Railways, Commissioner for (NSW) v Locke

Railways, Commissioner for (NSW) v Locke - [1970] HCA 20 - HCA 1970 case summary — Zoe

[32]

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.

[38]

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.

[44]

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.

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Judgment (51 paragraphs)

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