Railways, Commissioner for (NSW) v Locke

The appellant has made two submissions in support of his appeal to this Court. The first is that the Board, having the duty to hear and determine appeals by officers of the railway service against suspension or dismissal from office, or reduction in rank, position, grade or payment, is required to act judicially in the sense relevant to the jurisdiction to issue the prerogative writs of prohibition or of certiorari. See Ridge v. Baldwin [1] . The second is that the respondent Leskovec did not have under Pt III of the Act a right of appeal to the Board, because he had not been dismissed, suspended, temporarily or otherwise, fined or reduced in rank, position, grade or pay within the meaning of either s. 82 or s. 83 (1) of the Act; nor was he a person who could move the Board to investigate and deal with any charge brought against an officer within the meaning of s. 83 (2) of the Act.

I have had the advantage of reading the reasons for judgment prepared in this appeal by my brother Owen where the relevant facts and statutory provisions will be found and also of reading the reasons for judgment prepared by my brother Walsh. I agree with the conclusions that the Board is clearly a body to whom prohibition will issue for excess of jurisdiction, that the Supreme Court's earlier decision to which I have referred is erroneous, that the respondent Leskovec had no right of appeal to the Board, and that the Board had no jurisdiction to hear the appeal he purported to make to it. I entirely agree with the reasons assigned by my brothers for these conclusions.

I do not find it necessary however to decide for the purpose of disposing of this appeal whether the provisions of s. 83 (2) give to the Board a power of investigation of a charge made against an officer otherwise than as part of the exercise of its jurisdiction in the hearing of an appeal by an officer competently brought before it under s. 83 (1A). Nor do I find it necessary to decide whether, if s. 83 (2) does give a power of investigation apart from the hearing of an appeal, the request by the head of the branch for an explanation by the respondent Leskovec of facts already found against him, which request is set out in full in my brother Owen's reasons, amounted to a charge within the meaning of s. 83 (2) so interpreted. It is sufficient, in my opinion, to conclude, as my brother Owen has concluded in the course of his reasons, that the respondent Leskovec, if himself the subject of a charge, could not require the Board to investigate and deal with it.

Section 83 (2) is a difficult provision both in its expression and in its relationship to the sections with which it is associated in Pt VIII of the Act. Clearly it calls for clarification by the legislature.

I would add that I agree with what my brother Walsh has said as to the unauthorized nature of the course taken by the head of the Branch in this case.

In my opinion, the appeal should be allowed and the Board prohibited from proceeding to hear the purported appeal made to it by the respondent Leskovec.

In my opinion the Appeals Board constituted under the Government Railways Act 1912, as amended N.S.W., is, having regard to the provisions of the Act relating to its powers and procedure, a tribunal against which prohibition lies. The decision of Sugerman J.A. (as he then was) in Ex parte Dowley; Re Locke [1] is, in my opinion, right. I think that in the circumstances of the present case, the respondent Leskovec had no right of appeal to the Board and that, therefore, prohibition should issue.

1. (1966) 85 W.N. (Pt 1) (N.S.W.) 319. Menzies J.

This is an appeal by special leave against an order made by the Court of Appeal discharging an order nisi for a writ of prohibition sought by the appellant Commissioner to restrain the respondents, the first three of whom are the members of the Appeals Board constituted under Div. 5 of Pt VIII of the Government Railways Act, and the last-named respondent, an officer of the Department of Railways, from proceeding further with an appeal made by the latter to the Board.

The writ of prohibition was sought upon the ground that the Appeals Board had no jurisdiction to entertain the appeal but the Court of Appeal did not find it necessary to decide that question since it was of opinion that, following an earlier majority decision of the Court (Herron C.J. and Holmes J.A., Sugerman J.A. dissenting) in Ex parte Dowley; Re Locke [1] , the Board was not a body to which prohibition would lie. It is clear that in the present case the members of the Court of Appeal doubted the correctness of that decision but considered that they should follow it.

The first question for this Court is whether in an appropriate case the Board is subject to control by the prerogative writs. With all respect to those in the Supreme Court who, in Dowley's Case [1] , thought otherwise, I have no doubt that it is so subject. An examination of the provisions of Div. 5 of Pt VIII of the Act under which the Board is constituted seems to me to establish beyond question that it is a body which, whether it be described as administrative or not, is bound to act in accordance with the rules of natural justice and is empowered to determine questions affecting the rights and liabilities of those who come before it. In these circumstances it seems to me to be unnecessary to cite authority to show that it is a body which is subject to control by the prerogative writs.

The facts are that on 13th December 1968 the officer at the head of the branch to which Leskovec belonged wrote to the latter calling upon him -

to submit in writing, within 7 days of the receipt of this communication his explanation for the following:

He absented himself from his place of work from 12.05 p.m. to 12.32 p.m. on 22nd November 1968 and from 9.10 a.m. to 9.30 a.m. on 25th November 1968.

He created a disturbance in the Architectural Section at approximately 10.15 a.m. on 25th November 1968 by shouting at his Supervising Officer.

He failed to be civil to his Supervising Officer at approximately 10.15 a.m. on 25th November 1968 when he refused to carry on, in an orderly manner, with a discussion respecting his conduct.

Apparently Leskovec replied to this letter but his reply does not appear in the evidence.

On 2nd May 1969 the head of the branch wrote as follows:

Mr. Frank Leskovec is informed in reply to his explanation of 20th December 1968 that he is reprimanded for absenting himself from his place of work from 12.05 p.m. to 12.32 p.m. on 22nd November 1968 and from 9.10 a.m. to 9.30 a.m. on 25th November 1968; for creating a disturbance in the Architectural Section and being uncivil to his Supervising Officer on 25th November 1968.

A notation to this effect is being placed on Mr. Leskovec's official history.

Mr. Leskovec must in future be prepared to carry out the instructions of his Supervising Officers without hesitation and afford such assistance as is necessary to engender the efficient and harmonious administration of the section to which he is attached.

Presumably the "official history" mentioned refers to the service records which s. 101 requires the Commissioner to keep.

Shortly afterwards Leskovec lodged with the Secretary to the Appeals Board a document stating that:

I hereby appeal to the Railways Appeal Board against:

(1) The reprimand notified to me on 9th May 1969 by the Memo of the Chief Civil Engineer dated 2nd May 1969 (reference 3/ER:CAB); and

(2) the said reprimand being noted on my official history; and pursuant to s. 91A of the Government Railways Act, 1912, as amended, I hereby apply to be supplied with all statements and reports as mentioned in that Section.

Section 91A to which this notice of appeal refers deals with appeals against punishment and it is apparent that Leskovec was purporting to exercise a right of appeal against a punishment imposed by the head of the branch to which he belonged. In other words, he was purporting to exercise a right of appeal under s. 82. That section is in these terms: Whenever any officer in any branch of the railway service is guilty of misconduct or of breaking any rule, by-law, or regulation of the railway service, the officer at the head of such branch may -

(c) reduce him in rank, position, or grade, and pay;

but every such officer so dealt with shall be notified in writing of the nature of the misconduct charged or of the breach of rule, by-law or regulation alleged to have been committed and may appeal in the manner hereinafter provided. I read that section to mean that the right of appeal is exercisable only if two conditions are fulfilled, the first that the head of the relevant branch of the service has decided that the officer in question has been guilty of misconduct or of breaking a rule, by-law or regulation of the service and the second that he has imposed one or other of the punishments prescribed by the section. No such punishment was imposed in the present case. For this reason objection was taken before the Board by the representative of the Railways Commissioner that no appeal lay under s. 82 and that it had no jurisdiction to hear and determine the matter. The Board overruled the objection, being of opinion that the head of the branch had "invoked" s. 82 and that it had jurisdiction. In my opinion the objection thus made was soundly based. Before us, however, counsel for Leskovec placed some reliance upon a passage in the judgment of Dixon J. (as he then was) in Commissioner for Railways (N.S.W.) v. O'Donnell [1] in which his Honour expressed the view that the words "officer so dealt with" in s. 82 referred to an officer "who is so dealt with" and not to one "who has been so dealt with". Counsel contended that this interpretation pointed to the conclusion that there was a right of appeal under s. 82 against a charge of misconduct or of the breach of a rule, by-law or regulation even if the officer at the head of the branch had not dealt with the charge or if, having dealt with it, had taken the view that it was not established or had considered that, although established, it did not call for the imposition of one or other of the penalties specified in the section. Put briefly, the contention was that under s. 82 an appeal lay against the mere fact that a charge had been made. With great respect to that learned judge, I am disposed to think that the words in question mean an officer "who has been so dealt with" but, whichever interpretation be accepted, this submission must, in my opinion, be rejected. If the construction adopted by Dixon J. is the correct one, it does not support the contention based upon it. Later passages in his Honour's judgment make it clear that he was of opinion that the right of appeal arises only in cases in which the head of the branch has found that the officer is guilty of the charge made against him and has imposed one of the punishments for which the section provides. His Honour said: Thus, according to the interpretation which I put upon s. 82 it authorizes the head of a branch to discipline an officer whom, after notice of the charge, he finds guilty of misconduct or of breach of by-laws or regulations, but makes his decision subject to appeal to a board under s. 87. The appeal must be brought within seven days of the date of the decision appealed against (s. 91). It is, therefore, a necessary implication that the decision, that is, the dismissal, suspension or other punishment, shall be communicated to the officer. [1] And his Honour went on: When, after due notification of the charge, the head of the branch has honestly formed the view that the officer has been guilty of misconduct or breach of by-laws or regulations and imposes one of the punishments enumerated, then, subject to appeal, his decision concludes the rights or liabilities of the officer. [2] In my opinion, it follows that Leskovec had no right of appeal under s. 82 and that the Board had no jurisdiction to hear the matter. 1. (1938) 60 C.L.R. 681, at p. 694. 2. (1938) 60 C.L.R., at p. 694. 3. (1938) 60 C.L.R., at p. 695.

Counsel put forward, however, a further submission, based upon s. 83 (2) of the Act, contending that in any case the Board had jurisdiction to act under that subsection. Section 83 is in these terms:

(1) Any officer in charge of a railway station may temporarily suspend at such station any officer of inferior rank, position, or grade to his own, until the officer at the head of such suspended officer's branch has dealt with such suspension.

(1a) The officer in charge of any workshop, locomotive or other depot, refreshment room or other place may temporarily suspend any officer of inferior rank, position, or grade to his own who is in his charge until the officer at the head of the branch has dealt with such suspension.

Where an officer has been temporarily suspended under this subsection or under subsection one of this section, and the officer at the head of his branch has not imposed any punishment in respect of the matter, the officer so suspended may appeal to the board constituted under section eighty-seven of this Act against his temporary suspension.

(2) The board constituted in the next Division of this Part may investigate and deal with any charge brought against any officer for the breach of any rule, by-law, or regulation, or for misconduct, and may suspend such officer; or, if he has been already suspended, may further suspend him for a period not exceeding six months, without salary or wages, or may inflict a fine to be deducted from his pay, or may dismiss him.

At first sight the fact that sub-s. (2) is enacted as part of s. 83 and not as a separate provision suggests that it was designed to deal only with cases arising under sub-ss. (1) and (1A) of that section. In that case it would be irrelevant in the present proceedings since Leskovec was not temporarily suspended under either of those subsections or indeed suspended at all. But a closer examination of sub-s. (2) shows that it cannot be so read. Subsections (1) and (1A) provide for the temporary suspension of an officer, in the one case by the officer in charge of a railway station, in the other by the officer in charge of one or other of the places mentioned in sub-s. (1A), and the right of appeal in such cases is given only where there has been a temporary suspension and the head of the branch has not imposed any punishment in respect of the matter. But sub-s. (2), after speaking of "any charge brought against any officer", goes on to use the words "or if he has been already suspended" and the inclusion of these words seems to me to make it impossible to treat the subsection as applying to cases arising under either of the preceding subsections. What sub-s. (2) appears to do is to confer upon the Board power to hear and determine some form of original, as opposed to appellate, proceedings brought before it. This is, I think, confirmed by the fact that in Div. 5 there are a number of references both to "appeals" and to "charges" (see ss. 89, 92 (2) and 93 (1)), and in the result there appear to be two types of proceedings which may come before the Board. The subsection in question is not happily drafted. For example, it gives no indication of the person or persons who may bring a "charge" before the Board. It may be asked whether it can be brought only by an officer in the railway service and, if so, can any officer bring it, no matter what office he holds? Can a member of the public who has some complaint about the conduct of a railway officer take advantage of it? It appears to me, however, to be reasonably clear that the powers conferred upon the Board by sub-s. 82 (3) cannot be exercised at the instance of the person against whom a "charge" is made. The proceedings must be instituted by someone other than the officer whose conduct is called in question. I am of opinion, therefore, that, even if Leskovec had purported to act under s. 83 (1A), the submission based upon sub-s. 83 (2) must be rejected.

In the result I am of opinion that the Board had no jurisdiction to hear and determine the matter which Leskovec sought to bring before it. I would therefore allow the appeal, set aside the order of the Court of Appeal and in lieu thereof order that the rule nisi for prohibition be made absolute with costs. Having regard to the terms of the order granting special leave to appeal, the costs of the appeal in this Court must be paid by the appellant.

The Court of Appeal of the Supreme Court of New South Wales discharged an order nisi for a writ of prohibition to restrain the Appeals Board constituted under the Government Railways Act, 1912, as amended N.S.W., and the respondent Frank Leskovec (herein called the respondent) from further proceeding with the hearing of an appeal brought under s. 82 of the Act by the respondent. The Court of Appeal followed an earlier decision given in Ex parte Dowley; Re Locke [1] and held that prohibition did not lie in respect of proceedings before the Appeals Board.

The majority of the Court in Dowley's Case [1] came to the conclusion that certiorari did not lie to quash a decision of the Appeals Board in an appeal under s. 82 of the Act, because their Honours considered that the power given by s. 82 to the officer at the head of a branch of the railway service to discipline an officer in that branch was but an alternative to the power of dismissal and was in the nature of the ordinary common-law right of an employer to dismiss an employee for misconduct. In the opinion of their Honours it was difficult to say that such a function was one which must be exercised in a judicial manner. But, with respect, I am of opinion that the dissenting view of Sugerman J.A. in Dowley's Case [1] was correct. I am of opinion that it is the duty of the Appeals Board to act in a judicial manner in hearing an appeal. As Sugerman J.A. said [1] for this purpose it matters not that action might have been taken by the Commissioner under s. 78 of the Act. A decision of the Board on such an appeal is one which affects rights and, subject to exceptions which are not material in the present case and were not material in Dowley's Case [2] , its decision is final and conclusive: see s. 93. Therefore, I am of opinion that if this Court accepts the contention of the present appellant that the Act does not empower the Board to deal with the appeal brought to it by the respondent the writ of prohibition should go.

1. (1966) 85 W.N. (Pt 1) (N.S.W.) 319. 2. (1966) 85 W.N. (Pt 1) (N.S.W.) 319. 3. (1966) 85 W.N. (Pt 1) (N.S.W.), at p. 324. 4. (1966) 85 W.N. (Pt 1) (N.S.W.) 319.

The facts of the case are set out in the judgment of Owen J. and I need not repeat them. The first question is whether or not a right was conferred by s. 82 upon the respondent to appeal to the Board. In deciding that the Board could deal with the case its Chairman concluded (1) that action had been taken against the respondent pursuant to s. 82, that is to say, that that section had been "invoked" by the head of his branch; and (2) that there was a right of appeal under s. 82, notwithstanding that the head of the branch did not impose any of the punishments mentioned in that section. In stating the second of those conclusions the Chairman followed a decision of the Appeals Board which had been given in 1953. The ground of the decision was that if the head of a branch invokes s. 82 and finds an officer guilty of misconduct or of breaking any rule, by-law or regulation of the railway service, that officer is thereupon an officer "so dealt with" within the meaning of that section and, therefore, has a right of appeal.

Both conclusions of the Board are challenged in this appeal. As to the first of them it was submitted that in this case nothing was done by the head of the branch in the exercise or the purported exercise of any power conferred by s. 82. The action taken by him was authorized quite independently of s. 82 and of any statutory provision. The reprimand of an employee and the notation of the reprimand on the respondent's "official history" were said to be within the inherent power of the employer and to need no statutory warrant. I do not find this submission acceptable. It need not be considered in this appeal whether or not the respondent had any right to challenge in a court of law the action taken against him. But if it be assumed that that action was not an infringement of any legal right which the law would recognize and enforce, it does not follow that it is correct to say that there was an inherent power to take that action. It was taken not by the employer but by another officer in the service. The action of that officer must have been based upon an opinion formed by him that the respondent was guilty of the acts mentioned in the notification sent to him on 2nd May 1969. The notation of that decision and of the reprimand on the official history of the respondent could have important practical effects detrimental to him in his future career in the service. It is a service in which the rights and liabilities of the employees are regulated to a large extent by the Act which gives certain defined powers to the head of a branch, which do not include any power to cause a notation of a finding made by him to be noted on the official history. If, as the appellant contends, the respondent has no right of appeal in respect of the action taken, this appears to me to provide a good reason for thinking that the head of a branch ought not to take action which the Act does not authorize and which may have a serious detrimental effect upon the officer concerned. I do not mean that a senior officer may never admonish an officer of whose conduct he disapproves. Nor do I mean that in any case in which s. 82 would authorize the head of a branch to take one of the disciplinary measures enumerated in it he is bound to do so. But in a case in which the head of the branch would be so authorized, but decides not to take any of those measures, in my opinion he has no power to substitute for that action some other action, by which the officer will be subjected without a right of appeal to the practical detriment of having recorded officially against him a finding of misconduct or of breach of a rule, by-law, or regulation of the Railway Service.

But the appellant submits that, in any event, there is a right of appeal under s. 82 only when the head of the branch has exercised one of the disciplinary powers enumerated in the section. In my opinion this submission is correct.

If the head of a branch, acting under s. 82, dismisses, suspends or fines an officer, or reduces him in rank, position or grade, and pay, it is necessary that the head of the branch should have formed the opinion that the officer has been guilty of misconduct or of a breach of a rule etc. Although the condition for the exercise of the disciplinary powers is expressed as being that an officer is guilty of misconduct, the section has been construed as having the effect that it is the head of the branch who must decide the question of guilt and, subject to certain qualifications not now relevant, the powers may be exercised if he does decide this question adversely to the officer whose conduct is under examination: see Browne v. Commissioner for Railways [1] and Commissioner for Railways (N.S.W.) v. O'Donnell [2] . Therefore, it is true to say that the functions of the head of a branch when acting under s. 82 are to consider and to decide the question of guilt and then, if he decides that question adversely to the officer, to consider and decide what penalty should be imposed. But the only powers which are given by the section are powers to dismiss or to suspend or to impose one of the other penalties mentioned in the section. The inquiry into the question of the officer's guilt is no more than a necessary preliminary to the exercise in a proper case of one of those powers. Unless the power is exercised, the language of the section makes it impossible to take it as meaning that an officer in respect of whom that power has not been exercised at all may be described as an officer "so dealt with". That description cannot be satisfied in my opinion by action which stops short of dealing with the officer in a way in which the section empowers the head of the branch to deal with him, that is to say, by imposing one of the penalties mentioned in the section, even if the action taken has been intended to prepare the way for the exercise of the power so conferred.

1. (1935) 36 S.R. (N.S.W.) 21. 2. (1938) 60 C.L.R. 681, at pp. 694, 695, 697, 698.

It has, however, been submitted for the respondent that the Appeals Board is empowered by s. 83 (2) of the Act to investigate and deal with the matter which is before it. According to this submission it does not matter by what means a charge has been brought to the attention of the Board. The power given to the Board by s. 83 (2) does not depend upon its having before it an appeal properly instituted. The only requirement is that it should appear that a charge has been brought against any officer for the breach of any rule, by-law or regulation or for misconduct; and according to the submission this requirement has been fulfilled in the present case.

Section 83 (2) is not easy to understand. But, whatever be the extent of its operation, in my opinion it is not available as a source of power for the Appeals Board to deal with the present case. It is clear that the respondent did not have any right of appeal under the second paragraph of s. 83 (1A). For the reasons I have given I am of opinion that he did not have a right of appeal under s. 82. I think that s. 83 (2) does not have the effect that he was nevertheless entitled to bring the matter before the Board and to ask it to exercise the powers which the Board has under s. 92 (3) when hearing an appeal or indeed to exercise any power.

Section 83 (2) states specifically what disciplinary action may be taken thereunder by the Board. This would be limited in this case, if the Board had power to deal under that provision with the matter, to the power to suspend, since the respondent had not already been suspended and, therefore, the latter part of the subsection would be inapplicable. The words "may investigate and deal with any charge" cannot be read, in my opinion, as empowering the Board in this case to make any order it may think fit against the respondent. In cases in which a right of appeal is given, whether under s. 83 (1A) or s. 82, the disciplinary powers which may be exercised by the superior officer who may act under those provisions and in turn by the Board when hearing the appeal are specified in the Act. Having regard to the terms of s. 82, s. 83 (1) and (1A) and s. 92 (3), it is not possible in my opinion to read s. 83 (2) as meaning that in any case in which a charge has been made against any officer, the Board may investigate and deal with the charge at the instance of that officer.

For these reasons I am of opinion that the Supreme Court should have made absolute the order nisi for prohibition. I am of opinion that the appeal should be allowed.