think that sec. 60 may and should be regarded as dealing specially with rights of transferred officers, and that other provisions of the Act which would be inconsistent with the provisions of that section, if they were read as applying to transferred as well as to appointed officers, should be construed as inapplicable to transferred officers so far as may be necessary to avoid inconsistency." If that means' that "transferred" officers are entirely outside sec. 74, then the wrongful removal was a wrongful deprivation of all emoluments to which the plaintiff was entitled under Commonwealth law, without reference to State law or constitutional guarantees, and, if he elected to rest on that basis, he could do so. But the passage may not mean that : it may mean that sec. 74, though including all officers, transferred as well as original, is subject to the provisions of sec. 60. I am assured by my learned brethren that the second meaning is open to me; and I act upon that. [read sec. 74 and sec. 60 together, and, what is very important, I read them both with sec. 84 of the Constitution, as they are all closely connected. But, acting upon that view, the wrongful dismissal amounted, in my opinion, to a wrongful deprivation of such emoluments, &c., as sec. 60 conserved, that is, in this case, such as sec. 84 of the Constitution guaranteed. I personally construe sec. 74 as being exercisable so as not to abridge any rights guaranteed by sec. 84 of the Constitution, and introduced by way of qualification of sec. 74 (inter alia) in sec. 60 of the Common- wealth Public Service Act. I take the legislative intention as expressed by sec. 74 qualified by sec. 60 to be this: Sec. 74 applies to the whole Service so that everyone retires from the Service at sixty-five, - unless required to remain, &c.. subject only to the right of every transferred officer under sec. 60 to remain for the time and at the

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dependent in many cases upon time. But, given the " time" element, then subject to one consideration, the money result, could - be worked out. That one consideration is not really legal, but is - one which ought to be and, as I understand, was conceded by the ; Crown, namely, that any condition dependent merely on industry - and good conduct of the officer, or on the general discretion of the - Government, should be taken to be fulfilled. Such conditions are only "reserved " discretion for undeserving cases, and ought to be - understood in that sense. But, that apart, I cannot read the Com- E monwealth Public Service Act as creating a contract that, although - the only bar to retirement at sixty-five in the interests of the Service _ generally is the constitutional guarantee of pre-existing State rights, _ yet in case of breach of that guarantee a much greater sum will be paid. That would, I think, besides being unwarranted by any pro- vision in the Act, operate prejudicially to other members of the Service, _ particularly since the Superannuation Act (No. 33 of 1922). In my opinion, transferred officers stand on exactly the same footing as - other members of the Service, except that they hold guaranteed rights, the value of which, apart from the amount of retiring allow- ance, never alters in any individual case. Those rights, if invaded, - must be fully compensated for ; but I am quite unable to see why, by reason of those rights which the country has guaranteed, these officers should in still other respects stand in a better position than any other officers in the Service, or that the guarantee should be '| enlarged beyond the terms of the compact in the Constitution. The - Constitution itself certainly does not give these added rights, and the whole intendment of the Commonwealth Public Service Act is against it. And justice is against it. In my opinion, the proper measure of damages is the true money - value of the plaintiff's position on the supposed basis that he was still in the State Service with such rights as were " existing or accruing" on Ist March 1901. As to anything further, he took his chance with the Commonwealth Parliament. And any increased salary is taken with the knowledge that it is subject to the general conditions of the Commonwealth Act, including retirement at sixty- five, which means "no further salary henceforth." I am, I confess,

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monwealth Public Service Act after the event which that Act provides to end all right to salary. Sec. 84 of the Constitution seems all that vemains, and it preserves " existing and accruing rights." Now, what were his "existing and accruing rights" guaranteed to him as on Ist March 1901? He had a salary of £220 a year, rising (let us assume) to £270 in five years. After that he could get no ad- vancement except under conditions prescribed by sec. 22 of the 1874 Act of South Australia, which, in my opinion, preclude me from considering the promotion an " existing or accruing right." It was not, of course, an "existing" right (see Westralian Powell Wood Process Ltd. v. The Crown (1); Abbott v. Minister for Lands (2) ). During the argument reference was made to the claim for a declara- tion that the plaintiff was on 11th May 1919 entitled to retain his office. Neither side argued or would argue that he is entitled to a declaration that he is now in the Service. Obviously that would be impossible. Sec. 74 says an officer "shall retire" &c. If, not being bound to retire, he yields, not unnaturally, to an official intimation that the Act so required him, it is of course right that the Government should take the responsibility for its intimation as an indication of what it would do if the officer did not retire. But retirement in those circumstances is none the less retirement in fact. And sec. 76 makes the Gazette notice of retirement conclusive evi- dence of the fact, leaving the legality to be ascertained if necessary. Then, from May 1919 to June 1922, over three years elapsed before the writ was issued. In the meantime the plaintiff entirely severed his connection with the Department and undertook other employ- ment into which, as he says in the agreed statement of facts in the special case, " he could not have entered if in the Commonwealth or State Public Services." No claim was ever made, and none is now made by him, that he has all through been in the Public Service. His acceptance of benefits since his retirement is inconsistent

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removal or dismissal," and " such consequent and incidental relief as to the Court shall seem meet"; and this relief prayed is to be based on two declarations - one as to the right to retain office, and the second as to the wrongfulness of the removal. The plaintiff in his statement of claim alleges that he was "actually retired or removed from his office in the Public Service of the Commonwealth " (par. 5), and that allegation is admitted by the defence. The defence also admits the "contentions"? made by the plaintiff in par. 7 of the statement of claim, including the allegation * that the plaintiff was wrongfully retired or removed from his office in the Public Service of the Commonwealth and that ever since such retire- ment or removal he has been wrongfully deprived of all the rights and privileges belonging to him in his said office." So far as this "contention " contains allegations of fact, it has not been denied or stated to be not admitted, and therefore it is to be treated as admitted, under our pleading rules (Order XVII., r. 10). Under these cireum- stances the plaintiff is entitled to damages as for wrongful dismissal. There has been an attempt made to show that the plaintiff is still in the office and entitled to his full salary till death, the removal being contrary to the Act; but although the writ seems to have suggested such a view, the statement of claim does not, and in face of the admissions which I have already stated, I do not think that the argument is open for the plaintiff to take; but, in any event, such an argument, in the case of an employee being wrongfully dismissed during his term, is inconsistent with Bmmens vy. Elderton (1); Goodman v. Pocock (2); Smith on Master and Servant, 7th ed., p- 112. The contract is not a mere promise to pay money, but to pay wages for service; and the breach of contract consists in not allowing the employee to continue in the service so as to get the wages (notes to Cutter v. Powell (3) ). This is the view which I accepted in Williamson v. Commonwealth (4).

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The case of Le Leu v. The Commonwealth (1), in this Court, deci that age, apart from incapacity or other cause specified in the Acts, was not a ground for removal from office of an officer subject or entitled to the benefit of the provisions of the South Australian - Civil Service Acts of 1874 and 1881. A suggestion was made during ' the argument that the decision in Le Leu's Case ignored the pro- visions of the Customs Act of South Australia of 1864 (27 & 28 Vict. No. 19, sec. 4), which had not been referred to in that case, and that the present case was distinguishable by reason of the provisions of the Post Office Acts of 1866 (30 Vict. No. 5, sec. 5) and 1876 (39 & 40 Vict. ; No. 49, sec. 6). But the Civil Service Acts of 1874-1881 defined and regulated, in my opinion, the rights and duties of the Public Service of South Australia. The plaintiff, prior to his transfer to the Com- _ monwealth, was subject to the Civil Service Acts, and, under those Acts, could not be lawfully removed from office except for incapacity or other cause specified therein. This was one of the rights pre- served to him both by the Constitution and the Commonwealth Public Service Act. Now it is clear that the plaintiff's position as an officer of the Public Service of South Australia did not continue after his transfer to the Commonwealth, and therefore the right preserved to him must attach to his position as an officer of the Commonwealth. In other words, one of his rights as an officer of - the Commonwealth is that he should not be removed from office or his services terminated merely on the ground of age, apart from incapacity or other cause specified in the Civil Service Acts 1874- 1881 of South Australia. But the Commonwealth, in contravention of the Constitution and the Commonwealth Public Service Act, did in fact remove the plaintiff from office and terminate his service merely because he had reached the age of sixty-five years, and notwithstanding that he was capable of continuing his duties as an officer of the Commonwealth.

At a glance

Court

Decision date

Before

Source

Judgment (175 paragraphs)

Parties

Cited By (4)