Cosway v Commonwealth [1942] HCA 10

Cosway v Commonwealth [1942] HCA 10

The plaintiff had no right of action under section 84 of the Constitution, section 60 of the Commonwealth Public Service Act 1902-1918, or section 45 of the Commonwealth Public Service Act 1922-1939 because his appointment to the Commonwealth Service was not by transfer but by resignation and reappointment; and...

Source-derived case information.

Parties
Plaintiff: Thomas Mark Cosway; Defendant: The Commonwealth of Australia
Jurisdiction
Australia
Procedural Posture
Action / Judgment
Outcome
action dismissed with costs
Legal Topics
Transfer of Public Employees, Acquisition of State Undertaking, Rights of Transferred Public Servants, Statutory Interpretation
Constitutional Law Public Service Law Transfer of Public Employees Acquisition of State Undertaking Rights of Transferred Public Servants Statutory Interpretation

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Summary, issues, holding and outcome

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Parties

Thomas Mark Cosway

Plaintiff

The Commonwealth of Australia

Defendant

Procedural Posture

Action / Judgment

Legal Issues

  1. 1 Whether the plaintiff’s rights as a former State public servant were impaired by reduction in his status and remuneration after employment by the Commonwealth and subsequent transfer to another position.
  2. 2 Whether section 84 of the Constitution or sections 60 and 61 of the Commonwealth Public Service Act 1902-1918 or section 45 of the Commonwealth Public Service Act 1922-1939 confer rights enforceable by the plaintiff.

Ratio Decidendi

The plaintiff had no right of action under section 84 of the Constitution, section 60 of the Commonwealth Public Service Act 1902-1918, or section 45 of the Commonwealth Public Service Act 1922-1939 because his appointment to the Commonwealth Service was not by transfer but by resignation and reappointment; and there was no evidence of a binding agreement conferring relevant rights.

Court Disposition

action dismissed with costs

Orders

  • Action dismissed with costs.