Monckton v Commonwealth [1920] HCA 3; (1920) 27 CLR 149 (19 February 1920)

HIGH COURT OF AUSTRALIA

Monckton Plaintiff; against The Commonwealth Defendant.

H C of A

19 February 1920

Knox C.J., Isaacs, Gavan Duffy, Rich and Starke JJ.

Blackburn, for the plaintiff.

H. I. Cohen, for the defendant,

Knox C.J.

This is an action against the Commonwealth brought for breach of an alleged contract by the Commonwealth to appoint the plaintiff to a certain position in the Public Service conditionally upon his qualifying himself by obtaining a particular place in order of merit at an examination about to be held. In effect the allegation is that the plaintiff sat for the examination, that he obtained a place on the list of candidates which, in the events which have since happened and having regard to the vacancies which have since occurred, entitled him to appointment to one of those vacancies, that those vacancies have been filled by the appointment of other persons, and that he, consequently, has been deprived of the remuneration which he would have received had he been appointed to one of those vacancies, and he claims to recover from the Commonwealth the amount he has lost by reason of the action of the Commonwealth in that respect. Whatever might be the case as between private individuals in the case of a contract alleged to have been made by such an advertisement as is said to have been published, and such performance on the part of the plaintiff, we have to consider what the rights are where the Commonwealth is a party and the advertisement is one connected with an appointment to the Commonwealth Public Service. It is not disputed that the advertisement and the plaintiff's action consequent thereon could give rise to no rights in the plaintiff except such as are in accord with the Commonwealth Public Service Act and the regulations thereunder. That being so, we find, from the regulations to which we have been referred by Mr. Blackburn, that the right given to the successful candidates at an examination is a right to have their names entered upon the Register in order of merit, which I take to mean according to the number of marks obtained in the examination. The regulations then go on to provide that from persons whose names are upon that Register appointments shall be made in order of registration, and neither the Commissioner nor the Commonwealth nor any other person has any right to dispense with the condition of that regulation. In my opinion it is necessary for the plaintiff in order to maintain this action to allege and prove that his name has been entered upon the Register in such a position as to entitle him to an appointment which has become vacant. It seems to me that registration is made a condition precedent to appointment, because the mandatory provisions of that regulation compel the appointment of the different candidates in the order in which they are registered. Whether there is or is not a remedy if the Commissioner has not discharged his duty is a matter with which we have no concern in this action.

For the reasons I have stated, I am of opinion that the allegations in the statement of claim disclose no cause of action, and that the action ought to be dismissed.

I desire also to say that I express no opinion with regard to the provisions of sec. 50 of the Act. It is not necessary to do so. It may be that sec. 50 would, in any event, preclude a person in the position of the present plaintiff from bringing an action of this kind. It may be that it would not. In the present case it is unnecessary to decide whether it does or does not, because in the reasons which I have given I assume that there is no obstacle in the nature of a question of procedure to the action which the plaintiff has instituted.

Isaacs J.

I agree that the action should be dismissed; and my view of the matter is this:—The plaintiff sues as an officer of the Public Service, and he says that he has not obtained the rights to which the Commonwealth Public Service Act, including the regulations made under it, entitled him. In my opinion, whatever rights he has must be rights created by that Act, and you have to look to the Act for the ascertainment of these rights, and, either expressly or by implication, for any remedy that is given for a violation of these rights.

On the merits as they have been argued, I can see no substantiation of the alleged right. The claim, it is said, ultimately resolves itself into this: that the appointment of the plaintiff's competitors, as I may call them, is not challenged, but the plaintiff is asking for money from the Consolidated Revenue to which he says he would have been entitled had he been appointed and they not appointed. To my mind such a claim, which is one essentially for damages, is utterly inconsistent with the provisions of the Act for regulating the Public Service.

I also think, without finally expressing any opinion upon the matter, that sec. 50 of the Act is a bar to the plaintiff proceeding in this fashion. It is quite easy to see what extraordinary results would follow if such an action were permissible. It would be open to every officer who said that he was improperly passed over, either by an appointment or by a promotion, to allow that section to lie in abeyance and then come to the Court to decide to what he would, according to his view of the law, have been entitled pecuniarily, and to ask for an order that the money should, as salary or as damages, be paid out of the Consolidated Revenue. To my mind, as at present advised at all events, that is quite contrary to the provisions of the Act. It may be that sec. 50, besides being an exclusive remedy for officers on the principle of Pasmore v. Oswaldtwistle Urban District Council[1] and Bull v. Attorney-General for New South Wales[2], mentioned during the argument by my brother Rich, gives a greater right to an officer than an outsider who seeks to enter the Public Service would have. I give no opinion about that. It may be that the right of an outsider is even less than that of an officer. However that may be, it is, according to my present impression, exclusive in the case of an officer.

I agree with what has been said by the Chief Justice—that, assuming we have jurisdiction to decide this case, the plaintiff fails.

Gavan Duffy J.

I agree with what has been said by the Chief Justice.

Rich J.

I agree that the plaintiff has failed to show any violation of a right under the Act and regulations to be appointed.

My present impression is that the view of my brother Isaacs is right as to the effect of sec. 50. As the question has not been argued, I reserve my definite opinion on this point.

Starke J.

The question is whether the plaintiff has alleged in his statement of claim facts entitling him, as of right, to appointment to the position of Assistant Engineer (Professional Division, Class E), Electrical Engineer's Branch, Postmaster-General's Department. It is not alleged, and apparently cannot be alleged, that he was ever entered upon the "Register of persons qualified for appointment." The appointment, so far as this case is concerned, can only be made from persons on that Register. Therefore the statement of claim discloses no right to appointment.

I express no opinion as to the effect of sec. 50 upon this case, and I also reserve my opinion as to the plaintiff's position even if his name had been entered on the Register.

Action dismissed with costs.

Solicitor for the plaintiff, Blackburn.

Solicitor for the defendant, Gordon H. Castle, Crown Solicitor for the Commonwealth.

[1] (1898) A.C., 387.

[2] (1916) 2 A.C., 564.