CLR.] OF AUSTRALIA. 585 messing a doubt upon the subject, and avoid deciding the matter H.C. oF A. a sense contrary to the view they have formed. acd THe Kine Orders nisi discharged with costs. Motion for interlocutory injunction dismissed with costs. AND Solicitors for the prosecutors and plaintiffs, R. D. Meagher, 0'Kruux fogarth & Co. ; Collins & Mulholland. Solicitor for the respondents and defendants, Gordon H. Castle, Crown Solicitor for the Commonwealth. B. L. (HIGH COURT OF AUSTRALIA.] OWER 5 . i : 'i - r . Parner ; AGAINST 'HE COMMONWEALTH . a é - . DeErenpanr. lic Service (Commonwealth)—Transferred officers—Officer in Public Service of H.C. or A. State—Transfer to Public Service of Commonwealth—Break in service of State 1993. between establishment of Commonwealth and time of transfer—The Constitu- = Go tion (63 & 64 Vict. c. 12), sec. 81—Commonwealth Public Service Act 1902-1918 Brispaxz, (No. 5 of 1902—No. 46 of 1918), sec. 60. _ June 14. Sec. 84 of the Constitution deals in the first three paragraphs with the rights SypNey, of officers of Departments of the Public Service of a State transferred to the Aug. 2. Commonwealth, and provides that "any such officer who is retained in the service of the Commonwealth shall preserve all his existing and accruing rights, KB0S C1 'and shall be entitled to retire from office at the time, and on the pension or °*¥*" Duly JJ- retiring allowance, which would be permitted by the law of the State if his service with the Commonwealth were a continuation of his service with the State." The fourth paragraph of the section enacts that "any officer who is, at the establishment of the Commonwealth, in the Public Service of a State, H.C. or A. 1923. yy TROWER v Tue Common- WEALTH. HIGH COURT and who is, by consent of the Governor of the State with the advice of th Executive Council thereof, transferred to the Public Service of the Commo wealth, shall have the same rights as if he had been an officer of a Departmen transferred to the Commonwealth and were retained in the service of th Commonwealth." The plaintiff was a classified officer in the Public Seryice of the State o Queensland on Ist January 1901, the date of the establishment of the Commo wealth. In January 1904 he ceased to be an officer in that Public Service, b in March 1904 he was again appointed thereto, and continued therein un October 1917, when he was appointed to the Commonwealth office of Director of Lands in the Northern Territory and was transferred to 1 Public Service of the Commonwealth; and in that office he remained his services were dispensed with in August 1921. Held, that the plaintift acquired no right under the last paragraph of sec. as that provision relates only to officers in the Public Service of a State wl at the time of their transfer to the Public Service of the Commonwealth, h rights against the State based on continuous employment in the Public Se of the State from a date prior to the establishment of the Commonwealth. — Case REFERRED. , The plaintiff, Horace Melville Trower, instituted an action a the Commonwealth claiming (1) a declaration that he is still a officer of the Public Service of the Commonwealth ; (2) a declaration that he is entitled to retain his office of Director of Lands until such office is determined according to law and in accordance ¥ the provisions of the Queensland Public Service Act of 1896; (3) a declaration that he was wrongly deprived of his said office on o1 about 22nd August 1921; (4) an order for reinstatement thereto ; (5) an order for payment of salary and/or arrears of salary; (6) £5,000 damages for wrongful dismissal; (7) £1,000 for travel and house and other allowances, costs of removal, loss and damage sale and disposal of furniture and effects. The action came on fo1 trial before Gavan Duffy J., and, after certain admissions of fact been made for the purposes of the action by the parties and evide on the question of damages had been taken, the learned Jud directed the case to be argued before the Full Court of the H Court. The only question argued was whether sec. 84 of the Constitution gave any rights to the plaintiff. ' The material facts appear in the judgments hereunder. 2 C.L.R.] OF AUSTRALIA. ec. 84 applies to any officer individually transferred who complies two conditions—first, is in the Public Service of a State at the stablishment of the Commonwealth, and, secondly, is with the t essary consent transferred to the Public Service of the Common- alth. The exact words of the section do not require continuity rvice from the establishment of the Commonwealth to the date of transfer, and the duty of the Court is loyally to accept and plainly to expound the words actually used (Vacher & Sons Ltd. v. London iety of Compositors (1) ). A requirement of continuous employ- nt would, in effect, be the insertion of the words ' and who con- tinues to be" into the section. Macgregor (with him McGill), for the defendant. Sec. 84 must be ead as a whole ; its earlier paragraphs show that it applies only to cers whose service is continuous between the relevant dates, nd by reference that condition is imported into the last paragraph. The plaintiff has no rights other than those arising on his appointment | March 1904, and therefore he acquired no rights under sec. 84. it of the last paragraph of sec. 84, that decision would finally mine the action. On counsel replying in the affirmative, the adjourned argument on the other questions involved in the Cur. adv. vult. 'The following written judgments were delivered :— Knox C.J. anp Gavan Durry J. The claim of the plaintiff in s action is as follows :—{The claim above set out was here stated]. lement has been arrived at in respect of the last item of this , which is accordingly withdrawn from our consideration. he relevant facts are as follows :—At the date of the establish- of the Commonwealth—Ist January 1901—the plaintiff was a (1) (1913) A.C., 107, at p. 126. — Wassell (with him Fahey and Murray Graham), for the plaintiff. H.C. oF A. Sw TROWER v THE Common- WEALTH. Aug. 2. H.C. or A. 1923. ww TROWER v THE Common- WEALTH. Knox C5. Gavan Dufty J. HIGH COURT classified officer in the Public Service of the State of Que On Ist January 1904 the plaintiff ceased to be an officer in the Ser of that State. On 2nd March 1904 he was again appointed officer in the Public Service of Queensland, and continued a officer in that Service until Ist October 1917. On the last mentione tory, and continued in that position until 31st August 1921, his services were dispensed with. His appointment to the po of Director of Lands was made with the consent of the Governor Queensland with the advice of the Executive Council of that Sta Several objections have been taken to the validity of the plai that the plaintiff cannot succeed unless he comes within the a of the last paragraph of sec. 84 of the Constitution. We think against the State based on continuous employment in the Service from a date prior to the establishment of the Commonwe The words " any officer who is, at the establishment of the Common wealth, in the Public Service of a State, and who is ferred to the Public Service of the Commonwealth," indicate State until he was transferred to the Public Service of the Common wealth. At the time of his transfer to the Public Service of t Commonwealth, if he was so transferred, the plaintiff had no rig based on employment in the Public Service of the State of Queens land prior to the establishment of the Commonwealth ; and, ther fore, took no right under sec. 84 of the Constitution. Isaacs J. The material facts are that at the date of the establish ment of the Commonwealth the plaintiff was an officer in the Publi Service of the State of Queensland as draftsman and surveyor the Marine Department. That was not one of the Department: OF AUSTRALIA tin ued in the Public Service of Queensland unaffected by the estab- shment of the Commonwealth. The State Government in ember 1903 stopped most of its harbour works and laid up ges, by State governmental action the office of draftsman and eyor was abolished, and in January 1904 the plaintiff ceased to be an officer of the State. On 2nd March 1904 the State of Queens- again appointed the plaintiff to its Public Service; in which remained until 1917, in which year he was Lands Commissioner, Townsville District. In October or December 1917 he was pointed to the Commonwealth office of Director of Lands in the Northern Territory. The Governor in Council of Queensland con- nted to the transfer. In September 1921 the Commonwealth ensed with his services. At that time he was only fifty-five of age; and if he had remained in the Public Service of Queens- he could not, it has been assumed for the purposes of the argu- it, have been dispensed with for another ten years. The question is whether such a case falls within the concluding aragraph of sec. 84 of the Constitution. The plaintiff contends that does, because, says his learned counsel, he answers the description in that paragraph inasmuch as he was an officer who was at the ablishment of the Commonwealth in the Public Service of a State, nd he was, by consent of the Governor of the State with the advice of the Executive Council thereof, transferred to the Public Service the Commonwealth. Sec. 84 must be read as a whole. The us portion deals with the transfer of Departments, which are the Constitution destined to be transferred to the Commonwealth 4s soon as they conveniently can be. The Department of Customs and Excise necessarily passed at once. Four other Departments Jepended for their transfer on proclamation by the Governor-General, t their transfer was certain. As to all transferred Departments officers became at once on transfer subject to Commonwealth control, and might be retained or not retained by the Common- th. If not retained, such an officer was to be appointed in the Service to an office of equal emolument or was to receive tever compensation the State provided on the abolition of his Tf retained by the Commonwealth, he was to preserve intact VOL. XXXII. 40 ComMon- WEALTH. Isaacs J. H.C. or A. 1923. ad TROWER % THE Common- WEALTH, Isaacs J. HIGH COURT all his existing and accruing rights, and was also to have his retiri tights as if his Commonwealth service were a continuation of | State service. And provision was made for apportioning his pen or retiring allowance between Commonwealth and State. But all officers of the D ment" which is transferred. The moment of transfer identifi officers; and there is no hiatus between the identifying ci stance and the entry into the Commonwealth Service. But sin the Commonwealth might need State officers other than thos transferred Departments, the concluding paragraph created ar assurance to those officers " who, at the establishment of the monwealth," were in the Service of the State that if they left t Service, with the State's consent, to enter the Commonw Service, they would have the same rights as if they had passed over with a Department and were retained. The consent of the State to an isolated officer's transfer takes the place of the constitutional provision as to the transfer of a Department ; but it is the cot of the State to terminate the office of an officer who was at the establishment of the Commonwealth in the State Service. That is the only thing the Commonwealth guarantees to protect under thi relevant portion of the 84th section of the Constitution. When th State itself, after the establishment of the Commonwealth, abo that office, and the officer ceases to be any longer in the Public § vice of the State without any transfer to the Commonwealth, situation is destroyed which the relevant paragraph of sec, 84 persons who are to have those benefits are * templates. The constitutional guarantee is that the officer's rig which have their root in his State office in 1900 shall not suffer reason of his transfer later to the Commonwealth with the Sta consent. But the basis disappeared when the State itself stepped i and abolished the office. When Mr. Trower re-entered the Stat Service in March 1904, he did so purely under then existing auspices, and he no longer had the status of an officer holding in its Service in 1901; and, consequently, when he was transferr to the Commonwealth in 1907 he stood in no other position than originating in March 1904. The foundation of the plaintifi's claim under sec. 84 of the stitution disappearing, it is useless to pursue the facts further. Co OF AUSTRALIA. ollowing announcement :—On the only question argued the Court expressed its opinion and given its reasons. Since the argument d, however, it has been suggested that possibly the plaintiff may have a larger right under sec. 60 of the Commonwealth Public Service {ct 1902-1911 than under sec. 84 of the Constitution. In order that the plaintiff may not be precluded from raising this question, if so \dvised, the Court, without expressing or having formed any opinion on, abstains from pronouncing formal judgment in the action at mt, and reserves leave to the plaintiff to make, not later than the nd of the November sittings of the High Court in Sydney, such P plication as he may be advised. Solicitors for the plaintiff, Hobbs, Curnow, Flemming & Caine. Solicitors for the defendant, Chambers, McNab & McNab, for don H. Castle, Crown Solicitor for the Commonwealth. oy seWe Knox C.J., after the judgments had been delivered, read the H. ©. or A. ww TROWER THE ComMon- WEALTH. Knox ©.3.