O'Day v The Commonwealth [1964] HCA 46

High Court of Australia Kitto, Taylor, Menzies, Windeyer and Owen JJ. O'Day v The Commonwealth [1964] HCA 46

ORDER Demurrer allowed. Judgment in the action for the defendant.

Cur. adv. vult.

The following written judgments were delivered:—

August 12 Kitto J.

This is a demurrer by the Commonwealth to a statement of claim by which the plaintiff, who was at all material times an officer in the permanent naval forces of the Commonwealth and has submitted to the Governor-General the resignation of his commission, seeks a declaration to the effect that on the proper interpretation of s. 13 of the Naval Defence Act 1910-1952 Cth he was entitled to have the resignation accepted by the Governor-General so as to take effect within a reasonable time, not being more than three months, after its submission.

The section provides that except in time of war an officer may by writing under his hand resign his commission at the expiration of any time not being less than three months from the date of the receipt of the resignation: sub-s. (1); that the resignation shall not have effect until it has been accepted by the Governor-General: sub-s. (2); and that for special reasons the Governor-General may accept any resignation at any time after the receipt thereof: sub-s. (3).

For reasons similar to those I have stated in Marks v. The Commonwealth [1] I am of opinion that the section ought not to be construed as conferring upon an officer any legally enforceable right to have his resignation accepted. It authorizes him to submit his resignation, and it gives legal efficacy to an acceptance after three months or, for special reasons, after any less period of time. The course to be followed by the Executive upon receipt of a resignation is not prescribed: it is left as a matter of executive discretion unfettered by any but political controls.