Held, by Latham C.J., Dixon, Evatt and McTiernan JJ. (Starke J. dissenting), Secu

that the word " officer " in sec. 123 of the Transport Act 1930 (N.S.W.) includes 444.4 5. a casual employee appointed under sec. 101 of that Act, and, therefore, such "Sepr,"1, an employee (by Dizon J., if employed continuously or indefinitely), is entitled to the leave provided for by sec. 123.

Decision of the Supreme Court of New South Wales (Full Court): Shugg v. Commissioner for Road Transport and Tramways, (1937) 54 W.N. (N.S.W.) 33, reversed.

In a special case stated under the provisions of the Common Law Procedure Act 1899 (N.S.W.) it was shown that the plaintiff, Harold Robert Shugg, since 6th March 1933, had been continuously employed in the service of the defendant, the Commissioner for Road Trans- port and Tramways of New South Wales, as a body builder.

Immediately prior to his appointment he was examined by the Vor. Lyi. 32

commissioner's Staff Board and by its medical officer, and he sig a memorandum acknowledging that, in accepting employment the motor omnibus service of the commissioner, he under that the work was purely of a temporary character, and that was appointed as a casual employee under sec. 101 of the Tra Act 1930 (N.S.W.).

On 5th August 1935, which was observed throughout New Sout Wales as a bank holiday, the plaintiff was required by the con sioner to work and he did in fact work the full eight hour shift, which he was duly paid the sum of 17s. 1l1d., the award rate a day's work. The plaintiff claimed that he was an " officer" w the meaning of sec. 123 of the Transport Act 1930, and that he wi entitled to leave on full pay for one day in lieu of the bank hol on which he had worked.

The question reserved in the special case for the opinion of court was :

Whether the plaintiff on 5th August 1935 was an officer w the meaning of sec. 123 of the Transport Act 1930?

For the purposes of the special case it was agreed between parties that (a) if the answer to the question were in the affirm there should be a verdict for the plaintiff in the sum of 17s. but with costs on the highest scale, and (b) that if the swer in the negative there should be a verdict for the defi. 'ant ¥ costs on the highest scale.

The Full Court of the Supreme Court of New South Wales answ the question in the negative, and, accordingly a verdict was ent for the defendant: Shugg v. Commissioner for Road Transport a Tramways (1). '

From that decision the plaintiff, by leave, appealed to the Court.

Evatt K.C. (with him R. R. Kidston), for the appellant. appellant is an officer within the meaning of that word as us sec. 123 of the Transport Act 1930; therefore he is entitled to th benefits conferred by that section. His position in this regard ism adversely affected by the context of that section (See sec. 4). obvious that the provisions of secs. 118-122, 124 and 125, whe

word " officer" is used, apply equally to all the employees of

ent," or "temporary " or "casual" employees, and the meaning must be given to that word as used in sec. 123. The conferred by sec. 101 to fix conditions of employment is ified and restricted to such conditions as are not fixed in the

ous it should be construed in such a way as to prevent ice (Walsh v. Sainsbury (1) ).

"Tamb K.C. (with him Chambers), for the respondent. The question cannot be solved merely by having regard to the word " officer"

'as defined in sec. 4. It is manifest that sec. 123 does not apply to

persons who, to meet the demands of the consequential traffic, are employed only for and on holidays, that is, employees, which would be absurd. Reference to secs. : 00-103, 105, 108-110, shows that the word " officer"? does not It is intended to apply to those persons

s who are assured of continuity of service. Different con-

appointment and dismissal operate as between the two

Whenever the legislature intended to refer to and include al or temporary sare it has said so St ame weil so

rz dloyees. In cases of doubt the particular meaning of the word pursuant to sec. 4, be determined in accordance with the or subject matter of the particular section. On that test clear that the provisions of sec. 123 were intended to be applicable y to "y permanent " employees. The principles which should be ied when interpreting wide and general words are as stated in v. Sainsbury (2). (See also Blackwood vy. The Queen (3).)

(1) (1925) 36 C.L.R. 464, at pp. 479, 480. (2) (1925) 36 C.LR., at p. 479. (3) (1882) 8 App. Cas. 82.

Commis. SIONER FOR Roap 'TRANSPORT AND TRAMWays (NS.W.).

The meaning of the word " officer," and of the words " perm "temporary " and "casual " in relation to " officer," was d in Williams v. Macharg (1). The meaning of the word " offic must be restricted to permanent officer.

Evatt K.C., in reply. The appellant is entitled to the bene its of sec. 123 (Obee v. Railway Commissioners for New South Wal (2); Lindfield v. Railway Commissioners for New South Wales

by the defendant Commissioner for Road Transport and Tramway as a casual employee. He has since been continuously so emp as a body builder. On 5th August 1935, which was a bank ho the plaintiff was required by the defendant to work, and he ws paid at the award rate (17s. 11d. per day) for that day's work. 1 claims that he is an officer within the meaning of sec. 123 of Transport Act 1930 and that he is entitled to leave on full pay f one day in lieu of the 5th August 1935, He brought an a against the commissioner claiming 17s. 11d. in lieu of leave, v the commissioner has refused to give. This claim was appar based upon a provision of the award under which it is prov t that : " Payment for all leave due to an employee who resigns, dismissed, or dies shall be made as follows : - (a) In the ea resignation or dismissal, or when services are terminated for a other reason, to the employee; (6) In the case of death, to h personal representative." The plaintiff has not resigned or dismissed or died and his services have not been terminated therefore it does not appear to me to be clear that by virtue of provision he is entitled to the sum of money claimed. ig contention is right, his legal right is a right to a day's leave on pay. The parties, however, have agreed that if it should be de that the plaintiff was on the relevant date an officer within the m (1) (1908) 7 C.L.R. 213; (1910) 10 (2) (1930) 30 8.R. (N.S.W.)

C.L.R. 599; (1910) A.C. 477. W.N, (N.S.W.) 71. (3) (1930) 30 S.R. (N.S.W.) 346 ; 47 W.N. (N.S.W.) 115.

not appear to me to be necessary to determine whether they understood the alleged rights of the plaintiff with precise

Court of the Supreme Court decided that sec. 123 did not apply to the plaintiff. An appeal is brought to this court by special leave. 'Sec. 123 is in the following terms : - " Every officer shall be entitled to at least one week's leave on full pay in respect of each twelve months of actual service, in addition to bank and public holidays ved throughout the State ; and every officer who has completed ity years of service shall be entitled to at least one month's extended leave on full pay: Provided that any officer who cannot take his leave on any such bank or public holiday by reason that: s been required to work on such days shall be entitled in liew to leave on full pay for the same number of days at some time." plaintiff was employed by the defendant under the power by sec. 101 of the Act, which is as follows : - " The board may appoint, employ, and dismiss such casual employees as it deems y for the purposes of this Act, and may fix wages and con- 4 employment where these are not fixed in accordance with he provisions of other Acts." The functions of the board were at relevant times discharged by the commissioner, who has been substituted for the board by the Transport (Division of Functions) 1932, sec. 5. provisions of sec. 101 must be contrasted with those of sec. 100, sub-secs. 1 and 2, which are as follows : - " (1) The board shall it or employ in the service of the trust for the conduct of its rt services such officers to assist in the execution of its powers d obligations under this Act as it thinks necessary, and every so appointed shall hold office during pleasure only. (2) ct to this Act the board shall determine the salaries, wages, 1 allowances of officers so appointed where these are not fixed | accordance with the provisions of other Acts."

ComMis- SIONER FOR Roap 'TRANSPORT AND 'Tramways (N.S.W,).

Sec. 4 of the Act provides that "unless the context or sul matter otherwise indicates or requires . . . ' Officer' means am officer, clerk, servant or other person employed or appointed by Commissioner of Road Transport or by the board, and includ member of the police force when acting in pursuance of p conferred upon him by or under this Act."

The contention of the plaintiff is that he is a person emplo or appointed by the commissioner and therefore prima facie officer within the meaning of that term as defined in see. 4. contends that neither the context nor the subject matter of s 123 either indicates or requires that " officer "' in that section sh be construed in any other sense than that specified in sec. 4. the other hand it is argued that the subject matter of sec. 1 such that it would be an unreasonable interpretation of the A to make it applicable in the case of a "casual employee" wh owed his position to the exercise of the power conferred by see. 101. The argument is that sec. 123 applies only to " permanent employ that is, to persons employed under sec. 100. They (it is urged) persons who presumably will serve for an extended period, and th provisions with respect to twelve months of actual service and ty years of service may readily be applied to them, but they are inaj able and out of place in the case of a casual employee. Thea for the defendant is based in part upon a reluctance to accept position that the same provision should apply to " casual employ' es,

that the word " casual" does contain an implication of this It is clear that provisions in the Act which assume contin employment as a condition of employment cannot be appli casual employees. An example of a provision which could reasonably be regarded as applying to casual employees is afion by sec. 102, which provides that, subject to the Act " all ments shall be made to the lowest grade in each of the var branches of the transport services, and on probation only, for period of six months." This section also contains other provisl relating to the fitness of the officer as ascertained during the pt

of probation, and as to confirmation of appointments after probation. These provisions are shown by the subject matter to which they refer to be inapplicable to casual employees.

T think also that it is reasonably clear that the provisions of sec. 123 would not be applicable in the case of a police officer who acted in pursuance of powers conferred upon him by or under the Act. Such a police officer is expressly included within the definition of "officer" in sec. 4 by the concluding words of the definition. But it clear that this part of the definition is included only for the purpose of enabling a police officer to exercise powers under the Act - for example, investigations under secs. 164 et seq. Such a police officer 'is not a person employed by the commissioner and is therefore not a person to whom the commissioner can grant leave. The subject "matter of sec. 123 (leave to be granted to " officers') is such as to 'exclude the application of the section to any " officer" to whom 'the commissioner is incapable of granting leave. Therefore, although the police officer was an " officer " he would not be entitled leave as an officer under sec. 123.

Tn the case of a casual employee still in the employment of the

ioner such considerations do not exist. There is, in my y no difficulty in applying the words to a casual employee in 'ch a position. If a casual employee has actually served for i welve months, it is quite possible to give him a week's leave on

pay. If he has completed twenty years of service, there is no

ity in giving him " one month's extended leave on full pay." 0 also, if he has been required to work on a bank or public holiday, here is no difficulty in giving him leave on full pay for another day some future time. In my opinion there is neither legal nor

istrative difficulty in applying these provisions to casual loyees who are still in the employment of the commissioner.

-Lagree with the statement in the judgment of the Full Court that a casual employee can lawfully be dismissed at any time by virtue of the provisions of sec. 101. I also agree that after he is ismissed he cannot be given leave, for leave can be given by an loyer, as already stated, only to a person who is actually employed that employer. But sec. 123 still operates to give the right to ven if, to take the extreme case used in argument, the engage-

Commas SIONER FOR Roap TRANSPORT AND Tramways (NS.W.).

therefore has terminated at the end of that day. In such a cast the award would come into operation. Under the award, pay is to be made to an employee " for all leave due" when he

or is dismissed or when his services are terminated for any reason. It may be that the employee who was employed for single day cannot be regarded as having been " dismissed " witl the meaning of the award. But the services of such an emp)

required or for the reason that the term of his employment expired. This appears to me to be a reasonable interpretati the award. I recognize that the award cannot be used for ti purpose of interpreting the Act and I refer to it only for the p of showing that the Act and the award, taken together, succeed in providing a complete and not irrational scheme.

urged that the result of the reasoning which I have developed this judgment is that a casual employee, who is dismissed, is le with a supposed right to leave which the Act provides no means enforcing. He has the " right to leave," but he cannot get the leave, being no longer in the employment of the commissioner, and has no remedy for the refusal of leave because the commissi broke no contract and infringed no law when he dismissed Thus, it may be argued, the result of holding that sec. 123 appli : to casual employees is, so far as the Act is concerned, that they am declared to possess a supposed "right" of which, however, commissioner can rightfully deprive them at any moment. result pod lead me to the cong Ton a sec. 123 was not intended

employees, are in the same position with respect to a right to a continuance of their employment. The commissioner can lawl dismiss any employee at any time. Sec. 100 of the Act pl that every officer appointed under that section (the " perma officers) shall hold office during pleasure only. Sec. a as stated, gives power to the commissioner to dismiss casual emplo

Thus the legal position is that no officer is entitled to a contin

of his employment. If this fact excludes a " right to leave," it cludes such a right in the case of every officer, whether permanent" or "casual." The result then would be that sec. 123 would apply to no officers at all. This reductio ad absurdum s that the right of the commissioner to dismiss is not regarded by the Act as preventing an employee from having a right to leave within the meaning of the Act.

'Thus, though I agree that sec. 123 does not operate to compel the commissioner to keep a casual employee in his employment ly for the purpose of giving him leave from that employment, n of opinion that there is no inconsistency between the right of at any time given to the commissioner by sec. 101, and tight to leave given to the employee by sec. 123. Thus, in my there is no obstacle to the conclusion that a casual employee under sec. 101, and therefore liable to dismissal at any is an officer within the meaning of sec. 123 and is entitled to

ARKE J. The question in this case is whether the plaintiff is officer of the defendant entitled to a day's leave of absence on pay pursuant to the provisions of sec. 123 of the Transport Act 0, in lieu of a bank holiday on which he had worked. Amend- nts have been made to the Transport Act 1930 by the Acts Nos. and 31 of 1932, but it is unnecessary to refer to them for the n of this question. Officers employed in the transport services are of two classes ; appointed under sec. 100, who may be described as the regular permanent staff; the other, casual employees, appointed under 101. he plaintifi was a casual employee. There is no doubt that word " officer" includes both regular or permanent staff and employees in some sections, and equally clear that casual yees are not always within that term. See sec. 4, " officer," . 100, 124 and 125. But the question whether the word " in sec. 123 includes casual employees depends upon the e of that section and its subject matter. The interpretation

H, C. oF A. Commis- SIONER FOR Roa 'TRANSPORT AND 'Tramways (NS.W).

of the word " officer" in sec. 4 is not applicable if " the contey the subject matter otherwise indicates or requires." The fact fully set forth in the special case and have been referred to by Chief Justice, as have also the relevant sections of the Act, shall not repeat them. But the first clause of sec. 123 pro leave for officers on full pay in respect of each twelve month actual service in addition to bank and public holidays, and for offie who have completed twenty years of service. In my opinion this provision contemplates continuity of emy ment appropriate to the permanent and regular staff of the def and is wholly inappropriate to the persons casually or intermitte employed. Sec. 123 proceeds : "' Provided that any officer who cann his leave on any such bank or public holiday by reason that he h been required to work on such days shall be entitled in lieu ther to leave on full pay for the same number of days at some future But the officers here indicated are those who cannot ta benefit of the leave on bank and public holidays conferred earlier part of sec. 123, by reason that they have been required work on such days. It does not extend the scope of the wo " officer " beyond its meaning in the first part of the section. casual employees are officers within the meaning of the first pi of the section it is clear, I should think, that they cannot | included in the same word under this part of the section. over, there is the practical difficulty in the case of casually employed only for a bank or public holiday. The contemplates that the officer remains in his employment entitled at some future time to take his leave in lieu of the day which he has worked. The section does not provide that a p shall have double pay for work on a bank or public holiday, he shall be entitled in lieu thereof to leave on full pay at some time for the holiday on which he worked. Reference was made during argument to an industrial relating to government railways and tramways provid payment for all leave due to an employee who resigned dismissed or died. The plaintiff neither resigned nor died, he dismissed, and the award is inapplicable to the case of the pla

on J. The word " officer " is defined by sec. 4 of the Transport 30 to mean any officer, clerk, servant or other person employed ointed by the Commissioner of Road Transport or by the ement board.

he plaintiff is a person employed or appointed by the commis- He has been continuously employed in the commissioner's or omnibus service for over three and a half years as a body On his appointment he underwent an examination by the F board and by the medical officer of the commissioner. He ed a memorandum acknowledging that in accepting employment service he understood that the work was of a purely temporary er and that he was appointed as a casual employee under

rd may appoint, employ and dismiss such casual employees as necessary for the purposes of the Act, and may fix wages mditions of employment where these are not fixed in accord- e with the provisions of other Acts.

e question for decision is whether the plaintiff's status is such s to entitle him to the benefits conferred on officers by sec. 123 or

al service, in addition to bank and public holidays observed it the State ; and every officer who has completed twenty s of service shall be entitled to at least one month's extended on full pay: Provided that any officer who cannot take his on such bank or public holiday by reason that he has been to work on such days shall be entitled in lieu thereof to on full pay for the same number of days at some future time.

port Act makes provision for the appointment of officers entry into the service, rights of promotion and conditions of / are such as to justify according to common usage the "permanent."

os SuveeComms- SIONER FOR Roap 'TRANSPORT AND 'Tramways (NS.W.).

Commis- SIONER FOR Roap TRANSPORT AND TRAMWAYS N.S.W.).

officers of this kind and excludes from it all persons employ under sec. 101. This conclusion rejects the definition of off

in sec. 123. Sec. 4 makes its definitions applicable only " the context or subject matter otherwise indicates or requires." -

In my opinion there is not enough in the context or s matter to indicate that a person continuously employed by commissioner under a contract of service subsisting until terminat by the act of one of the parties falls entirely outside sec. 123 agree that sec. 123 is inapplicable to persons employed for a pa occasion who are not taken into any regular employment. The part of its provisions includes the case of twelve months' serv least. Plainly that case involves employment indefinite in it duration or for a term of years.

The second part refers to officers who complete twenty service and of course contemplates '* permanent " officers.

under sec. 101 is not necessarily inconsistent with the all the conditions upon which rights conferred by sec. 123 The expression "casual" is a word of indefinite meaning elsewhere has caused difficulty. We are apt to associate with f word elements of chance or of discontinuity. We perhaps casual employment as occasional or intermittent. But it has b found so difficult to fix any definite tests for casual emp that under Workmen's Compensation Acts refuge has been a treating it as a question of fact in each case. I do not think th sec. 101 means to confine the board's power of appointing ca employees to temporary or unforeseen occasions. This case sh that the board in the exercise of the power retains men in its ment who are required for regular work and for an indefinite dura of time. Treating the section in this way as authorizing g employment as distinguished from appointment to office, it appears to me that it does not afford the criterion for de mining who do and who do not fall within sec. 123. 'The distine

which the application of sec. 123 turns is, I think, between indefinite or continuous employment and an employment particular occasion or occasions, or to fulfil some special or purpose of brief duration. If an employment is continuous, yy result in twelve months actual service or, indeed, conceivably 'twenty years' service. I do not think that there is enough in 123 or in the other sections dealing with officers to indicate the word " officer " in sec. 123 does not include men continuously mployed in such a way, simply because they are appointed under 101. The definition of " officer" therefore appears to me to y to sec. 123. But from its terms that section is inapplicable s such as were put in argument of men put on for a public holiday or holidays or for some other particular occasion and not mployed continuously or indefinitely. In my opinion the plaintiff was entitled to the bank holiday in ion. The section entitles officers to holidays on full pay and it to pay in lieu of holidays. The parties have agreed that the iff should recover a sum of money if the court should be of that he was an officer within sec. 123. We are not concerned juire how they arrived at it or why they considered that a sum d be paid in lieu of the holiday. As they have agreed to the juences, we have nothing to do but give effect to it. i think the appeal should be allowed. The judgment of the Full should be discharged. In lieu thereof the question should be ed: Yes, and a verdict entered for the plaintiff.

vatt J. From March 1933 to October 1936 - a period of 35 8 plaintiff was employed by the Commissioner for Road and Tramways. Upon his first accepting employment, fi signed a document declaring that his work was of a porary character and that he was appointed under sec. 101 of Pransport Act 1930.

123 of that Act confers upon every " officer" a right to rly leave and extended leave. It also gives such " officer" the it of leave either on " bank and public holidays observed through- State," or days substituted for such holidays. Prior service the Railway Commissioners &c. counts as service for the es of sec. 123.

CoMMIS- SIONER FOR Roap TRANSPORT AND TRAMWAYS (NS.W)).

s of sec. 123. It is contended that the context indicates o

The sole question which arises is whether the plaintiff y " officer" entitled to the benefit of sec. 123. By see. 4, unle context or subject matter otherwise indicates or requires, an off means any "person employed or appointed by the Co of Road Transport or by the Board." Prima facie, the plaintiff, as a person so employed, is an " officer " within the me

No doubt, the plaintiff is a "' casual employee " within the of sec. 101. But, in my opinion, sec. 101 was inserted in ord provide statutory warrant for the practice adopted by the Commissioners, of appointing persons temporarily and continui them in employment for periods extending far beyond the of six months contemplated by the Government Railways Act 19 Sec. 101 gives a specific authority to employ without any such limi tion of time. Thus the plaintiff has been a " casual" for and one-half years and apparently will be employed indefini

Sec. 101 does not require or even suggest that a person appo thereunder is not an " officer " within sec. 123. The policy emb in sec. 123 is that the granting of leave in respect of public holid: is regarded as necessary for the efficiency of the transport i especially as, in the case of the running services, the strain of worl greatly increased by reason of the increased public use of the on holidays. It would be surprising to find that leave is g to one employee but denied to another similarly employed met

obligation to make "casual" employees " permanent" a certain term, so that, if the commissioner is right, a " casual " mi be employed for twenty years in the department but receive non
of the benefits of sec. 123. F When the Act visits certain disabilities upon officers, there is reason to suppose that persons temporarily employed are necessatl excluded from the disabilities. Thus upon conviction for an "officer" is deemed to have vacated his office (sec. I! i Undoubtedly the plaintiff is an " officer" for the purposes of 107. Similarly the plaintiff appears to be an " officer" wi meaning of every section in Division 5 other than sec. 123, orms a part of that Division. For instance, the personal inj

section (sec. 124) clearly applies to him. Further, it appears that sec. 124 derives from sec. 1008 of the Government Railways Act, and sec. 123 from sec. 100a. Everyone familiar with the statutory history of the New South Wales railways is aware that sec. 100B was introduced for the benefit of all persons employed in the railways,

No reason whatever has been shown for excluding temporary or casual employees from the benefits of sec. 123. In my opinion such employees are entitled as " officers" to enjoy such benefits, just as they are subjected to many of the disabilities or forfeitures applicable to an " officer."

McTiernan J. In my opinion the appeal should be allowed. I agree with the judgment of the Chief Justice.

Appeal allowed with costs. Order of Full Court set aside and in lieu thereof order that question stated in special case be answered: Yes, and that a verdict be entered for the plaintiff for 17s. 11d. with costs upon the highest scale.

Solicitors for the appellant, Abram Landa & Co. Solicitor for the respondent, Fred. W. Bretnall, Solicitor for

whether clerks at head office, tram conductors, workshop employees, ™ or navvies working on railway construction. Similarly with sec. '