Hunkin v Siebert [1934] HCA 43; (1934) 51 CLR 538 (5 October 1934)

HIGH COURT OF AUSTRALIA

Hunkin Nominal Defendant, Appellant; and Siebert Plaintiff, Respondent.

H C of A

On appeal from the Supreme Court of South Australia.

5 October 1934

Rich, Starke, Dixon and McTiernan JJ.

Hannan, Crown Solicitor for South Australia, for the appellant.

Travers, for the respondent.

The following written judgments were delivered:—

Oct. 5

Rich, Dixon and McTiernan JJ.

In the suit out of which this appeal arises a dismissed public servant recovered from the Crown unpaid salary for a period during which he had been under suspension. He was charged with larceny as a public servant, whereupon the head of his department notified him that he had suspended him from his duties until the charge on which he was arrested was finally dealt with. He was tried on indictment and acquitted. An information for false pretences had been filed, but upon this a nolle prosequi was entered. Thereupon he again presented himself for duty, but the departmental head orally suspended him further. After some inquiry he was dismissed from the service by an order of the Executive Council. The order purported to dismiss him retrospectively as from the date upon which he had been suspended. During the period of his suspension and up to his dismissal he received no salary. Sec. 60 of the Public Service Act 1916 provides that nothing in the Act shall be construed, or held to abrogate or restrict the right or power of the Crown, under any other Act or at common law, to dispense with the services of any person employed in the Public Service. It is in virtue of this provision that he was dismissed (Cf. Young v. Adams[1]). Secs. 53 and 54 of the Act contain elaborate provisions for dealing with charges against officers, the nature of which sec. 53 describes; and, under sec. 54, an officer so charged may be temporarily suspended by the permanent head of the department, who must thereupon furnish him with a statement of the charge and proceed to the investigation of the charge in the manner prescribed in the section. If, in the result, the charge is established, the officer may be dismissed, and, in that case, unless the Governor in Council otherwise orders, he is not entitled to any salary for the period of suspension.

In the present case proceedings were not taken under these provisions, which, whether applicable or not in point of law, were considered unsuitable to a case in which the public servant was to be tried criminally. Moreover, sec. 57 provides that, if any officer is convicted of felony, he shall be deemed to have forfeited his office and his salary shall cease from the day of his conviction, or, if the Governor in Council so directs, from the date of the commission of the offence. Probably the departmental head, although he suspended the officer, did not proceed under sec. 54 because he regarded sec. 57 as disposing of the matter if a verdict of guilty were found. But the result, in our opinion, is to make it impossible for the Crown to withhold the salary for the period of suspension. The Crown's power of suspending its servants from office existed at common law and is of great antiquity. The manner of its exercise depended upon the nature of the office. Its exercise did not have the effect of provisionally or temporarily vacating the office, and did not necessarily deprive the officer of the right to salary (see Slingsby's Case[2]; Sutherland v. Murray[3], cited in Johnstone v. Sutton[4]; Johnstone v. Sutton[5]; Phillips v. Bury[6]; Bunter v. Cresswell[7]; Cp. Duke of Buckingham's Case[8] and Preface to Croke's Reports and Forsyth's Cases and Opinions, p. 70). But whatever might be its effect at common law, the Public Service Act 1916 operates, in our opinion, to define exclusively the occasions and mode of the exercise of the power to suspend. Secs. 53 and 54 lay down a method of dealing with delinquent officers, which includes suspension, and, according to Gould v. Stuart[9], such provisions must be interpreted as restricting the common law right of the Crown to exercise a similar power by other means and in other circumstances.

The argument in support of the appeal recognized this consequence but sought to displace it by means of sec. 60. It was contended that the reservation of the power of dismissal without cause necessarily carried with it a reservation of the power of suspension, which, it was claimed, was an incident or concomitant of the former power. This contention appears to us to be untenable. Not only does the statute itself distinguish between suspension and dismissal, but in point of law they have, as is illustrated by the authorities already cited, always been treated as separate things. The power of dismissal is plainly exercisable without preliminary suspension. Indeed the very fact that it is reserved, notwithstanding an elaborate provision for dealing with offending officers, suggests that the purpose of the reservation was not to remove delinquent officers, but to enable the Crown to exercise a residual or ultimate discretion. Suspension may be convenient in some, but certainly not in all, cases where the use of this discretion is contemplated. However this may be, it cannot be said in any case that suspension must continue for the reasons suggested by the maxim quando lex aliquid concedit concedere videtur et illud sine quo res ipsa valere non potest. The power of dismissal can be effectually exercised without suspension.

For these reasons we think the order appealed from was right and the appeal should be dismissed.

Starke J.

The respondent was an officer in the Public Service of South Australia. On 5th March 1932 he was suspended from his duties as an officer of the Children's Welfare and Public Relief Department, until a charge of larceny on which he was arrested had been finally dealt with. The respondent was acquitted on this and other charges. But, on 14th December 1932, the Governor in Council dismissed him from the service as from the 5th March 1932, under the provisions of sec. 60 of the Public Service Act 1916. The question for determination is whether the respondent is entitled to payment of his salary during the period of his suspension, that is, from 5th March 1932 to 14th December 1932. The Supreme Court of South Australia decided, and in my opinion rightly decided, that he was so entitled.

The Public Service Act 1916 provides, in sec. 54, for the temporary suspension of officers, but it was conceded, and properly conceded, in argument, that the respondent was not suspended under or in accordance with the provisions of this section. It was contended, however, that the provisions of sec. 60 reserved the common law right or power of the Crown to dispense with the services of any person employed in the Public Service, and it was claimed that the right or power of suspension was an incident of that right or power. The argument is untenable, and for the reasons given by the learned Judges of the Supreme Court. One was that the fair meaning of the notice of the 5th March—"I have suspended you from your duties ... until the charge ... has been finally dealt with"—was not a determination of the respondent's service or office, but an intimation that he should desist from performing his duties until the charge was disposed of. The notice looked to the provisions of sec. 57, if the charge were established: "If any officer is convicted of any felony, or, unless the Governor directs to the contrary, of any other indictable offence, he shall be deemed to have forfeited his office, and he shall thereupon cease to perform the duties thereof, and his salary or other remuneration shall cease as from the day of his conviction, or, if the Governor so directs, from the date of the commission of the offence."

The other, that the express power of suspension contained in sec. 54 necessarily regulates and controls any prerogative power of the Crown to suspend, and, by and during suspension, deprive an officer who is subject to the Public Service Acts of the salary provided for him pursuant to those Acts (see Public Service Act Amendment Act (No. 2) 1925, sec. 27).

The appeal should be dismissed.

Appeal dismissed with costs.

Solicitor for the appellant, A. J. Hannan, Crown Solicitor for South Australia.

Solicitors for the respondent, Villeneuve Smith, Kelly, Hague & Travers.

[1] (1898) A.C. 469.

[2] [1680] EngR 269; (1680) 3 Swanst. 178; 36 E.R. 821.

[3] (1783).

[4] (1786) 1 Term Rep. 510, at p. 538; 99 E.R. 1225, at p. 1240.

[5] (1786) 1 Term Rep., at p. 526; 99 E.R., at p. 1233.

[6] (1788) 2 Term Rep. 346, at p. 351; 100 E.R. 186, at p. 189.

[7] (1850) 19 L.J. Q.B. 357, at p. 362; [1850] EngR 361; 117 E.R. 317, at p. 319.

[8] [1794] EngR 610; (1568) 3 Dyer 285b; 73 E.R. 640.

[9] (1896) A.C. 575.