wee 66 CATCHWORDS DEFENCE - Military Forces - Royal Australian Air Force - Officer - Appointment on probation for term of years - Short service commission for four years in the Permanent Air Force followed by a period of years in the Air Force Reserve issued - Termination of officer's probationary appointment by Executive Council - No action taken to cancel commission - Whether officer entitled to remuneration after the date of termination of his appointment. Air Force Act 1923 (Cth), ss.3, 4A, 4B, 4C, 4D, 4G, 47 Air Force Regulations, regs 31, 32, 45, 46, 46A, 47, 53, 54B, 57, 72, 530 Defence Act 1903 (Cth), ss.12, 117B Federal Court Rules, Order 11, r.16, Order 20, r.2 BRIAN WILLIAM PATTON v. THE HONOURABLE KIM CHRISTIAN BEAZLEY, MINISTER OF STATE FOR DEFENCE and ANOR. No. G 33 of 1986 Northrop, Neaves and Beaumont JJ. 23 February 1987 Canberra IN THE FEDERAL COURT OF AUSTRALIA QUEENSLAND DISTRICT REGISTRY No. G 33 of 1986 GENERAL DIVISION ON APPEAL FROM A SINGLE JUDGE OF THE FEDERAL COURT OF AUSTRALIA BETWEEN: BRIAN WILLIAM PATTON Appellant AND: THE HONOURABLE KIM CHRISTIAN BEAZLEY, MINISTER OF STATE FOR DEFENCE and THE COMMONWEALTH OF AUSTRALIA Respondents MINUTE OF ORDER THE COURT Northrop, Neaves and Beaumont JJ. DATE OF ORDER : 23 February 1987 WHERE MADE Canberra THE COURT ORDERS THAT: lL. 2. 3. The orders made by Pincus J. on 11 September 1985 be varied by substituting for those orders an order that the proceeding brought by Brian William Patton be dismissed generally, with costs including the costs of the motion dealt with by Pincus J., on the ground that no reasonable cause of action is disclosed. Otherwise the appeal be dismissed. The appellant pay the costs of the respondents of the appeal. Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules. IN THE FEDERAL COURT OF AUSTRALIA QUEENSLAND DISTRICT REGISTRY No. G 33 of 1986 were rw GENERAL DIVISION ON APPEAL FROM A SINGLE JUDGE OF THE FEDERAL COURT OF AUSTRALIA BETWEEN: BRIAN WILLIAM PATTON Appellant AND: THE HONQURABLE KIM CHRISTIAN BEAZLEY, MINISTER OF STATE FOR DEFENCE and THE COMMONWEALTH OF AUSTRALIA Respondents CORAM: Northrop, Neaves and Beaumont JJ. DATE: 23 February 1987 REASONS FOR JUDGMENT NORTHROP and NEAVES JJ.: Brian William Patton ("the appellant") has appealed, by leave, from an interlocutory judgment of a single judge of the Court (Pincus J.) given in an action commenced by the appellant against the Honourable Gordon Glen Denton Scholes, Minister of State for Defence, and the Commonwealth of Australia. The Honourable Kim Christian Beazley subsequently became the Minister of State for Defence and the proceedings were amended to substitute him as the first respondent. 2. The action was instituted by the appellant in the High Court of Australia but was remitted to this Court pursuant to s.44 of the Judiciary Act 1903 (Cth). The appellant claims to be entitled to be remunerated in accordance with the rates of pay prescribed for an officer of the Royal Australian Air Force with the rank of pilot officer from 7 November 1968. He claims that that entitlement will continue for life or until the commission issued to him in respect of his appointment as such an officer is cancelled pursuant to reg.72 of the Air Force Regulations ("the regulations") made under the Aur Force Act 1923 (Cth) ("the Act"). By his amended statement of claim dated 15 October 1984, the appellant asserts that he enlisted in the Royal Australian Air Force on 9 March 1965, that he was appointed to be an officer of that Force, with the rank of pilot officer, with effect from 22 August 1966, that his appointment to be an officer was published in the Commonwealth of Australia Gazette ("the Gazette") No.83 dated 29 September 1966, and that a commission dated 30 October 1967 issued to him in respect of that appointment. It is then alleged that the Governor-General purported to terminate that appointment with effect from 6 November 1968, notice of such purported termination being published in the Gazette No.98 dated 28 November 1968, but that no action was taken to cancel his commission, action which could only be taken for cause. The purported termination of the appellant's appointment to be an officer is said to have been of no force or effect so far as the claim for remuneration 1s concerned as the commission issued to him was not cancelled. 3. The consequence, so the appellant claims, is that he remained, and remains, a commissioned officer and, as such, entitled to the remuneration claimed. The respondents applied to the Court by motion on notice for an order that the amended statement of claim be "dismissed" on the ground that it disclosed no reasonable cause of action. When that application came on to be heard, the appellant applied to further amend his amended statement of claim by adding a claim for a declaration that the holder of a commission in the Royal Australian Air Force which has not been cancelled pursuant to reg.72 of the regulations remains an officer of that Force. At the conclusion of the hearing, Pincus J. made orders in the following terms - "1. The amendment sought be refused. 2. The statement of claim be struck out in its entirety. 3. The costs of and incidental to this application and order be taxed and paid by the applicant, Mr Patton." It 1s from those orders that the present appeal is brought. The notice of motion filed on behalf of the respondents did not indicate whether they were relying on the inherent powers of the Court to prevent the abuse of its 4. process or on specific provisions contained in the Federal Court Rules. There are two relevant provisions in the rules - Order 11, r.16 and Order 20, r.2. Order 11, r.16 provides: "Where a pleading - (a) discloses no reasonable cause of action or defence or other case appropriate to the nature of the pleading; (b) has a tendency to cause prejudice, embarrassment or delay in the proceeding; or (c) 1s otherwise an abuse of the process of the Court, the Court may at any stage of the proceeding order that the whole or any part of the pleading be struck out." Order 20, r.2 is in the following terms: "(1) Where in any proceeding it appears to the Court that in relation to the proceeding generally or in relation to any claim for relief in the proceeding - (a) no reasonable cause of action is disclosed; (b) the proceeding is frivolous or vexatious; or (c) the proceeding is an abuse of the process of the Court, the Court may order that the proceeding be stayed or dismissed generally or in relation to any claim for relief in the proceeding. (2) The Court may receive evidence on the hearing of an application for an order under sub-rule (1)." The learned primary judge assumed that the application was made under Order ll, r.16. However, his Honour did receive, and placed reliance upon, some material extraneous to the amended statement of claim and it may have been more appropriate to have regarded the motion as having been made under Order 20, r.2 which, as appears, permits the Court to receive evidence. Nothing, however, turns on this so far as the present appeal 1s concerned. It is convenient to begin with an examination of the relevant legislative provisions in force at the time of the appellant's appointment to be an officer of the Royal Australian Air Force up to the date of termination of that appointment. The relevant provisions do not appear to have been amended in any material respect during that period. The Royal Austraiian Air Force then consisted of three parts, the Permanent Air Force, the Air Force Emergency Force and the Citizen Air Force (s.4A of the Act). The Permanent Air Force consisted of officers appointed to that Force or transferred to that Force from the Air Force Emergency Force or the Citizen Air Force and of airmen enlisted in that Force (s.4B). The Air Force Emergency Force consisted of airmen enlisted in that Force and of such officers as were appointed to that Force or transferred to it from the Permanent Air Force or the Citizen Air Force (s.4C). The Citizen Air Force consisted of the Active Citizen Air Force and the Air Force Reserve (sub-s.4D(1.)). The Active Citizen Air Force consisted of officers appointed to, and airmen enlisted in, that Force and of such officers as were transferred to that Force from the Permanent Air Force, the Air Force Emergency Force or the Air Force Reserve (sub-s.4D(2.)). The Air Force Reserve consisted of officers appointed to, and airmen enlisted in, that Reserve and of such officers as were transferred to that Reserve from the Permanent Air Force, the Air Force Emergency Force or the Active Citizen Air Force (sub-s.4D(3.)). By sub-s.4G(1.), officers of the Permanent Air Force were bound to render continuous full time air-force service for the respective terms for which they held their appointments in that Force unless their services were sooner lawfully terminated. Sub-section 4G(2.) provided for the extension of the term of appointment of a member of the Permanent Air Force in certain circumstances but it is unnecessary to refer to its provisions in any detail. Officers of the Citizen Air Force were not bound to serve continuously, but were bound to render air-force service for such periods as were fixed by or in accordance with the regulations (sub-s.4dJ(1.)). An officer of that Force might, however, voluntarily undertake to render continuous full time air-force service for a period specified by him and, if that undertaking were accepted, he became bound to render that service (sub-s.4J(3.)). Regulation 45 of the regulations, so far as relevant, provided - 7. "45(1.) The Governor-General may, on the recommendation of the Air Board, appoint and promote officers and issue commissions to them. (1A.) .... (2.) Commissions shall specify the branch to which officers are appointed and shall be as follows:- (a) Permanent commissions in the Permanent Air Force; (b) Short service commissions in the Permanent Air Force for a period of eight years, six years or four years in the Active Force, followed by a period of at least five years in the Reserve; (ba) commissions for a period of four years in the Air Force Emergency Force; {c) Commissions in the Citizen Air Force; (d) Temporary Commissions; and (e) Honorary commissions." The expression "Active Force" was defined in sub-reg.4(1.) to include ali parts of the Air Force other than the Reserve and the Retired List. The appointment or promotion of an officer under the regulations was not to create a civil contract between the King or the Commonwealth and the officer (reg.32). Regulation 49 (see Statutory Rules 1948 No.51) prescribed the branches into which the Air Force was divided for the purposes of determining the duties, pay and retiring age of officers. One of those branches was' the special duties branch. Another was the equipment branch. B. Regulation 53 provided that a commission in the special duties branch, with the rank on appointment of pilot officer, might, on the recommendation of, and subject to conditions approved by, the Air Board, be granted to a person selected by the Air Board. A person other than an air cadet appointed to be an officer was to be appointed on probation for a_ period of twelve months and his appointment might be terminated at any time during that period (sub-reg.54B(1.)). After the period of twelve months had expired, the Air Board might recommend to the Governor-General that the appointment be confirmed or terminated or might extend the period of probation fora further period not exceeding twelve months (sub-reg.54B(2.)). The Air Board might at any time during an extended period of probation recommend to the Governor~General confirmation or termination of the probationary appointment (sub-reg.54B(3.)). Upon the expiration of the extended period of probation, the Air Board was to recommend to the Governor-General the confirmation or termination of the probationary appointment (sub-reg.54B(4.)). The terms of the appellant's appointment are not before the Court but their general tenor may be inferred from the notification of his appointment in the Gazette and from the recital in the commission subsequently issued to him. The Gazette notified that he was appointed to a four year short-service commission, on probation for a period of 9. twelve months, from 22 August 1966 in the special duties branch with the rank of pilot officer. It may be, as the appellant suggested, an inaccurate use of language to refer to the appointment as being to a commission though that expression does find its place in some at least of the regulations (see reg.47). The position was, however, made clear in the commission the text of which should be set out in full. It was in the following terms - £ COMMONWEALTH bf OF AUSTRALIA read His EXCELLENCY THE GOVERNOR-GENERAL in and over the Commonwealth of Australia To Brian William Patton GREETING WHEREAS on the , tsonty-second day of August 11986, you were appointed to be an officer of | tue Permauent Air Force with the rank of ——-Phlot Officor , (for service in that Force for a period of roux years to be followed by service in the Aur Force Reserve for a period of at least five years. NOW THEREFORE J, Richard Gardiner, Baron Casey, the Governor-General aforesaid, acting with the advice of the Federal Executive Council, in exercise of the power conferred upon me under the Aur Force Act 1923-1965, issue to you this Commussion in respect of that appointment AND Ido Charge and Command you, in the rank with which you were appointed or in any other rank that you may at any time hold, to discharge your duty faithfully and to observe all laws and regulations that are applicable to the Royal Australian Air Force and the members thereof and to observe and execute all such orders and mstructions as you may receive from your superior officers. GIVEN under my hand and the Great Seal of Groat Seal By His Excellency's the Commonwealth of the Command, dus thirtioth day of October Comsonwoe} th One thousand nme hundred and = sixty sovon here and nthe wintoonth year of Her Mayesty's Reign MINISTER OF STATE FOR AIR GUVEANOR GENERAL Ut 7 Carver, 10. It may be noted that the commission did not specify, as required by reg.45, the branch to which the appellant had been appointed. Nothing, however, appears to turn on this. Reference should also be made to regs.46, 46A and 47. They provided: "46.(1.) The Governor-General may, on the recommendation of the Air Board, extend the short service commission of an officer for any period not exceeding three years. (2.) An officer whose commission is extended in pursuance of the last preceding sub-regulation shall be liable to serve for a period of not more than five years in the Reserve. 46A. The Governor-General may, on the recommendation of the Air Board, extend the commission of an officer of the Air Force Emergency Force for a period not exceeding two years. 47. The Governor-General may, on the recommendation of the Air Board, appoint an officer holding a short service commission toa permanent commission at any time upon such terms as to rank and seniority and subject to such conditions as the Governor-General, upon the recommendation of the Air Board, directs or determines." Regulation 57 provided: "57.-(1.) Subject to this regulation, the Governor-General may, on the recommendation of the Air Board, transfer an officer from one part of the Air Force to another or from one branch to another upon such terms as to rank and seniority and subject to such conditions as the Governor-General, upon the recommendation of the Air Board, determines. ll. (2.) In the absence of a determination to the contrary, an officer transferred under this regulation shall take seniority in the part or branch to which he is transferred from and including the date of his transfer. (3.) An officer shall not be transferred from one part of the Air Force to another part of the Air Force without his consent." It appears that, on a date which is not specified in the material before the Court, the appellant was transferred from the special duties branch to the equipment branch. It further appears that on or about 13 June 1967 the Air Board extended the appellant's period of probation for a period of twelve months from 19 June 1967. Upon the expiration of the extended period of probation action was taken to terminate the appellant's probationary appointment and a recommendation to that effect was approved by the Governor-General on 21 November 1968, the termination of the appointment taking effect from 6 November 1968. The essence of the appellant's case is that the commission issued to him by the Governor-General in respect of his appointment to be an officer of the Permanent Air Force was, by its very nature, a deed of contract for life which rendered him amenable to military law and subject to military discipline and obliged him, whenever called upon by the Crown to do so, to perform such services and carry out such duties as the Crown might require. That commission, 50 the appellant submits, could be brought to an end during his lifetime only by the Governor-General cancelling the same for cause pursuant to reg.72 of the regulations. That regulation provided: 12. "72.-(1.) An officer shall hold his appointment during the pleasure of the Governor-General, but the commission of an officer shall not be cancelled except for cause and after he has had notice in writing of any complaint or charge made, and of any action proposed to be taken against him and has been given the opportunity of making such statement as he thinks fit regarding the cause. (2.) The notification required by the last preceding sub-regulation shall not he necessary in the case of an officer - (a) absent from duty without leave for a period of three months or more; or, {b) convicted by the civil power of any indictable offence or sentenced by the civil power to imprisonment." That argument was, of course, formulated without regard to the question, discussed in Marks v. The Commonwealth (1964) 111 C.L.R. 549, whether, and if so in what circumstances, the commission might have been terminated by resignation as that question has no relevance to the facts of this case. Similarly, this case does not involve any challenge to the effectiveness of the steps taken to terminate the appellant's appointment, so that the issues that arose in Coutts v. The Commonwealth (1985) 157 C.L.R. 91 do not arise here. The appellant emphasised what he submitted was the true nature of the commission issued to him by the Governor-General as it formed the foundation for the further submission that, so long as' he had a commission, he had the right to exercise the powers and privileges of a pilot officer and, more importantly for present purposes, the 13. right to draw the pay and allowances appropriate to that rank. The latter right, he submitted, depended, not upon the carrying out of any services, but simply upon the holding of an uncancelled commission, the function of the relevant regulations being simply to prescribe the rate of remuneration payable. In support of the submission as to the nature of the commission issued to him, the appellant tendered to the Court documents describing in chronological sequence the evolution of armed forces from the first century A.D. to modern times. The material tendered, which reflects great industry and depth of historical research, is most interesting and informative and provides a background against which the relevant legislative provisions regulating the armed forces in this country may be viewed. But, in the final analysis, the question what is the nature of the appellant's commission is to be resolved by reference to the relevant legislative provisions, properly construed, and by reference to the rules of the common law in so far as those rules have not been displaced by legislation. As Windeyer J. said in Marks v. The Commonwealth (supra) at p.564: "Australian military law differs from that of the United Kingdom in an important aspect. The position of the Crown in relation to the Forces is in Australia dependent on statute and not on the prerogative. Doubtless the prerogative powers of the Crown in relation to military defence are constitutionally an attribute of the Crown in right of the Commonwealth, except in so far as they have been superseded by statute: but the Australian Military Requlations are made under the authority given by the Act (s.124) and by the same procedures and subject to the same 14. Parliamentary controls as are other statutory regulations. They are made by the Governor-General in Council, not by the Governor-General as Commander-in-Chief exercising a prerogative power on the advice only of a responsible minister." See also Coutts v. The Commonwealth (supra) per Deane J. at pp.108-9 and per Dawson J. at p.120. Regulation 45 of the regulations, the text of which 1s set out above, expressly provided for the issue of a commission for aterm of years both in the Permanent Air Force and the Air Force Emergency Force. Of particular significance for the present case 1s that the regulation expressly provided for the issue of a short service commission in the Permanent Air Force for a period of four years in the Active Force followed by a term of years in the Reserve. That regulation was clearly within the regulation making power conferred by the Act and nothing that has been put to the Court in this case would justify the Court in failing to give full effect to that regulation according to its plain language. The appellant referred to what he said was the Practice that was, and perhaps stili is, followed that a person who receives a commission upon his first appointment to be an officer of the Permanent Air Force does not receive a further commission inthe event of the term of his appointment being extended, or his transfer from one branch to another, or his promotion to higher rank. That that was, or 1s, the practice was no more than assertion by the 15. appellant. There 1s no material before the Court to show whether his assertion accurately reflects the practice in fact followed but, whatever the practice may be, it cannot override the relevant legislative provisions. It 1s no doubt correct to say that an officer serves according to the tenor of his commission and it may be that, if the appellant's commission had been extended pursuant to sub-reg.46(1.) or if he had been appointed to a permanent commission pursuant to reg.47 but his existing commission had not been replaced so as to reflect his new situation, it would be necessary to disregard the terms of the commission which he in fact held. However, neither of those events took place and we need not stay to consider what would have been the position if they, or either of them, had occurred. It is equally true to say that, unless and until it is cancelled, a commission survives the termination of the appointment in respect of which it is issued. But 1t survives according to its tenor and not otherwise. As Windeyer J. said in Marks v. The Commonwealth (supra) at p.587: "A statement that an office voluntarily assumed is held for life, during good behaviour, fora term of years, or during pleasure limits the term during which the officer-holder may have it." The extent of the authority which a commission confers upon the individual named in it is to be determined by a v 16. consideration of its terms and we can discern no principle of law which would enable a commission expressed to confer authority for a term of years to be construed as conferring authority during the lifetime of the holder subject only to earlier cancellation for cause. It follows that the commission issued to the appellant on 30 October 1967, properly construed in the light of the legislative provisions pursuant to which it was issued, was a commission as an officer of the Permanent Air Force for a period of four years from 22 August 1966 and as an officer in the Air Force Reserve for a further period of at least five years commencing immediately upon the expiration of the first-mentioned period. In so providing, the commission followed the language of sub-reg.45(2.)(b). The periods so specified have long since expired and we are unable to accept the appellant's submission that he continues to hold a commission as an officer in the Royal Australian Air Force. The question remains whether there is any foundation for a claim by the appellant to recover from the respondent remuneration in respect of the period between the termination of his appointment with effect from 6 November 1968 and the expiration of the periods referred to in the commission issued to him. To this question we now turn. At common law no action for remuneration could be maintained against the Crown by a member of the armed 17. forces: Quince v. The Commonwealth (1944) 68 C.L.R. 227 at pp.242, 245-6, 253; The Commonwealth v. Welsh (1947) 74 C.L.R. 245 at pp.260, 262, 264, 268, 274; Coutts v. The Commonwealth (1985) 157 C.L.R. 91 at p.120. The strict common law position was alleviated somewhat in relation toa person who had been a member of the Royal Australian Air Force by reg.31 of the regulations which enabled sucha person, after having ceased to be a member, to recover from the Commonwealth by suit in any court of competent jurisdiction any moneys which under his engagement or by any agreement with the Commonwealth were due to him. Similar provision was made by s.12 of the Defence Act 1903 (Cth) ("the Defence Act") in relation to a person who had beena member of the Defence Force, an expression which included the Air Force (see Defence Act, s.30). Sub-section 3(1.) of the Air Force Act 1923 (Cth) provided that, subject to that Act and the regulations thereunder, s.12 of the Defence Act was to apply to and in relation to the Air Force and the members of that Force. Regulation 31 was repealed by Statutory Rules 1976 No.60 but s.12 of the Defence Act remained in force. Sub-section 3(1.) of the Air Force Act 1923 (Cth) was repealed by the Defence Force (Miscellaneous Provisions) Act 1982 (Cth) but it may be accepted that, notwithstanding that repeal, s.12 of the Defence Act continued to provide a remedy to a person who had been a member of the Air Force (see Defence Act, s.5). Section 12 of that Act was itself repealed by the Statute Law (Miscellaneous Provisions) Act 18. (No.1) 1985 (Cth) (see 5.3 and Schedule 1). The last-mentioned statute inserted in the Defence Act s.117B which is the provision currently in force. That section provides: "A person who is or has been a member of the Defence Force may recover from the Commonwealth, by action ina court of competent jurisdiction, money due to the person by the Commonwealth in respect of the person's service as a member of the Defence Force." That provision came into operation on 3 July 1985 and, therefore, was not in operation when the writ in this proceeding was issued. No question was raised in the proceedings before the primary judge or on the hearing of the appeal as to the appellant's entitlement to sue for remuneration and we have proceeded on the assumption that he is so entitled. Any right which the appellant may have to receive remuneration as an officer of the Royal Australian Air Force and, if he has such a right, the amount of the remuneration to which he is entitled must be found in the provisions of the regulations which prescribe the circumstances in which, and the rates at which, remuneration is payable. In this regard we were referred to reg.530 which, at the time of the termination of the appellant's probationary appointment in November 1968, contained the following material provisions: 19. "530.(1.) On the first appointment or enlistment of a member his pay and allowances shall, subject to the next succeeding sub-regulation, commence on the date upon which he commences duty. (1A.) .... {2.) Unless the Minister, on the recommendation of the Air Board, otherwise approves, a member shall be paid on first appointment or enlistment the minimum rate prescribed for his rank. (3.) Subject to these Regulations, pay and allowances shall be issued for each day of service, including Saturdays, Sundays and prescribed, proclaimed and approved Commonwealth holidays and authorized periods of leave with pay. (4.) Subject to these Regulations, pay and allowances shall not be credited to the account of a member in respect of any day after - (a) the day of his discharge or of the termination of his service; (b) the day immediately before the day on which he is transferred to the Reserve; (c) the day of his death; (ad) the day of his being reported missing; {e) the day on which he is in the ordinary course due for retirement, unless authority has been granted for the extension of his service; (f) the day on which he is seconded for service with another government department or for civil employment, unless the Air Board, having regard to exceptional circumstances, otherwise approves; (g) the day of his secondment to the Naval or Military Forces; (h) the day on which, in the case of an officer who has been seconded to the Air Force from the Naval or Military Forces, he ceases to be employed on the Active List of the Air Force; 20. (i) the day onwhich, in the case of a member of the Citizen Air Force who has been called up for war service or who has otherwise been required to perform special duty, he ceases to perform that war service or duty, as the case may be. That regulation was amended from time to time between November 1968 and the commencement of this action but it does not appear to be necessary to detail those amendments as none of the amendments advances the appellant's case. It may, however, be noted, in passing, that in 1976 the references to "pay" were replaced by references to "Salary" (see Statutory Rules 1976 No.10). So far as concerns the period during which the appellant was, according to the terms of his commission, to be an officer inthe Air Force Reserve, that is to say during the period commencing at the expiration of the period of four years during which he was to be an officer of the Permanent Air Force, sub-reg.530(4.)(b) is fatal to his claim for remuneration. No basis has been shown upon which, assuming him to be an officer, he could be treated, during that period, as other than an officer transferred to the Reserve within the meaning of that expression in that sub-regulation. Whether he should be treated as having that status during that period is a question upon which it is unnecessary to express an opinion. In respect of the period from 7 November 1968 to the expiration of the period during which, according to his ai. commission, he was to be an officer of the Permanent Air Force, sub-reg.530(4.)(a) must be considered. The appellant contends that the termination of his probationary appointment did not have the effect of terminating his service for the purpose of that provision. It was submitted that such service would not be terminated unless and until his commission was cancelled in accordance with the requirements of reg.72. The respondents, on the other hand, contend that the appellant's service was terminated for the purposes of sub-reg.530(4.)(a) when his appointment was terminated with effect from 6 November 1968. In our opinion sub-reg.530(4.)(a) precludes the appellant from recovering remuneration in respect of any period after 6 November 1968 as the termination of his probationary appointment operated to terminate his service within the meaning of that sub-regulation. That conclusion is, in our opinion, required by a consideration of the provisions of the Act and the regulations as a whole. It is abundantly clear that, in determining the date at which an officer's service commences, the relevant circumstance is that the officer has been appointed, not that he has received a commission. It is, we think, equally clear that the termination of an officer's service is referable to what has occurred in relation to his appointment and it is immaterial for that purpose that the commission may survive the termination of the appointment. It is sufficient to refer to the provisions of sub-s.4G(1.) of the Act which prescribes the obligation of service of an officer of the 22. Permanent Air Force in terms of his appointment and not in terms of his commission. There is nothing in the Act or the regulations which requires us to hold that the survival of a commission after the termination of an officer's appointment to the Permanent Air Force entitles him to receive remuneration at the rates prescribed for such an officer. For these reasons the orders made by Pincus J. on 11 September 1985 should be varied by substituting for those orders an order that the proceeding brought by the appellant be dismissed generally, with costs including the costs of the motion dealt with by Pincus J., on the ground that no reasonable cause of action is disclosed. Otherwise the appeal should be dismissed with costs. I certify that this and the preceding 21 pages are a true copy of the Reasons for Judgment herein of the Honourable Mr Justice Northrop and the Honourable Mr Justice Neaves. Associate Dated: 23 February 1987 IN THE FEDERAL COURT OF AUSTRALIA QUEENSLAND DISTRICT REGISTRY No. G 33 of 1986 GENERAL DIVISION ON APPEAL FROM A SINGLE JUDGE OF THE FEDERAL COURT OF AUSTRALIA BETWEEN: BRIAN WILLIAM PATTON Appellant AND: THE HONOURABLE KIM CHRISTIAN BEAZLEY, MINISTER OF STATE FOR DEFENCE and THE COMMONWEALTH OF AUSTRALIA Respondents CORAM: Northrop, Neaves and Beaumont, JJ. DATED: 23 February 1987 REASONS FOR JUDGMENT BEAUMONT J. In Coutts v. The Commonwealth (1985) 157 C.L.R. 91, Deane J., speaking of the distinction drawn by reg.45(1) of the Air Force Regulations between the appointment of a person as an officer and the issue of his or her commission, said (at pp.109-110): "While an officer is deemed to be commissioned on the date of his or her appointment (reg.45(1AA)), the actual issue of a commission follows the appointment and, unless and until it 1S cancelled, the commission' survives' the termination of the appointment. A person's appointment is to service in pay as an officer: cf. the provisions of the present reg.46. The commission is the formal warrant of his or her rank." In the present case where the appellant's claim is for remuneration, the distinction is of a fundamental importance. It is one thing to claim pay for service as an officer. It 18 a very different thing, as the appellant now seeks, to claim remuneration by virtue only of the formal warrant of his rank where no services were sought by the Commonwealth or rendered by the appellant. I agree with the judgment of Northrop and Neaves JJ. I certify that this and the preceding page 1s a true copy of the Reasons for Judgment herein of his,Honour Mr. Justice Beaumont. i aa Associate Dated: 23 February 1987 The appellant appeared in person. Counsel for the respondents =: Miss M.A. Wilson Solicitor for the respondents: Australian Government Solicitor Date of hearing : 30 July 1986