Cross v Commonwealth [1921] HCA 9

Cross v Commonwealth [1921] HCA 9

The officer was sufficiently notified and afforded an opportunity to show cause as required by sec. 16. The provisions for notice and opportunity are directory, not mandatory, and a failure to observe them does not invalidate a cancellation or found an action for damages.

Parties
Plaintiff: Algernon Reginald Pegus Cross; Defendant: The Commonwealth
Jurisdiction
Australia
Judgment Date
30 March 1921
Procedural Posture
Action / Application to Dispose of Points of Law/demurrer to the Statement of Claim
Outcome
action dismissed with costs
Legal Topics
Cancellation of Military Commission, Procedural Fairness, Statutory Interpretation
Military Law Administrative Law Cancellation of Military Commission Procedural Fairness Statutory Interpretation

Case Brief

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Parties

Algernon Reginald Pegus Cross

Plaintiff

The Commonwealth

Defendant

Procedural Posture

Action / Application to Dispose of Points of Law/demurrer to the Statement of Claim

Legal Issues

  1. 1 Whether the notice to show cause under sec. 16 of the Defence Act 1903-1918 was sufficient
  2. 2 Whether the requirements introduced by 'but' in sec. 16 are mandatory or directory
  3. 3 Whether an action for damages exists for failure to observe sec. 16

Ratio Decidendi

The officer was sufficiently notified and afforded an opportunity to show cause as required by sec. 16. The provisions for notice and opportunity are directory, not mandatory, and a failure to observe them does not invalidate a cancellation or found an action for damages.

Court Disposition

action dismissed with costs

Orders

  • Action dismissed with costs.
  • Judgment for the defendant including costs of the application.