Manton v Williams [1907] HCA 9; (1907) 4 CLR 1046 (11 April 1907)

HIGH COURT OF AUSTRALIA

Manton Plaintiff, Appellant; and Williams (Nominal Defendant), Respondent.

H C of A

On appeal from the Supreme Court of New South Wales.

11 April 1907

Griffith C.J., Barton and Isaacs JJ.

Brissenden, for the plaintiff,

Griffith C.J.

The plaintiff in this case seeks special leave to appeal from a decision of the Supreme Court of New South Wales. He was in 1874 appointed as a temporary officer in the Civil Service at daily pay. Afterwards in 1883 he was formally appointed to be Inspector of Conditional Purchases on the temporary staff. He remained in that employment until some time in 1896, when his services were dispensed with by the Public Service Board. He claims that under these circumstances he was a person permanently employed in the Public Service within the meaning of sec. 60 of the Public Service Act 1895, and therefore entitled to the rights conferred upon such persons when their services are dispensed with by the Public Service Board under the provisions of that Act. The Supreme Court were of opinion that his case came within sec. 11 of the Act, which provides that if it appears to the Board that a person actually employed in the Public Service at the commencement of the Act has not been appointed by the Governor, which is this case, the Board shall inquire into the character of the work performed by such person and the time during which he has been employed, and if they determine that his employment, work or duties are such as would be properly designated permanent, and that the services of such person should be retained, he is to be considered as having become a permanent officer from the commencement of the Act without examination, notwithstanding that he was not appointed by the Governor. The Supreme Court were of opinion that the plaintiff was a person of that class. There is no doubt that he was a person not appointed by the Governor, which apparently is sufficient to bring him within the class dealt with in that section. But it is contended that he was nevertheless in fact a person permanently employed in the service. It is clear, however, that the legislature did not consider such persons as permanently employed, because they make special provision for their case, and say that, if the Board determine that their work or duties are such as should properly be designated as permanent, they shall be considered to have become permanent officers from the commencement of the Act. The section goes on to provide that officers temporarily employed at the commencement of the Act, whose services are dispensed with, shall be entitled to certain rights. The legislature therefore clearly divided public servants into two classes, namely, officers permanently employed, i.e. officers described by the Civil Service Act 1884, which is to be read with this Act, as persons in receipt of a permanent salary, and other persons described as officers temporarily employed. I can see no reason to doubt the correctness of the decision of the Supreme Court.

I should point out also that the Public Service Act 1895, by sec. 58, retained the power of the Crown to dispense with the services of any person employed in the Civil Service, subject to the express provisions of the Civil Service Act 1884.

I think, therefore, that the plaintiff has not shown that he is entitled to anything more than he has received, and that special leave should be refused.

Barton and Isaacs JJ.

concurred.

Special leave refused.

Solicitor, for the plaintiff, H. R. Way.