McVicar v Commissioner for Railways (NSW) [1951] HCA 50

McVicar v Commissioner for Railways (NSW) [1951] HCA 50

The appeal failed because ss. 70 (1) and 78 made the appellant's railway employment determinable at the Commissioner's pleasure and conferred power to remove him. The Act disclosed no definite limitation making the Commissioner's right to dismiss depend on the motives or reasons for dismissal, and the evidence did not establish that the Commissioner had surrendered his judgment and become a mere automation of government direction. Section 104 did not assist because no Act of Parliament was shown to confer a civil right to remain only in the appellant's union or to refuse to join another. The appellant therefore had no right enabling him to recover for wrongful dismissal because he would...

Jurisdiction
Australia
Procedural Posture
Wrongful Dismissal / High Court Appeal From an Order of the Supreme Court of New South Wales Dismissing an Application to Set Aside a Directed Verdict for the Defendant and Order a New Trial
Outcome
Appeal dismissed with costs.
Legal Topics
['wrongful Dismissal' 'employment at Pleasure' 'removal of Railway Officer' 'ultra Vires' 'union Membership Requirement' 'statutory Corporation Sole']
['employment Law' 'administrative Law' 'statutory Interpretation'] ['wrongful Dismissal' 'employment at Pleasure' 'removal of Railway Officer' 'ultra Vires' 'union Membership Requirement' 'statutory Corporation Sole']

Case Brief

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Procedural Posture

Wrongful Dismissal / High Court Appeal From an Order of the Supreme Court of New South Wales Dismissing an Application to Set Aside a Directed Verdict for the Defendant and Order a New Trial

Legal Issues

  1. 1 ['Whether the Commissioner for Railways could lawfully remove an officer who held office during pleasure because he refused to become a financial member of an industrial union recognized by the State Industrial Court or the Commonwealth Arbitration Court.' "Whether the Commissioner's reasons or motives for removing the appellant could make the removal ultra vires and support an action for wrongful dismissal." 'Whether the Commissioner acted on his own discretion or merely under the direction of the government.' 'Whether s. 104 of the Government Railways Act 1912-1950 precluded the Commissioner from using the right to dismiss to force the appellant to join another union.']

Ratio Decidendi

The appeal failed because ss. 70 (1) and 78 made the appellant's railway employment determinable at the Commissioner's pleasure and conferred power to remove him. The Act disclosed no definite limitation making the Commissioner's right to dismiss depend on the motives or reasons for dismissal, and the evidence did not establish that the Commissioner had surrendered his judgment and become a mere automation of government direction. Section 104 did not assist because no Act of Parliament was shown to confer a civil right to remain only in the appellant's union or to refuse to join another. The appellant therefore had no right enabling him to recover for wrongful dismissal because he would...

Court Disposition

Appeal dismissed with costs.

Orders

  • ['Appeal dismissed with costs.']