R v White; Ex parte Byrnes [1963] HCA 58

High Court of Australia Dixon C.J. Kitto, Taylor, Menzies and Windeyer JJ. R v White; Ex parte Byrnes [1963] HCA 58

ORDER Order nisi for certiorari discharged.

Cur. adv. vult.

The Court delivered the following written judgment:—

Dixon C.J., Kitto, Taylor, Menzies and Windeyer JJ.

This is the return of an order nisi for a writ of certiorari directed to the Chief Officer of the Department of the Army and to the Chairman and Members of the Appeal Board constituted pursuant to the provisions of s. 55 of the Public Service Act 1922-1960 Cth. The tenor of the writ sought is to direct the respondents already mentioned to send to this Honourable Court (that is the High Court of Australia) his its and their proceedings upon certain decisions dated 21st May and 24th July 1963 respectively "with all things touching the same so that this Honourable Court may further cause to be done thereupon what of right shall seem to it to be done".

The applicant, Mr. Keith Lawrence Byrnes, is an officer in the Third Division of the Commonwealth Public Service. He is employed as a lecturer in mathematics at the Royal Military College, Duntroon, Canberra, and is attached to the Department of the Army. The matter arises under s. 55 of the Public Service Act 1922-1960 and under reg. 58 of the Public Service Regulations. Regulation 58 provides that if the Chief Officer (see s. 26 of the Public Service Act 1922-1960) has reason to believe that an officer is in such a state of health as to render him a danger to his fellow officers or the public, he may require the officer to obtain and furnish a report as to his condition from a duly qualified medical practitioner, or may require him to submit himself for examination by a Commonwealth Medical Officer or medical practitioner named by the Chief Officer. Sub-regulation (2) relates to what may be the consequence. The applicant says that he attended two medical examinations at the instigation of the Chief Officer of the Department of the Army, namely, on 17th September 1962 and 11th April 1963. He says that he declined to attend a medical examination set by the Chief Officer for 9th May 1963 and for that, he says, the punishment consisting of a fine of £3 for having disobeyed an order made under reg. 58 was inflicted upon him. He further says that he also declined to attend a medical examination set for 4th September 1963. He received a letter from the Secretary of the Department of the Army which said that following his medical examination of 11th April, the Department of Health has requested that arrangements be made for him to be further examined in order that a more detailed study can be made of the case. The letter said that in accordance with the powers conferred on him by reg. 58 the writer required the applicant to attend the rooms of the Commonwealth Medical Officer at an address given at 4.30 p.m. on Thursday, 9th May. The applicant says that he did not attend at the examination at the appointed place and time and that he was charged on 10th May by the Chief Officer of the Department of the Army with having wilfully disobeyed "a lawful order namely, "that the said Keith Lawrence Byrnes attend the rooms of the Commonwealth Medical Officer, Administrative Building, Parkes at 4.30 p.m. on Thursday, 9th May 1963," made by a person having authority to make the said order".