Cohen v Associated Dominions Assurance Society Pty Ltd [1946] HCA 33

73 C.L.R.] OF AUSTRALIA. 435

[HIGH COURT OF AUSTRALIA.]

COHEN . ; 3 3 ' § ~ =. APPELLANT 5 INFORMANT,

AND

ASSOCIATED DOMINIONS ASSURANCE SOCIETY PROPRIETARY LIMITED . DEFENDANT,

} RESPONDENT.

High Court—Appeal from inferior court of State exercising Federal jurisdiction , (. ov A. Cross-appeal—Notice— Time—' Varied "—" Set aside" —Judiciary Act 1903- 1946. 1940 (No. 6 of 1903—No. 50 of 1940), s. 39 (2) (b)—Justices Act 1928 (Vict.) SA (No. 3708), s. 150—High Court Rules, Part IT., Section III., r. 16; Section IV., MELBOURNE, rr, 7. Oct. 4.

Rehabilitation of service men—A pplication for former employment—Time— Completion qpatham C.J. A é 5 Starke, Dixon, of war service—Date of discharge—Evidence—Certificate of discharge—Re-estab- McTiernan and

lishment and Employment Act 1945 (No. 11 of 1945), ss. 4, 12, 16, 19. Naliame 332

Section IV. of Part II. of the Rules of the High Court (relating to appeals from inferior courts of States exercising Federal jurisdiction), by rule 7 thereof, incorporates in that section rule 16 of Section III. of Part II., so that in such an appeal a respondent who proposes to contend that the decision appealed from should be " varied" (which includes " set aside") and who complies with the requirements of rule 16 as to notice need not take any other step to institute a cross-appeal; a cross-appeal is not an appeal within the meaning of rule 1 of Section TV.

The defendant company was charged with a contravention of the Re-estab- lishment and Employment Act 1945 in that it failed to make employment ayail- able to the informant, a former employee who had completed a period of war service and who had applied by letter dated 6th August 1945 for reinstate- ment in his employment. The informant gave evidence that "I completed my military duties on July 30th, 1945. I was on that date discharged from further service and thereafter did not report further to the military authorities, nor was I thereafter required by them to perform any military service," and he produced various documents issued under military authority which were consistent with his oral testimony ; but his certificate of discharge, which was