Queen Victoria Memorial Hospital v Thornton [1953] HCA 11

High Court of Australia Dixon C.J. McTiernan, Williams, Webb, Fullagar, Kitto and Taylor JJ. Queen Victoria Memorial Hospital v Thornton [1953] HCA 11

ORDER Order that the demurrer to the statement of claim be overruled.

Cur. adv. vult.

The Court delivered the following written judgment:—

April 1 Dixon C.J., McTiernan, Williams, Webb, Fullagar, Kitto and Taylor JJ.

This is a demurrer to a statement of claim which seeks a declaration that ss. 27 and 28 of the Re-establishment and Employment Act 1945-1952 are invalid in so far as they apply to persons entitled to preference who compete for employment. It also seeks a declaration that s. 5 of the Re-establishment and Employment Act 1952 is void so far as it purports to extend the period of operation of the foregoing sections in their relation to such persons.

The plaintiff is a hospital incorporated under the Hospitals and Charities Act 1948 Vict. and the defendant is a legally qualified medical practitioner in the State of Victoria who is a "person entitled to preference" within the meaning of the Re-establishment and Employment Act 1945. She served, according to the allegation in the statement of claim, with the rank of major in the Royal Army Medical Corps from the month of April 1940 until the month of November 1942. Apparently a position of radiologist in the plaintiff's Radiological Clinic fell vacant. The plaintiff hospital agreed to employ a legally qualified medical practitioner named J. Hamilton Smith as a radiologist as from the end of September 1952. Before the end of September 1952, it would seem on 15th August 1952, seven years from the end of hostilities in the war commencing on 3rd September 1939 had expired. Section 34 of the Re-establishment and Employment Act 1945 provides that ss. 24 to 33, inclusive, of that Act should cease to operate at the expiration of seven years after the cessation of hostilities. But on 18th November 1952 the Re-establishment and Employment Act 1952 was assented to. Section 5 of that Act substitutes the word "ten" for "seven" in s. 34 of the Act of 1945. Section 2 provides that the Act of 1952 shall be deemed to have come into operation on the third day of September 1952. Accordingly, as from 18th November, or possibly as from 16th December (see s. 5 (1A) of the Acts Interpretation Act 1901-1950) the operation of ss. 24 to 33 revived as from 3rd September 1952.