Grady v Commissioner for Railways (NSW) [1935] HCA 44; (1935) 53 CLR 229 (20 June 1935)

HIGH COURT OF AUSTRALIA

Grady Plaintiff, Appellant; and The Commissioner for Railways (New South Wales) Defendant, Respondent.

H C of A

On appeal from the Supreme Court of New South Wales.

20 June 1935

Rich, Starke, Dixon, Evatt and McTiernan JJ.

Evatt (with him Dwyer), for the appellant.

Bradley K.C. (with him Chambers), for the respondent.

Evatt, in reply.

The following written judgments were delivered:—

June 20

Rich, Dixon, Evatt and McTiernan JJ.

The question upon this appeal is whether an officer employed by the Commissioner for Railways, who is dismissed for misconduct by the head of his branch but appeals successfully to a board against the dismissal, is entitled to salary for the period between the dismissal and its reversal by the board.

Sec. 82 of the Government Railways Act 1912 empowers the head of a branch to dismiss any officer in the branch who is guilty of misconduct, but gives an appeal to an officer so dealt with. The appeal lies to a board of three, of whom the chairman is a stipendiary or police magistrate (sec. 87). The board may confirm or modify any decision appealed against, or make any such order therein as it sees fit (sec. 92 (3)).

In the present case the officer's appeal was allowed.

The Supreme Court of New South Wales (Davidson and Stephen JJ. and Markell A.J.) took the view that the result was as if the officer had been suspended from office, so that there was an intermission of the benefits as well as of the duties annexed thereto. He accordingly was not entitled to intermediate salary.

We are unable to adopt this view of the combined effect of the provisions of sec. 82 and of sec. 92 (3). They appear to us to invest an administrative officer with an authority to dismiss which is not absolute, but is subject to review by an administrative board. The board is given a power which certainly includes complete reversal of the dismissal. If the board considers that no misconduct occurred, its conclusion would mean that the power of the officer to dismiss never arose. It would, in such a case, be right to set aside the dismissal so that it was null ab initio. In the judgment in Commissioner for Railways (N.S.W.) v. Cavanough[1] delivered to-day, we have stated our view that such a result ensues from the reversal or setting aside of a summary conviction upon appeal to Quarter Sessions. When, upon analogy to appeals in judicial proceedings, an administrative tribunal is set up to review such official acts as dismissal from office why should not its reversal of the act appealed from produce the like effect? Davidson J. considered that to entitle the officer to his salary in the meantime a special direction by the board is required. But he was of opinion that the power it enjoys to make such an order as it thinks fit is wide enough to enable it to give such a direction. No doubt it is. But when the board allows the appeal simpliciter, it completely reverses the dismissal. The provisional character of the dismissal is evident, and it is as if it had never taken place. Performance of the officer's duties is excused, not because he has been temporarily out of the service, but because under the conditions of his service he has been dispensed from carrying his duties out. If it turns out that he ought not to be dismissed and his provisional dismissal is set aside, it does not seem unreasonable that he should receive the salary attached to the office accruing in the meantime, and that he should do so simply because his dismissal is vacated or quashed.

In our opinion the appeal should be allowed with costs.

We have treated the case as falling under sec. 82, but it is to be noticed that the plea does not allege the commission of an act of misconduct.

The judgment of the Supreme Court should be discharged and in lieu thereof there should be judgment for the plaintiff in demurrer.

Starke J.

This appeal involves a consideration of some sections of the Government Railways Act 1912. By sec. 82 it is provided that "whenever any officer in any branch of the railway service is guilty of misconduct ... or of breaking any rule, by-law or regulation of the railway service the officer at the head of such branch may ... dismiss or suspend him ... but every such officer so dealt with may appeal" to an appeal board. Authority is given to the board, by sec. 92, to confirm or modify any decision appealed against or make such order thereon as it thinks fit. The claim here is for wages in respect of the period between the dismissal of the plaintiff from the railway service and his re-employment. The pleadings allege that the plaintiff was an officer in the railway service, that by the decision of an officer at the head of the plaintiff's branch of the railway service the plaintiff was dismissed, that the plaintiff appealed from such decision pursuant to the Government Railways Act, and that the decision of the officer was reversed and the plaintiff reinstated in the service. The question is whether the order or decision of the appeal board reversing the decision of the head of a branch dismissing an officer, obliterates or abrogates it. It is analogous to the reversal of a judgment convicting an accused person of an offence, which was dealt with in Cavanough's Case[2]. In my opinion the same result should follow, namely, that the decision dismissing the officer is annulled and held for nothing. It cannot, after the decision of the appeal board, be asserted that the officer was dismissed. Wallwork v. Fielding[3] is not in point, for there was in that case no order annulling the suspension.

The appeal should be allowed and judgment entered for the plaintiff in demurrer.

Appeal allowed with costs. Judgment of the Supreme Court discharged and in lieu thereof judgment for the plaintiff in demurrer.

Solicitors for the appellant, Landa & Lamaro.

Solicitor for the respondent, F. W. Bretnall, Solicitor for Transport.

[1] Ante, p. 220.

[2] Ante, p. 220.

[3] (1922) 2 K.B. 66.