Ferguson v Commonwealth [1938] HCA 55

516 HIGH COURT

[HIGH COURT OF AUSTRALIA

FERGUSON. 4. 1.5 iat

THE .OOMMON WIAD ccs a, ete aes

H.C. or A. Public Service (Oth.)—Transferred department—Rights preserved to office 1938, "non-classified officer" —Person on provisional and temporary list— Ww from Public Service—The Constitution (63 & 64 Vict. c. 12). sec. 8

ApzLare, wealth Public Service Act 1922 (No. 21 of 1922), sec. 45—Civil Service A

Oct. 3, 45 (8.4.) (37 & 38 Vict. No. 3), secs. 3, 7, 15, Part VII.—Civil Service ment Act 1881 (S.A.) (No. 231), secs. 1, 4—Civil Service Further At

Mernouryg, Nov. 3 Act 1890 (S.A.) (No. 483), sec. 2. Latham 03. The Civil Service Act 1874 (S.A.) provided that the Civil Service ante pixom: of six classes and of non-classified officers. Sec. 15 of the Act pro ws. persons who had been in the provisional and temporary employm

Government for a period of five years continuously at the time of the of the Act or who should be and remain for the like period in the employment of the Government should be non-classified officers. a proviso that the provisions of the Act, unless when otherwise exp mentioned, should not apply to non-classified officers. See. 3 pro nothing in the Act should apply to any person temporarily emplo service of the Government. Part VII. of the Act related to re dismissal from office and in effect gave classified officers a life tenure, to certain exceptions. Sec. 1 of the Civil Service Amendment Act 1881 sec. 15 of the Act of 1874. Sec. 4 of this later Act provided that e in the Civil Service, on being removed from, or on being permitted office, should be paid what, in effect, was a retiring allowance. Sec. 2 of the Service Further Amendment Act 1890 provided that Part VII. of the should apply to all non-classified officers who might be entitled to allowance on retirement.

F. entered the Civil Service of South Australia on Ist March 1881. then until 28th February 1883 and from Ist May 1888 until 31st Aug he was a classified officer. During most of the period between Ist

OLB.) OF AUSTRALIA.

though there were some breaks in his service. At times during that period he was on the provisional and temporary list, and at other times he worked odd days and half-days, for which he was paid at a daily rate; there were also times as to which there, was no evidence of his classification. When F. again became a classified officer on Ist May 1888, he was in the Customs Department. On Ist September 1891 he was placed on the provisional and temporary list, and he remained on that list in the Customs Department until lst January 1901. The Customs Department was then transferred to the Commonwealth Government, and F. entered the Commonwealth Public Ser- vice. He remained in that Service continuously until he was retired under the Commonwealth Public Service Act upon reaching the age for retirement. He claimed that, by reason of sec. 4 of the Act of 1881 and sec. 2 of the Act of 1890, he was a non-classified officer who was entitled to claim an allowance on retirement and that, therefore, by virtue of sec. 84 of the Constitution and sec. 45 of the Commonwealth Public Service Act 1922, his retirement from the Public Service of the Commonwealth was unlawful.

Held that the repeal of sec. 15 of the Act of 1874 closed the class of non- classified officers, that F. did not come within this class, that, though he was not. classified, he was not a "non-classified officer" within the meaning of sec. 2 of the Act of 1890, and that, therefore, his dismissal from the Commonwealth Public Service was not wrongful.

Case Srarep.

Effie May Ferguson (as universal legatee in equity of Arthur 'Hepburn Johnston Ferguson and assignee of the cause of action in ect of which the claim was brought) brought an action in the High Court against the Commonwealth of Australia. The plaintiff 'claimed that Arthur Hepburn Johnston Ferguson (hereinafter called "the deceased ") prior to the 1st January 1901 was a civil servant employed in the Customs Department of South Australia as a provisional and temporary officer under the provisions of the Civil jervice Act 1874 (S.A.) and by virtue of that Act was entitled to a tenure of his office subject to the provisions of the Act. It was ed that on Ist January 1901 the deceased was transferred to ie Commonwealth Public Service and became an officer in the ionwealth Customs Department, where he remained until the January 1925. It was alleged that the defendant then wrong-

fully dismissed the deceased, and damages were claimed in respect such dismissal.

i a

and 30th April 1888 he was employed by the South-Australian Government, H.C. or A,

1938, we Feravsox v.

THE. Common- WEALTH.

518 HIGH COURT

H.C.or A. A case (which was substantially as follows) was stated b ees parties for the opinion of the Full Court pursuant to Order X} Frrovson of the rules of court :— tee 1. Arthur Hepburn Johnston Ferguson, late of Seacliff in peg State of South Australia, deceased (hereinafter referred eo —— ___ deceased), was born on 6th January 1860. He died on 2nd Septer 1934. 7

2. The deceased entered the service of the South Austi Government in the Customs Department as a boarding offic

1st March 1881 and was placed upon the classified list as defin

the South-Australian Civil Service Acts.

in the Customs Department on the classified list.

4. On Ist February 1883 the deceased was transferred t South-Australian Treasury as a clerk on the classified list.

5. On 1st March 1884 the deceased was transferred to the De ment of Marine as a purser on the South-Australian Goverm steamship Palmerston. For the months of March 1885 and Fel 1886 he was on the provisional and temporary list, but no re have been discovered stating on what list he was during the rem of his service on the Palmerston. His name has not been found a search of the classified lists for the period of such service.

6. For the period from 2nd March 1886 to Ist July 1886 a break in the service of the deceased with the South-Au Government.

7. On 1st July 1886 the deceased became a surveyor's a in the Water Conservation Branch of the South-Australian Gov ment and continued in that office until 30th September 1886.

8. For the period from Ist October 1886 to 31st December there was another break in the deceased's service with the Australian Government.

9. On Ist January 1887 the deceased was again emplo the Department of Marine as chief officer on the South-Aust Government steamship Governor Musgrave. This position he until 1st July 1887. '

10. For the period between Ist July 1887 and 1st May 188 deceased was employed as a glut officer in the Customs Depart

C.L.R.] OF AUSTRALIA.

employed on the following dates :—

1887—

Aug. 25/27

Sept. 2, 8/12, 16, 19, 26/28

© Oct. 1, 2, 7, 11, 15/18, 21, 27/29 Half-days Nov. 3/5, 7, 8, 10/12, 14/18, 21, 24/29 employed in Dee. 1/3, 10, 12, 16/17, 20, 29/31 a number 1888— of cases.

* Jan. 3/7, 9, 14, 16/20, 24, 27

Feb. 1/2, 6/8, 10, 13, 15/18, 20/21, 23

March 3/10, 12/17, 19/24, 26/29

April 1/7, 9/14, 18/21, 23/8, 30 J

11. On Ist May 1888 the deceased was again placed upon the classified list in the Customs Department, and, subject to the next ceeding paragraph, his service with the South-Australian Govern- was thereafter uninterrupted until his transfer to the Common- wealth Public Service as hereinafter mentioned. He held succes- 'sively the positions of boarding officer, locker officer and watchman.

12. On 1st September 1891 the deceased, being still employed

riod he received an annual salary and enjoyed recreation leave. 13, In relation to the periods referred to in pars. 6, 8 and 10

d was not on the salary list of the South-Australian Govern- it. No information is available as to the nature of the breaks 'inhis service, nor as to the reasons therefor, the departmental records ing been destroyed. 14. On Ist January 1901 the Customs Department was transferred to the Commonwealth Government and the deceased entered the monwealth Public Service. 15. The deceased remained continuously in the Public Service of the Commonwealth until 5th January 1925, when he was retired der and in accordance with the provisions of the Commonwealth Public Service Act upon reaching the maximum age for retirement <ty-five years) specified therein, At the time of his retirement e deceased was receiving a salary of £399 per annum.

ing paid a daily wage for the time actually worked. He was so §. ©. oF A.

1938, Ww

FErcuson

v THE

Common- WEALTH.

H.C. or A.

1938, we

Frrcuson v TuE ComMon- WEALTH.

HIGH COURT

16. On 5th August 1891 a resolution was passed in the of Assembly of the State of South Australia as follows :—" return be laid upon the table of the House showing 1. The n of persons in the Public Service entitled to retiring allow

of Assembly and ordered to be printed on 25th September Such return contains the following reference to the deceased + ParTICULARS RE RETIRING ALLOWANCES.

Position Compensation

on 31st due on Interest to Name. December 31st December 30th June Tota 1881. 1881. 1894. Ferguson _— Boarding £6 16 10 £3 9 5 £10 A. H. J. Officer Customs

ences of fact necessary for deciding the question submitted, and reject any facts which the court shall deem to be irrelevant. The question submitted for the opinion of the court was : Whether the retirement of the deceased from the Commonwealtl Public Service on 5th January 1925 was wrongful, ent

the deceased to damages in respect thereof. 4

At the hearing, by consent, a Blue Book published in 1900 ¥ put in evidence. This stated that the deceased's " present appoil ment " began on Ist September 1891 at a named salary and that service had not been continuous. His first appointment was recorded as being on Ist March 1881.

Ligertwood K.C. (with him E. Milhouse), for the plaintiff. virtue of the decision in Le Leu v. The Commonwealth (1) an of in the South-Australian Civil Service who and whose depa are transferred to the Commonwealth Public Service is entitled

of the Civil Service Act 1874 (8.A.), provided that he comes that Part. Sec. 15 of that Act (which was later repealed by of the amending Act of 1881) provided for non-classified of

(1) (1921) 29 CLR. 305.

61 C.L.R.] OF AUSTRALIA. 521

. See, 4 of the amending Act of 1881 conferred on the deceased a right H: ©. or A. : to claim an allowance on retirement. Sec. 2 of the amending Act hatin

- of 1890 provided that Part VII. of the Act of 1874 should apply to Frrcusow all non-classified officers who might be entitled to claim an allowance Tue

_ onretirement. When the deceased was transferred to the Common- coer; _ wealth Public Service, he was on the provisional and temporary list = ——

_ in the South-Australian Civil Service. He was not a classified officer

but a non-classified officer. He was also entitled to claim an allow-

ance onretirement. He therefore came within sec. 2 of the amending

Act of 1890, consequently within Part VII. of the Act of 1874, and,

as a further consequence, within the decision in Le Lew v. The

Commonwealth (1).

Mayo K.C. and Skipper (with them Brebner), for the defendant. The Civil Service Acts throughout create and maintain a distinction _ between "officers" (whether classified or non-classified) and

"persons" in the provisional and temporary employment of the

Government. On each break in the deceased's service with the _ State there was a determination of the existing contract, and every

change in the terms of the contract constituted a new contract (Meek

y. Port of London Authority (2) ). Thus, when the department was

taken over by the Commonwealth, the deceased was merely a

provisional and temporary " person." He was a non-classified officer

within the meaning of sec. 2 of the Act of 1890. Sec. 4 of the Act of 1881 applied only to "officers" in the Civil Service. If the - deceased had any right to a retiring allowance, his retirement which _ occurred on the first break in his service (prior to the Act of 1890)

cancelled his right. Sec. 2 of the Act of 1890 did not relate to a _ tetirement that had already occurred. That section related to non-classified officers who were entitled to claim an allowance as non-classified officers. The deceased's right (if any) to such allow- _ ance came to him as a classified officer, because he was a classified { officer when the 1881 Act came into operation. The effect of the - Tepeal of sec. 15 of the Act of 1874 by sec. 1 of the Act of 1881 was ~ to close the class of non-classified officers. In any case sec. 4 of the

:

{ (1) (1921) 29 C.L.R. 305. (2) (1918) 1 Ch. 415,

] Vou. LxI. 35

.

522 HIGH COURT

H.C. or A. Act of 1881 conferred on the deceased no right to a retiring a 04 ance, because there was no machinery unless he had had Feravsox years' service (which he had not had) : See Clark Tait & Co. v. Fed Tue Commissioner of Land Tax (1); Greenwood v. Joseph Nall & Commox- T4q. (2), The particulars in pars. 16 and 17 of the case = are inadmissible ; alternatively, if admissible against the Sta are not admissible against the Commonwealth. An admission 1 be binding on the Crown if made by an agent acting in the of his employment (Irish Society v. Bishop (3)). It can become evidence by virtue of an agency which did not and not exist at the time when the alleged admissions were made, 1 claim is out of time either (a) by reason of secs. 56 and 64 of t Judiciary Act 1903-1937, (b) by virtue of secs. 79 and 80 of t same Act, or (c) on general principles as to the right of a defen in an action for breach of contract. As to the first of these tl grounds, see The Commonwealth v. Baume (4); The Commo v. Miller (5). Sec. 64 relates to procedural rights (Griffin v. So Australia (6) ; Jamieson v. Downie (7) ). The right to rely on statute is a procedural right (Halsbury's Laws of England, 2nd | vol. 6, p. 355; Ruckmaboye v. Lulloobhoy Mottichund (8); B man v. Blunt (9); Campbell v. Haverhill (10); Andreae v. Redf (11); Federated Store Mill Association v. Alexander (12) ). On second ground, secs. 79 and 80 of the Judiciary Act apply g Lady Carrington Steamship Co. Ltd. v. The Commonwealth (1 Cohen v. Cohen (14); Musgrave v. The Commonwealth (15); 1 Constitution, sec. 71. (Drxon J. referred to sec. 86 (h) of the Judiciary Act.} As to the third ground, this is a claim under a simple contr (Lucy v. The Commonwealth (16) ; Gutsell v. Reeve (17) ). The ©

(1) (1929) 43 CLR. 1. (10) (1895) 155 U.S. 610; 39 (2) (1917) A.C. 1. (3) (1846) 12 CL & Fin. 641,atp.657; (11) dst 98 U.S. 225; 24 8 E.R. 1561, at p. 1568. (4) (1905) 2 C.LR. 405. (12) (sia 15 C.L.R. 308, at p (5) (1910) 10 C.L.R. 742. Y (6) (1924) 35 CL.R. 200, at pp. 204, (13) (a8) 29 C.L.R. 596, at p. 60 208. (14) (1929) 42 C.L.R. 91, at p. (7) (1923) A.C. 691. (15) (1937) 67 LR. 514. (8) (1853) 8 Moo. P.C.C. 4. (16) (1923) 33 C.L.R. 229, at (9) (1893) 147 U.S. 647; 37 Law. Ed. 253. 316. (17) (1936) 1 K.B, 272.

61 CLR] OF AUSTRALIA. 523 can take advantage of a Statute of Limitations (In re Mason (1); 4-0: or A. In re Blake (2) ). The statute has been relied on by the Crown ees; (Attorney-General v. Tomline (3); Rustomjee v. The Queen (4); Faxausox | Fisher v. The Queen (5); Cayzer, Irvine & Oo. Ltd. v. Board of Tux Trade (6); Board of Trade v. Cayzer, Irvine & Co. Ltd. (7); RB. v. Geile

WEALTH.

Kidman (8); R. v. Morrall (9) ). —_—

Ligertwood K.C., in reply. The Act draws a distinction between temporary officers and provisional and temporary officers. The latter are officers, because they hold offices, and are all non-classified officers. The effect of the repeal of sec. 15 of the Act of 1874 was to delete the reference thereto from the second schedule to that Act. 'The class of non-classified officers was not closed. As to the point that the action is out of time, this action is founded, not on simple contract, but on specialty (Limitation of Actions Act 1936 (S.A.), sec. 34; Pratt v. Cook Son & Co. (10) ).

Cur. adv. vult.

The following written judgments were delivered :— oy. 8. Latuam 0.J. This is a special case stated under Order XXXII., - tule 1, of the rules of the court upon which a decision is sought as _ to whether the retirement of the late A. H. J. Ferguson from the : Public Service of the Commonwealth on 5th January 1925 was d wrongful so as to entitle the deceased to damages.

The deceased was appointed to the Civil Service of South Australia, _ and, in order to ascertain his rights, it is necessary to consider his history in the Service and the provisions of several Acts dealing with the Civil Service. In Le Leu v. The Commonwealth (11) it was _ decided that under the Civil Service Act 1874 (S.A.), and the Civil Service Amendment Act 1881, age, apart from incapacity, was not _ 4 ground for removal of an officer, and that accordingly an officer could not be lawfully retired from office on the ground alone that

: ; ' : : a

(1) (1929) 1 Ch. 1. (6) (1927) 1 K.B. 269. (2) (1932) 1 Ch. 54, (7) (1927) A.C. 610. (8) (1877) 5 Ch. D. 750; (1880) 15 (8) (1915) 20 C.L.R. 425. _ . Ch. D. 150. (9) (1818) 6 Price 24; 146 E.R. 730. (4) (1876) 1 Q.B.D. 487. (10) (1938) 1 All B.R. 555,

(5) (2000) 26 VLR. 460; 22 A.L.T, (11) (1921) 29 CLR. 30

H.C. or A. 1938, Frrcuson

Tae Common- WEALTH.

Latham ©.5,

HIGH COURT

he had attained a certain age. It was also held that the righ retain office under the terms of the South-Australian statutes a tight which, by virtue of sec. 84 of the Constitution and of provisions of the Commonwealth Public Service Act, was ret

by and preserved to an officer who was transferred to the Sen of the Commonwealth. This right was held to depend upon provisions of Part VII. of the Civil Service Act 1874. If P did not apply to a particular officer, he did not have a life te his office by virtue of any other provisions of the relevant s If the right mentioned is infringed, the officer has a right of a for damages for wrongful dismissal (Lucy v. The Commonwealth | Ferguson was dismissed because he reached the age of sixty-five y If Part VII. of the 1874 Act applied to him, his dismissal was If Part VII. did not apply to him, he was rightfully di will be convenient, in the first place, to state the relevant p of Ferguson's career in the Public Service.

On 1st March 1881 he was appointed to the Customs Dep of South Australia and became what the Act describes as a cla officer. He held a position as a classified officer until Ist M 1884, when he was appointed purser on a government steamshi

The records show that in the months of March 1885 and Febru 1886 he was on the provisional and temporary list of officers. is no evidence to show that he was a classified officer duri period between Ist March 1884 and 2nd March 1886, alth was employed by the Government during that period. March 1886 to 1st July 1886 there was a break in his service, th to say, there is no evidence that he was in the employment Government during this period.

On 1st July 1886 he was appointed as a surveyor's assistan the Water Conservation Branch, and he continued in that | until 30th September 1886. 3

There was another break in his service from 1st October 88 31st December 1886.

On Ist January 1887 he was appointed chief officer on anot government steamship, and he held this position until 1st July} From 1st July 1887 to 1st May 1888 he was employed for occ

(1) (1923) 33 C.L.R, 229,

C.L.R.] OF AUSTRALIA.

days and half-days in the Customs Department. He received a daily wage for the time actually worked.

On Ist May 1888 he again became a classified officer and served in the Customs Department of South Australia.

On Ist September 1891 he was placed on the provisional and temporary list, and he remained on that list until Ist January 1901, when he was transferred to the Public Service of the Commonwealth. At various times from 1891 to 1901 he received recreation leave for _ periods of fourteen days.

A return presented to the House of Assembly dated 20th September _ 1894 included the name of Ferguson as an officer on what is called - in the return the fixed lists, and stated that he was entitled to com- ! pensation by way of retiring allowance.

; By agreement of the parties a Blue Book published in 1900 was put in evidence. This stated that Ferguson's " present appoint- ment" began on Ist September 1891 at a named salary and that his

«

service had not been continuous. This appointment was evidently the appointment on the provisional and temporary list. His first appointment is recorded as being on Ist March 1881. The plaintiff's case is that on Ist January 1901, when Ferguson was transferred to the Public Service of the Commonwealth, he was - entitled to a life tenure of his office because Part VII. of the Civil Service Act 1874 applied to him. He was, on the date mentioned, an officer on the provisional and temporary list of the South Aus- - tralian Civil Service. Such officers admittedly were not officers to whom Part VII. of the 1874 Act originally applied. Part VII. - applied to classified officers, and by an amending Act (No. 483 of 1890) it was provided in sec. 2 that Part VII. of the 1874 Act should i. to "all non-classified officers who may be entitled to claim an allowance on retirement." Plainly Ferguson was not a classified i officer, but the plaintiff contends that he was on Ist January 1901 4 non-classified officer entitled to claim an allowance on retirement. I propose, therefore, to examine the question whether the plaintiff 'Was a non-classified officer on the relevant date. If the answer to this question is in the negative, it will not be necessary to consider whether he was entitled to a retiring allowance.

ee eee

Te S tae

H.C. of A.

1938, we Frrcuson v.

Tae ComMon- WEALTH.

Latham C.J.

H.C. or A.

1938. —_

Frrevson v THE Common- WEALTH.

Latham 0.

HIGH COURT

The 1874 Act recognizes the following four groups of emp in the service of the Government: (1) The professional di (sec. 5); (2) the ordinary division (sec. 6); (3) non ssi officers, being the officers mentioned in the second schedule (sec, 7 (4) persons temporarily employed in the service of the Governme (sec. 3). The professional and ordinary divisions were divided six classes. The non-classified officers mentioned in the schedule were " non-classified officers as defined in sec. 15 of Act."

Sec. 15 was as follows :—'' Persons who have been in the pro and temporary employment of the Government for a period of years continuously at the time of the passing of this Act, or wl shall be and remain for the like period in the temporary employ of the Government, and whether remunerated by daily or wages or salary, shall be non-classified officers of the Civil and rank in the second schedule hereto. Every non-c officer shall be eligible for promotion to that class of the fixed lishment, whether in the professional or ordinary division, to whiel his salary, if calculated by the year, would entitle him if he w classified officer: Provided that the provisions of this Act, u when otherwise expressly mentioned, shall not apply to non-cla officers." Thus five-years' service was required in order to a person employed by the Government to rank as a non-clas officer.

Sec. 3 of the 1874 Act provided that nothing in the Act sh apply to any person temporarily employed in the service of Government. Therefore Part VII., conferring a life tenure, did n apply to persons temporarily employed. Under the 1874 Part VII. did not apply to non-classified officers, because see. I provided that the provisions of the Act, unless when of! expressly mentioned, should not apply to non-classified and there was no provision applying Part VII. to such offie But Part IX. of the Act, providing for allowances on retireme death, did apply to non-classified officers (sec. 35).

By Act No. 231 of 1881, sec. 15 of the 1874 Act was repe

that status.

61C.LB.] OF AUSTRALIA.

_ At the time when the Act was passed the plaintiff was a classified 4 officer and possessed all the rights conferred upon such officers by Part VII. of the Act. After a break in service in 1885 and 1886 j he was temporarily employed in 1887, but on Ist May 1888 he again became a classified officer. His rights on that date were those of a classified officer, and not those of a non-classified officer. On 1st September 1891 he ceased to be a classified officer and was placed on the provisional and temporary list, on which he remained till lst January 1901. Thus, on the last-mentioned date (which is the relevant date) he was not a classified officer and could not claim any tights under Part VII. as a classified officer. If he had been a non-classified officer on that date, he would, by virtue of the q provisions of sec. 2 of the 1890 Act, have been entitled to the rights ; conferred by Part VII. of the 1874 Act if he was such an officer : who was entitled to claim an allowance on retirement. But, if he - was not a non-classified officer, he could not acquire any rights under that section. He was not a non-classified officer, because the repeal by the 1881 Act of sec. 15 of the 1874 Act prevented any 'Persons from becoming non-classified officers after the date when the Act of 1881 came into operation. Thus, sec. 2 of the 1890 Act did not apply to him, and it therefore cannot be held that Part VII. of the 1874 Act applied in his case. For the reasons given, the plaintiff was not a non-classified officer ) on Ist January 1901, and it is therefore not necessary to consider

whether or not he was entitled to claim an allowance on retirement. The return made to the House of Assembly and the Blue Book tepresent that he was entitled to a retiring allowance. If it had been necessary to consider this matter, the question would have _ arisen whether a statement contained in such a return or Blue Book is to be regarded as an admission binding the Crown. Upon the view which I have taken, however, this question does not arise.

It was contended on behalf of the defendant that the plaintiff's claim was a claim upon a simple contract and that it was barred by a statute of limitations, either 21 James I. c. 16 or the Limitation of Actions Act 1936 (S.A.), sec. 34. The opposing contention was 'that the claim was founded upon a statute. An interesting argument was addressed to the court upon the question of the right of the

H.C. or A.

1938. Ww

Frrouson v% THE Common- WEALTH.

Latham ©.5,

528 HIGH COURT

H.C. or A. Commonwealth in a proceeding in the High Court to plead a § maa of Limitations. In the view which I have taken of the case

Ferevson not necessary to consider these questions.

Tae

Cosmoy- Ricu J. I agree that the plaintiff fails and the question in t WEALTH special case should be answered: " No." The deceased's career in the South-Australian Service include strange series of alterations of status. But, when he was transfert to the Commonwealth, he was, unfortunately for the plaintifi provisional and temporary officer. It would be curious if sue

officer had a life tenure. It is true enough that he was non-el but I am unable to agree in the contention that he was a classified officer within the meaning of the Act No. 483. I agr in the view that sec. 3 applies to officers forming part of the Service who fell under the second schedule of the Civil Service 1874 and under sec. 15 before its repeal. No doubt in 1890, x h No. 483 was passed, there were some officers of that deseriptio still in the Service.

Drxon J. It appears from the provisions of the Civil Service 1874 (S.A.) that at the time when that Act was passed a distin existed between officers in the Civil Service and persons in the ten porary and provisional employment of the Government (sec. 15) The distinction was maintained. The statute provided that nothit it contained should apply to any person temporarily employe the service of the Government (sec. 3). At the same time a prov was included for bringing into the Service persons who at the tin of the enactment had been for five years continuously in the p visional and temporary employment of the Government and pet who should in the future remain for that period in such employm (sec. 15). They were to be brought in as non-classified offi The Service was organized in six classes, but, by secs. 7 and 15 a1 the second schedule of the Act, provisional and temporary employe of five-years' standing were constituted non-classified officers. other persons fell under the description of non-classified offi The schedule confined the description to persons coming un sec. 15. That section was qualified by a proviso which prevented classified officers, although members of the Civil Service, obtaiml

CLR] OF AUSTRALIA.

the Act should not apply to them unless where otherwise expressly

1 entioned. Part VII. of the Act contained no such express mention non-classified officers and, therefore, did not apply to them. It is this Part which, according to Le Lew v. The Commonwealth (1), r yperated to give classified officers a title to retain office in the Civil Service for life, unless in the meantime retired for incapacity, miscon- ict, or the like. Part IX. of the Act, which contained a provision

r compensation on retirement, did apply, because by sec. 35 it was expressly so provided ; and no doubt sec. 4 of the Civil Service Amendment Act 1881, which replaced the provision for such compen- i tion, also applied. But the Act of 1881 repealed sec. 15 of the former Act. It did not repeal sec. 7 and the second schedule, which in terms described non-classified officers as " non-classified officers as defined in clause 15 of this Act." The result was, I think, that non classified officers" continued to exist as a description of officers "forming part of the Civil Service, but, as sec. 15 was repealed, no more 'members could join their ranks. In 1890, by Act No. 483, sec. 2, was provided that Part VII. of the Civil Service Act 1874 should pply to all non-classified officers who might be entitled to claim an allowance on retirement. It is suggested that in this provision the expression "non-classified officer" extended to all persons who could be described as officers and who were not classified and, further, that persons on the provisional and temporary list fell within this description. Nine years had passed since the class of non-classified officers under the second schedule of the Act of 1874 ped been closed, and it is, of course, possible that the expression had become merely descriptive of persons who were employed as part rc the service of the Crown in the Province and were not classified. But this, I think, we cannot assume. Unless it appeared from public documents that in the meantime the description "non- ied officer " had come to bear a wider or different meaning, we take it to refer to the class so denominated and defined by the 'Prior legislation. Our attention has not been called to any public documents or other source of information from which such an ension or change of meaning should be inferred, and there is no

(1) (1921) 29 C.L.R. 305,

full the status of classified officers. It provided that the provisions H- ©. or A.

1938, ad Frravsox v. THE Common- WEALTH.

Dixon J.

H.C. or A.

1938, Ww

Fereuson v THE Common- WEALTH.

Dixon J.

HIGH COURT

reason to suppose that any exists. I, therefore, read the express "non-classified officers" in sec. 3 of the Act of 1890 (No. 483}

survived and remained unclassified. We ought not, I interpret the expression as including persons who in 1890 or wards were in the employment of the Government upon the pr visional and temporary list. Accordingly, such persons did 1 obtain a title to be retained in the service of the Crown until dea or until removal or retirement for incapacity, misconduct or otl specific cause expressly allowed by the Civil Service Acts.

The officer to whom the special case relates was on the provisiol and temporary list in the Customs Department of South Austral at the establishment of the Commonwealth, when that depa was transferred to the Commonwealth. He was retired fro1 Public Service of the Commonwealth on attaining the age of five, and it is claimed that his retirement was wrongful because, as transferred officer, he preserved, under sec. 84 of the Constitutio all his existing and accruing rights and, so it is said, he was » liable, under the law of South Australia, to removal or retiremet from office on the ground of age.

His career as an employee of the Government of South Aus had been a long but a peculiar one. For a little less than ten before his transfer to the Commonwealth he had been on the pro visional and temporary list. He was placed upon that list on I September 1891. But for over two years before he went onto h provisional and temporary list he had been upon the classifie in the Customs Department, to which he was appointed on Ist 1888. That was not the first time he had been upon the el list. He had entered the service of the Government on Ist 1881 and remained a classified officer in the Customs De;

period he was at best a provisional and temporary employee, som times being employed at a daily wage for broken periods and ev

C.L.R.J OF AUSTRALIA.

n 3lst December 1881, as from when, under the Act of 1881,

eated as having at that date a right to compensation under sec. 4 of that Act. In a return called for in Parliament and made in

is "appointment under the Colonial Government," stating in a e that his service was not continuous.

Upon these facts the plaintifi's claim is that the transferred officer fell within sec. 2 of the Act of 1890 (No. 483) as a non-classified officer entitled to claim an allowance on retirement and so as one to whom Part VII. of the Civil Service Act 1874 applied in virtue of that section.

_ Upon the interpretation I have given of sec. 2 of the Act of 1890 (No. 483) this claim cannot be sustained, because the officer in ques- tion was not a non-classified officer within the meaning of that expression. If he had remained a classified officer instead of going onto the provisional and temporary list on 1st September 1891, he would have been entitled to the benefits of Part VII. of the Act of 1874, which, of course, applied to all classified officers. The circum- 'stances in which he went onto that list do not appear. It is said that the purpose usually actuating such a course at that time was

escape the rigid graduations of salary for the six classes of officers. it, Whatever the purpose, we must regard the officer as having then ed to be a classified officer and as having become a person in provisional and temporary employment of the Government. uch a person was not entitled to hold office until death, subject ly to retirement or removal on the ground of incapacity, miscon- or other specified cause expressly assigned by the Act. He, erefore, had no right inconsistent with retirement on the ground age.

_ Inmy opinion the question in the special case should be answered : "No."

i

ld days and half-days at a time. As he was on the classified list H- ©. oF 4.

1938. we

pensation or retiring allowance ceased to be calculated, he was Fravsow

v THE Common- WEALTH.

Dixon J.

H.C. or A. 1938, Ww

Frrcuson

v. THE Common- WEALTH.

HIGH COURT

McTiernan J. The South-Australian Customs Departm which the deceased was employed, was transferred to the Con wealth on Ist January 1901. The deceased was at the same transferred to the Commonwealth Customs Department. Upo transfer all his existing and accruing rights, whatever they 1 under the relevant South-Australian Civil Service Acts were pres by sec. 84 of the Commonwealth Constitution. The question arises is whether the Commonwealth infringed any such rig retiring him from its service on the ground that he had attai the age of sixty-five. In Le Lew v. The Commonwealth (1) it decided that Part VII. of the Civil Service Act 1874 (S.A.)_ confe a tenure which could not be terminated except upon a g specified in that Act. The attainment of a specified age is n of those grounds. It is claimed, on behalf of the deceased, at the time of his transfer to the Commonwealth service, entitled to the tenure assured by Part VII. of the above- statute. It appears from the special case that he was then on | provisional and temporary list, as defined by the South-Aus Civil Service Acts, and had been on that list since 1st Se 1891. Since that date he had been continuously in the Department of South Australia. The special case gives the histo of his career in the service of the South-Australian Governm prior to Ist September 1891. But the rights which were by sec. 84 were those rights, if any, which were annexed to his stat as a person whose name stood on the South-Australian Governme provisional and temporary list of employees. The contention th one of those rights was to enjoy the tenure conferred by Part of the Civil Service Act 1874 is based on sec. 2 of the Civil 8 Act 1890, which provides that the provisions of Part VII. shall apj to all non-classified officers who fulfil the qualification mention in sec. 2. The first inquiry is whether the deceased was a non-cla fied officer. It may be observed that, if a person provisionally temporarily employed has become entitled to the security of which Part VII. gave to officers in the Service, the nexus be the Government of South Australia and its provisional and tempo employees must have assumed a peculiar character.

(1) (1921) 29 C.L.R. 305.

CLR.) OF AUSTRALIA.

porarily employed in the service of the Government were luded by sec. 3 of the Civil Service Act 1874 from the operation {that Act. It provided that the Service should consist of six classes \d non-classified officers. By sec. 15 it was provided that persons who had been in the provisional and temporary service of the Govern- ment for a prescribed period or who should remain for the like period ths Government should have the rank of non-classified officers of

e Service. This provision was repealed by the Civil Service Act of 1881. Provisional and temporary employment was not abolished, it after the repeal of sec. 15 the condition of provisional and tem- porary employment could not ripen into the status of non-classified officer. It would appear that those persons in whose case this change of status had been worked by sec. 15, before it was repealed, were the object of the legislature's attention when it enacted sec. 2 of the Civil Service Act 1890. It clearly appears that the Civil Service Acts did not recognize any identity between the description, -anon-classified officer, and the description, a person in the provisional and temporary service of the Government. _ There is, in my opinion, no sound ground for holding that the deceased, who, in fact, was at the date of his transfer to the service of the Commonwealth ranked as a person in the provisional and temporary service of the Government, had any title to the status "of a non-classified officer. It follows that the assumption is wrong that his tenure as a servant of the Government of South Australia "was, at the date of his transfer to the Commonwealth Government : service, protected by Part VII. of the Civil Service Act 1874. In

'mny opinion, the question in the special case should be answered : &No" © Xo.

Question in case answered: No.

Solicitors for the defendant, H. F. E. Whitlam, Commonwealth Crown Solicitor, by Fisher, Jeffries, Brebner & Taylor.

:

, Solicitors for the plaintiff, Baker, McHwin, Ligertwood & Millhouse. i C.B ;:

H.C. or A.

1938. =) Frreuson v

THE Common- WEALTH,

MeTiernan J.