Edwards v Commonwealth [1935] HCA 84; (1935) 54 CLR 313 (18 December 1935)

HIGH COURT OF AUSTRALIA

H C of A

1 October 1934

Starke J.

Ligertwood K.C. (with him Brebner), for the defendant.

Cleland K.C. (with him Ward), for the plaintiff.

1934, Oct. 1

Starke J

. delivered the following written judgment:—

In August 1882, Edwards, the plaintiff, was appointed an officer pursuant to the Civil Service Acts 1874 and 1881 of South Australia. He was employed in the Postal Department of that State as a telegraphist. In 1901 the Post and Telegraph Department of each State was transferred to the Commonwealth (Constitution, sec. 69). Edwards was retained in the service of the Commonwealth, and became subject to the control of its Executive Government (Constitution, secs. 67, 84). The Constitution also provided, by sec. 84, that any officer so retained in the service of the Commonwealth should preserve all his existing and accruing rights, and be entitled to retire from office at the time and on the pension or retiring allowance which would be permitted by the law of the State if his service with the Commonwealth were a continuation of his service with the State. Early in 1932 the Governor-General in Council abolished the office held by the plaintiff (Commonwealth Public Service Act 1922-1931, sec. 29). He was employed, however, in the Post and Telegraph Department of the Commonwealth in a temporary capacity as senior telegraphist, practically continuously from the date of the abolition of his office until April 1932, when he went on sick leave. In June of 1932 the Public Service Board of Commissioners, purporting to act in pursuance of the power contained in sec. 20 of the Commonwealth Public Service Act 1922-1931, retired him from the Public Service as from the close of business on 24th June 1932.

It was contended that the office was abolished and that the plaintiff (who was born in October 1868) was retired, simply on the ground of the plaintiff's age. And this Court has held that age, apart from incapacity or other cause specified in the Acts, is not a ground for removal from office of an officer subject or entitled to the benefit of the provision of the South Australian Civil Service Acts of 1874 and 1881 (Le Leu v. The Commonwealth[1] ; Lucy v. The Commonwealth[2] ; Bradshaw v. The Commonwealth[3] ). The evidence, however, satisfies me that plaintiff's office was abolished and that he was retired because there were a greater number of officers of his classification employed in the Postal Department than was necessary for the efficient working of the department; and that, though some temporary employment was given him, no position was available for him in the Service.

It was also contended that the abolition of the plaintiff's office and his retirement from the Service necessarily infringed his "existing and accruing rights," preserved by sec. 84 of the Constitution and sec. 45 of the Commonwealth Public Service Act 1922-1931. But the provisions of sec. 20 of the Commonwealth Public Service Act apply, as Isaacs J.—rightly, I think—suggested in Lucy v. The Commonwealth[4] , to all officers of the Public Service, subject to the rights preserved by the Constitution and by sec. 45 of the Act itself.

The question then is whether secs. 20 and 29 of the Commonwealth Public Service Act 1922-1931 impinge upon the "existing and accruing rights" of the plaintiff, preserved by the Constitution and sec. 45 of the Act. In my opinion they do not. Under sec. 14 of the South Australian Civil Service Act of 1874 power was expressly reserved to the Government to diminish from time to time the total number and alter the distribution of officers in the Civil Service in each department, as circumstances might require. The plaintiff had no absolute right to the preservation of his office, or to retention in the Service, if circumstances required that the office be abolished or the number of officers diminished. If the plaintiff had "a qualified or conditional life tenure," to use the language of Higgins J. in Le Leu v. The Commonwealth[5] , then one of the conditions of his tenure was this reserved power of the State, or else an overriding power in the State to diminish its officers (Bradshaw v. The Commonwealth[6] ). In other words, there was no right acquired by the plaintiff under his appointment except a right which, from its inception, was subject to determination by diminishing the officers in the Public Service or abolishing their offices (Reilly v. The King[7] ). Bradshaw v. The Commonwealth[8] establishes, in my opinion, that this power is, by virtue of the Constitution, vested in the Commonwealth, and is lawfully exerted in secs. 20 and 29 of the Commonwealth Public Service Act 1922-1931.

But it was suggested that the power could only be exerted in the same circumstances as those in which sec. 14 of the South Australian Civil Service Act 1874 could be exerted, or, as I understood the argument, that it could only be exerted if the circumstances required that the number of officers employed in the postal branch of the Public Service in South Australia should be diminished, or their offices abolished. The argument is untenable. It must be remembered that the officers were transferred to the Commonwealth, and entered its service; so that, even if their tenure and conditions of office and the causes of removal or dismissal are established by reference to the provisions of the South Australian law, nevertheless that tenure and those conditions depend upon the Commonwealth law, and the causes of removal or dismissal must be applied and adapted in connection with the officers' service in the Commonwealth and not in connection with a service which has ceased to exist.

The action is dismissed with costs.

Appeal allowed with costs. Judgment appealed from set aside. Order that the plaintiff's executrix who pursuant to order dated 18th April 1935 carried on and prosecuted this appeal after the death of the plaintiff be substituted as a party plaintiff in the suit and that judgment be entered for her as such executrix for an amount of damages to be ascertained and for the deceased plaintiff's and her own costs of the suit to this date. Further order that she be at liberty in the event of the parties being unable to agree upon such amount to apply to the Court or a Justice for the assessment of damages by the Court pursuant to Order XXXIII.

Solicitors for the appellant, Cleland & Teesdale Smith.

Solicitor for the respondent, W. H. Sharwood, Crown Solicitor for the Commonwealth, by Fisher, Powers, Jeffries & Brebner.

H C of A

18 December 1935

Rich, Dixon, Evatt and McTiernan JJ.

Ligertwood K.C. (with him Brebner), for the defendant.

Cleland K.C. (with him Ward), for the plaintiff.

1934, Oct. 1

Starke J

. delivered the following written judgment:—

In August 1882, Edwards, the plaintiff, was appointed an officer pursuant to the Civil Service Acts 1874 and 1881 of South Australia. He was employed in the Postal Department of that State as a telegraphist. In 1901 the Post and Telegraph Department of each State was transferred to the Commonwealth (Constitution, sec. 69). Edwards was retained in the service of the Commonwealth, and became subject to the control of its Executive Government (Constitution, secs. 67, 84). The Constitution also provided, by sec. 84, that any officer so retained in the service of the Commonwealth should preserve all his existing and accruing rights, and be entitled to retire from office at the time and on the pension or retiring allowance which would be permitted by the law of the State if his service with the Commonwealth were a continuation of his service with the State. Early in 1932 the Governor-General in Council abolished the office held by the plaintiff (Commonwealth Public Service Act 1922-1931, sec. 29). He was employed, however, in the Post and Telegraph Department of the Commonwealth in a temporary capacity as senior telegraphist, practically continuously from the date of the abolition of his office until April 1932, when he went on sick leave. In June of 1932 the Public Service Board of Commissioners, purporting to act in pursuance of the power contained in sec. 20 of the Commonwealth Public Service Act 1922-1931, retired him from the Public Service as from the close of business on 24th June 1932.

It was contended that the office was abolished and that the plaintiff (who was born in October 1868) was retired, simply on the ground of the plaintiff's age. And this Court has held that age, apart from incapacity or other cause specified in the Acts, is not a ground for removal from office of an officer subject or entitled to the benefit of the provision of the South Australian Civil Service Acts of 1874 and 1881 (Le Leu v. The Commonwealth[9] ; Lucy v. The Commonwealth[10] ; Bradshaw v. The Commonwealth[11] ). The evidence, however, satisfies me that plaintiff's office was abolished and that he was retired because there were a greater number of officers of his classification employed in the Postal Department than was necessary for the efficient working of the department; and that, though some temporary employment was given him, no position was available for him in the Service.

It was also contended that the abolition of the plaintiff's office and his retirement from the Service necessarily infringed his "existing and accruing rights," preserved by sec. 84 of the Constitution and sec. 45 of the Commonwealth Public Service Act 1922-1931. But the provisions of sec. 20 of the Commonwealth Public Service Act apply, as Isaacs J.—rightly, I think—suggested in Lucy v. The Commonwealth[12] , to all officers of the Public Service, subject to the rights preserved by the Constitution and by sec. 45 of the Act itself.

The question then is whether secs. 20 and 29 of the Commonwealth Public Service Act 1922-1931 impinge upon the "existing and accruing rights" of the plaintiff, preserved by the Constitution and sec. 45 of the Act. In my opinion they do not. Under sec. 14 of the South Australian Civil Service Act of 1874 power was expressly reserved to the Government to diminish from time to time the total number and alter the distribution of officers in the Civil Service in each department, as circumstances might require. The plaintiff had no absolute right to the preservation of his office, or to retention in the Service, if circumstances required that the office be abolished or the number of officers diminished. If the plaintiff had "a qualified or conditional life tenure," to use the language of Higgins J. in Le Leu v. The Commonwealth[13] , then one of the conditions of his tenure was this reserved power of the State, or else an overriding power in the State to diminish its officers (Bradshaw v. The Commonwealth[14] ). In other words, there was no right acquired by the plaintiff under his appointment except a right which, from its inception, was subject to determination by diminishing the officers in the Public Service or abolishing their offices (Reilly v. The King[15] ). Bradshaw v. The Commonwealth[16] establishes, in my opinion, that this power is, by virtue of the Constitution, vested in the Commonwealth, and is lawfully exerted in secs. 20 and 29 of the Commonwealth Public Service Act 1922-1931.

But it was suggested that the power could only be exerted in the same circumstances as those in which sec. 14 of the South Australian Civil Service Act 1874 could be exerted, or, as I understood the argument, that it could only be exerted if the circumstances required that the number of officers employed in the postal branch of the Public Service in South Australia should be diminished, or their offices abolished. The argument is untenable. It must be remembered that the officers were transferred to the Commonwealth, and entered its service; so that, even if their tenure and conditions of office and the causes of removal or dismissal are established by reference to the provisions of the South Australian law, nevertheless that tenure and those conditions depend upon the Commonwealth law, and the causes of removal or dismissal must be applied and adapted in connection with the officers' service in the Commonwealth and not in connection with a service which has ceased to exist.

The action is dismissed with costs.

Appeal allowed with costs. Judgment appealed from set aside. Order that the plaintiff's executrix who pursuant to order dated 18th April 1935 carried on and prosecuted this appeal after the death of the plaintiff be substituted as a party plaintiff in the suit and that judgment be entered for her as such executrix for an amount of damages to be ascertained and for the deceased plaintiff's and her own costs of the suit to this date. Further order that she be at liberty in the event of the parties being unable to agree upon such amount to apply to the Court or a Justice for the assessment of damages by the Court pursuant to Order XXXIII.

Solicitors for the appellant, Cleland & Teesdale Smith.

Solicitor for the respondent, W. H. Sharwood, Crown Solicitor for the Commonwealth, by Fisher, Powers, Jeffries & Brebner.

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1. [1921] HCA 26; (1921) 29 C.L.R. 305.

2. [1923] HCA 32; (1923) 33 C.L.R. 229, at p. 252.

3. [1925] HCA 42; (1925) 36 C.L.R. 585.

4. (1923) 33 C.L.R., at pp. 242, 243.

5. (1921) 29 C.L.R., at p. 314.

6. [1925] HCA 42; (1925) 36 C.L.R. 585.

7. (1934) A.C. 176, at pp. 180, 181.

8. [1925] HCA 42; (1925) 36 C.L.R. 585.

9. [1921] HCA 26; (1921) 29 C.L.R. 305.

10. [1923] HCA 32; (1923) 33 C.L.R. 229, at p. 252.

11. [1925] HCA 42; (1925) 36 C.L.R. 585.

12. (1923) 33 C.L.R., at pp. 242, 243.

13. (1921) 29 C.L.R., at p. 314.

14. [1925] HCA 42; (1925) 36 C.L.R. 585.

15. (1934) A.C. 176, at pp. 180, 181.

16. [1925] HCA 42; (1925) 36 C.L.R. 585.