Carey v Commonwealth [1921] HCA 54; (1921) 30 CLR 132 (5 December 1921)

This is an action for wrongful dismissal, and for travelling and house allowances before dismissal. The plaintiff was appointed Director of the Northern Territory "for a period of three years from 1st August 1919 at a salary of £1,000 per annum with quarters." According to a letter from the Home and Territories Department dated 9th August 1919, and enclosing a copy of the Executive minute of appointment (30th July 1919), the Minister fixed the rate of travelling allowance at £1 per day when absent from Darwin within the Territory, and £1 5s. per day when outside the Territory. The plaintiff, with two other officials, left Darwin "unwillingly" on 19th October 1919 in the West Australian steamer Bambra; and at the port of Wyndham, Western Australia, received instructions from the Minister, by radio-telegram, 22nd October, to proceed in the Bambra to Fremantle; and there he was instructed by the Minister to proceed to Melbourne. Calling on the Minister (Mr. Glynn) en route at Adelaide, the Minister informed the plaintiff that the Government did not approve of his leaving the Territory, but that he was not suspended from office—he was merely "relieved of duty" to attend a Royal Commission appointed as to the affairs of the Territory. The plaintiff attended the Royal Commission accordingly, at Melbourne and Darwin, as required. The Commission closed its sittings on 29th March, and the plaintiff, having at once asked the Department what was his next duty, was told that he was to regard himself as "relieved from duty" until the Minister examined the report of the Commission. The Minister now was Mr. Poynton, and in a conversation with the Minister the plaintiff assured him that he was prepared to return to Darwin if so instructed. The Minister said that it was quite evident what the Commissioner was going to do—"to whitewash you fellows and blame the Department in Melbourne for all that has gone wrong." The report of the Commissioner was made on 16th April 1919, but it has not been put in evidence. On 4th June the Department, in forwarding to the plaintiff a copy of the report and evidence, invited the plaintiff to tender his resignation of his office as Director. On 11th June the plaintiff sent to the Minister comments on the report, and requested leave to delay further reply till the comments were considered. On 30th June the Department again asked the plaintiff to resign; and on 12th July the plaintiff submitted that "it would be only fair for me to resign on terms which do not unreasonably injure me either in reputation or financially," and stated his terms of resignation. On 15th September the Department wrote that if the resignation were not received within three days the Governor-General would be asked to approve an order terminating the plaintiff's employment. On 18th September the plaintiff wrote acknowledging that letter, and said further:—"(1) I notice in a newspaper report that the Honourable the Minister for Repatriation stated in the Senate that the three officers concerned with the administration of the Northern Territory were not asked to resign their offices by reason of the findings of the Royal Commissioner, but on the ground that they had left their posts without authority. (2) I would point out that the three officers concerned have never yet been given an opportunity to justify their action in leaving, as the Commissioner stopped their evidence on this point and said he was satisfied that they (the officials) would have been put aboard if they had not walked aboard. (3) This being the only ground upon which the request for my resignation was based, I now submit that my resignation cannot, in the circumstances, be fairly asked for. (4) Having regard to the fact that my engagement was for a definite term which has still about two years to run, I am not prepared to resign my office unless an arrangement is first made by mutual agreement for compensating me for the loss of my position." On 22nd September 1920 the appointment was terminated by the Executive Council. The plaintiff was paid salary as to that date, but no allowances. The plaintiff went to New Zealand. On 13th October the Department, in answer to plaintiff's solicitor, refused to pay any allowances, and asked that all further communications be addressed to the Crown Solicitor.

The writ herein was issued on 16th December 1920, claiming for allowances, as well as damages for wrongful dismissal; but (for some reason unexplained) the statement of claim filed on 14th September 1921 claimed for the damages only. On 17th October 1921 leave was given by the Chief Justice to amend the statement of claim by adding a claim for the allowances.

In its defence, the Commonwealth Government relied on the point that the plaintiff held his office only during the pleasure of the King or of the Commonwealth; and that in October 1919 the plaintiff "without lawful justification or excuse departed from the Northern Territory and abandoned his duties and has not since the said date performed any duties as Director"; and that "travelling expenses and house allowance were payable (if at all) to plaintiff only while plaintiff was discharging the duties of his office or on leave duly applied for and duly granted"; and that the plaintiff was not discharging his duties since 19th October 1919. The Government also counterclaimed for damages against the plaintiff for having in breach of his contract departed from the Northern Territory and ceased to serve the defendant.

During the discussion of this case in Court, the plaintiff admitted that he could not distinguish this case from that of Dunn v. The Queen[1], in which it was held that, although a term of three years was incorporated in the appointment, the King or the Government had the right to terminate the appointment at pleasure and without cause. This is not a case where the tenure of office is regulated by statute, as in Gould v. Stuart[2]. Then, on the plaintiff abandoning his claim for damages for dismissal, the defendant abandoned its counterclaim. Notwithstanding this mutual abandonment, it was open to the defendant to prove that the plaintiff had no justification or excuse for departing from the Northern Territory, and that therefore he could not claim a travelling allowance for a journey and an absence not in the course of his duty; but it is only fair to the plaintiff to point out that the defendant has called no witnesses, and has produced no evidence whatever in support of this contention. No evidence has been put before the Court as to the circumstances which led to the plaintiff's departure from Darwin, and there is no evidence of any failure on the part of the plaintiff to carry out the Minister's instructions from Wyndham till dismissal. The plaintiff appeared in the box, and could have been cross-examined as to all these matters. The Crown's right to dismiss at pleasure is the only ground on which the dismissal or removal of the plaintiff has been justified.

As for the travelling allowances, it has been urged for the Government (1) that there is no contract to pay these allowances—that the payment is a matter of bounty and discretion; (2) that if there is a contract it does not apply to travelling from Wyndham to Melbourne, and to the subsequent absence of the plaintiff from the Territory under the circumstances stated. It is urged that the plaintiff was not travelling on the duties of his office.

As to (2) I find that the plaintiff was carrying out the duties of his office until he was dismissed. In his negotiations with the plaintiff just before the appointment, the Minister told him to act under the direct instructions of the Minister. As pointed out already the plaintiff went to Fremantle and thence to Melbourne by the instructions of the Minister, and he waited upon the Royal Commission by such instructions; and, until dismissed, he was at all times ready and willing to return to his duties in the Territory, should the Minister require him to do so.

During all this time, until dismissal, the plaintiff was carrying out the duties of his office, his fundamental duty being to obey the Minister's instructions. The expression "relieved of duty" or "from duty," as used first by one Minister and then by the other, meant clearly under the circumstances that the plaintiff was relieved from his ordinary functions at Darwin, but that he was neither dismissed nor suspended. It appears that, when at Darwin during the Commission, the plaintiff under instructions even gave such assistance as he could to the acting Commissioner, Mr. Staniforth Smith. It is common ground that travelling allowances mean extra payments to be made by reason of the fact that away from his home at Darwin additional expenses have to be incurred, and if the plaintiff had been instructed to come to Melbourne from Darwin to confer with the Minister as to the affairs of the Territory he had the same right as other servants or agents to be indemnified. The indemnity, however, was fixed by contract at £1 per day within the Territory, and £1 5s. outside.

But it is said that there is no contract with the plaintiff—that the plaintiff was merely appointed, placed in a condition of service; and that certain correspondence between the Department and the plaintiff which took place before the Gazette notice is not evidence. This correspondence (13th to 16th June 1919) shows an offer to the plaintiff and an acceptance by him before the Gazette notice of appointment; and the defendant argues that this correspondence is not admissible, and that because it is not admissible there is no contract proved. The Crown, it is said, does not contract with its servants. In my opinion, both these arguments are wrong. The relation between the Crown and its servants involves a contract (cf. Williams v. Howarth[3]). Even if the previous correspondence be rejected, the result is the same. On 9th August 1919 the Department sent to the plaintiff a copy of the Executive Council minute of appointment (30th July), at "£1,000 per annum with quarters"; and at the same time intimated by letter that the rate of travelling allowance was fixed at £1 per day when absent from Darwin within the Territory, and £1 5s. per day when outside the Territory. The plaintiff is no less entitled to travelling allowance until dismissal than to salary until dismissal.

Apart from these objections, there has been no attempt to show that the amount claimed by the plaintiff in the particulars is wrong. His claim is at £1 5s. per day from Wyndham to Melbourne and to Darwin (where he returned with the Commission), and from Darwin, 5th January 1920, to Melbourne until 22nd September at the same rate (313 days); but he deducts £67 16s. 9d. paid to him by the Commission while in Melbourne from 22nd January to 29th March 1920. The net claim is £310 18s. 3d. Then the claim for house allowance is £70 per annum as from 1st November 1919 to 1st October 1920, £64 3s. 4d. There is no objection taken to this amount as the proper amount, if anything is payable.

Now, as to the costs of the action. The plaintiff has succeeded in everything except as to damages for wrongful dismissal, and the defendant has succeeded on this latter point only because of the Crown's overriding right to dismiss at will. The defendant raised in its defence the point that the plaintiff had departed from the Northern Territory without justification or excuse, but the defendant brought no evidence whatever in support of this plea. The Government has not proved, or attempted to prove, any dereliction of duty on the part of the plaintiff. In fact, the defendant challenged the plaintiff's conduct, said that the plaintiff had "abandoned his duties," and the defendant has shown no ground or excuse for making an imputation so serious.

The question I put to myself is, who is to blame for this litigation? On service of the writ (30th December 1920), the defendant could have paid the allowances into Court (Order XXI., r. 1); and, if the defendant had relied only on the Crown's right to dismiss without cause, the point of law could have been settled without putting the plaintiff to the expense of preparing to meet the charge, so hurtful to reputation, of abandonment of duties. In my opinion, the action would not have proceeded to trial at all if the defendant had not resisted the payment of the allowances and if the defendant had not made and persisted in this charge, which it has not attempted to justify. The only difficulty is that in the statement of claim the plaintiff seemed to abandon his claim for allowances, although it was claimed in the writ, and had to get leave to amend the statement of claim on 17th October 1921 (on payment of the costs of the application).

I think that substantial justice will be done if I order payment by the defendant of all the costs of the action, with the exception of such costs as were incurred after the filing of the statement of claim up to and including the amendment of 17th October 1921.

I order that judgment be entered for the plaintiff for £375 1s. 7d., with costs of the action except as aforesaid. Costs to be taxed.

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

[1] (1896) 1 Q.B., 116.

[2] (1896) A.C., 575.

[3] (1905) A.C., 551.

High Court of Australia

Carey v Commonwealth [1921] HCA 54; (1921) 30 CLR 132 (5 December 1921)

HIGH COURT OF AUSTRALIA