Queen Victoria Memorial Hospital v Thornton

This is a demurrer to a statement of claim which seeks a declaration that ss. 27 and 28 of the Re-establishment and Employment Act 1945-1952 are invalid in so far as they apply to persons entitled to preference who compete for employment. It also seeks a declaration that s. 5 of the Re-establishment and Employment Act 1952 is void so far as it purports to extend the period of operation of the foregoing sections in their relation to such persons.

The plaintiff is a hospital incorporated under the Hospitals and Charities Act 1948 Vict. and the defendant is a legally qualified medical practitioner in the State of Victoria who is a "person entitled to preference" within the meaning of the Re-establishment and Employment Act 1945. She served, according to the allegation in the statement of claim, with the rank of major in the Royal Army Medical Corps from the month of April 1940 until the month of November 1942. Apparently a position of radiologist in the plaintiff's Radiological Clinic fell vacant. The plaintiff hospital agreed to employ a legally qualified medical practitioner named J. Hamilton Smith as a radiologist as from the end of September 1952. Before the end of September 1952, it would seem on 15th August 1952, seven years from the end of hostilities in the war commencing on 3rd September 1939 had expired. Section 34 of the Re-establishment and Employment Act 1945 provides that ss. 24 to 33, inclusive, of that Act should cease to operate at the expiration of seven years after the cessation of hostilities. But on 18th November 1952 the Re-establishment and Employment Act 1952 was assented to. Section 5 of that Act substitutes the word "ten" for "seven" in s. 34 of the Act of 1945. Section 2 provides that the Act of 1952 shall be deemed to have come into operation on the third day of September 1952. Accordingly, as from 18th November, or possibly as from 16th December (see s. 5 (1A) of the Acts Interpretation Act 1901-1950) the operation of ss. 24 to 33 revived as from 3rd September 1952.

In the meantime, namely on 1st September 1952, the defendant had applied in writing to the plaintiff hospital for employment as a radiologist in its Radiological Clinic. Apparently the application in writing had been preceded by an attempt on the part of the defendant to obtain the appointment; at all events so we were informed from the Bar.

Section 27 of the Re-establishment and Employment Act 1945-1952 contains provisions giving persons entitled to preference a conditional right to be engaged by an employer in preference to any other person unless the employer has reasonable and substantial cause for not engaging him. A "person entitled to preference" is defined by s. 25 to mean a member of the forces who has been discharged or is awaiting discharge, and a person registered under s. 32 of the Act. Section 32 empowers a Central or Regional Preference Board to register persons not otherwise entitled to the benefits of Division 2 of Part II, where these provisions occur, if, having regard to the service performed by them in relation to the war, the board thinks fit to do so. Section 25 defines "member of the Forces" to include a person who was, at any time during the war commencing on 4th August 1914 engaged on continuous full-time service as a member of the Defence Force or Army Medical Corps Nursing Service, and s. 4 contains a very long definition of "member of the Forces" based upon the war commencing on 3rd September 1939. Both the defendant and Dr. Hamilton Smith come within this definition. Section 27 (2) provides that any person entitled to preference may apply in writing to the employer concerned to be engaged for employment in any position notwithstanding that employment in the position has not been offered to him. Sub-section (3) provides what, in determining whether reasonable and substantial cause exists for not engaging in employment a person entitled to preference, an employer concerned must consider. The provisions of s. 27 which so far have been mentioned relate to the preference of a person entitled to preference when the question is between that person and an applicant or applicants for employment who fall outside the definition. They therefore do not apply to the question whether the Hospital Board was obliged to appoint the defendant and not Dr. Hamilton Smith to the post of radiologist. The provision of s. 27 which purports to deal with such a matter is sub-s. (4). Sub-section (4) provides that in determining as between two or more persons entitled to preference who are applicants for engagement in employment which of those persons shall be engaged in employment the employer shall consider the matters referred to in the preceding sub-section and the comparative qualifications of those persons. The matters referred to in the preceding sub-section are: -

(a) the length, locality and nature of the service of that person;

(b) the comparative qualifications of that person and of other applicants for engagement in employment in the position concerned;

(c) the qualifications required for the performance of the duties of the position;

(d) the procedure (if any) provided by law for engaging persons for employment in the position; and

Notwithstanding the defendant's application, the plaintiff hospital appears to have determined in favour of the appointment of Dr. Hamilton Smith. The result was that the defendant resorted to s. 28. Section 28 is in the following terms: -

(1) Where any person whom an employer has refused to engage in employment considers that, having regard to the provisions of the last preceding section, the employer should have engaged him in employment, that person may apply to a court of summary jurisdiction constituted by a Police, Stipendiary or Special Magistrate for an order under this section.

(2) On the hearing of the application, the court shall have regard to the matters specified in sub-section (3) or sub-section (4) (whichever is applicable) of the last preceding section and shall make such order as it thinks just and reasonable in the circumstances.

(3) The court shall not, on the hearing of the application, make an order directing an employer to engage a person in employment in any position if the court is satisfied that that person - (a) would be unable to perform the duties of the position by reason of lack of skill or a reasonable degree of efficiency;

(b) is physically or mentally unfit to perform the duties of the position; or

(c) has, since the termination of his service, been convicted of an offence of such a nature that he is unsuitable for engagement in that employment.

(4) Except as provided by the next succeeding section, the decision of the court shall be final and conclusive.

The defendant applied to a Court of Petty Sessions in Melbourne constituted by a stipendiary magistrate for an order directing the plaintiff hospital to employ the defendant in preference to Dr. Hamilton Smith. On 10th December 1952 Mr. Harold Jackson, S.M., sitting in a Court of Petty Sessions, after hearing evidence called by the plaintiff hospital and the defendant, purported to order the plaintiff hospital to employ the defendant as a radiologist in place of Dr. Hamilton Smith within fourteen days of the making of the order. The plaintiff hospital says that it does desire to employ Dr. Hamilton Smith and does not desire to employ the defendant as radiologist or at all. Accordingly it brings the present action for the purpose of obtaining relief against the order of Mr. Jackson and, as has already been said, bases its claim on the contention that s. 28, so far as it relates to s. 27 (4), is void.

In support of that contention four grounds were put forward. The first three were directed to establishing that the provisions could not be supported as incidental to the defence power. The fourth depended upon the contention that s. 28, at all events in so far as it related to sub-s. (4) of s. 27, purported to require a State Court to perform functions which were not within the judicial power of the Commonwealth and fell outside s. 77 of the Constitution, which enables the Parliament to make laws investing the court of a State with Federal jurisdiction.

In the view the Court takes it is sufficient to deal only with the fourth ground. In questions of constitutional validity it is not desirable to go further than is required for the decision of the particular case and as the view of the Court is that s. 28 in relation to s. 27 (4) does not confer judicial power and is for that reason not justified by s. 77 and is void, it is unnecessary to express any opinion concerning the first three grounds relied upon by the plaintiff. What s. 28 (1) appears to attempt is to invest a State court of summary jurisdiction with a power which may be briefly described as that of making an appointment in substitution for the appointment made by an employer. This is not a case calling for any examination of the precise limits of judicial power. It is enough to refer to Shell Co. of Australia v. Federal Commissioner of Taxation [1] ; British Imperial Oil Co. Ltd. v. Federal Commissioner of Taxation [2] ; Rola Co. (Australia) Pty. Ltd. v. Commonwealth [3] ; Silk Bros. Pty. Ltd. v. State Electricity Commission of Victoria [1] ; Peacock v. Newtown Marrickville and General Co-operative Building Society No. 4 Ltd. [2] .

1. (1931) A.C. 275; (1930) 44 C.L.R. 530. 2. (1925) 35 C.L.R. 422; (1926) 38 C.L.R. 153. 3. (1944) 69 C.L.R. 185. 4. (1943) 67 C.L.R. 1. 5. (1943) 67 C.L.R. 25.

In relation to s. 27 (4) a court of summary jurisdiction constituted by a magistrate has a discretion which is complete except that he is to be under a duty to consider the matters referred to in sub-s. (3) (a) to (e). So long as the court takes them into account it may do as it thinks fit in making the appointment. No antecedent rights exist in any of the persons concerned which the court of summary jurisdiction is called upon to ascertain, examine or enforce. There is no issue of fact submitted to it for decision. Its function appears to be entirely administrative and to differ in no respect from the function of the employer himself in considering applications for employment which are affected by s. 27 (4). Many functions perhaps may be committed to a court which are not themselves exclusively judicial, that is to say which considered independently might belong to an administrator. But that is because they are not independent functions but form incidents in the exercise of strictly judicial powers. Here there is nothing but an authority which clearly is administrative.

A difficulty may exist in construing the expression "any person whom an employer has refused to engage in employment". What classes of persons it covers may be a question in a case that arises under s. 27 (1). But there is no such question with reference to s. 27 (4). The persons concerned must be servicemen. It is of course possible that in a given case both s. 27 (1) and s. 27 (4) may be involved. But that is a matter which may be left out of account for the purpose in hand. It is sufficient to say that when a case arising under s. 27 (4) is made the subject of a purported application under s. 28 (1) a court of summary jurisdiction is called upon to perform a function which surely is of a non-judicial character.

Section 77 of the Constitution expresses a power conferred upon the Parliament to invest the courts of a State with Federal jurisdiction. It enables the Parliament to define the extent to which the jurisdiction of a Federal court shall be exclusive of that which belongs to or is invested in the courts of a State. Section 79 empowers the Parliament to prescribe the number of judges by which the Federal jurisdiction of any court may be exercised. On the assumption that s. 51 (xxxix.) applies to Federal jurisdiction vested in State courts it would doubtless give the Parliament power to legislate in respect of some matters which are incidental to the exercise of that jurisdiction: cf. Le Mesurier v. Connor [1] . The power to impose duties upon State courts or to invest them with Federal functions is defined by these provisions. "There is no provision in the Constitution which enables the Commonwealth Parliament to require State courts to exercise any form of non-judicial power": per Latham C.J., Federal Council of the British Medical Association in Australia v. The Commonwealth [1] . It would be strange indeed if the Constitution contained a grant of legislative power which would enable the Parliament to require or to authorise State courts as such to execute duties, functions or powers which were not judicial. "Sec. 77 of the Commonwealth Constitution expressly confers upon the Parliament power to make laws investing the Courts of the States with Federal jurisdiction. But the provisions of sec. 77 and sec. 79, which explicitly give legislative power to the Commonwealth in respect of State Courts, make it plain that the general powers of the Parliament to legislate with respect to the subjects confided to it, like the similar powers of Congress, must not be interpreted as authorizing legislation giving jurisdiction to State Courts": Le Mesurier v. Connor [2] .

1. (1929) 42 C.L.R. 481, at p. 498. 2. (1949) 79 C.L.R. 201, at p. 236. 3. (1929) 42 C.L.R., at p. 496.

It is to be noticed that s. 28 (1) of the Re-establishment and Employment Act does not take any magistrate as a designate person or as a person who with his own consent and that of the State, may be detached from the court to which he belongs and used for particular purposes. It is addressed to the court of summary jurisdiction as such. Just as under s. 39 (2) (d) of the Judiciary Act 1903-1950 it is provided that the Federal jurisdiction of a court of summary jurisdiction of a State shall not be exercised judicially except by a stipendiary or police or special magistrate or some magistrate of the State specially authorised by the Governor-General, so does s. 28 provide that the court must be constituted by a police, stipendiary or special magistrate when the court of summary jurisdiction makes an order under that section. Whether the power to enact s. 39 (2) (d) of the Judiciary Act arises under s. 51 (xxxix.) of the Constitution or under s. 79 need not be considered, for the validity of the provision has been upheld: Baxter v. Commissioners of Taxation, N.S.W. [3] ; Lorenzo v. Carey [1] ; Commonwealth v. Limerick Steamship Co. Ltd. [2] . All that matters here is that s. 28 attempts to invest the State court of summary jurisdiction, and not an individual, with a non-judicial power.

1. (1907) 4 C.L.R. 1087. 2. (1921) 29 C.L.R. 243. 3. (1924) 35 C.L.R. 69.

In matters of validity we ought not to go beyond what the case requires, and for that reason it is better to confine our decision to s. 28 (1) as it is actually expressed in its application to s. 27 (4). So confining it, it is enough to say that s. 28 in its application to s. 27 (4) is void.

It follows that the plaintiff's claim in this action has been made out and that the demurrer to the statement of claim should be overruled.