O'Day v Commonwealth [1964] HCA 46; (1964) 111 CLR 599 (12 August 1964)

HIGH COURT OF AUSTRALIA

O'DAY v. THE COMMONWEALTH [1964] HCA 46; (1964) 111 CLR 599

Defence

High Court of Australia
Kitto(1), Taylor(2), Menzies(3), Windeyer(4) and Owen(5) JJ.

CATCHWORDS

Defence - Navy - Officer - Resignation of commission - Whether effective without assent by Governor-General - Whether Governor-General under duty to assent - Naval Defence Act 1910-1952 (Cth), s. 13*.

HEARING

Melbourne, 1964, May 25;
Sydney, 1964, August 12. 12:8:1964
DEMURRER.

DECISION

August 12.
The following written judgments were delivered:-
KITTO J. This is a demurrer by the Commonwealth to a statement of claim by naval forces of the Commonwealth and has submitted to the Governor-General the resignation of his commission, seeks a declaration to the effect that on the proper interpretation of s. 13 of the Naval Defence Act 1910-1952 (Cth) he was entitled to have the resignation accepted by the Governor-General so as to take effect within a reasonable time, not being more than three months, after its submission. (at p603)

2. The section provides that except in time of war an officer may by writing under his hand resign his commission at the expiration of any time not being less than three months from the date of the receipt of the resignation: sub-s. (1); that the resignation shall not have effect until it has been accepted by the Governor-General: sub-s. (2); and that for special reasons the Governor-General may accept any resignation at any time after the receipt thereof: sub-s. (3). (at p603)

3. For reasons similar to those I have stated in Marks v. The Commonwealth [1964] HCA 45; (1964) 111 CLR 549 I am of opinion that the section ought not to be construed as conferring upon an officer any legally enforceable right to have his resignation accepted. It authorizes him to submit his resignation, and it gives legal efficacy to an acceptance after three months or, for special reasons, after any less period of time. The course to be followed by the Executive upon receipt of a resignation is not prescribed: it is left as a matter of executive discretion unfettered by any but political controls. (at p603)

4. In my opinion the plaintiff is not entitled to any relief in the action, and the demurrer should therefore be upheld. (at p603)

TAYLOR J. In Marks v. The Commonwealth (1) the contention was raised that an officer in the regular Army might terminate his service under the Crown by tendering the resignation of his Commission. But the express terms of s. 13 of the Naval Defence Act 1910-1952 preclude any such argument in the present case. However, it is contended that the plaintiff was entitled, as a matter of legal right, to have his resignation accepted by the Governor-General (which means the Governor-General acting with the advice of the Executive Council) within a reasonable time being not more than three months after its tender. I am unable to perceive any foundation for this contention either in the terms of the section or otherwise; the section obviously commits to the decision of the executive government the question whether any particular resignation shall or shall not be accepted. (at p604)

2. I agree that the demurrer should be allowed. (at p604)

MENZIES J. I have stated in my judgment in Marks v. The Commonwealth [1964] HCA 45; (1964) 111 CLR 549 my reasons for concluding that, in the absence of statutory authority dispensing with the necessity for the consent of the Governor-General, a commissioned officer of the Defence Forces who holds office at pleasure requires the consent of the Governor-General to resign his commission. That conclusion is the starting point of my determination of this case in which an officer of the Naval Forces has made a claim similar to that made by the officer of the Military Forces in Marks v. The Commonwealth [1964] HCA 45; (1964) 111 CLR 549 (at p604)

2. In this action the plaintiff has not claimed that s. 13 of the Naval Defence Act authorizes him to resign his commission without the resignation being accepted by the Governor-General. Such a contention is not open because s. 13 (2) provides in terms that a resignation made in accordance with sub-s. (1) "shall not have effect until it has been accepted by the Governor-General". (at p604)

3. It has been argued, however, that s. 13 imposes upon the Governor-General a duty to accept a resignation given in accordance with sub-s. (1) thereof. There is, however, no basis for so deciding. It is for the Governor-General, acting with the advice of the Executive Council, to decide whether a resignation given in accordance with sub-s. (1) of s. 13 should be accepted. To infer an obligation to accept would be both to infer something inconsistent with the essential character of an act of the Executive Government of the Commonwealth and to depart from the language of s. 13 sub-s. (2) which is not apt to impose such an obligation upon the Governor-General. My understanding of s. 13 accords, I think, with that of McCarthy J. of a corresponding New Zealand section, viz. s. 7 of the Navy Act 1913: see Hume v. Attorney-General (1960) NZLR 880, at pp 881, 882 (at p604)

4. In my opinion the Commonwealth's demurrer to the plaintiff's amended statement of claim should be allowed. (at p604)

WINDEYER J. In the case of MArks v. The Commonwealth [1964] HCA 45; (1964) 111 CLR 549 I gave my reasons for thinking that, unless a statute otherwise expressly or by implication provides, the resignation of an office under the Crown only becomes complete and effective when the Crown assents to it, that is to say accepts the proffered resignation. (at p605)

2. I can seen nothing in the Naval Defence Act 1910-1952 that displaces this rule. Indeed s. 13 (2) states expressly that the resignation of an officer shall not have effect until it has been accepted by the Governor-General. A similar proviso appears in several statutes concerning the resignation of various civil offices. I referred to some of these in my judgment in Marks's Case [1964] HCA 45; (1964) 111 CLR 549 The meaning and legal effect are the same whether the words be used of the resignation of a civil or of a naval or military officer. The practical effect however differs. If a civilian officer tenders his resignation and then leaves his post without waiting for it to be accepted, he may forfeit benefits and perhaps incur penalties, but he cannot be forcibly arrested, tried by court martial and either dismissed the service or returned to his duty and compelled under penalty to perform it, as a member of the naval or military services can be. (at p605)

3. The position in law of officers of the Royal Australian Navy is, by the Naval Defence Act, made closely akin to that of officers of the Royal Navy, because the Act provides in s. 36 that the Naval Discipline Act - that is the Imperial Act of 1866, 29 & 30 Vict. c. 109, as amended - and the Queen's Regulations and Admiralty Instructions in force in relation to the Queen's Naval Forces shall, subject to the Act and Regulations, apply to the Australian Naval Forces. The Naval Discipline Act of 1866 repeated the superb preamble "Whereas it is expedient to amend the Law relating to the Government of the Navy , whereon, under the good Providence of God, the Wealth, Safety, and Strength of the Kingdom chiefly depend." of earlier statutes and re-enacted in their eloquently simple phrases the naval Articles. It made a change in the descriptions of the persons to whom they applied. The earlier Act 22 Geo. II c. 33 made "every person in the Fleet" or in some cases "any person in the actual service and full pay of His Majesty's ships and vessels of war" subject to its disciplinary provisions. What this meant was more exactly stated by the Act of 1866 which provided that "every person in or belonging to Her Majesty's Navy, and borne on the books of any one of Her Majesty's ships in commission" should be subject to the Act: and it defined "officer" as "an officer belonging to one of Her Majesty's ships". These provisions, which made belonging to a ship the test of subjection to naval discipline, echo from a period of history when naval officers were not commissioned officers in the modern sense but commission officers. That, it has been said, was "their correct name". "The ship, not the man, was commissioned so that the man was only an officer of that ship . . . for that particular occasion": Professor Lewis, The History of the British Navy (1957) p. 106. Later when the naval officer was in the modern sense a commissioned officer, it was still only when he was serving in a ship in commission, not when he was on half-pay, that he was subject to the Act. Thus it is that the cases which were discussed during the argument, namely Reg. v. Cuming; Ex parte Hall (1887) 19 QBD 13 and Hearson v. Churchill (1892) 2 QB 144, decide that a commissioned officer, in fact borne on the books of one of the Queen's ships in commission, could not by simply sending in a resignation rid himself of his obligations as an officer and of his liabilities under the Naval Discipline Act. Those cases add nothing to, nor do they qualify, the plain meaning of s. 13 (2) of the Naval Defence Act. It simply gives statutory authority to the common law principle they illustrate. The word "officer" in the Act means " a commissioned officer, subordinate officer, or warrant officer, but does not include a petty officer": s. 3. There is thus now no reference to an officer as a person belonging to a ship. The Act is not restricted to such officers. Anyone commissioned as an officer of the Naval Forces is, in respect of the resignation of his commission, subject to s. 13 (2). (at p606)

4. Of course it does not follow, in either the naval or the military service, that because a person is a member until he is actually discharged, he might not have a right to be discharged. In the case of a seaman he has. That is provided for by s. 28 (2) of the Act. But the explicit terms of that provision may be contrasted with s. 13 concerning officers. (at p606)

5. I agree with the plaintiff's contention that s. 13 (2) does contemplate a resignation submitted in accordance with s. 13 (1). I agree too that it assumes that the resignation so submitted will in due course be accepted. I go further: I think it is highly probable that s. 13 (2) was enacted on the assumption that ordinarily a resignation tendered in accordance with s. 13 (1) would be accepted within three months of the date of its receipt. But that does not, I think, aid the plaintiff. Section 13 (2) says only that what might be expected must not be anticipated. As I see it, it is not it that stands in the plaintiff's way in this case. Even if it were not in the Act, it would still be necessary to consider whether s. 13 (1) displaced the common law rule that the Crown must assent before an officer's resignation would be effective. What for present purposes s. 13 (2) does is to make it clear that it does not. And there is nothing in the section, or elsewhere in the Act, that expressly, or by necessary implication, casts a duty on the Crown to accept a resignation within any period of time. (at p607)

6. The statement of claim asserts that the plaintiff, an officer of the Permanent Naval Forces of the Commonwealth, submitted a resignation of his commission to the Governor-General on 13th June 1963: that on 23rd July 1963 he was notified that the Governor-General had refused to accept his resignation, but that he could if he desired re-submit it in December 1964: that on 5th September 1963 he again submitted the resignation: that he was notified (presumably by authority) that it would not be then referred to the Governor-General but that it could be re-submitted in December 1964. On the basis of these averments the plaintiff claims a declaration that he was entitled to have the resignation of his commission accepted by the Governor-General unconditionally, such resignation to take effect within a reasonable time not being later than 13th September 1963. The statement of claim does not suggest that the resignation tendered on 13th June 1963 had not been considered or was to be indefinitely and unconditionally refused. On the contrary it appears that further consideration would, if the plaintiff wished it, be given to his request in December 1964. Nor does the statement of claim suggest that between 23rd July 1963 and 5th September 1963 anything occurred which could require that the Governor-General-in-Council should be invited to reconsider then the decision already made. The two eighteenth century cases brought by officers of the East India Company against Lord Clive were again referred to. Had the statement of claim alleged that the Crown intended to hold the plaintiff indefinitely in its service, never to release him, and that it had refused absolutely and finally to consider his resignation at any time - then it may be that on the basis of some of the remarks in those cases and in Reg. v. Cuming (1887) 19 QBD 13 this Court could entertain a claim for some relief. But those are not the facts. And I do not wish to be taken as agreeing that what was said by Lord Mansfield and others in the two early cases has any close bearing on this case. The code and conditions governing service in the armies of the East India Company two hundred years ago and those governing the Royal Australian Navy to-day differ greatly. Differing histories, laws and customs have made direct comparisons between the positions of officers in the navy and the army of limited value. The system of purchase and the practices concerning resignations that it involved which were recognized in the army never applied to the navy or the marines, although there interest and influence led to irregularities; and occasionally corrupt bargains reached the Courts, as in Morris v. McCullock [1763] EngR 68; (1763) Amb 432 (27 ER 289) and Symonds v Gibson [1693] EngR 10; (1693) 2 Vern 308 (23 ER 800) Moreover the substantial differences in the working of the half-pay systems in the two services and the very nature of the service of a sea officer while in a ship in commission led to differences in the position of officers in the two services in peace-time. There is nothing of which I am aware in the background of the Naval Defence Act or in the Act itself which would support the plaintiff's claim on the facts alleged. I would allow the demurrer. (at p608)

OWEN J. This demurrer raises a question somewhat similar to that which arose in Marks v. The Commonwealth [1964] HCA 45; (1964) 111 CLR 549 which was argued a few days earlier. In Marks' Case [1964] HCA 45; (1964) 111 CLR 549 we had to consider s. 17 (1) of the Defence Act 1903-1956 and whether under it an officer holding a commission in the Military Forces of the Commonwealth could, by tendering his resignation, put an end to his obligation to serve or whether an acceptance by the Governor-General of the resignation so tendered was necessary to make it effective. In the present case we are concerned with s. 13 of the Naval Defence Act 1910-1952 which provides, by sub-s. (1), that "Except in time of war, an officer may by writing under his hand resign his commission at the expiration of any time not being less than three months from the date of the receipt of the resignation". By sub-s. (2), the resignation is not to have effect until it has been accepted by the Governor-General, and under sub-s. (3), "the Governor-General may, for special reasons, accept any resignation at any time after the receipt thereof". Other relevant provisions of the Act are s. 8 (a) which empowers the Governor-General to appoint officers of the Naval Forces and issue commissions to them; s. 10 which provides that the appointment of an officer shall not create a civil contract between the King or the Commonwealth and the officer; s. 12 under which appointments are held during the pleasure of the Governor-General; and s. 17 which provides that the ages for the compulsory retirement of officers shall be as prescribed, which means as prescribed by Regulations made under the Act. (at p608)

2. In my judgment in Marks' Case [1964] HCA 45; (1964) 111 CLR 549 I have expressed the opinion that at common law an officer holding a commission in the Armed Forces of the Crown could not by his own act effectively terminate his obligation to serve. If that view is correct, as I think it is, s. 13 (2) of the Naval Defence Act puts into statutory form what was the common law and makes it plain that s. 13 creates no right in an officer lawfully to terminate his appointment by his own unilateral act or to insist that the Governor-General shall accept a resignation tendered under s. 13 (1). (at p609)

3. In my opinion, the demurrer should be upheld. (at p609)

ORDER

Demurrer allowed.

Judgment in the action for the defendant.