H.C. oF A. 1917. we MELBOURNE, Tune 26, 29. Isaacs J. HIGH COURT {HIGH COURT OF AUSTRALIA.] TAYLOR F e : t ; a Z Rees AND THE COMMONWEALTH ' F . Derenp. MI Public Service (Commonwealth)—Offence by officer—Investigation—Referenc Board of Inquiry—Reporl—Penalty—Condition precedent—Suspension of 0 —Commonwealth Public Service Act 1902-1915 (No. 5 of 1902—No. 37 of 19 sec. 46. Where an officer of the Public Service of the Commonwealth is charged | an offence under sec. 46 of the Commonwealth Public Service Act 1902-191 section notwithstanding that the officer has not been suspended under sul 2 or further suspended under sub-sec. 4. 3 Williamson v. The Commonwealth, 5 C.L.R., 174, distinguished. 'Therefore, where an officer charged with such an offence was permit the Chief Officer to continue in the performance of his duties pen determination of the charge and voluntarily assented to so continue, Held, that the subsequent proceedings and report of the Board of Ing! in relation to the charge, and the consequent reduction of the officer in statu and salary, were not ultra vires. Hearine or Acrion. An action was brought in the High Court by William Ta an officer of the Public Service of the Commonwealth, against: Commonwealth, seeking a declaration that the proceedings Public Service Commissioner thereon, were wltra vires and ¥ authority, and that he was still a line inspector in the Depa of the Postmaster-General at a salary of £228 a year. 23 C.L.R.] OF AUSTRALIA. 251 'The action was heard by Isaacs J., in whose judgment hereunder 4: ©. or A. the material facts appear. oy Tavtor Schutt, for the plaintiff. a ; Coson- ~ Mann, for the defendants. Najera rs Cur. adv. vult. Isaacs J. read the following judgment :—The plaintiff William — June 29. Taylor is an officer employed in the General Division of the Com- monwealth Public Service. In November 1915 he was a line inspector in the Postmaster-General's Department receiving £228 a year. From 19th May 1915 to 7th July of that year he had been supervising the work of line construction between Footscray and Sunshine. On 8th November the Chief Officer, Melbourne, charged him with negligence or carelessness in the discharge of his duties in failing to see that the work was carried out in accordance SI Se with standard practice and that satisfactory progress was made. He was not suspended, but all the rest of the procedure required by sec. 46 of the Commonwealth Public Service Act was followed. The Chief Officer at once, by letter of 8th November, gave him written notice of the charge, setting it out formally, and required him to forthwith state in writing whether he admitted or denied the truth of the charge, and to give any explanation in writing he might think fit as to the matter for the Chief Officer's consideration. The letter added these words: " You will be permitted to continue in the performance of the discharge of your duties pending the deter- mination of the charge." On 13th November the plaintiff replied » by letter stating: 'In reference to the charge made against me, I absolutely deny the charge and demand that a Board of Inquiry be appointed to investigate it, as all work carried out by me between the dates mentioned was by instructions received from the Assistant Engineer, Metropolitan Division." On 7th January 1916 the Chief Officer, having considered the explanation, formally stated that the alleged offence "is in my opinion of so serious a nature that an investigation thereof should be made by a Board of Inquiry," and with the written approval of the Public Service Inspector H.C. or A. appointed a Board of Inquiry, consisting of three persons na 1917, Pn TAYLOR v. THE ComMon- WEALTH, Isaacs J HIGH COURT and referred the charge to the Board for investigation and On 12th January notification was given to the plaintiff. On ut February and on several subsequent days the Board sat. On March a majority of the Board found the charge proved, the member dissenting. On 11th May the Acting Public Service missioner reduced the plaintiff in status and salary, by redi him to the position of line foreman at a salary of £210 per annum as from the date upon which he should take up that position, On 9th October 1916 the plaintiff instituted these proceedings, which he seeks a declaration by this Court that the proceedi of the Board, and its report, and the action of the Acting Public Service Commissioner were all ultra vires, and without authority and that consequently the plaintiff is in law still a line inepegiay at the salary of £228 a year. This claim is based on two grounds—one of law, and the oth of fact. The point of law is that as there was no suspension of the plaintiff there has been an absence of an indispensable condition stipulated by the Legislature in sec. 46. The objection of fact — is that although the Chief Officer expressly stated he considered the matter serious enough for investigation by a Board of Inquiry, he really did not so consider it, either because he never gave the poin any consideration but acted on the plaintiff's own demand for a Board, or else he did consider it and came to the contrary conclusion — when he permitted the plaintiff to continue his duties. The objec- tion rests purely on suggestion without any evidence to support it, and is contrary to the express and responsible statement of the Ohi j Officer. Further it is quite consistent to think a charge sufficiently serious to require investigation by a Board, and yet not so serious — as to demand the entire suspension from duty of the officer involved. I have no hesitation in finding this issue of fact against the plaintiff. That leaves the one point of law, namely, whether the simple absence of suspension entirely vitiates the whole proceedings. It is true there is no issue of estoppel raised, nor have I to consider — whether it could in any circumstances be successfully raised ; I there- fore have not considered such a question. But the broad facts remain C.L.R.J OF AUSTRALIA. - to the plaintiff to continue his duties pending the determination of the charge; that the plaintifl did continue his duties without remonstrance, and did himself demand a Board of Inquiry notwith- standing that he was not suspended. No doubt, if the law requires suspension in all cases, these facts do not cure the defect ; but they . show that if his voluntary assent by conduct to continue his duties, added to the Chief Officer's permission to so continue, would satisfy S the law, then the law has been satisfied. It was argued for the plaintiff that, notwithstanding the amend- 'ing provision of 1911, there must still in all cases be a suspension of d an officer as a condition to the investigation of a charge by a Board of Inquiry. On the other hand, it was contended for the Common- _ wealth that the Chief Officer may of his own volition, if he thinks the charge not so serious as to require suspension, dispense with sus- pension altogether, and require the officer to continue his duties pending the determination of the charge, whether the officer be willing to do so or not. There is a middle course, which may be the true interpretation of the section as it now stands. On sec. 46 as originally framed, the ease of Williamson vy. The Commonwealth (1) was decided in 1907 by my learned brother Higgins. The judgment in that ease pro- _ ceeded on the view that, upon the true construction of the section as it then stood, suspension was an indispensable condition pre- -cedent to punishment. The learned Justice said (2): "It will be ticed that the whole machinery is made to hinge on an initial suspension of the officer.' From that point the procedure was _ traced down to its finality. So the law stood for about four years, - during which time no doubt the decision was observed in the course of administration. Then, when Parliament was in various directions ing as a proviso to sub-sec. 2 these words: "* Provided that here the Chief Officer is satisfied that the charge is not of such a ious nature as to require a suspension of the officer, he may permit (l) 5GLR., 174. (2) 5 C.L.R., at p. 180. that the Chief Officer in making the charge intimated his permission H- ©. or A. 1917. ~~ TayLor v. THe Common - WEALTH. Isaacs J. H.C. or A 1917. ~~ 'TAYLOR » Tae ComMoN- WEALTH. Isaacs J. HIGH COURT him to continue in the performance of his duties pendi determination of the charge." It is quite true, as learned for the plaintiff has observed, that the proviso is inserted at th of sub-sec. 2, which provided only for the " temporary " susper which ends with departmental action short of sending the case Board. But that, though an element in construing the amend is not the only element, or even the chief one. The principal elem is the language of the Legislature. The test in such a case as present, where no question of legislative power arises, is " have they said?" not " Where have they said it?" And h regard to the words used by the Legislature, I am bound to reje the interpretation relied on by the plaintiff. The decisio Williamson's Case regarded "suspension" as an indispe condition until the charge was finally disposed of one way or the Suspension was either "temporary" suspension or "f suspension, but " suspension " in some form had to exist until charge was determined. Now, when Parliament turned its a tion to the subject in 1911 it manifestly treated the decision i Williamson's Case as correct upon the law then existing, an resolved to alter the law regarding suspension. It introduced | alteration at the earliest point by inserting the amendment at end of sub-sec. 2, but it used language which carried on the al tion to the termination of the proceedings. It has not used tl suggestion is to limit the words "determination of the charge" t the determination of the charge by the Chief Officer if he does i fact determine it. But that is inserting words not found in th enactment. It also admittedly refers to a "determination" included in sub-sec. 2 and only found in sub-see. 3, and yet it dec (1) (1910) 1 K.B., 17, at p. 25. : OF AUSTRALIA. lly referable to the phrase under consideration as is the ively possible determination in sub-sec. 3. In addition, are to act on the familiar principle of choosing as between two ble constructions that which is more reasonable and con- it, the balance turns against the plaintiff's view. I, therefore, sect his contention that the "further suspension " referred to in tb-sec. 4 is still always essential where a Board is appointed, not- standing there may now be no initial suspension to which the ion insisted on can be regarded as a " further" suspension. Determination of the charge" at the end of sub-sec. 2 means any nination of the charge which may take place under any of the ns which follow that sub-section. I consequently decide it the plaintiff. But I desire to add that I do not decide that full argument pressed for the defendants is necessarily correct. in that I do not decide that point, because the facts are such that not called upon to decide whether the Chief Officer can force the law according to the case referred to stood before 1911, side could separately, and both sides together were unable onjointly, to dispense with suspension. Parliament has now enabled Officer to "* permit" the accused officer to continue in the ance of his duties; the law does not say the Chief Officer y " compel " or " direct " the officer to continue : and it may be Parliament has empowered the Chief Officer to consent on the of the Commonwealth if he thinks no public injury will arise, ing the officer himself to continue or not as he thinks he will or ll not be benefited or injured by so doing. I have said, the facts of this case show the plaintiff assented accused officer to continue his duties against that officer's will. : go on and include the determination included in sub-sees. 4 and 5 H- ©. or A. h these are just as consequential on sub-sec. 2 and just~ as" 1917. THE Common - WEALTH. Isaacs J, H. C. or A. plaintiff, it cannot be said the matter was not bond fide open to. 1917. "nent. The Commonwealth, as the employer, is free to fr ane regulations in its own way, and as in this case the provision 'tay have been framed so as to exclude all possible doubt, and as Comox' ruling which enures for the benefit of the Commonwealth in ce Isaacs J. E sides to bear their own costs. Judgment for the defenda Fol Solicitors for the plaintiff, Loughrey & Douglas. Gane" Solicitor for the defendants, Gordon H. Castle, Crown Solicit for the Commonwealth. {HIGH COURT OF AUSTRALIA.) HIS MAJESTY THE KING - é . APPELL w AND SNOW bo, ely eeu alge 7 ON APPEAL FROM THE SUPREME. COURT OF Me Gor' A. SOUTH AUSTRALIA. 1917. : Trading with the Enemy—Meaning at common law—Commercial intercourse AvuLAros, munications upon business matters—Trading with the Hnemy Acts 191 p> | Mey 28-31: 9 and No. 17 of 1914), secs. 2, 3—Imperial Proclamations of 5th August and 9th September, 1914. Mexuournr, June 7. The term "trading with the enemy" at common law and as used a Trading with the Bnemy Acts 1914 includes all commercial intercourse ¥ Isaac: enemy. Gavan Dut Powers and a Rich JJ. The Panariellos, 84 LJ. P., 140; 85 L.J. P., 112, considered and follo