Coutts v Commonwealth
157 CLR 9159 ALR 699
(Judgment by: Dawson J)
Coutts
v Commonwealth
Judges:
Mason ACJ
Wilson J
Brennan J
Deane J
Dawson J
Subject References:
Defence
Constitutional Law
Administrative Law
Judgment date: 20 June 1985
Sydney
Judgment by:
Dawson J
Graeme Richard Coutts was an officer in the Royal Australian Air Force who was compulsorily retired upon medical grounds. He commenced an action in the Supreme Court of South Australia claiming declarations to the effect that the termination of his appointment was a nullity and claiming damages for wrongful dismissal. A point of law raised by the pleadings was heard as a preliminary issue by the Full Court of the Supreme Court of South Australia, which, by a majority, found that there was no cause of action and accordingly dismissed the claim. The matter comes before this Court by way of appeal by special leave. After this Court reserved its judgment, the plaintiff died and his widow, who was his executrix, was substituted for him as a party to the action.
It is, I think, important to appreciate how the point of law which falls for determination arose. It concerns two of the Air Force Regulations made under s 9 of the Air Force Act 1923 (Cth). The first is reg. 72, sub-reg. (1) of which provides:
"An officer shall hold his appointment during the pleasure of the Governor-General, but the commission of an officer shall not be cancelled except for cause and after he has had notice in writing of any complaint or charge made, and of any action proposed to be taken against him and has been given the opportunity of making such statement as he thinks fit regarding the cause."
The second is reg. 628, sub-reg. (1) of which provides:
"Where a member -
(a) is not in need of hospital treatment;
(b) is, in the opinion of the confirming medical authority, unfit for further service; and
(c) is capable at the time of engaging in civilian employment, the member shall be retired or discharged at the earliest possible date after the opinion of the confirming medical authority has been expressed."
In his statement of claim the plaintiff contended that the termination of his appointment pursuant to reg. 72 was invalid in the circumstances and that the power to retire an officer pursuant to reg. 628 was subject to the rules of natural justice. The defendant in its defence contended that the plaintiff held his appointment in the Air Force solely at the pleasure of the Governor-General and that the exercise of the powers of the Governor-General in terminating the plaintiff's appointment cannot be called in question or challenged in any way in a court of law. The defendant also contended that there was no contract of service between the plaintiff and the defendant which could be the subject of the plaintiff's claim for wrongful dismissal or for other relief sought in the statement of claim.
The plaintiff's contentions were elaborated in argument. He submitted that reg. 628 was, on the facts of this case, the only source of power available to the defendant to terminate the plaintiff's appointment and that it was that regulation which was in fact used. Alternatively, he submitted that if reg. 72 was the relevant source of power, reg. 628 remained the basis of the action taken. By this latter submission I take the plaintiff to have meant that, whilst appointment at the Governor-General's pleasure involved the power to dismiss at will, if in fact the procedures laid down by reg. 628 were invoked (as they clearly were), then those procedures required the observance of the rules of natural justice and in particular required that the plaintiff be given an appropriate opportunity to put his case. It was the plaintiff's contention that he was denied this opportunity. He also submitted that any exercise of power under reg. 628 was dependent for its validity upon the existence of certain facts and that it was open to review to determine whether the conclusion that those facts existed was open.
It is, I think, possible to shorten these reasons for judgment by observing at the beginning that the plaintiff's argument was put in two distinct ways. On the one hand, as I understand the argument, it was said that reg. 628 governed the power to terminate the plaintiff's appointment either because it was the source of that power itself or because it modified the power conferred or recognized by reg. 72. Upon this view the power to terminate the plaintiff's appointment was something less than a power to dismiss at will and the appointment itself was something more than appointment at the Governor-General's pleasure.
On the other hand, it was said that even if the power to terminate the plaintiff's appointment was truly a power to terminate it at will, nevertheless the procedures under reg. 628 were invoked and those procedures by implication required the application of the rules of natural justice. In other words, before any conclusion could properly be reached under reg. 628, so it was said, the plaintiff must have been given a proper hearing. Since he was denied this, his appointment is said not to have been validly terminated. In my view it is not possible to put the argument in this alternative way. If in some manner the power to dismiss at will, which is an incident of appointment during pleasure, is modified or replaced when reg. 628(1) is invoked with the result that a hearing is required as a prerequisite to a valid dismissal, then that is one thing. But it is another thing to say that, even assuming a power to dismiss at will, the application of reg. 628(1) itself nevertheless requires a hearing and the failure to afford such a hearing invalidates any subsequent dismissal consequent upon the application of that regulation. The argument in that form does not assert reg. 628(1) as a source of the power to dismiss and denies any modification of the power found by reference to reg. 72(1). But assuming that reg. 628(1) imports the requirement of a hearing, if there is a power to dismiss at will independently of that regulation, then the termination of the plaintiff's appointment must have been effective notwithstanding the disregard of any procedure which reg. 628(1) requires. Perhaps, making the same assumption, if the plaintiff had acted before any conclusion was reached under reg. 628(1), he may have been able to invoke the aid of the Court to compel some appropriate person to afford him a hearing. But upon this argument, his dismissal having taken place, it is no longer to the point to invoke that regulation, since the failure to afford a hearing pursuant to its terms cannot affect the validity of the subsequent dismissal which, ex hypothesi, was in the exercise of a power to dismiss at will which is unaffected by reg. 628(1). The dismissal cannot in those circumstances provide the foundation for the remedies which the plaintiff seeks.
The crucial question to my mind is, therefore, whether the plaintiff held his appointment at the Governor-General's pleasure as reg. 72(1) would suggest, so that it was terminable at will, or whether the presence of reg. 628(1) affected the nature of that appointment or modified the way in which the power of dismissal might be exercised so as to require the plaintiff to be afforded a hearing.
Having regard to reg. 72(1) by itself, there is little room for doubt about the plaintiff's position. At common law Crown servants may be dismissed at pleasure and without notice. As Williams J. said in Kaye v. Attorney-General (Tas.) (1956) 94 CLR 193 , at p 203 :
"Apart from statute, the employment of servants by the Crown, naval, military or civil, is at the will of the Crown, so that the Crown is entitled to dismiss them at any time without notice. Even if they are employed for a definite period, their employment is still subject to a reserval of the right of the Crown to dismiss."
The rule, which has its origin in military service, is copiously supported by authority: see e.g. Ex parte Robertson; In re the Governor-General and Executive Council (NSW) (1858) 11 Moo 288 (14 ER 704) ; In re Tufnell (1876) 3 ChD 164 ; Shenton v. Smith [1895] AC 229 ; Gould v. Stuart [1896] AC 575 ; Leaman v. The King [1920] 3 KB 663 ; Deynzer v. Campbell (1950) NZLR 790 . It has been explicitly recognized in numerous decisions of this Court: Ryder v. Foley (1906) 4 CLR 422 , at pp 435-436 ; Cross v. The Commonwealth (1921) 29 CLR 219 , at p 224 ; Carey v. The Commonwealth (1921) 30 CLR 132 , at p 135 ; Fletcher v. Nott (1938) 60 CLR 55 , at pp 67, 72, 74, 77-78 ; The Commonwealth v. Quince (1944) 68 CLR 227 , at pp 234, 241-242, 253 ; The Commonwealth v. Welsh (1947) 74 CLR 245 , at pp 257, 262, 264, 268, 274 ; Allpike v. The Commonwealth (1948) 77 CLR 62 , at p 76 ; Kaye v. Attorney-General (Tas.) (1956) 94 CLR 193 , at pp 198, 203 ; Reedman v. Hoare (1959) 102 CLR 177 , at p 181 ; Marks v. The Commonwealth (1964) 111 CLR 549 , at p 586 .
Military service (and I use that term to embrace the three services) has always stood in a different position from service under a contract of employment with a private employer. As Windeyer J. pointed out in Commissioner for Railways (NSW) v. Scott (1959) 102 CLR 392 , at pp 441-442 , officers serve in accordance with their commissions and other members in accordance with their engagements. In the absence of statute, it is the prerogative power which supports the relationship between members of the armed forces and the Crown and it is a concomitant of that relationship that none of them has at common law any right of action against the Crown for breach of contract or any right to sue for pay. The relationship is not a contractual one. However, in Marks v. The Commonwealth (1964) 111 CLR, at p 564 , Windeyer J. also pointed to the fact that in Australia the position of the Crown in relation to the forces is dependent upon statute and not the prerogative and, that being so, the inquiry turns to whether the relevant statute law, which in this case is the regulations, adopts, modifies or abrogates the common law position.
Before turning to that inquiry, it is convenient to add that an appointment at pleasure may not only be terminated at will without notice, but also without any hearing. This was adverted to by Lord Reid in Ridge v. Baldwin [1964] AC 40 , at p 65 and in Malloch v. Aberdeen Corporation (1971) 1 WLR 1578 , at p 1597; [1971] 2 All ER 1278 , at p 1295 , Lord Wilberforce expressed agreement "as a general principle", meaning that there may be a modification of the position "by statute, or regulations, or code of employment or agreement". For my own part, I should have thought that this view is plainly correct since at common law, Crown servants aside, a master is not bound to hear his servant before he dismisses him and appointment during pleasure can hardly import a more onerous obligation.
In my view, it is beyond question that reg. 72(1) adopts the common law position by declaring that an officer shall hold his appointment during the pleasure of the Governor-General. I should have reached that conclusion without recourse to any particular mode of construction, but reference may be made to the observation of Dixon J. in The Commonwealth v. Welsh (1947) 74 CLR, at p 268 that:
"... in considering the meaning and effect of the Air Force Regulations their purpose cannot be neglected, namely to provide rules to govern one of the armed forces of the Crown. The relation to the Crown of members of the armed forces is no new subject; the rules of the common law define it. The regulations are not to be read in disregard of those rules and of the long tradition to which they have contributed."
In the regulation itself support is to be found for the view which I have expressed in the implicit distinction which is drawn between the termination of an appointment and the cancellation of a commission by the express requirement of notice in the latter but not in the former case. The continuation in force of a commission is, of course, not dependent upon the existence of an appointment and a commissioned officer may be placed upon the retired list: see reg. 86.
There is also support for this view in reg. 73(1), which also reflects the common law position that members of the services cannot abandon their duties and can be forced to serve according to their engagements. That sub-regulation provides:
"An officer of the Air Force may, by writing under his hand addressed to the Chief of the Air Staff, tender the resignation of his air force office, but the resignation shall not be accepted, and is not effective, except as provided by this regulation."
There follow provisions for the circumstances in which a resignation may be accepted or rejected.
Whilst there are regulations other than reg. 72(1) which contemplate the termination of the appointment of an officer, they provide the circumstances for the exercise of the power but not the power itself. The power is assumed: see, e.g., regs. 55(2), 452(2), 462(2) and 468(1). Latham C.J. adverted to this situation in Fletcher v. Nott (1938) 60 CLR, at p 69 , as follows:
"... there is no necessary inconsistency between an officer of the Crown holding his appointment at pleasure, and the existence of rules, either contained in a statute or made under a statutory power, which purport to regulate the manner in which an officer is to be dismissed. Such rules do not legally limit the power or manner of dismissal."
Regulation 628(1) not only contemplates the retirement of an officer (or the discharge of an airman), but requires it "at the earliest possible date after the opinion of the confirming medical authority has been expressed". That does not mean that that regulation, any more than the others to which I have referred, provides the source of the power to determine an appointment or engagement. It provides the occasion for the exercise of the power but the power itself is to be found elsewhere. The power of dismissal is an incident of appointment during pleasure which, under reg. 72(1), is the nature of the appointment of an officer. Regulation 628(1) does not purport to modify that power of dismissal. It refers to retirement, which assumes the termination of any appointment, but it does not say how or when retirement is to take place (save that it is to be at the earliest possible date after the opinion of the confirming medical authority has been expressed). It does not say who is to exercise the power to terminate the appointment. The answers to these questions are to be found elsewhere, in the tenure of an officer's appointment which, because it is at pleasure, carries with it the power to dismiss at will.
It follows that in my view the power to dismiss at will which flows from reg. 72(1) is unaffected by the provisions of reg. 628(1). For the reasons which I have given, the plaintiff is not entitled to the relief which he seeks and this appeal should fail.