LAW REPORTS.

Dominion, Volume 3, Issue 631, 7 October 1909, Page 5

LAW REPORTS.

COURT OF APPEAL. iA; CUSTOMS .OFFICER'S APPEAL.

- -TOUCHING' -HIS DISMISSAL. ' The first-case of -tho -Court- of Appeal list was taken'yesterday by thoir Honours .Justices Williams ..(Acting-Chief- Justice), . floimiston, Edwards, and • .Chapman.. ■ Tho -'.caseinvolved tho rights of a .Civil Servant, certain charges against whom had been niad.o the subject- of an inquiry;::: Tho: : .caso'\ had first come before Mr. Justice'-Cooper » oii .August" 20, and- arL:appeal from' tho - Judge's. decision ; was, now brought. . AppeUttnt," Arthur; Broad .Reylioldsvr was a •M .Servant of -'25:, years' and occu-. piod -»\good position in- the Customs Depart-: certain to.-superannua- \ itiori^pr^^Wsation ; upon retitement from; the , seryice. ? ; last,* he -was :i suspended by : ■thS CoHcsiWiOf'iCustoiu.s,' Wellington,:'and ; .cor:tain misconduct', ;were : ;preferred againk-iiiu. 'ffi. topudiated' the charges,' and a- board\w3? up under Section.:lß ,of "the .Ci-rir-'SerVrce ,v Aot,'. 1908; to. inquire, into "the allogations, and, after fully hearing tho case, to'report their opinion to the Governor. The board- consisted ot two Civil .Servants/ Notice of. '(the Vdate';'.of,' the '/board's sitting? was ■ giv.en Jppellant.'in' Auckland'.only. four days 'before -the date'-'fised - for : the'.hearing. ;• Appellant had been seriously ill," and ■ was' subject, to epileptic fitsVvvHe; .started" for.''Wellington at once, -but ■thilong/journey- made ihim so 'ill .that he iwas :uhfit to "attend at the inquiry. He. thereforo Instructed; a'solicitor'; to attend' on- his behalf, and; ho. lefnrne.d' to hiis Vhoine in Auckland, .whero>he'was v seized with.^a. : serious attack' of epilepsy,; 'and.'.'became; very;ill'.'. "His- solicitor ; attended'<b£fore'-.th6 board, ; ahd produced'a; doctor's -'certificate 'fegarding.>ppellant'is;ill-health. -Tho'-bbard refused-, to allow,'the solicitor.'.to ap- ; p.4ar, iahd,'after "excluding him, proceeded "to near evidonce-in' support'of -the -charges, calling'no: defence. Appellant • then moved, in" the .Supreme : Court ;for a writ of prohibition ito restrain the members of. the board 'from ; pro.ceodingivfith.theirireports and, in'the.alterna-tive,-ifor 1 a writ' of certiorari,; or a declaration that it was null' and - void. 'upon tho ground ?that .the. board was. adjudicating oh tho status, ' property; - and: reputation of an individual,- and' was 'bound ,to" exercise- its'-functions according to the' principles - of, natural justice, one' of tho fundamental canons\of which - was i that a man couldi-hOt.' ;be,-oendemned unheard. Counsel .for the-.'respondents; '(the Attorney-General,-. John Augustas...Hutton,-' and, Walter. .Bowles), con-: .tended that, the - Court' had 'no' jurisdiction to .cohtrol .tho.;board,' even, though it-proceeded -in /tt'jma'iiner contrary: to 'hatural. justice. also contended that, os tho ' report had' already reached the; Governor, it was too. late for prohibit ion'-or eertiorari. Mir. 1 Justice; Cooper decided; that, as, "by Section 15 of the. Civil l Service Acti ithe Governo'r had ' a' discretion > as"' to ; whether'-,the ; officer; should "bo',-dismissed, - even' though' found' guilty.by "the 'board, ? the "opinionof jthe. board:was;not'a-decision.'which■ affected : ( his! rights,: ; htid' ; .the- Court, - therefore; had '-nocontrol over the board. .

■v ; .-MTi ; :B..;B l 'Ayilliams,'' and Mr. H. H. Ostler appeared for .'.appellant,' and Mr. M. Myers :(Grown'Solicitor) .for: respondents.* Mr. Williams remarked that the' case was of- the' utmost' -importance: to. a 'large speoial class—the ' Civil:' Servants-pbut - greater:, significance waa attached to, its/effect upon the, rights .-of : .the [subject ; as.'again?t ;the -Executive.''. It: .would," decide.',- how ,'fa'r ■; iwelkestablishcd -prin;oiples; of justice,might.-be pver-riddeni-or. taken 'away,'.by;;the., caprice of the, Executive or; its' agents,' 'A, board [had been set ho V the Executive under-the, Civil Service, Act to Inquire into" certain .charges against the' appellant. Its, powers wero judicial, -not - merely Ministerial, andit proceeded'in' an;unjudicial manner, con;dlictihgvthe 'inquiry: contrary to the general' principles of''.natu'ral -justicev -Tho: board had poiycr . not only to .'hold. !the, inquiry,, but .to pronounce judKment. lt had tbo powers of, a, •jury/iand its tinding wa.s a verdict upon which the - Governor 'jwas'.tp-'act •as judge in' adminis-. tering a' penalty: •; •' . • <.V. ■ : dealing', with the law, said that tho opinion!of the board'was a concluded, and final opinionas .to tho, giiilt :.or ; innocence of :ths.'; appellant,.; .arid .- a- condition,. precedent -to the powerofthe Governor to dismiss.-'lt was' equivalent to the verdict of a jury, and, therefore it .was a.'decision. Tho fact that the board: itself-had :no .power , to.'punish dfd not make its;'.report-any ,the: less, a decision: Although, the - Privy, Council had no Sentencing powers,; . its - finding . was . regarded, as : : a . decision. • Tho Privy, Council conld-i only- advis^—the- VKing ■what - it considered ought ..to be ;done,, but it was :,none the less .a judicial -.body. ,',A's the re- • port. of tho.. bbard - might' 'valuable rights •arid: liberties of the subject! the board . was -bound ,to proceed according "to the principles of . jiistice,\and if ?it ; : did '-notp-'by ■ th'a common -law »hO' Supreme, (Jourt could contrdl i.t: Assuming that the board acted -.without'jurisdiction; ,if : the/proceedings', for [certiorari' were commenced promptly, certioiari would go,: notwithstanding ■that ■ tho- report .had': gone' from*: the board to the' Governor; , The -writ would be 'addressed to l the board, - which would- bo .ordered;.to . send up a copy of the report, and -the Conrt .could, act on that- evidence to . quash it.' Assuming that certiorari was : too ' late,'-the-'Court had power,.: under Section, '2 <of the" Declaratory 'Judgments Act,' 1908, to declare that the report was -null' and, void, 'on .the ground that it .-was eiyeh iiwithbu't ■ jurisdictoni. If it did so.the Governor could not dismiss,the.appellant, wjth-:out-(iommitting;.an-.illegal:act'..' , .":;Tli& .hearing of argument' for the respondents will be l heard 'this .morning.: . .; - .