CIVIL SERVANTS AND THE LAW.

Dominion, Volume 3, Issue 655, 4 November 1909, Page 6

CIVIL SERVANTS AND THE LAW.

fr It is to be hoped that attention will be called in Parliament to the important ' issues raised by tho decision given by the , Court of Appeal yesterday in the case of Reynolds v. tho Attorncy-Gonoral, Hutton and Bowr.ES. We dealt with this case ' and the issues involved on August 24 ' last, but we may recall the main facts here. Tho appellant, who had boon bus- ' p'ended for 'alleged serious bi caches of j discipline, appealed on various grounds < tc the Supremo Court for a writ of ca- ' the cancellation of.tho,J

report, submitted;, to the ,Govbrnor-in-Council, by tho Board which investigatcO the charges;:; Tho grounds on which he based his application are important, bul Me. Justice Goopee'e refusal, to: issue the ' writ! '.wa? based, on a general principle that had no reference'to the merits oi tho case. Tho central point of plaintiff'( protest was the alleged fact that he hac been unable to appear in hie defence and that hie solicitor; was refused a hear mg %.the Board, which proceeded witl its inquiry although the Act requires ii to report " alter fully bearing the case. . The Court," said his Honour," has nc jurisdiction to, order the writ to issue, There is nothing in the judgments of the High Court which indicates that the pro cecdings pf tho, Board ■ can be. roviewec upon a motion for a,writ of certiqrdri ;.';..■._ The plaintiff, must appeal to' the Executive if ho desiree to reopen the matter."' • This judgraont was apifcalec against, and was yesterday re'-affirmed bj the Court of Appeal. Having'stated ii: its judgment that, " neither the Governoi nor the ' Governor-in-Council can bs reached by. judicial .process,". the Couri proceeded to the question whether there was anybody . else who could be. reached, It had to answer this question in the ■negative.-.,":A statutory;body, the rep.orl or presentment of which leads to execu the action, on the part of the Governor. in-Council, maiy bo a tribunal whose prq ceedings are capablo.of being restrained when iouhd to be in-excess of its jurisdiction upon an application- made, while i( is- seized of the. matter, but iri , . this case the stage has been reached when they arc •i'b longer, examinable by this process." The inability of the Court to :find any subject within the , /roach "of its- arm as the guardian of the individual's righta prompted it to observo that, the Board oi Inquiry " resembles an- save that that' leads, not to executive, but tc judicial action." % -. ~ . . : It would appcar,,.hpweyer; that the immunity of these .bcpartmental- CdurtE from the authority of the ordinary Courts of law may not wholly: deprive ah injured Civil Servant of the power to obtain redress, for. "the record-or report of suc£ a body made without jurisdiction -cannot bind the' plaintiff,'.': "It is, so far as lie is concerned, a nullity, and it cannot be. .used to justify, plaintiff's dismissal. Such dismissal may be shown,, to be wrongful in , ah; ordinary action for damages," .In the ease in question; therefore,.: the plaintiff, may; if ho chooses endeavour to obtain damages from the Government if ;■ dismissed. .We should 'say that'we know nothing 'whatever .of the merits of the case. .It is pretty obvious, however, that he will find a' difficulty in instituting any process, 1 "• and ;in ■ - any event- he : stands in the position' of having been , tried unheard*-and, of- beiiig dependent upon .the decision of .the; Executive.,. The judgment of the" CoUrt shows that.tho:ordinary enter upon the .Board while , it; isi performing; .its work, , , but it is 'equally, apparent that the Court has no means of, knowing a.t any moment whether the .Board is not fynctiu ofjicip. Thero,clearly*.arises out of tho case a question of public policy of ■great importance'to all; Civil Servants— 'namely, the lirriits 'of.'the. Exeeutiy'o'simniijn^ty.ljrpm.j<tho;.Qrdinary:l;lawcri;,itt;. .|s quite "obvious that tho ExociitjVe'pbsßesEea , in. ,f act; a,'control' over.; the' fortjined. of \th'c Civil Servants which cannot'bo got. at liy; tbo, ordinary tribunals of the: land. 'Of late'.'years'-the,'Executive;'has".taken possession of■iar'ge'.nolds;'of action. respcQtiijg common individual rights into which the Courts;cannot intrude, as;\vn-ha'yb on more than one .■'occasion: pointed out in the past.; Tho. present ;'cagftwoukl make a convenient text fortho opening. of;tho question in Parliarhenti, which; would profit from the discussion of larger'; issues t.han,those with -which .it goncrally;concerns'itself-, from-day to; daj'.'- ; ■>:;''