Cohen v Associated Dominions Assurance Society Pty Ltd [1946] HCA 33; (1946) 73 CLR 435 (4 October 1946)

HIGH COURT OF AUSTRALIA

Cohen Informant, Appellant; and Associated Dominions Assurance Society Proprietary Limited Defendant, Respondent.

H C of A

4 October 1946

Latham C.J., Starke, Dixon, McTiernan and Williams JJ.

Rapke (Ashkanasy K.C. with him), for the appellant.

Coppel K.C. (with him D. I. Menzies), for the respondent.

Rapke, in reply.

Coppel K.C.

Rapke.

The following judgments were delivered:—

Latham C.J.

The order from which this appeal is brought is an order made by a magistrate whereby the respondent to the appeal in this court was convicted and fined £50 with £21 costs for an offence against the Re-establishment and Employment Act 1945, s. 16 (1), and he was ordered in addition to pay £52 10s. compensation to the informant. It was further ordered that the informant should receive one half of the fine imposed. Section 12 (1) provides that any person who has completed a period of war service may apply to his former employer for reinstatement in employment, and s. 16 (1) provides:—

Where an application has been made under this Division and is still in force, the former employer shall make employment available to the applicant in accordance with this section at the date notified to him, or last notified to him, as the date on which the applicant will be available for employment or at the first opportunity (if any) at which it is practicable and reasonable to do so thereafter.

Penalty: One hundred pounds.

The respondent was convicted of an offence under this section. Section 19 (1) (a) and (b) provides that when an employer is convicted of an offence under the Division of the Act which includes s. 16 the court may order that a portion of the fine imposed shall be paid to the employee or former employee concerned, and that, whether or not an order has been made under par. 1 (a) the court may order that the employer shall pay to the employee or former employee such compensation as the court thinks reasonable. The order therefore was made under s. 16 (1) and s. 19 (1) (a) and (b) of the Re-establishment and Employment Act.

There was only one proceeding before the magistrate, and only one order was made, though that order contained four provisions, one imposing a fine, another dealing with costs, another directing that half the fine be paid to the informant, and another provision dealing with compensation. The informant appealed by order to review to this court pursuant to the Judiciary Act, 1903-1940, s. 39 (2) (b). Section IV, rule 1, of the Appeal Rules of this Court provides with respect to appeals from decisions of inferior courts of a State that an appeal from such a court shall be brought in the same manner and within the same times as are respectively prescribed by the law of the State for bringing appeals from the same courts to the Supreme Court of the State in like matters. This provision introduces the procedure of the Justices Act 1928 Vict., s. 150, which provides for orders to review decisions of magistrates. The order to review must be applied for within one month of the making of the order which it is sought to review. Within that time an order to review was obtained by the informant, the informant challenging only the part of the order of the magistrate which related to compensation, contending that the compensation had been assessed upon wrong principles. After this period of one month had expired, namely on 27th August 1946, the respondent company gave a notice of intention to cross-appeal. In that notice the respondent intimated that it intended on the hearing of the appeal to contend that the order of the Court of Petty Sessions whereby the defendant was convicted etc. should be set aside. It was contended for the appellant here that this is a notice of appeal and that it is out of time, not having been given within one month of the order which the respondent seeks to review.

The respondent, on the other hand, relies upon rule 16 of Section III. of the Appeal Rules of this Court which, it is contended, is made applicable to appeals from inferior courts by rule 7 of Section IV. Rule 1 of Section IV. contains the provision which I have in part read providing for appeals, and rule 7 of Section IV. provides:—"Except as herein or by law otherwise provided, the provisions of Section III. of these Rules shall apply to appeals to the High Court from decisions of inferior Courts." Rule 16 of Section III. provides in relation to appeals from Supreme Courts and other courts from which an appeal lay at the establishment of the Commonwealth to the Queen in Council as follows:—

"It shall not be necessary for a respondent to give notice of motion by way of cross-appeal, but if a respondent intends upon the hearing of an appeal to contend that the decision appealed from should be varied, he shall within the time prescribed by the next following rule, or such time as is allowed by special order of a Full Court in any case, give notice of his intention to such of the parties as may be affected by the contention. The omission to give such notice shall not diminish the powers of the High Court when hearing the appeal; but may, in the discretion of the Court, be ground for an adjournment of the appeal or for a special order as to costs. A copy of the notice shall be filed in the Registry." The next rule provides that notice under rule 16 shall be given, subject to any special order, twenty-one days before the day on which the appeal is set down for hearing. Notice was given by the respondent in accordance with this rule.

Rule 1 of Section III. provides that appeals to the High Court shall be instituted by notice of appeal. Rule 16 of that section provides that it shall not be necessary to give notice of motion by way of cross-appeal, but that a notice of intention to contend that the decision appealed from should be varied shall be given. Accordingly, in Section III. the general provision as to appeals contained in rule 1, is not regarded as in any way inconsistent with the specific provision as to cross-appeals contained in rule 16. That is to say that rule 16, dealing with what would ordinarily be described as cross-appeals, operates notwithstanding the general provision contained in rule 1. So also, in my opinion, rule 7 of Section IV. can operate so as to introduce from Section III. the provision as to cross-appeals (or proceedings in the nature of cross-appeals) notwithstanding the general provisions of rule 1 of that section. Accordingly, in my opinion, the respondent is entitled to contend that the order from which the appeal is brought should be varied.

It was suggested that the provision in rule 16 relating to the variation of an order was not sufficiently wide to cover the setting aside of an order. I find it difficult to draw a line at any particular point between variation and setting aside. Apart from this consideration, however, it appears to me that the word "varied" should here be read as including "set aside," because otherwise there would be no provision in the rule for either a cross-appeal or a notice of intention in lieu of a formal cross-appeal in a case where it was desired to contend that the order appealed from should be set aside. Accordingly, in my opinion, the preliminary point fails. The contention of the respondent in the nature of a cross-appeal therefore arises for consideration.

The point which is raised is this. The appellant made an application, it is said, under the Act for reinstatement in employment. He must therefore qualify under s. 12 (1): "Any person who has completed a period of war service may apply to his former employer for reinstatement in employment." It must be shown by the appellant that he has completed a period of war service. "War service" is defined as meaning service in various forms in pars. a to f contained in s. 4 (1) under the definition of "war service." The relevant provision here is this:—"war service means ... (b) service in the Australian Imperial Force." It was proved that the applicant was a member of the Australian Imperial Force. The question is: "When did he complete his period of war service?" The evidence shows that he served in the Australian Imperial Force. In the evidence which was before the magistrate there is included a certificate of discharge. That certificate was issued and signed by a lieutenant for the officer in charge of records, Queensland Lines of Communication Area, and contains this statement: "This discharge takes effect at and from the twenty-ninth day of August 1945." The document is dated 6th August 1945. Upon this document it is plain that, although it is dated 6th August, the period of service extended until 29th August. Effect is given to the certificate of discharge by military regulations made under the Defence Act 1903-1941, which provide in reg. 185 that the discharge of a soldier (with certain exceptions which are not material in this case) shall be authorized and confirmed, and in reg. 188 that a discharge of which confirmation is required by reg. 185 shall take effect on the day for which it is confirmed. This discharge is confirmed as for 29th August 1945 and takes effect from that day. Various other documents were put in evidence which show the history of the soldier in returning equipment, in finalizing accounts, in obtaining registration for civilian purposes, tobacco supply and the like. But the certificate of discharge is the formal, effective and authorized method of bringing about the discharge of a soldier from the forces, and therefore determines his period of war service under the Act. Accordingly he had not completed his war service until 29th August 1945.

Now the application which was made and upon which the appellant relied is to be found in a letter of 6th August 1945. But that application was not made within the time provided for in s. 12 (2) of the Act. That provision requires that the application shall be made not earlier than fourteen days prior to the completion of war service and not later than one month after the completion of that period. It was made at an earlier date than is permitted, and therefore was not an application made in accordance with the Act. It was suggested that a case could be made for the appellant upon a letter dated 28th August 1945. But s. 13 requires that, if a date is not specified in an application as a date upon which the applicant will be available for employment, such a date must be specified in a notice in writing within two months after the date on which the application was made or prior to the expiry of an extended period determined by a Reinstatement Committee. The requirements of this section have not been fulfilled by the appellant, and the liability of an employer under s. 16 (1) depends upon a date being duly notified to him under s. 13.

I have dealt with the case upon the basis of the Act itself, upon which all argument was addressed to us. I should say that the provisions in the Act to which I have referred reproduce provisions in regulations which were applicable to the applicant and which were in force at the time when he applied. The Act was proclaimed on 27th August 1945. The provisions in the regulations are in substance the same as in the Act. Under s. 9 of the Act the effect of the regulations is carried into the Act.

Accordingly, on the ground that no application was made in accordance with the Act, the cross-appeal succeeds and the appeal fails. The order which in my opinion should be made is that the order of the Court of Petty Sessions should be set aside and the information should be dismissed, but there should be no order as to the costs of the proceedings in either court.

Starke J.

I would refer to s. 9 of the Re-establishment and Employment Act 1945, which enacts that the provisions of the Act shall apply to the National Security (Reinstatement in Civil Employment) Regulations. The method of enforcing the regulations is that prescribed by the Act.

A certificate of discharge appears to me to prove itself as a document or certificate of a public officer entrusted with lawful authority to make it. It is unnecessary, I should think, to refer to the Army Act or any other Act for the purpose of its admissibility in evidence.

Otherwise I agree that the order nisi should be discharged.

Dixon J.

I agree that the cross-appeal in this case is not a proceeding that need be brought in accordance with rule 1 of Section IV. of the Appeal Rules of Court, which incorporates by reference the State law concerning orders to review. It is a matter falling within rule 7, incorporating rule 16 of Section III., which enables the giving of a notice of cross-appeal.

On the merits of the cross-appeal, I think that military regulation 188 makes it clear that the discharge took place on 29th August 1945. The document called a certificate is itself the discharge and is therefore relevant when proved to establish the date of discharge. Discharge took place as on 29th August. I think the period of service ended on that date. No sufficient application within the period allowed by the Act and the regulations on either side of that date can be spelled out of the materials before us. Attempts were made to show that such an application existed for one reason or another. Everything which might amount to an application was deficient in some necessary particular.

I agree with the order proposed. We gave consideration to the question whether we should allow the information to be withdrawn, but, on the whole, I agree that it is better that it should be dismissed.

McTiernan J.

I agree with the reasons of the Chief Justice, except upon one point.

I do not agree that the date expressed in the certificate of discharge for the appellant's discharge necessarily or as a matter of law marks the date of the completion of the period of the appellant's war service for the purposes of the Act or the regulations. I think that it was open to the magistrate to find that the appellant's period of war service was completed on 30th July.

Williams J.

I agree with the reasons of the majority of the Court and with the proposed order and have nothing to add.

Appeal dismissed. Cross-appeal allowed. Order nisi to review discharged. Order of the Court of Petty Sessions set aside, and information dismissed. No order as to costs.

Solicitor for the appellant: J. W. Sackville.

Solicitors for the respondent: Cornwall, Stodart & Co.