(Vier.) v Rozerts.

(Vier.) v Rozerts. - [1931] HCA 44 - HCA 1931 case summary — Zoe

[16]

At the trial of the action before Irvine C.J., evidence was given to the following effect: - The personal record of the respondent, which appeared to have been opened in the Depart- ment in or soon after June 1881, entered him as having been appointed an unpaid pupil teacher from 23rd June 1881; and in the classified rolls prepared in 1885 and 1888, pursuant to Act No. 773, the date of his appointment was given as 23rd June 1881, and this date is given in all classifications and records in which his name appears. But on 4th July 1882, or thereabouts, his name was submitted to the Governor in Council for appointment as a pupil teacher at a remuneration of £20, and in the paper on which his name was so submitted, entered opposite was the remark "Unpaid P.T. (apptd. on staff)." The Crown contended that he had not before been appointed by the Governor in Council, and that Act No. 447 did not authorize any other form of employment or appointment in the Education Department, that the Regulations under that Act did not admit of his appointment as an unpaid pupil teacher, or as a pupil teacher in the school in which he was actually put in that position, and that neither in law nor in fact did he hold a recognized position in the Service until 4th July 1882. In May 1881 a vacancy for a pupil teacher occurred in the State school in which the respondent, who was then in his seventeenth year, had been a pupil and where he had been teaching as monitor for some eighteen months. The head master recommended that he should be appointed, and his father addressed a request to the Minister of Education for the favourable consideration of his son's application, but the vacancy was filled, apparently, by the appoint- ment of another applicant. In the course of an explanation to the Secretary of the Department, the head master said, in effect, that the respondent had been teaching as a monitor in expectation of appointment to the next vacancy as a pupil teacher, the recommenda- tion to which he as head teacher had promised, and that partly through this promise the lad had suffered a disappointment. He ended his letter by asking "if the Honourable the Minister would allow

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of the Act No. 710. The respondent had been a scholar in a State school near Ballarat for a considerable period, and was the best pupil in the school: in fact the head master had used his services as a monitor for teaching purposes. In May of 1881 his father applied to the Minister of Public Instruction for the appointment of the respondent as a pupil teacher, but was informed that there was then no vacancy but that the application would receive special consideration on the occurrence of the next vacancy. Later in the same month, the head master requested that the Minister would allow the respondent to be placed on the staff without salary, so that he might proceed with the course of examinations as a pupil teacher. A reply was forwarded that the Department was not prepared to appoint the respondent as an unpaid pupil teacher. In June 1881 the respondent applied for appointment as an unpaid pupil teacher. The Minister minuted the letter " Appoint unpaid P.T. at No. 695, Pleasant Street." A minute also exists in the departmental files as follows : - '' Edward H. Roberts 9625. 4c]. Apptd. unpaid P.T. from 23rd June 1881." The personal record of the respondent in the Department, and the classified roll, contain corresponding entries. Subsequent events throw some light on the Minister's action. In February of 1882 the respondent applied to be placed on the paid staff of pupil teachers, and stated that he had been appointed an unpaid pupil teacher in June of the previous year, but had since been informed that the appointment of another paid pupil teacher was then unwarranted. In June of 1882 a vacancy occurred in the position of paid pupil teacher in another school, and the respondent applied for it. But a paid pupil teacher in the school where the respondent was then teaching was appointed to this vacancy, and as from 6th July 1882 the respondent was appointed a paid pupil teacher in the school in which he had been educated and had taught as a monitor and unpaid pupil teacher. The appointment of the respondent as a paid pupil teacher was submitted to the Governor in Council, and apparently confirmed.

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appointment and removal of teachers (which included pupil teachers) and other officers was vested in the Governor in Council and not in the Minister. And sec. 17 provided for their payment. So far as this section related to the respondent, the provision was that "teachers of State schools shall be paid such salary 2 as shall be fixed by regulations." The Regulations allotted stafis (including pupil teachers) to schools according to the average attend- ance, and fixed the annual salaries of pupil teachers as follows : - Males: Class 1, £50; Class 2, £40; Class 3, £30; Class 4, £20. A further provision of the Regulations was that salaries should not be paid to pupil teachers until they should have passed the examina- tion for the fourth or lowest class. If they passed at the first examination to which they were summoned, they were paid from the date of their passing. Now it is plain enough that the appoint- ment of the respondent by the Minister in June 1881 as an unpaid pupil teacher did not conform to any of these provisions, and cannot be attributed to any lawful authority. It is clear on the facts proved that the respondent's so-called appointment and employment in June of 1881 was based upon the Ministerial Order and upon nothing else. The Court cannot infer an origin to his appointment other than that actually proved. What then was the position of the respondent in the Education Department before 6th July 1882? 'The respondent's desire in 1881 to obtain a footing in the Depart- ment is clear enough. But there was no vacancy for him. He desired experience as a teacher, and, if he were allowed to give his services without payment, that would provide him with such experience, and would also advance his application for a permanent and paid appointment. So he volunteered his services, and the Minister, because it cost the State nothing, allowed him, as a privilege, to enter a State school and gain the experience as a teacher that he desired. No doubt he was subject to the discipline and control of the head master, but to call the privilege granted to him an appointment or an employment by the State surely avoids realities, and places too much stress upon the form whereby the privilege was granted. The respondent was not in fact employed in the Education Department as a pupil teacher before July of

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then Minister of Education indorsed with a ministerial order directing that the respondent should be appointed unpaid pupil teacher at State School No. 695, Pleasant Street, Ballarat. There~ upon the Secretary of the Department, after receiving an assurance from the head teacher, which seems to have been required under the Regulations dealing with pupil teachers, that the respondent was free from any physical defect likely to impair his efficiency as a teacher, minuted the file with the respondent's name, the depart- mental number then allotted to him and the statement that he was. appointed unpaid pupil teacher from 23rd June 1881. A personal record was thereupon opened in the Departments files under the respondent's name and the number so assigned. The date of the respondent's birth was entered and the fact that he was appointed an unpaid pupil teacher from 23rd June 1881 together with the file number of the Secretary's minute as the authority for the appoint- ment. On what this record discloses or does not disclose the Crown makes three points. It is said, first, that it does not appear that he was appointed by the Governor in Council ; next, that it does appear that he was unpaid, and that an unpaid pupil teacher was a thing not known to the Regulations, and, third, that all the appointment amounted to was to give him a locus standi in the school from which he might enter the Service. In support of the third point the correspondence between the head teacher and the Secretary of the Department and the respondent's father and the Minister was relied upon. From this it appears that a vacancy for a pupil teacher had occurred in the school; that the head teacher had held out expectations to the respondent, who had been teaching as a monitor, that he would be appointed; that an appointment of some other person had been made ; that thereupon the head teacher had sought from the Minister an appointment for his protégé on the staff without salary so that he might pursue the course of examinations as a pupil teacher ; that the Minister had been interviewed by the father, and the respondent had made a formal application for appointment as unpaid pupil teacher. The Regulations then in force show clearly that a pupil teacher, at least a paid one, was part. of the teaching staff of a school. In order to obtain a licence to

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teach, a course of training was prescribed for pupil teachers and they were required to pass annual examinations. There could be no doubt that if the respondent had been appointed a paid pupil teacher by the proper authority he would have been a person holding office in a department of the Public Service at the critical date. I am not impressed by the weight of the second and third points of the Crown. They seem to confuse the question whether the respondent ought to have been appointed, with the question whether he was. It may have been very wrong of the Minister who advised the Crown in 1881 to listen to the respondent's father or to desire to confer upon the respondent all the rights, powers, privileges and authority of the not very exalted office of pupil teacher, and withhold the slender emoluments. It may have been wrong of him to mollify an applicant for a vacancy who had failed by appointing him as an addition to the establishment. But all these considerations lend support to the view that the Minister did it rather than that he failed in his design. His whole object was to put the youth in the Service as a pupil teacher standing upon the lowest rung of the ladder, and, therefore, on the ladder. The matter must, I think, come back to the point, not of most merit but of most technical cogency, that the approval of the Governor in Council was required and was not obtained. In Jenkin vy. Attorney-General (1) McArthur J. held that a teacher might at that time be employed in a State school and thus hold an office in a department of the Publie Service without appointment by the Governor in Council. The question depends upon the meaning of sec. 5 of Act No. 447 interpreted by the light of the language used in sec. 22. _ However this may be, it appears that the names of pupil teachers were submitted at the time with which we are concerned to the Governor in Council, and probably the ministerial order contemplated inclusion of the respondent's name in the next list of persons whose appointments were submitted for approval. No evidence was called to prove that the records of the Executive Council had been searched. The inference we are invited to draw that in fact the name was not so submitted depends upon the fact that the present Chief Clerk of the Education Department swore that he had made a search from

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1881 to 1883 in connection with the respondent's appointments and the only records are those which he produced. It is true that the records of the Education Department so produced include no schedule or list prepared for submission to the Executive Council containing the respondent's appointment as an unpaid pupil teacher, but they contain nothing whatsoever inconsistent with his name having been submitted and approved by the Executive Council. Holroyd J. in Foran v. The Queen (1) states the practice by which the Executive approval is given. It might easily happen that the Department in which a schedule of names was prepared for the Minister to take to the Executive meeting either did not retain a copy or at least after the lapse of fifty years failed to exhume the particular paper in which the respondent's name was embedded. At any rate I am not prepared to say that the Crown has excluded by its proofs all probability of an appointment having been made. Having regard to the Minister's direction to appoint the respondent and the assignment of 23rd June 1881 in all statutory and other records as the date of the respondent's appointment, I am prepared to give effect to the presumption and, as Griffith C.J. said in Williams v. Macharg (2), " if necessary, I am prepared to infer the existence of some formal act of the Executive Council which has been lost, or not produced." It seems just as likely that the officers who compiled the records of 1885 correctly attributed a lawful appoint- ment to the respondent, as that those who in 1929 searched to show an error had been made in these records were able to find every document which in 1881 contained the respondent's name, and unless they did so it is impossible to say that the negative has been established. Indeed, it is not pretended that they went outside the Education Department. After all the essential records are those of the Executive Council. But let it be assumed that the appointment was not passed by the Governor in Council, does it follow that for the purposes of superannuation the respondent is to be regarded as if he were not an officer at all? From the Minister of the Department downward, the officers of the Crown treated the respondent as part of the staff of the school and as a pupil teacher of the Department. Unless the rights conferred by the provisions

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