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Coutts v Commonwealth [1985] HCA 40; (1985) 157 CLR 91 (20 June 1985)

CATCHWORDS

Constitutional Law - Crown - Office held at pleasure - Immaterial whether cause be shown on termination.

Administrative Law - Decision of Executive Council - Dismissal of officer from office held at pleasure - Whether examinable by court - Crown immunity.

HEARING

DECISION

WILSON J. The deceased was appointed to be an officer in the Royal Australian Air Force on 19 April 1971 with the rank of Pilot Officer. He was promoted to Flying Officer in April 1972 and to Flight Lieutenant in October 1974. Although Australian Government Gazette No. 30 of 9 April 1974 (pp. 12-13) records his appointment to a permanent commission with the rank of Flying Officer from 15 March 1974, it would seem that the effect of reg. 45(1AA) of the Air Force Regulations ("the Regulations") is that his commission shall be deemed to date from 19 April 1971. He served at the air force bases at Amberley in Queensland, Butterworth in Malaysia and East Sale in Victoria before being posted in May 1979 to an administrative position at the Edinburgh base in South Australia. By letter dated 26 October 1979 the Senior Medical Officer at the base advised the deceased as follows:

"MEMBER'S STATEMENT -
REVIEW OF MEDICAL FITNESS

Your medical fitness and employment standard are to be
formally considered. The purpose of this Statement is to
provide you with an opportunity to comment on the effect of
your medical disability on your medical fitness for referral to
PMO/DGFHS (Principal Medical Officer/Director General Air
Force Health Services) and/or the Employment Standard
Committee."

2. Notwithstanding that response, the deceased was advised by letter dated 6 December 1979 written on behalf of the Chief of Air Force Personnel as follows:

"1. I regret to inform you that as a result of your medical
disability it is not possible for you to continue service in the
Royal Australian Air Force and action will be taken for your
discharge under the provisions of Air Force Regulation 72(1)
'Medically Unfit for Further Service'.
2. Copies of your Final Medical Board will be forwarded to
the Defence Force Retirement and Death Benefits Authority
which is responsible for the administration of the DFRDB Act.
The Authority will assess your degree of incapacity in relation
to civil employment and determine any invalidity benefit which
may be payable.
3. Your medical documents have been forwarded to your
Unit Medical Officer and your Commanding Officer will
arrange for him to discuss with you the medical aspects
associated with your disability.
4. It is most unfortunate that your career is being curtailed in
this manner, but I am sure that you realize the need for the
maintenance of a high physical standard in any fighting force.
May I take this opportunity to wish you every success in your
resettlement in civil life."

"In accordance with Air Force Regulations 628(1) and 72(1)
the appointment of Flight Lieutenant G. R. Coutts 044296 be
terminated on medical grounds with effect the expiration of 29
April 1980.
In accordance with Air Force Regulation 86 Flight
Lieutenant G. R. Coutts 044296 be placed on the Retired List with
effect 30 April 1980." (at p96)

3. The Regulations mentioned in this recommendation read as follows:

"628. (1) Where a member -
(a) is not in need of hospital treatment;
(b) is, in the opinion of the confirming medical authority,
unfit for further service; and
(c) is capable at the time of engaging in civilian employment,
the member shall be retired or discharged at the earliest possible
date after the opinion of the confirming medical authority has
been expressed."
"72. (1) An officer shall hold his appointment during the
pleasure of the Governor-General, but the commission of an
officer shall not be cancelled except for cause and after he has
had notice in writing of any complaint or charge made, and of
any action proposed to be taken against him and has been given
the opportunity of making such statement as he thinks fit
regarding the cause."
"86. (1) The Chief of the Air Staff may, by instrument in
writing, place the names of officers or former officers on a
Retired List.
(2) A person whose name has been placed on a Retired List
under sub-regulation (1) is not, by reason only of being placed
on that list, a member of the Air Force or the Defence Force." (at p96)

4. The deceased subsequently instituted proceedings challenging the procedural propriety of the decision to terminate his appointment. He alleged that the grounds set out in reg. 628(1) were not satisfied in his case and that in any event the requirements of natural justice had not been observed. He sought, inter alia, damages for wrongful dismissal. In its defence, the Commonwealth inter alia raised an objection that the statement of claim was bad in law and disclosed no cause of action on the grounds that:

"(1) The plaintiff held his appointment in the Royal
Australian Air Force solely at the pleasure of the
Governor-General.
(2) The exercise of the powers of the Governor-General in
terminating the plaintiff's appointment cannot be called in
question or challenged in any way in a Court of law.
(3) That any procedures laid down by Regulation 628, by
Regulation 72 and/or by any other Regulation in the Air Force
Regulations relating to the termination of the appointment of
an officer in the Air Force are only directory, and any failure of
the defendant to comply with such Regulations does not enable
the Plaintiff to call in question or to challenge the validity of
the termination of his said appointment.
(4) That there was no contract of service between the
plaintiff and the defendant which could be the subject of the
plaintiff's claim for wrongful dismissal or for the other relief
sought in his Statement of Claim herein."

5. Mr. Doyle, counsel for the appellant, advances propositions which I think can fairly be summarized as follows:

1. Regulation 628(1) was the source of the power used to terminate the deceased's appointment. That regulation operates by reference to defined criteria and is a provision which, in accordance with ordinary principles, requires those who apply it to adopt procedures which will ensure natural justice to the member concerned. On this view, any reference to reg. 72(1) was unnecessary and of no effect.
2. If it was necessary to resort to reg. 72(1) to provide the power to give effect to reg. 628(1), then the same principles should be applied.
3. If the termination is sought to be justified by reference to reg. 72(1), independently of reg. 628(1), then notwithstanding the breadth of the right to dismiss at pleasure the appellant was still entitled to be heard before a decision was made. (at p97)

6. In one respect, the submission of the learned Solicitor-General for the Commonwealth provides some support for the appellant's first proposition because he also argues for an operation of reg. 628(1) quite independently of reg. 72(1). In his submission the regulation is self-executing, requiring only administrative action to give effect to it when its conditions are satisfied. He draws an analogy with termination on expiry of a term appointment (reg. 46) or termination on reaching the age of compulsory retirement: reg. 88. I hasten to add that the Solicitor-General advances the argument in the context of a wider submission that the only relevant exercise of power in the present case was derived solely from reg. 72(1). (at p97)

7. I have considerable difficulty with the argument that reg. 628(1) is self-executing. In the first place, the regulation gives no clue as to how the facts stated in par. (a) and par. (c) are to be determined. Paragraph (b) makes the opinion of the confirming medical authority the determinant of the member's unfitness for further service but this is not the case, apparently, with a determination of the member's need of hospital treatment or of his capacity for engaging in civilian employment. In the second place, if the regulation is self-executing in the case of officers who meet the prescribed criteria, then one would expect it to be self-executing in the case of airmen who find themselves in the same condition. It will be noticed that the regulation applies to "a member" - i.e., an officer or an airman (see reg. 4(1)) - and appropriately uses the phrase "shall be retired or discharged" to accommodate the two branches of the service, that is to say officers are retired and airmen are discharged. Yet satisfaction by an airman of the criteria in reg. 628(1) apparently does not bring about his discharge automatically because a discharge must be authorized by the Chief of the Air Staff (reg. 109(2)) and reg. 115 lists the reasons for discharge, including items (n) medically unfit for further service, (p) termination of period of enlistment, and (q) having reached the age for retirement. As at present advised, I do not understand how the retirement of an officer is to be actually effected or his appointment terminated otherwise than by an expression of the pleasure of the Governor-General pursuant to reg. 72(1). But I do not find it necessary to pursue the matter to a conclusion because I am satisfied that regardless of any part that reg. 628(1) may have played, the deceased's appointment was in fact terminated by the Governor-General pursuant to reg. 72(1). (at p98)

8. In my opinion, the answer to the problem in the present case is dictated by the operation of well-established principles governing the relation to the Crown of members of the armed services. The historical background from which those principles emerge is discussed by the Court of Appeal in China Navigation Co. Ltd. v. Attorney-General (1932) 2 KB 197, at pp 214-216, 225-229, 242-243 . As Dixon J. said in The Commonwealth v. Welsh [1947] HCA 14; (1947) 74 CLR 245, at p 268 :

"The relation to the Crown of members of the armed forces is
no new subject; the rules of the common law define it. The
regulations are not to be read in disregard of those rules and of
the long tradition to which they have contributed."

"Servants of the Crown, civil and military, are by the
common law employed only during the pleasure of the Crown.
Except when modified by statute, that rule has an overriding
place in all engagements to serve the Crown . . . . No doubt, the
reason for enunciating the rule in the opening words of s. 16
was to ensure that it was fully preserved, unaffected by the
later and directory provisions of that section: see Cross v. The
Commonwealth
[1921] HCA 9; (1921) 29 CLR 219
. But it does not need a statute to bring the
rule in. It would need a statute to put it out. Its consequence is
that the Crown may dismiss its servants at will, without notice
at any time. The line of well-known authorities which recognize
and establish this may be found referred to and discussed in
Fletcher v. Nott
[1938] HCA 25; [1938] HCA 25; (1938) 60 CLR 55
and Kaye v. Attorney-General (Tas.)
[1956] HCA 3; (1956) 94 CLR 193
in this Court, and by Jordan C.J. in Browne v. Commissioner
for Railways
(1935) 36 SR (NSW) 21, at p 24
."

9. Lord Fraser of Tullybelton reviewed the history of the prerogative and summarized the array of authorities saying (1985) AC, at p 398 :

"As De Keyser's case (Attorney-General v. De Keyser's Royal
Hotel Ltd.
[1920] UKHL 1; (1920) AC 508
shows the courts will inquire into whether a
particular prerogative power exists or not, and if it does exist,
into its extent. But once the existence and the extent of a power
are established to the satisfaction of the court, the court cannot
inquire into the propriety of its exercise. That is undoubtedly
the position as laid down in the authorities to which I have
briefly referred and it is plainly reasonable in relation to many
of the most important prerogative powers which are concerned
with control of the armed forces and with foreign policy and
with other matters which are unsuitable for discussion or
review in the law courts."

"Prerogative powers such as those relating to the making of
treaties, the defence of the realm, the prerogative of mercy, the
grant of honours, the dissolution of Parliament and the
appointment of ministers as well as others are not, I think,
susceptible to judicial review because their nature and subject
matter are such as not to be amenable to the judicial process.
The courts are not the place wherein to determine whether a
treaty should be concluded or the armed forces disposed in a
particular manner or Parliament dissolved on one date rather
than another." (at p100)

10. It is necessary then to examine the Regulations to see whether these common law rules have been developed or modified in such a way as would favour the appellant's claim to judicial review. Apart from his reliance upon reg. 628(1), Mr. Doyle was unable to point to any express provision that might serve such a purpose. Indeed, the indications are to the contrary, making it clear that the Regulations are intended to maintain the voluntary character of the Crown's engagement with its officers in the Air Force. Regulation 32 preserves the well-established common law rule governing the relationship between the Crown and members of the armed services. It provides:

"The appointment or promotion of an officer under these
Regulations shall not create a civil contract between the Crown
or the Commonwealth and the officer."

11. It is urged for the appellant that the decision of this Court in F.A.I. Insurances Ltd. v. Winneke [1982] HCA 26; (1982) 151 CLR 342 upholding the right of an insurance company to be heard before the Governor in Council made a decision adverse to it under the Workers Compensation Act 1958 (Vict.) should encourage the Court to find inherent in the first part of reg. 72 an obligation on the part of the Governor-General in Council to observe the rules of natural justice. But there is no comparison to be drawn between the two cases. F.A.I. Insurances was a decision which turned on the construction of a particular Act with respect to its routine administration. The Act operated in a very different context to that of the present case. (at p101)

12. The appellant's plea that considerations of natural justice should have entitled the deceased to the opportunity to be heard on the issue of his medical unfitness for further service before the Governor-General's pleasure was made known is very similar to an argument advanced on behalf of a dismissed member of the Queensland Police Force in Reedman v. Hoare [1959] HCA 50; (1959) 102 CLR 177 . The argument was summarily rejected by Taylor J., who said (1959) 102 CLR, at p 181 :

"As an independent argument it assumes that the right of the
Crown to dismiss a person in its service is a right to dismiss for
cause. It is, of course, nothing of the kind; it is a right to dismiss
at pleasure and, accordingly, is not subject to any such
condition or restriction as the argument suggested." (at p102)

13. To say that an officer holds his appointment at the pleasure of the Governor-General means no more than that he could be retired without any reason being assigned for such action: Malloch v. Aberdeen Corporation (1971) 1 WLR 1578, at pp 1582, 1588, 1594; (1971) 2 All ER 1278, at pp. 1282, 1288, 1293. . In Ridge v. Baldwin [1963] UKHL 2; (1964) AC 40, at pp 65-66 , Lord Reid, speaking of one who holds an office at pleasure, said:

"It has always been held, I think rightly, that such an officer
has no right to be heard before he is dismissed, and the reason is
clear. As the person having the power of dismissal need not
have anything against the officer, he need not give any reason.
. . . No doubt he would in many cases tell the officer and hear
his explanation before deciding to dismiss him. But if he is not
bound to disclose his reason and does not do so, then, if the
court cannot require him to do so, it cannot determine whether
it would be fair to hear the officer's case before taking action."

"There is little authority on the question whether such persons
have a right to be heard before dismissal, either generally, or at
least in a case where a reason is in fact given."

"As a general principle, I respectfully agree: and I think it
important not to weaken a principle which, for reasons of
public policy, applies, at least as a starting point, to so wide a
range of the public service. The difficulty arises when, as here,
there are other incidents of the employment laid down by
statute, or regulations, or code of employment, or agreement.
The rigour of the principle is often, in modern practice
mitigated for it has come to be perceived that the very
possibility of dismissal without reason being given - action
which may vitally affect a man's career or his pension - makes
it all the more important for him, in suitable circumstances, to
be able to state his case and, if denied the right to do so, to be
able to have his dismissal declared void. So, while the courts
will necessarily respect the right, for good reasons of public
policy, to dismiss without assigned reasons, this should not, in
my opinion, prevent them from examining the framework and
context of the employment to see whether elementary rights are
conferred upon him expressly or by necessary implication, and
how far these extend."

14. The case of Malloch is readily distinguishable from the present case. It concerned teachers in the employ of local education authorities. Although at common law public policy required all servants of the Crown to hold their offices during the pleasure of the Crown without distinction between those engaged in civil service and those engaged in military service (cf. Ryder v. Foley [1906] HCA 61; (1906) 4 CLR 422, at pp 434-436 statutory provisions now reflect the greatly changed conceptions of what public policy requires in relation to the two services, resulting in greater statutory regulation of the former and a virtual disappearance in many sections of the civil service of the Crown's right to dismiss at pleasure. On the other hand, the disposition and membership of the armed services remains very much within the discretion of the Crown:

"The members of the Forces are under a discipline that the
others (civil servants) are not: they have duties and obligations
more stern than theirs: and rights and privileges that they
cannot claim": per Windeyer J. in Marks
(1964) 111 CLR, at p 573

15. The fact that is central to the appellant's claim to a public right to procedural propriety or fairness is that a reason was assigned for the termination of the deceased's appointment. It is argued that the reference to reg. 628(1) in association with reg. 72(1) in the formal approval by the Governor-General in Council invests that decision with the character of a termination for cause. Be that as it may, in my view it is not sufficient to confer a right to be heard on the deceased. With respect, I agree with what Lord Morris of Borth-y-Gest said in his dissenting speech in Malloch (1971) 1 WLR, at p 1589; (1971) 2 All ER, at p 1288 :

"It is true that in the present case the reason for the dismissal
was in fact known: it was in fact well known to the appellant. It
might have been preferable if he had been heard. But if there
could have been dismissal even for a bad reason and even for
no reason at all I do not think that as a matter of strict legal
entitlement there was a right to be heard." (at p104)

16. Once it be established, as I believe it is, that the deceased's appointment was terminated by the Governor-General in exercise of a power found in reg. 72(1), then I think it is immaterial whether any cause is assigned. Here a cause, medical grounds, was assigned and reference was made to reg. 628(1). Let it be assumed that the assigned cause was misconceived. The fact remains that the deceased on becoming an officer accepted an appointment to be held at the pleasure of the Crown, an appointment which was liable to be terminated at any time for good or bad reason or for none. It has been terminated, whether the assigned cause be good or bad. (at p104)

17. As at present advised, and if I be right in the doubts expressed earlier as to its self-executing character, I think there is much to be said for the view that reg. 628(1) is no more than directory simply because the only means provided for its implementation in relation to an officer is the unfettered and unreviewable discretion of the Governor-General pursuant to reg. 72(1). In Marks (1964) 111 CLR, at p 586 , Windeyer J. takes a similar view of the conditions precedent to the cancellation of a commission outlined in s. 16 of the Defence Act, provisions which correspond with the second part of reg. 72(1): see also Cross v. The Commonwealth [1921] HCA 9; (1921) 29 CLR 219 ; Fletcher v. Nott [1938] HCA 25; (1938) 60 CLR 55, at pp 69, 77 . In any event, I do not believe that on its proper construction reg. 628(1) can invest an officer with any rights. The regulation cannot give rise to the converse of what it expressly provides, that is to say, that the officer cannot be retired on medical grounds, or at all, unless the conditions set out in reg. 628(1) are first satisfied. It cannot do so, simply because the officer is not entitled to call into question the exercise of the Governor-General's pleasure. In my opinion, the conclusion is inescapable that, the Governor-General having made his pleasure known, neither that decision nor the procedural steps leading up to it are open to review by the courts. (at p104)

18. I have been assisted in my consideration of this case by a stimulating article by Professor Nettheim, "Do Members of the Armed Forces Have Any Rights in Their Employment?", Federal Law Rev., vol. 5 (1973), p. 200. The learned author will no doubt be disappointed in my conclusion. I have been unable to reach a different conclusion in the present case because of the heavily entrenched principles, supported by tradition, authority and public policy, attaching to the concept of an appointment in the armed services being held at the pleasure of the Crown. I do not think that the Court is in a position to re-evaluate the considerations of public policy so as to open the way to a different result. (at p105)

19. For these reasons, therefore, I conclude that the decision of the Governor-General in Council to terminate the appointment of the deceased is not amenable to judicial review. I would dismiss the appeal. (at p105)

BRENNAN J. These proceedings were brought to challenge the validity of the dismissal by the Governor-General of an officer of the Air Force. His appointment was terminated on medical grounds purportedly in accordance with regs. 72(1) and 628(1) of the Air Force Regulations. It is objected that the grounds prescribed by reg. 628(1) did not exist and that the power to dismiss was not exercised in conformity with the requirements of natural justice. The question (stated in the form I adopted in F.A.I. Insurances Ltd. v. Winneke [1982] HCA 26; (1982) 151 CLR 342, at p 409 ) is whether "a condition imposed by the statute upon the exercise of the power, albeit an implied condition, is not fulfilled". For the reasons stated by Wilson J., I agree that the valid exercise of the power to dismiss is not conditioned upon the existence of the circumstances prescribed by reg. 628(1) or the satisfying of some requirement of natural justice. The power to dismiss an officer of the Defence Force, whether it flows from statute or the prerogative, is a power to dismiss at pleasure. That is, the power to dismiss may be exercised at any time and for any reason, or for no reason or for a mistaken reason. In point of law, an officer has no security of appointment. If the Governor-General dismisses him in the belief that he is bound to do so under reg. 628(1), however erroneous that belief may be or however inappropriate was the procedure which led to the formation of that belief, the officer loses no legal right to which he was entitled. A power to dismiss members of the Defence Force at pleasure is an exceptional, perhaps anachronistic, power nowadays, but the legislature has seen fit to leave that power undiminished. As reg. 628(1) is neither a source of the power to dismiss nor a condition affecting the exercise of that power, the present case is to be distinguished from F.A.I. Insurances Ltd. v. Winneke. (at p106)

2. When the power to dismiss is expressed to be exercised in accordance with reg. 628(1) the officer who is dismissed becomes entitled to invalidity benefits under Pt V of the Defence Force Retirement and Death Benefits Act 1973 (Cth). Invalidity benefits are available to a member of the Defence Force who is making contributions under s. 17 of that Act and who is retired on the ground of invalidity or of physical or mental incapacity to perform his duty (s. 26). They are not available to a member who is retired on other grounds (unless notice is subsequently given under s. 37 that he could have been retired on a ground mentioned in s. 26). (at p106)

3. Regulation 628(1) is, therefore, a direction to the repository of the power to dismiss and it authorizes the specification of the grounds of retirement when the power is exercised. It gives no protection, procedural or otherwise, against dismissal but it is the means by which an officer's entitlement to invalidity benefits is assured when he is dismissed on the grounds prescribed by that regulation. (at p106)

4. I would dismiss the appeal. (at p106)

DEANE J. In May 1979 the late Graeme Richard Coutts ("the deceased"), who held a permanent commission as a Flight Lieutenant, was posted as an Administrative Officer to the R.A.A.F. base at Edinburgh in South Australia. He was serving in pay in that posting when, by letter of 26 October 1979, he was advised by the base's Senior Medical Officer that his "medical fitness and employment standard" were to be "formally considered". The letter afforded the deceased "an opportunity to comment on the effect of (his) medical disability on (his) medical fitness for referral to PMO/DGFHS (Principal Medical Officer/Director General Air Force Health Services) and/or the Employment Standard Committee". The deceased's response was a written statement which, although obscurely worded in some respects, made clear that he maintained that he was "fully fit for duty in the R.A.A.F. on any posting to any area". By letter of 6 December 1979 written on behalf of the Chief of Air Force Personnel, the deceased was informed that "as a result of (his) medical disability" it was "not possible" for him "to continue service" in the R.A.A.F. and that action would be taken for his "discharge under the provisions of Air Force Regulation 72(1) 'Medically Unfit for Further Service'". (at p106)

2. Formal action to terminate the deceased's appointment was taken at a meeting of the Commonwealth Executive Council held on 27 March 1980. The minutes of that meeting record that His Excellency the Governor-General in Council approved a recommendation made on behalf of the Minister of State for Defence that "(i)n accordance with Air Force Regulations 628(1) and 72(1) the appointment" of the deceased "be terminated on medical grounds with effect the expiration of 29 April 1980". The Governor-General in Council also approved a further recommendation that "(i)n accordance with Air Force Regulation 86 Flight Lieutenant G. R. Coutts 044296 be placed on the Retired List with effect 30 April 1980". The termination of the deceased's appointment and the placing of his name on the retired list were notified in Commonwealth of Australia Gazette No. G14 of 8 April 1980. (at p107)

3. The present proceedings were brought by the deceased against the Commonwealth in the original jurisdiction of this Court and were remitted to the Supreme Court of South Australia by consent. In them, the deceased alleged that the purported termination of his appointment was invalid for the reasons that the grounds stated in reg. 628 of the Air Force Regulations ("the Regulations") had not existed and that any power to terminate his appointment had not been exercised in accordance with the requirements of natural justice. The legal propositions underlying that allegation were spelt out in par. 11(b) of the deceased's statement of claim which asserted that the power to retire an officer pursuant to the Air Force Act 1923 (Cth) ("the Act") and reg. 628 or on the grounds stated in that regulation "may only be exercised if (those) grounds . . . exist and if the power is exercised in the manner required by the said Regulation and in particular in conformity with the requirements of natural justice". (at p107)

4. In its defence (par. 9) the Commonwealth, while denying some of the deceased's factual allegations, raised a number of points of law in the nature of a demurrer to the whole of the statement of claim. Those points of law, in which the deceased is referred to as the "plaintiff", read as follows:

"(1) The plaintiff held his appointment in the Royal
Australian Air Force solely at the pleasure of the
Governor-General.
(2) The exercise of the powers of the Governor-General in
terminating the plaintiff's appointment cannot be called in
question or challenged in any way in a Court of law.
(3) That any procedures laid down by Regulation 628, by
Regulation 72 and/or by any other Regulation in the Air Force
Regulations relating to the termination of the appointment of
an officer in the Air Force are only directory, and any failure of
the defendant to comply with such Regulations does not enable
the Plaintiff to call in question or to challenge the validity of
the termination of his said appointment.
(4) That there was no contract of service between the
plaintiff and the defendant which could be the subject of the
plaintiff's claim for wrongful dismissal or for the other relief
sought in his Statement of Claim herein."

5. The law governing the relationship between the Crown and those in the Defence Force of this country is now largely regulated by statutory instruments in the form of Acts of the Commonwealth Parliament and Regulations made thereunder. While the provisions of those statutory instruments should be read against the background of established common law rules defining the traditional relationship between the Crown and members of the armed services (cf. The Commonwealth v. Welsh [1947] HCA 14; (1947) 74 CLR 245, at p 268 ; Marks v. The Commonwealth [1964] HCA 45; (1964) 111 CLR 549, at p 573 ), they must be construed according to ordinary principles of statutory construction. In particular, their meaning and effect are not to be overriden or distorted because of assumed conformity with common law rules which were developed in other times to control - or to keep outside the law - the privileges and aspirations of those who served in the military forces of the Crown or the East India Company and which reflected notions of the Royal prerogative of the command of the army which are of little or no contemporary relevance in this country. It is true that the command in chief of the naval and military forces of the Commonwealth is vested by the Constitution (s. 68) in the Governor-General as the Queen's representative. That role is, however, essentially a titular one: see Sir Ninian Stephen, "The Governor-General as Commander in Chief", graduation address at the Joint Services Staff College, Canberra, 21 June 1983. It is also true that the provisions of statutory instruments governing the appointment and service of members of the Defence Force are largely structured around powers conferred upon the Governor-General. Those powers are not, however, the ancient prerogative powers of the command of the army: see per Windeyer J., Marks (1964) 111 CLR, at pp 564-565 . They are statutory powers which are exercisable by the Governor-General with the advice of the Executive Council (Acts Interpretation Act 1901 (Cth), s. 16A) and which are defined and controlled by the provisions of the statutory instruments which confer them. (at p109)

6. The relevant statutory provisions in the present case are the various provisions of the Act and the Regulations which deal with the commission, appointment, cancellation of commission, termination of appointment and retirement of an officer. The relationship between particular provisions of the Regulations is at times obscure and was the subject of helpful analysis in the judgments in the Full Court of the Supreme Court. The focal provisions are those of regs. 45(1), 32 and 72(1). (at p109)

7. Regulation 45(1) deals with the appointment and promotion of officers:

"The Governor-General may in accordance with such
conditions
and subject to such qualifications or requirements as are
provided for by these Regulations, by instrument in writing -
(a) appoint persons to be officers of the Air Force; and
(b) promote officers of the Air Force,
and may issue commissions to persons so appointed."

8. Regulation 32 corresponds with the provisions of s. 13 of the Defence Act 1903 (Cth) which were made applicable to members of the Air Force by s. 3(1) of the Act and s. 5 of the Defence Act. It provides:

"The appointment or promotion of an officer under these
Regulations shall not create a civil contract between the Crown
or the Commonwealth and the officer."

"An officer shall hold his appointment during the pleasure of
the Governor-General, but the commission of an officer shall
not be cancelled except for cause and after he has had notice in
writing of any complaint or charge made, and of any action
proposed to be taken against him and has been given the
opportunity of making such statement as he thinks fit regarding
the cause." (at p110)

9. The combined effect of the above provisions of the Regulations in their application to the deceased was that the basis of his appointment was statutory and not contractual and that his appointment to service in pay was merely during pleasure. The deceased had no statutory or contractual right to insist that his appointment as an active officer continue beyond the pleasure of the Governor-General acting with the advice of the Executive Council. While the Regulations contain no express provision authorizing the Governor-General to terminate the appointment of an active officer, a general discretionary power to terminate such an appointment at any time is plainly implicit in the provision of reg. 72(1) that an officer shall hold his or her appointment during pleasure. (at p110)

10. The deceased's appointment, being at pleasure, could have been determined without reason being formulated or assigned: see Malloch v. Aberdeen Corporation (1971) 1 WLR 1578, at pp 1582, 1596; (1971) 2 All ER 1278, at pp 1282, 1295. . If the purported termination of it had been merely because it was in accordance with the pleasure of the Governor-General that it not continue, the deceased would have been faced by some formidable obstacles in seeking to establish in legal proceedings that the termination was ineffective by reason of an absence of necessary grounds or of a failure to observe the requirements of procedural fairness traditionally referred to as the rules of natural justice: cf. Marks v. The Commonwealth (1964) 111 CLR, at p 586 ; Reedman v. Hoare [1959] HCA 50; (1959) 102 CLR 177, at p 181 ; Ridge v. Baldwin [1963] UKHL 2; (1964) AC 40, at pp 65-66 . As has been seen however, the purported termination of the deceased's appointment was not expressed to be because it was the pleasure or discretionary decision of the Governor-General acting with the advice of the Executive Council that it not continue. The purported termination was expressed to be made "(i)n accordance with" the provisions of both reg. 628(1) and reg. 72(1). (at p111)

11. Regulation 628(1) provides:

"Where a member -
(a) is not in need of hospital treatment;
(b) is, in the opinion of the confirming medical authority,
unfit for further service; and
(c) is capable at the time of engaging in civilian employment,
the member shall be retired or discharged at the earliest possible
date after the opinion of the confirming medical authority has
been expressed." (at p111)

12. There are several matters relating to the wording of reg. 628(1) of which specific mention should be made. One is that, by definition (reg. 4(1)), "member" includes "any officer". Another is that, as Jacobs J. pointed out in his judgment in the Full Court of the Supreme Court, the word "discharge" should be read as referring to a "member" who is not an officer while the word "retired" should be read as referring to an officer. A third is that, contrary to a submission advanced on behalf of the Commonwealth, the provisions of s. 628(1) are not self-executing. They do not provide that, if the specified circumstances exist, the member's service is automatically terminated. They provide that he or she "shall be retired or discharged at the earliest possible date after the opinion of the confirming medical authority has been expressed" (emphasis added). What the sub-regulation envisages is an administrative decision that the specified circumstances exist followed by subsequent administrative action retiring or discharging the member. The fourth, and most important, matter is that examination of the provisions of reg. 628(1) makes clear that they are mandatory in their nature. If the specified circumstances exist in the case of a particular officer, it is a mandatory requirement that he or she be retired. The termination of the appointment of an officer consequent upon a conclusion that the case is within the provisions of reg. 628(1) cannot properly be seen as involving the mere exercise of a discretionary power to terminate an appointment during pleasure. To the contrary, no real exercise of discretion is involved at all. If the facts of the particular case are such that it comes within those provisions, all that is involved is compliance with the requirement that the officer "shall be retired . . . at the earliest possible date" regardless of whether other considerations might, if retirement had been discretionary and not mandatory, have balanced the scales in favour of his or her retention. (at p112)

13. The Regulations contain no express prescription of the procedural steps to be followed in complying with the requirement that an officer to whom reg. 628(1) applies shall be retired. The appropriate procedure would appear to be termination of the officer's appointment to service in pay and transfer of his or her name to the Retired List. That is the procedure which was sought to be followed in the case of the deceased. The letter of 6 December 1979, with its reference to "Medically Unfit for Further Service" and its statement that it was not "possible" for the deceased to continue in service, plainly indicates that the conclusion was reached that the deceased's case came within the provisions of reg. 628(1) and that, that being so, it was recognized as mandatory that the deceased be retired in accordance with the requirements of that sub-regulation. The approach adopted was to retire the deceased by terminating his appointment ("in accordance with" reg. 628(1)) pursuant to the power of termination which is implicit in the provision of reg. 72(1) that an officer shall hold his or her appointment "during the pleasure of the Governor-General". It was submitted by Mr. Doyle Q.C., who appeared for the deceased on the hearing of the appeal, that that approach was mistaken in that termination of an appointment in accordance with reg. 628(1) involves the exercise of a distinct power to terminate which is implicit in the sub-regulation's requirement that the relevant officer be retired at the earliest possible date and which is different in nature from the general discretionary power implicit in reg. 72(1). While there is obvious force in that submission, it appears to me that the preferable view is that which was acted on in the case of the deceased, namely, that the provisions of reg. 628(1) operate through the power to terminate implicit in reg. 72(1). Ultimately, however, nothing turns in the present case on this point. Regardless of whether reg. 628(1) should be construed as containing an independent power to terminate an appointment in the designated circumstances or whether it should be seen as operating through the power to terminate implicit in reg. 72(1), its effect is to introduce a mandatory requirement that the appointment of an officer be terminated in any case where the designated circumstances exist. Put differently, regardless of whether reg. 628(1) operates independently or through reg. 72(1), it operates as an effective disqualification of an officer from continued service in that, where its conditions of operation are satisfied, the appointment of an officer to service in pay must be terminated as a matter of course at the earliest possible date. On either view, the question which lies at the heart of the appeal is whether the validity of a purported exercise of a power to terminate an appointment in perceived compliance with the requirements imposed by reg. 628(1) is liable to be impugned in judicial proceedings either on the ground that the particular case does not come within the provisions of reg. 628(1) at all or on the ground that requirements of procedural fairness have not been observed. Three particular considerations have been suggested as requiring, either individually or in combination, a negative answer to that question. They are: that the deceased's appointment was during pleasure, that the power to terminate it was exercisable by the Governor-General and that the deceased's appointment was to service as an officer in the Defence Force. I shall consider these particular considerations in the order in which I have mentioned them. (at p113)

14. The fact that an appointment is during pleasure does not mean that the exercise of a statutory power to terminate it will necessarily be immune from attack even where the power is a truly discretionary one which may be exercised at any time and without reason being assigned. As Lord Wilberforce pointed out in Malloch (1971) 1 WLR, at p 1597; (1971) 2 All ER, at pp 1295-1296 , the very possibility of dismissal without reason being given may, in some circumstance, make "it all the more important" for the person dismissed "to be able to state his case and, if denied the right to do so, to be able to have his dismissal declared void". Be that as it may however, any such immunity would logically be restricted to a termination of the appointment pursuant to the exercise of the discretionary power to dismiss at pleasure. It would not extend to a case such as the present where the statutory provisions pursuant to which the appointment is terminated operate, in a case to which they are applicable, to override the discretionary nature of the ordinary power of dismissal by requiring termination regardless of the pleasure of the person during whose pleasure the appointment is held. In such a case, the effect of the statutory provisions is to deprive the appointee of the legitimate expectation that his or her appointment will only be terminated pursuant to a discretionary decision in the exercise of which the decision-maker will be able (regardless of whether compellable) to take into account all relevant considerations, including considerations of personal circumstances and hardship. Prima facie, one would not presume a legislative intent that the person whose appointment has been terminated in purported obedience to the requirement of such statutory provisions should be deprived of the ordinary right to challenge the validity of the termination of his or her appointment on the ground that his or her case was not within the statutory provisions at all or on the ground that requirements of procedural fairness were applicable and had not been observed. (at p114)

15. Nor does the fact that a statutory power is exercisable by the Governor-General in Council necessarily preclude a purported exercise of the power being made the subject of attack in judicial proceedings. It has become almost commonplace to assign to the Governor-General with the advice of the Executive Council routine administrative powers which, when exercised, may directly affect the rights and legitimate expectations of individual citizens: cf. the comments of Stephen J. in relation to the Victorian Governor in Council in F.A.I. Insurances Ltd. v. Winneke [1982] HCA 26; (1982) 151 CLR 342, at p 353ff . If such a power is purportedly exercised by the Governor-General with the advice of the Executive Council in pursuance of statutory provisions which are simply inapplicable to the relevant case, there is no reason in principle why the validity of its exercise should be immune from attack in the courts at the suit of a person directly affected and aggrieved: see, generally, the discussion of reviewability of decisions of a representative of the Crown in Reg. v. Toohey; Ex parte Northern Land Council (1981) 151 CLR 170 . Likewise, the consideration that a power is so exercisable is but one factor to be taken into account in determining whether it was the legislative intent to exclude the application of the ordinary requirements of natural justice or procedural fairness. In that regard, the following comments of Gibbs C.J. in F.A.I. Insurances Ltd. v. Winneke (1982) 151 CLR, at p 349 , with which I agree, are equally in point to a purported exercise of a statutory power by the Governor-General acting with the advice of the Executive Council:

"The fact that the Governor in Council is the authority which
grants the approval provides no ground for excluding the rules
of natural justice. In exercising the power given by s. 72 the
Governor does not act personally or as a representative of the
Crown exercising any of its prerogatives. He acts on the advice
of his Ministers, and it is to be expected that such advice will be
based upon the recommendation of the Minister in charge of
the Department concerned. It would be to confuse form with
substance to hold that the rules of natural justice are excluded
simply because the power is technically confided in the
Governor in Council. I can see no reason in principle why the
rules of natural justice should not apply to an exercise of power
by the Governor in Council, who is of course not above the
law."

16. Nor does the consideration that the deceased's appointment was to service in the Defence Force necessarily lead to the consequence that the purported termination of it was immune from attack either on the grounds that the circumstances were not within reg. 628 (1) or that requirements of natural justice were applicable and had not been observed. As has been said, the meaning and effect of the Regulations is not to be overriden or distorted because of assumed conformity with traditional common law rules. The Governor-General's powers to terminate the appointment of an officer are statutory. They are derived from the Regulations under which such an appointment is made. An exercise of those powers is not to be assumed to enjoy immunity from being questioned or examined in the courts of the land simply because the exercise of the old prerogative powers of the command of the army may arguably have operated to place the members of the armed services largely outside the protection of the ordinary law: see the article by Professor Nettheim, "Do Members of the Armed Forces Have Any Rights in Their Employment?", Federal Law Rev., vol. 5 (1973), p. 200. In that regard, there is an obvious need "to view warily the notion that common law remedies should, upon grounds of alleged public policy, be denied to those who serve the Crown": see Groves v. The Commonwealth [1982] HCA 21; (1982) 150 CLR 113, at p 128 . (at p115)

17. The termination of the deceased's appointment brought to an end his career in the Air Force. It deprived him of the opportunity of continuing to earn his livelihood in the manner of his choice. It was purportedly effected by the exercise of a statutory power in perceived obedience to a statutory direction. It involved the formation of an opinion by the "confirming medical authority" about the deceased's fitness or unfitness for further service and, in the light of that opinion, a decision about whether the case came within the provisions of reg. 628(1). The ordinary and strong presumption is that the requirements of natural justice are applicable in respect of the exercise of such a statutory power entailing such consequences and that the person directly and adversely affected is entitled to challenge the validity of the purported exercise of the statutory power on the ground that those requirements had not been observed or on the ground that the case was not within the relevant statutory provisions at all. There is nothing in the provisions of the Regulations which expressly negates or overrides that presumption. For the reasons which have been given, the requirements of natural justice are not excluded by reason of, or by reason of a combination of, the considerations that the deceased's appointment was during the pleasure of the Governor-General, that the power to terminate the appointment was vested in the Governor-General and that the appointment which the deceased held was to service as an officer in the Defence Force of the Commonwealth. Nor, in my view, is there any other consideration or anything in the provisions of the Regulations which has that implied effect. It follows that the requirements of natural justice or procedural fairness were applicable in respect of the termination of the deceased's appointment and that the deceased was entitled to attack the validity of that purported termination in the present proceedings on the ground that those requirements had not been observed or on the ground that the provisions of reg. 628(1) were not applicable to the circumstances of his case. (at p116)

18. In the result, I would uphold the validity of the points of law raised by the deceased in par. 11(b) of his statement of claim and I would overrule the second and third of the points of law raised by the defence in par. 9 of its defence. The first and fourth of the points of law raised in par. 9 of the defence provided of themselves no answer to the deceased's claim. That being so, the appeal should be allowed and the order of the Full Court of the Supreme Court that judgment be entered for the Commonwealth should be set aside. (at p116)

19. The question whether the circumstances were in fact such that the provisions of reg. 628(1) required that the deceased's appointment be terminated and the question whether requirements of natural justice were in fact observed were not raised by the points of law which were referred to the Full Court of the Supreme Court. Unless the matter can be resolved by agreement between the parties, those questions remain to be determined on the hearing of the action. It would however seem appropriate to indicate that, in accordance with what was said in this Court in F.A.I. Insurances Ltd. v. Winneke (1982) 151 CLR, at pp 350, 355-356, 366, 369-372, 381-384, 400-401, 414-418 , natural justice required that the deceased be given an adequate opportunity of being heard by the actual decisionmakers as distinct from the Governor-General acting with the advice of the Executive Council. In the present case, that would appear to have involved an entitlement of the deceased to have been afforded an appropriate opportunity of being heard at two levels. The first level was by the "confirming medical authority" on the question whether or not the opinion should be formed that the deceased was unfit for further service. The second level was by the person or persons responsible for determining whether or not, in the light of the opinion of the "confirming medical authority", the circumstances were such that reg. 628(1) required that the deceased be retired. (at p117)

DAWSON J. Graeme Richard Coutts was an officer in the Royal Australian Air Force who was compulsorily retired upon medical grounds. He commenced an action in the Supreme Court of South Australia claiming declarations to the effect that the termination of his appointment was a nullity and claiming damages for wrongful dismissal. A point of law raised by the pleadings was heard as a preliminary issue by the Full Court of the Supreme Court of South Australia, which, by a majority, found that there was no cause of action and accordingly dismissed the claim. The matter comes before this Court by way of appeal by special leave. After this Court reserved its judgment, the plaintiff died and his widow, who was his executrix, was substituted for him as a party to the action. (at p117)

2. It is, I think, important to appreciate how the point of law which falls for determination arose. It concerns two of the Air Force Regulations made under s. 9 of the Air Force Act 1923 (Cth). The first is reg. 72, sub-reg. (1) of which provides:

"An officer shall hold his appointment during the pleasure of
the Governor-General, but the commission of an officer shall
not be cancelled except for cause and after he has had notice in
writing of any complaint or charge made, and of any action
proposed to be taken against him and has been given the
opportunity of making such statement as he thinks fit regarding
the cause."

"Where a member -
(a) is not in need of hospital treatment;
(b) is, in the opinion of the confirming medical authority,
unfit for further service; and
(c) is capable at the time of engaging in civilian employment,
the member shall be retired or discharged at the earliest possible
date after the opinion of the confirming medical authority has
been expressed." (at p117)

3. In his statement of claim the plaintiff contended that the termination of his appointment pursuant to reg. 72 was invalid in the circumstances and that the power to retire an officer pursuant to reg. 628 was subject to the rules of natural justice. The defendant in its defence contended that the plaintiff held his appointment in the Air Force solely at the pleasure of the Governor-General and that the exercise of the powers of the Governor-General in terminating the plaintiff's appointment cannot be called in question or challenged in any way in a court of law. The defendant also contended that there was no contract of service between the plaintiff and the defendant which could be the subject of the plaintiff's claim for wrongful dismissal or for other relief sought in the statement of claim. (at p118)

4. The plaintiff's contentions were elaborated in argument. He submitted that reg. 628 was, on the facts of this case, the only source of power available to the defendant to terminate the plaintiff's appointment and that it was that regulation which was in fact used. Alternatively, he submitted that if reg. 72 was the relevant source of power, reg. 628 remained the basis of the action taken. By this latter submission I take the plaintiff to have meant that, whilst appointment at the Governor-General's pleasure involved the power to dismiss at will, if in fact the procedures laid down by reg. 628 were invoked (as they clearly were), then those procedures required the observance of the rules of natural justice and in particular required that the plaintiff be given an appropriate opportunity to put his case. It was the plaintiff's contention that he was denied this opportunity. He also submitted that any exercise of power under reg. 628 was dependent for its validity upon the existence of certain facts and that it was open to review to determine whether the conclusion that those facts existed was open. (at p118)

5. It is, I think, possible to shorten these reasons for judgment by observing at the beginning that the plaintiff's argument was put in two distinct ways. On the one hand, as I understand the argument, it was said that reg. 628 governed the power to terminate the plaintiff's appointment either because it was the source of that power itself or because it modified the power conferred or recognized by reg. 72. Upon this view the power to terminate the plaintiff's appointment was something less than a power to dismiss at will and the appointment itself was something more than appointment at the Governor-General's pleasure. (at p118)

6. On the other hand, it was said that even if the power to terminate the plaintiff's appointment was truly a power to terminate it at will, nevertheless the procedures under reg. 628 were invoked and those procedures by implication required the application of the rules of natural justice. In other words, before any conclusion could properly be reached under reg. 628, so it was said, the plaintiff must have been given a proper hearing. Since he was denied this, his appointment is said not to have been validly terminated. In my view it is not possible to put the argument in this alternative way. If in some manner the power to dismiss at will, which is an incident of appointment during pleasure, is modified or replaced when reg. 628(1) is invoked with the result that a hearing is required as a prerequisite to a valid dismissal, then that is one thing. But it is another thing to say that, even assuming a power to dismiss at will, the application of reg. 628(1) itself nevertheless requires a hearing and the failure to afford such a hearing invalidates any subsequent dismissal consequent upon the application of that regulation. The argument in that form does not assert reg. 628(1) as a source of the power to dismiss and denies any modification of the power found by reference to reg. 72(1). But assuming that reg. 628(1) imports the requirement of a hearing, if there is a power to dismiss at will independently of that regulation, then the termination of the plaintiff's appointment must have been effective notwithstanding the disregard of any procedure which reg. 628(1) requires. Perhaps, making the same assumption, if the plaintiff had acted before any conclusion was reached under reg. 628(1), he may have been able to invoke the aid of the Court to compel some appropriate person to afford him a hearing. But upon this argument, his dismissal having taken place, it is no longer to the point to invoke that regulation, since the failure to afford a hearing pursuant to its terms cannot affect the validity of the subsequent dismissal which, ex hypothesi, was in the exercise of a power to dismiss at will which is unaffected by reg. 628(1). The dismissal cannot in those circumstances provide the foundation for the remedies which the plaintiff seeks. (at p119)

7. The crucial question to my mind is, therefore, whether the plaintiff held his appointment at the Governor-General's pleasure as reg. 72(1) would suggest, so that it was terminable at will, or whether the presence of reg. 628(1) affected the nature of that appointment or modified the way in which the power of dismissal might be exercised so as to require the plaintiff to be afforded a hearing. (at p119)

8. Having regard to reg. 72(1) by itself, there is little room for doubt about the plaintiff's position. At common law Crown servants may be dismissed at pleasure and without notice. As Williams J. said in Kaye v. Attorney-General (Tas.) [1956] HCA 3; (1956) 94 CLR 193, at p 203 :

"Apart from statute, the employment of servants by the Crown,
naval, military or civil, is at the will of the Crown, so that the
Crown is entitled to dismiss them at any time without notice.
Even if they are employed for a definite period, their
employment
is still subject to a reserval of the right of the Crown to
dismiss."

9. Military service (and I use that term to embrace the three services) has always stood in a different position from service under a contract of employment with a private employer. As Windeyer J. pointed out in Commissioner for Railways (N.S.W.) v. Scott [1959] HCA 29; (1959) 102 CLR 392, at pp 441-442 , officers serve in accordance with their commissions and other members in accordance with their engagements. In the absence of statute, it is the prerogative power which supports the relationship between members of the armed forces and the Crown and it is a concomitant of that relationship that none of them has at common law any right of action against the Crown for breach of contract or any right to sue for pay. The relationship is not a contractual one. However, in Marks v. The Commonwealth (1964) 111 CLR, at p 564 , Windeyer J. also pointed to the fact that in Australia the position of the Crown in relation to the forces is dependent upon statute and not the prerogative and, that being so, the inquiry turns to whether the relevant statute law, which in this case is the regulations, adopts, modifies or abrogates the common law position. (at p120)

10. Before turning to that inquiry, it is convenient to add that an appointment at pleasure may not only be terminated at will without notice, but also without any hearing. This was adverted to by Lord Reid in Ridge v. Baldwin [1963] UKHL 2; (1964) AC 40, at p 65 and in Malloch v. Aberdeen Corporation (1971) 1 WLR 1578, at p 1597; (1971) 2 All ER 1278, at p 1295 , Lord Wilberforce expressed agreement "as a general principle", meaning that there may be a modification of the position "by statute, or regulations, or code of employment or agreement". For my own part, I should have thought that this view is plainly correct since at common law, Crown servants aside, a master is not bound to hear his servant before he dismisses him and appointment during pleasure can hardly import a more onerous obligation. (at p121)

11. In my view, it is beyond question that reg. 72(1) adopts the common law position by declaring that an officer shall hold his appointment during the pleasure of the Governor-General. I should have reached that conclusion without recourse to any particular mode of construction, but reference may be made to the observation of Dixon J. in The Commonwealth v. Welsh (1947) 74 CLR, at p 268 that:

". . . in considering the meaning and effect of the Air Force
Regulations their purpose cannot be neglected, namely to
provide rules to govern one of the armed forces of the Crown.
The relation to the Crown of members of the armed forces is no
new subject; the rules of the common law define it. The
regulations are not to be read in disregard of those rules and of
the long tradition to which they have contributed."

12. There is also support for this view in reg. 73(1), which also reflects the common law position that members of the services cannot abandon their duties and can be forced to serve according to their engagements. That sub-regulation provides:

"An officer of the Air Force may, by writing under his hand
addressed to the Chief of the Air Staff, tender the resignation of
his air force office, but the resignation shall not be accepted,
and is not effective, except as provided by this regulation."

13. Whilst there are regulations other than reg. 72(1) which contemplate the termination of the appointment of an officer, they provide the circumstances for the exercise of the power but not the power itself. The power is assumed: see, e.g., regs. 55(2), 452(2), 462(2) and 468(1). Latham C.J. adverted to this situation in Fletcher v. Nott (1938) 60 CLR, at p 69 , as follows:

". . . there is no necessary inconsistency between an officer of
the Crown holding his appointment at pleasure, and the
existence of rules, either contained in a statute or made under a
statutory power, which purport to regulate the manner in
which an officer is to be dismissed. Such rules do not legally
limit the power or manner of dismissal." (at p122)

14. Regulation 628(1) not only contemplates the retirement of an officer (or the discharge of an airman), but requires it "at the earliest possible date after the opinion of the confirming medical authority has been expressed". That does not mean that that regulation, any more than the others to which I have referred, provides the source of the power to determine an appointment or engagement. It provides the occasion for the exercise of the power but the power itself is to be found elsewhere. The power of dismissal is an incident of appointment during pleasure which, under reg. 72(1), is the nature of the appointment of an officer. Regulation 628(1) does not purport to modify that power of dismissal. It refers to retirement, which assumes the termination of any appointment, but it does not say how or when retirement is to take place (save that it is to be at the earliest possible date after the opinion of the confirming medical authority has been expressed). It does not say who is to exercise the power to terminate the appointment. The answers to these questions are to be found elsewhere, in the tenure of an officer's appointment which, because it is at pleasure, carries with it the power to dismiss at will. (at p122)

15. It follows that in my view the power to dismiss at will which flows from reg. 72(1) is unaffected by the provisions of reg. 628(1). For the reasons which I have given, the plaintiff is not entitled to the relief which he seeks and this appeal should fail. (at p123)

ORDER