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Dunn v. The Queen Revisited

Published online by Cambridge University Press:  16 January 2009

Garth Nettheim
Garth Nettheim
Affiliation:
Professor of Law, University of New South Wales, Australia.
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Extract

By mid-1973 the Watergate scandal was reaching towards the highest levels of the United States' Administration. Elliot Richardson was nominated as Attorney General with a particular mandate to sort out the affair. The Senate Judiciary Committee, in its hearings on Richardson's nomination, was vitally concerned to ensure that the Office of Watergate Special Prosecutor should have maximum effectiveness and independence. The formula eventually agreed upon was promulgated by the Attorney General as a regulation under powers vested in him by Statute to prescribe regulations for the Justice Department. On the question of independence, it provided:

… The Special Prosecutor will carry out these responsibilities with the full support of the Department of Justice, until such time as, in his judgment, he has completed them or until a date mutually agreed upon between the Attorney General and himself. … The Special Prosecutor will not be removed from his duties except for extraordinary improprieties on his part.

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Articles
Information
The Cambridge Law Journal , Volume 34 , Issue 2 , November 1975 , pp. 253 - 281
Copyright
Copyright © Cambridge Law Journal and Contributors 1975

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References

1 38 Fed.Reg. 14688, (4 June, 1973).

2 5 U.S.C. § 301.

3 366 F.Supp. 104 (1973).

4 38 Fed.Reg. 30738.

5 [1896] 1 Q.B. 116. Other aspects of Crown employment were also left by the common law in a state of some uncertainty. For a concise recent attempt at restatement see de Smith, Constitutional and Administrative Law (2nd ed. 1973), pp. 194–196.

6 See Hogg, Liability of the Crown (1971), pp. 148–149; Blair “Public Employment—An Australian Contrast” [1960] Public Law 246. Relevant Canadian legislation includes s. 7 (7) of the Financial Administration Act, R.S. 1970, c. F–10; s. 24 of the Public Service Employment Act 1966–67, c. 71; and the Public Service Staff Relations Act 1966–67, c. 72.

7 Schedule 1 of the Trade Union and Labour Relations Act 1974, which substantially re-enacts s. 162 of the Industrial Relations Act 1971.

As late as 1967 the traditional “hands off” attitude of United Kingdom law to public employment was still being reflected in the Parliamentary Commissioner Act which declared personnel matters out of bounds to the Ombudsman: s. 5 and item 10 of Sched. 3.

8 Wade, Administrative Law (3rd ed., 1971), pp. 298–299. In Britain the influence of civil service trade unionism is exerted primarily through the Whitley procedures whose basis is agreement rather than law. See Hepple and O'Higgins, Public Employee Trade Unionism in the United Kingdom: The Legal Framework (1971), p. 24 et seq.

9 For a concise account, see Logan, A Civil Servant and his Pay (1945) 61 L.Q.R. 240 at pp. 249–256.

10 Beinart, , “The Legal Relationship between the Government and its Employees” (1955) Butterworth's South African Law Review 21 at pp. 24–25.Google Scholar

11 Nettheim, , “Do Members of the Armed Forces have any Rights in their Employment?” (1973) 5 Federal Law Review 200.Google Scholar

12 Marks v. The Commonwealth [1964] 111 C.L.R. 549, 573.Google Scholar See also Logan, op. cit., at pp. 242–245; Richardson, Incidents of the Crown-Servant Relationship (1955) 33 Can. Bar Rev. 424 at pp. 425–427. But for a contrary view rejecting any fundamental distinctions, see Blair, The Civil Servant—A Status Relationship (1958) 21 M.L.R. 265 at pp. 268–274.

13 E.g., Ex parte Robertson; In re the Governor-General and Executive Council of New South Wales (1858) 11 Moo.P.C. 288; 14 E.R. 704. See also Ridge v. Baldwin [1964] A.C. 40, 65–66Google Scholarper Lord Reid.

14 Smyth v. Latham (1833) 9 Bing. 692; 131 E.R. 773; Hill v. The Queen (1854) 8 Moo.P.C. 138; 14 E.R. 53.

15 e.g., Evans v. Donaldson (1909) 9 C.L.R. 140.Google Scholar

16 e.g., Willis v. Gipps (1846) 5 Moo.P.C. 379; 13 E.R. 536.

17 e.g., Fletcher v. Nott (1938) 60 C.L.R. 55.Google Scholar

18 As the Victorian Full Supreme Court pointed out in Bertrand v. The King [1949] V.L.R. 49, 56.Google Scholar

19 The case concerned a member of the armed forces.

20 Quoted in Dunn v. The Queen [1896] 1 Q.B. 116, 118 per Lord Esher M.R.

21 [1895] A.C. 229.

22 [1896] A.C. 575.

23 [1898] A.C. 469.

24 [1898] A.C. 661.

25 [1896] 1 Q.B. 116.

26 Lord Herschell L.C., Lord Watson, Lord Hobhouse, Lord Macnaghten and Lord Shand.

27 [1895] A.C. 229 at pp. 234–235. Such an appeal, to the Secretary of State, had, in fact, been taken.

28 Sed quaere?

29 Ibid. at pp. 235–236 (italics supplied).

30 [1896] 1 Q.B. 116.

31 Ibid. at p. 120.

32 Ibid. at p. 119.

33 (1858) 6 H.L.C. 970 at p. 991; 10 E.R. 1576.

34 [1896] 1 Q.B. 116 at p. 119 (italics supplied).

35 [1897] 1 Q.B. 401.

36 (1882) 3 B. & B. 275; 129 E.R. 1290.

37 (1786) 1 T.R. 172; 99 E.R. 1036.

38 [1897] 1 Q.B. 401 at p. 406.

39 [1897] 1 Q.B. 555.

40 Ibid. at p. 556.

41 Ibid. at p. 557.

42 The judgments in Dunn v. The Queen and the decision of Lord, Goddard C.J. in Terrell v. Secretary of State for the Colonies [1953] 2 Q.B. 482Google Scholar (discussed infra, at pp. 275–278) indicate at least a presumption that the Crown's contracting agents will lack such authority.

43 Robertson, G. S., Civil Proceedings by and against the Crown (1908), at p. 359.Google Scholar Even more influential is Halsbury's Laws of England which is equally uncompromising. Thus in the 3rd edition, volume 7 (1954):

547. Crown contracts for service and for payments. In the absence of special statutory provisions (k), all contracts of service under the Crown are terminable without notice on the part of the Crown (l). This is so, even though there be an express term to the contrary in the contract (m): for the Crown cannot deprive itself of the power of dismissing a servant at will, and that power cannot be taken away by any contractual arrangement made by an executive officer or department of state (o). It has even been held that this rule is only part of the wider principle that the Crown cannot by contract fetter its future. executive action (p)….

732. Tenure of office. Except where it is otherwise provided by statute all public officers and servants of the Crown, including colonial judges (f), hold their appointments at the pleasure of the Crown (g), and all, in general, are subject to dismissal at any time without cause assigned (h); nor will an action for wrongful dismissal be entertained (i), even though a special contract be proved (k). …

The statement of the common law position is reproduced in substantially similar form in the 4th edition, volume 8 (1974), paras. 970 and 1106.

44 [1896] 1 Q.B. 116 at p. 119 (italics supplied).

45 The doctrine is discussed in Hogg, Liability of the Crown (1971), pp. 140–141; Street, Governmental Liability (1953), p. 93; Williams, Glanville, Crown Proceedings (1948), p. 3Google Scholar; Wade, Administrative Law (3rd ed., 1971), pp. 290–291.

46 (1918) 34 T.L.R. 341, 589.

47 Ganz, “Public Law Principles Applicable to Dismissal from Employment” (1967) 30 Mod.L.R. 288 at p. 294.

48 See Riordan v. War Office [1959] 1 W.L.R. 1046Google Scholar, discussed infra, at pp. 268–271.

49 (1920) 37 T.L.R. 138. It is worth noting that Bailhache J. criticised the form of contract commonly used as misleading.

50 Contra Reilly v. The King [1934] A.C. 176 at p. 179Google Scholarper Lord Atkin.

51 (1921) 30 C.L.R. 132 at p. 135.

52 (1906) 4 C.L.R. 422.

53 Ibid. at pp. 435–436 (italics supplied). Of course, an implied term can ordinarily be excluded by a contrary express term.

54 Ibid. at p. 437 (italics supplied)

55 Ibid. at p. 439 (italics supplied).

56 Ibid. at p. 449 (italics supplied).

57 [1932] Ex.C.R. 14 at p. 16 (italics supplied).

58 Op. cit.

59 [1932] S.C.R. 597.

60 [1934] A.C. 176 at p. 179.

61 [1949] 1 K.B. 227 at p. 231.

62 [1944] K.B. 596.

63 This ratio accords with that of Shenton v. Smith.

64 Ibid. at p. 602.

65 The headnote incorrectly summarises the judgment as deciding that such a term would be invalid. The importance of this distinction may elude the unsuccessful plaintiff, to whom it can make no possible difference. But in terms of doctrine it could indicate that the Crown's power to dismiss at pleasure is extrinsic to, and independent of, the contract which would be valid and remain binding unless and until the Crown chose to dismiss. This is the doctrine of “executive necessity” which was said to be the basis of the common law rule as to dismissal at pleasure in Rederiaktiebolaget “Amphitrite” v. The King [1921] 3 K.B. 500.Google Scholar The doctrine as developed however, in cases such as Commissioners of Crown Lands v. Page [1960] 2 Q.B. 274Google Scholar, might be read as according contractual immunity to such dismissal only if taken for reasons that concern “the welfare of the state,” not for reasons related solely to the contract in question. In Rodwell v. Thomas the plaintiff was dismissed on the basis of charges relating to his own conduct (selling an Air Ministry radio). For a recent critical discussion of “executive necessity,” see Hogg, Liability of the Crown (1971), pp. 129–140.

66 A contrary view was later taken in Cameron v. Lord Advocate [1952]Google Scholar S.C. 165 and in Terrell v. Secretary of State for the Colonies [1953] 2 Q.B. 482 at p. 497Google Scholarper Lord Goddard CJ. See discussion, infra, at pp. 274–278.

67 See also Riordan v. War Office [1959] 1 W.L.R. 1046.Google Scholar

68 Beinart, B., “Legal Relationship between the Government and its Employees” (1955) Butterworth's South African Law Review 21 at p. 34.Google Scholar

69 [1952] S.C. 165, discussed infra, at pp. 274–275.

70 [1953] 2 Q.B. 482, discussed infra, at pp. 275–278.

71 [1959] 1 W.L.R. 1046.

72 As in Shenton v. Smith, Dunn v. The Queen, Carey v. The Commonwealth, Cameron v. Lord Advocate and Terrell v. Secretary of State for the Colonies.

73 [1961] 1 W.L.R. 210.

74 (1886) 3 T.L.R. 114, at p. 115.

75 [1944] 1 K.B. 596 at p. 602.

76 [1953] 2 Q.B. 482 at p. 497.

77 Mitchell v. The Queen [1896] 1 Q.B. 121 n.

78 [1959] 1 W.L.R. 1046 at pp. 1052–1054.

79 In Australian Tramways Employees' Association v. Brisbane Tramways Co. Ltd. and Others (1912) 6 C.A.R. 35 at pp. 40–41Google Scholar, Higgins J., as President of the Commonwealth Court of Conciliation and Arbitration, treated a provision in a contract with a public authority requiring two days' notice as effective to render unlawful a dismissal without such notice.

80 For example, Willis v. Gipps (1846) 5 Moo.P.C. 379; 13 E.R. 536; Ridge v. Baldwin [1964]Google Scholar A.C. 40; Durayappah v. Fernando [1967] 2 A.C. 337.Google Scholar

81 See infra, n. 11.

82 Contrast, for example, Adams v. Young (1898) 19 N.S.W. R. 325 and McClelland v. Northern Ireland General Health Services Board [1957] 1 W.L.R. 594.Google Scholar

83 Waterside Workers' Federation of Australia v. J. W. Alexander Ltd. (1918) 25 C.L.R. 434Google Scholar; McClelland v. Northern Ireland General Health Services Board, supra, Le Leu v. The Commonwealth (1921) 29 C.L.R. 305.Google Scholar

84 Le Leu v. The Commonwealth, supra.

85 (1936) 51 B.C.R. 169.

86 Ibid. at p. 177.

87 [1938] 1 D.L.R. 807.

88 [1957] 1 W.L.R. 594; [1957] 2 All E.R. 129.

89 The Guardian, 6 February 1965Google Scholar, referred to in Ganz, op. cit., at p. 297.

89a See discussion of Terrell v. Secretary of State for the Colonies [1953] 2 Q.B. 482Google Scholar, infra, at pp. 277–278.

90 (1933) 50 C.L.R. 520.

91 (1933) 34 S.R.(N.S.W.) 25.

92 (1933) 50 C.L.R. 520 at pp. 530–531. See also at p. 534 per Starke and Dixon JJ.

93 1952 S.C. 165.

94 [1953] 2 Q.B. 482. The decision is well discussed by Beinart, op. cit., at pp. 37 et seq. and by de Smith (1953) 16 M.L.R. 502.

95 Surprisingly, the argument that the contract was frustrated and discharged was not raised: de Smith, op. cit., at p. 503 fn. 1; Beinart, op. cit. at p. 37, fn. 105.

96 [1953] 2 Q.B. 482 at p. 498.

97 Of course, a judge guilty of such conduct could be dealt with even where his tenure was during good behaviour either under common law principles or under the specific provisions of Burke's Act: Willis v. Gipps. Tenure during good behaviour is not inconsistent with dismissal for bad behaviour. So public policy does not require a lesser tenure to meet such a contingency. See de Smith, op. cit., at p. 506; Beinart, op. cit., at p. 43.

98 [1953] 2 Q.B. 482 at pp. 498–499. It is respectfully submitted that Willis v. Gipps does no such thing.

99 Ibid. at pp. 497–498 (italics supplied).

1 In Terrell's case the statutes were silent, and the letters patent issued by the Governor in making the appointment had been destroyed, but the Crown's instructions to the Governor were that judges were to hold office at pleasure.

2 Ibid. at p. 500 (italics supplied).

3 Contra Beinart, op. cit., at p. 41.

4 De Smith, op. cit., p. 504.

5 See infra, at pp. 279–280.

6 If retiring age provisions do not thus set a minimum period of employment, they do clearly set a maximum and so are regarded as inconsistent with the life tenure implied in provision for dismissal only for “cause” (e.g., Le Leu v. The Commonwealth (1921) 29 C.L.R. 305Google Scholar; Lucy v. The Commonwealth (1923) 33 C.L.R. 229Google Scholar). They will thus be invalid if the provision for tenure has constitutionally superior status. Otherwise provisions for retiring age will simply limit pro tanto such tenure, as is the case with the judiciary in the Australian States.

7 A provision simply describing an employment as “permanent” may, however, be too vague to imply anything more than that the employment shall be of indefinite duration, or something other than temporary: McClelland v. Northern Ireland General Health Services Board [1957] 1 W.L.R. 594Google Scholar. See also Williames v. Victorian Railway Commissioners (1903) 29 V.L.R. 566 at p. 579.Google Scholar

8 Beinart, op. cit., at pp. 40–41; Geddes v. Magrath; Geddes v. Morgan (1933) 50 C.L.R. 520 at p. 531Google Scholarper Rich J., at p. 534 per Starke and Dixon JJ.

9 The claimant in Terrell's case apparently had a similar belief but based on a combination of the retiring age provision and the assumption that judicial tenure is during good behaviour.

10 Fridman, The Modern Law of Employment (1963), at pp. 446–459, 480–482, 483–484.

11 Ridge v. Baldwin [1964] A.C. 40 at pp. 65–66Google Scholarper Lord Reid. There are, however, cases where the courts in their supervisory jurisdiction have required public authorities to comply with the hearing rule of natural justice in the summary termination of public employment contracts which purport to leave dismissal in the complete discretion of the authority, at least where a requirement of reasons can be implied or where reasons are in fact given. For example, Capel v. Child (1832) 2 Cr. & J. 558 (149 E.R. 235); R. v. Smith (1844) 5 Q.B. 614 (114 E.R. 1381); Willis v. Childe (1851) 13 Beav. 117 (51 E.R. 46); Dean v. Bennett (1870) L.R. 6 Ch. 489; contra R. v. Darlington School Governors (1844) 6 Q.B. 682 (115 E.R. 257); Williames v. Victorian Railway Commissioners (1903) 29 V.L.R. 566 at pp. 583–585.Google Scholar See generally Ganz, op. cit. But for recent reconsideration of this issue in the House of Lords, see Malloch v. Aberdeen Corporation [1971] 1 W.L.R. 1578Google Scholarper Lord Reid at p. 1582. “Then it is said that it is inconsistent that a body should be entitled to act at pleasure but nevertheless be bound to hear the teacher before acting. I can see no inconsistency. Acting at pleasure means that there is no obligation to formulate reasons. Formal reasons might lead to legal difficulties. But it seems to me perfectly sensible for Parliament to say to a public body: you need not give formal reasons but you must hear the man before you dismiss him. In my view, that is what Parliament did say in the 1882 Act.” See also Lord Wilberforce at pp. 1595–1598; Lord Simon of Glaisdale at pp. 1599–1600; and, in dissent, Lord Morris of Borth-y-Gest at pp. 1588–1589; Lord Guest at pp. 1592–1593.

12 Suggestions in some cases that the relationship between the Crown and its servants is not contractual can now, apparently, be disregarded. Kodeeswaran v. Attorney-General of Ceylon [1970]Google Scholar A.C. 1111.

13 For example, Larter v. Melbourne and Metropolitan Board of Works (1896) 22 V.L.R. 519 at pp. 525–526.

14 For example, Shenton v. Smith [1895] A.C. 229 at pp. 235–236; Venkata Rao v. Secretary of State for India in Council [1937] A.C. 248 at p. 257.Google Scholar

15 McClelland v. Northern General Health Services Board [1957] 2 All E.R. 129 at p. 140Google Scholarper Lord Evershed.

16 See ante, n. 43.