Marks v The Commonwealth [1964] HCA 45

High Court of Australia Kitto, Taylor, Menzies, Windeyer and Owen JJ. Marks v The Commonwealth [1964] HCA 45

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

Cur. adv. vult.

The following written judgments were delivered:—

August 12 Kitto J.

The Defence Act 1903 Cth provides by s. 17 that except during time of war an officer may by writing under his hand tender the resignation of his commission at any time by giving three months' notice. "Officer" is defined by s. 4 to mean, as regards the Military Forces, an officer commissioned or in pay as an officer of the Military Forces. The Governor-General has under s. 8 (vii), now s. 8 (e), a general power to appoint officers of the Defence Force, which includes the Military Forces of the Commonwealth: s. 30.

The plaintiff in an action in this Court sues the Commonwealth of Australia, alleging by his statement of claim that, being an officer of the Military Forces of the Commonwealth and commissioned as such, on 17th April 1963 he tendered the resignation of his commission by writing under his hand giving three months' notice. He alleges further that the resignation has not been accepted, and claims two declarations, presumably in the alternative: (1) that the Governor-General "should" have accepted the resignation at or before the expiration of the three months and is now "bound" to accept it, and (2) that the plaintiff ceased to be a commissioned officer of the Australian Military Forces on 17th July 1963. The Commonwealth demurs, contending that on the true construction of s. 17 the resignation of an officer is without legal effect until assented to by the Governor-General.

I have referred to the provision made by s. 17 in its original form. Amending Acts have made that provision sub-s. (1) of s. 17. The Act No. 37 of 1910 added a sub-s. (2) (repealed in 1951) which spoke of the case where an officer "resigns his commission" before completing twelve years' service. The words quoted have been relied upon by the plaintiff as suggesting that the Legislature regarded resignation of a commission as an act of the officer sufficient by itself to terminate his appointment. I think the language is equivocal, and I derive no assistance from it.