DARWIN DISMISSAL.

Taranaki Daily News, 23 December 1921, Page 7

DARWIN DISMISSAL.

’ CAREY'S CLAIM FOR £375 ALLOWED. NO DERELICTION OF DUTY PROVED BY CROWN. Melbourne, Dec. d. “In my opinion this action would not have proceeded to trial at all if the Commonwealth Government had not resisted the payment of the allowances, and had not persisted in the charge of abandonment of dpties against Carey, a charge which it has not attempted to justify,” said Mr. Justice Higgins, in the High Court this morning. He was delivering judgment in the action brought by Henry Ernest Carey, formerly Director of the Northern Territory, against the Commonwealth Government for damages for alleged wrongful dismissal and £375 house and travelling allowances.

Mr. Justice Higgins entered judgment for Carey for £375 Is 7d, with costs of the action, excepting such costs as were incurred after the filing of the statement of claim up to and including the amendment of October 17, 192]. Costs to be taxed.

Mr. A. C. Morley and Mr. T. S. Clyne (instructed by Mr. A. R. Mills) appeared for Carey; and Mr. J. G. Latham and Mr. Owen Dixon (instructed by the Commonwealth Crown solicitor) for the Commonwealth Government.

Continuing, Mr. Justice Higgins that the only difficulty was that Carey had seemed to abandon his claim for the allowances, although they were claimed in the writ, and he had to get leave to amend the statement of claim on October 17. A HURTFUL CHARGE. “The question I put to myself is: Who is to blame for the litigation?” said His Honor. “On service of the writ the Commonwealth Government could have paid the allowances into court, and if the Government had relied only on the Crown's right to dismiss without cause, the point of law could have been settled without putting Carey to the expense of preparing to meet a charge so hurtful to his reputation as abandonment of duties.” After traversing the circumstances of the appointment of Carey as Director of the Northern Territory and subsequent happenings preceding his dismissal, Mr. Justice Higgins said that during all this time Carey was carrying out the duties of his office. In his negotiations with Carey just before the appointment the Minister told him to acr. under his direct instructions. Carey’s fundamental duty was to obey the Minister's instructions. The expression “relieved of duty” or “from duty,” as used first by one Minister and then by the other, meant clearly that Carey was relieved from his ordinary functions at Darwin, but that he was neither dismissed nor suspended. DEFINITION OF ALLOWANCE. “It. is common ground,” said His Honor, “that travelling allowances mean extra payments to be made because, away from Carey's home at Darwin, additional expenses would have to be incurred. If Carey had been instructed to come to Melbourne from Darwin to confer with the Minister as to the affairs of the Territory he had the same right as other servants or agents to be indemnified. “It is said that there was no contract with Carey. The Crown, it is said, does not contract with its servants. In my opinion, this contention is wrong. The relation between the Crown and its servants involves a contract. On August 9, 1919, the department sent to Carey a copy of the Executive Council’s minute of appointments at ‘£looo per annum with quarters,’ and at the same time intimated by letter that the rate of travelling allowance was fixed at £1 a day when absent from Darwin within the Territory, and £ ! l 5s a day outside. Carey is no less entitled to travelling allowance until dismissal than to salary. CROWN RIGHT TO DISMISS. “Carey has succeeded in everything except as to damages for wrongful dismissal. The Commonwealth Government has succeeded on this point, only because of the Crown's over-riding right to dismiss at will. The Government lifts not proved nor attempted to prove any dereliction of duty on the part of Carey.”

Comments the Melbourne Argus: Whoever was responsible for the defence against the claim by Mr. H. E. Carey for reasonable compensation for loss of office as Director of the Northern Territory has little reason to feel proud of himself. The Crown service is not presented in a very favorable light when Ministers resort to technical devices in order to evade a just liability. It is unnecessary to traverse the sorry story of maladministration in the Northern Territory, but it certainly does not become any Minister who has been asso-

ciated with it to adopt a lofty tone towards the official who had to undertake unpleasant duties. The weakness displayed in Melbourne encouraged the malcontents at Darwin to flout the authority of officials whom it was the duty of Ministers to support. It is a humiliating chapter in history, and it is surprising that the Department of Home and Territories should have submitted itself to the risk of the censure which the judgment of Mr. Justice Higgins unquestionably contains. The moral obligation to Mr. Carey does not cease when the judgment given in his favor has been satisfied. It is not at all creditable that Mir'sters should make a

scapegoat of one ‘of their own officers and besmirch his reputation, but it is worse when they invoke a musty prerogative to obstruct a meritorious claim.