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  • Unreported Judgment

The Queen v The Honourable Ronald Ernest Camm

 

[1979] FC 15

O.S.C. No. 51 of 1978

THE QUEEN

-v-

THE HONOURABLE RONALD ERNEST CAMM

Ex parte: ERROL PETER MAURER

(Prosecutor)

___________________________________

Stable S.P.J.

Kelly J.

Dunn J.

___________________________________

Reasons for Judgment delivered by Dunn J. on the 16th March, 1979. Stable S.P.J. and Kelly J. concurring.

___________________________________

“ORDER NISI DISCHARGED WITH COSTS”.

___________________________________

IN THE SUPREME COURT OF QUEENSLAND

O.S.C. No. 51 of 1978

THE QUEEN

-v-

THE HONOURABLE RONALD ERNEST CAMM

Ex parte: ERROL PETER MAURER

Prosecutor

JUDGMENT - DUNN J.

The Prosecutor seeks a writ of mandamus commanding the Honourable The Minister for Mines, Energy and Police (one of whose responsibilities is the administration of the Fire Brigades Act 1964-1973 (“the Act”)) to appoint a secretary to an Appeal Board and to constitute that Appeal Board, pursuant to Rule 5 of Schedule II of the Act, in order to hear and determine an appeal commenced by the Prosecutor.

Section 11(3) of the Act provides that

“any .... fireman of a Fire Brigade provided by a Hoard whose employment is of a permanent and full-time nature and who for any offence against the By-laws has been punished by or on behalf of the Board by being dismissed .... may appeal against such punishment in the manner provided in Schedule II to this Act.”

The By-laws of the Toowoomba Fire Brigade Board, the former employer of the Prosecutor, provide that certain matters shall constitute breaches of discipline. If the Chief Officer of the Fire Brigade has reason to believe that a fireman has been guilty of a breach of discipline, he is required to charge the fireman. A procedure is prescribed for investigating the charge, and the Board may, if it is of opinion that the charge has been sustained, punish the fireman. One form of punishment is dismissal.

The appeal procedure (an appeal may be on the ground of innocence of the offence or excessive severity of the punishment) prescribed by Schedule II requires that a person wishing to appeal against a punishment despatch to the secretary to the Board concerned a Notice of Appeal in writing. A “channel” is prescribed through which the Notice'of Appeal comes to the Minister, “for the purpose of having an Appeal Board constituted to hear and determine such appeal and a secretary to such Appeal Board appointed.”

The contentions of the Prosecutor are, in brief:—

  1. That he was found guilty of a breach of discipline, and punished by dismissal for that reason, without the prescribed procedure with respect to charge-and-investigation being followed.
  1. That the Act gives him in these circumstances a right of appeal, and that he duly despatched a written Notice of Appeal, which reached the Minister.
  1. That in such circumstances it is the duty of the Minister to have an Appeal Board constituted, and that the Minister has refused to perform that duty.
  1. That the refusal is consequent upon a mistake of law by the Minister, the mistake being his failure to perceive that the Prosecutor had been punished for a breach of discipline.

The materials before the Court show that, on 3 July, 1978, the Prosecutor was convicted of driving under the influence of liquor and his “C” Class Driver's Licence was suspended for a period of 15 months.

On or about 28 July, 1978, he received a letter from the Toowoomba Fire Brigade Board terminating his services. The letter, omitting formal parts, read as follows:—

“At a Meeting of my Board on 26th July 1978, consideration was given to the loss of your ‘C’ Class Driving Licence, and its effect on this Brigade.

It is a condition of your contract that you hold a ‘C’ Class Driving Licence.

My Board therefore requests that your services are to be terminated on the completion of night shift, commencing Friday night 28th July 1978.

One week's wages in lieu of Notice are provided in accordance with the Fire Brigade Employees State-excluding Brisbane - Award.

Superannuation settlement will be made to you in due course.”

There was a conference on 4 August, 1978, between representatives of the Board and the secretary of the Union to which the Prosecutor belongs. The Chief Officer was present at the conference and, in the presence of the Board members, he said:—

“It is inefficient to keep these men on and we can't keep on doing it.”

He also said:—

“If Fireman Maurer is kept on then the efficiency of the Brigade cannot be guaranteed.”

At the conference, the Chairman of the Board said that the Board acted on the advice of the Chief Officer, and that, if he was of opinion that efficiency could not be maintained, the Board could not keep the applicant in employment.

On 7 August, 1978, the same Union Officer attended an Industrial Conference convened to consider the dismissal of the Prosecutor. The representative of the Board is reported to have said, on behalf of the Board:—

“It was the concern of the Board at that station that the functioning of the fire service or the efficiency of the fire service was questioned by continuing to carry men who could not complete part of their contract”

and

“Advices to the Senior Officers were that at this juncture the efficiency of the Brigade - that they cannot guarantee the efficiency of the Brigade by continuing a policy of employing people who are not capable of fulfilling their full contract.”

The materials also show that the Prosecutor despatched a Notice of Appeal to the Secretary of the Board on or about 4 August, 1978, and that it came to the notice of the Minister.

On 20 September, 1978, the Minister wrote a letter to the solicitors for the Prosecutor which included the following:—

“As the punishment was not for an offence against the Toowoomba Fire Brigade Board's By-Laws, I had previously advised both the Board and the United Firefighters Union that Mr. Maurer would have no right to appeal under the Fire Brigades Act. However, I did indicate to the Union that Mr. Maurer would have an avenue of appeal to the Industrial Commission for applying for reinstatement in employment if he considers that the Board's action was unreasonable.”

The argument advanced on behalf of the Prosecutor centred upon By-law 13(1)(xiii). That provision is as follows:—

“Any .... fireman who-

is guilty of any act, conduct, disorder, or neglect which, in the opinion of the Chief Officer, is such as to prejudicially affect the discipline or efficiency or good order of the Brigade or members thereof .... shall be guilty of a breach of discipline.”

The argument was that the circumstance that, on 28 July, 1978, the Prosecutor did not hold a “C” Class Driving Licence involved that he was guilty of some “act, conduct, disorder, or neglect” which, in the opinion of the Chief Officer, was such as to prejudicially affect the efficiency of the Brigade.

It is, I think, clear from the materials that the Chief Officer held the opinion attributed to him in the argument. But I am unable to accept that either the act of the Stependiary Magistrate (of Justices) in suspending the Prosecutor's licence on 3 July, or the state of things on 28 July (that state of things being that he did not then hold a licence), involved that he was guilty of any “act, conduct, disorder, or neglect” within the meaning of the By-law.

To be without a licence cannot to my mind fairly be characterized as doing an act or engaging in conduct or being involve in disorder. The question remains, was his lack of a licence “neglect” in the relevant sense?

That this is the central question appears to me to have been recognized by learned counsel for the Prosecutor; for, in the course of argument, when the question was discussed, how should a charge of being without a licence be particularized, he suggested that appropriate particulars would be “something like the following:—”

“In that he failed to be the lawful holder of a current ‘C’ Class Driver's Licence on such dates and in such circumstances as in the opinion of the Chief Officer prejudicially to affect the efficiency of the Brigade.”

Such particulars would be appropriate to a charge of “neglect”.

In my opinion, “neglect” in this context means something blameworthy, e.g. a conscious omission to do something which ought to be done. Such cases as In Re London and Paris Banking Corporation (1874) L.R. 19 Eq. 444, Re Hughes: R. -v- Black (1943) 2 All. E.R. 269 and Pense -v- Hemy (1973) W.A.R. 40 support this conclusion.

It may also be noted that clause 13(1)(xiii) of the By-laws is clearly derived (with a modification, the modification being the reference to the Chief Officer's opinion) from section 40 of the Army Act; and the concept of “neglect” dealt with by the section has been discussed in Australia by the Courts Martial Appeals Tribunal. The decision is unreported (In the Matter of Cottingham's Appeal, No. 1 of 1972); my brother Kelly has drawn my attention to it.

The Tribunal (of which Street J., as he then was, was the President) said:—

“It is important to bear in mind that an ingredient of an offence under Section 40 is that the act, conduct, disorder or neglect be blameworthy. The accused must be guilty of an act, conduct, disorder or neglect.”

Later in the judgment, the Tribunal endorsed the views expressed by the annotator of the current Australian Array Law Manual, again emphasising that “neglect” involves blameworthiness. The passage is as follows:—

“In the current Australian Array Law Manual the notes to Section 40 on page 303 state in note 14(a):

‘Neglect, to be punishable under this section, must be blameworthy and deserving of punishment. If it is intentional, it is clearly blameworthy and deserving of punishment, but neglect brought about by an error of judgment and involving no lack of zeal, carelessness or intentional failure to take the proper action, is not neglect within the meaning of this section and should not be made the subject of a charge under it.’

Implicit within, this note is the proposition that a lack of zeal, or an element of carelessness, or an intentional failure to take proper action, may well constitute the significant ingredient translating a mere omission by error of judgment into a blameworthy neglect to the prejudice of good order and military discipline.”

Suspension of a licence under the Traffic Act 1949-1977 “shall, whilst such licence is so suspended, disqualify the person who held that licence from holding or obtaining a licence of the same kind, class or description.” (Section 55(4)).

In Anon 80 L.T. 720, discussing the situation of a solicitor who does not seek a practising certificate whilst suspended from practising, Ridley J. said:—

“I am unable to see how a person who has not got the opportunity of doing a thing, can, when he does not do it, be said to neglect to do it.”

That observation is in point in this case.

My conclusions are that the Prosecutor was not guilty of a breach of discipline, and that therefore his dismissal was not a punishment. It follows that he has no right of appeal, and Minister was under no duty to constitute an Appeal Board. Consequently, the Order Nisi should be discharged with costs.

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Editorial Notes

  • Published Case Name:

    The Queen v The Honourable Ronald Ernest Camm

  • Shortened Case Name:

    The Queen v The Honourable Ronald Ernest Camm

  • MNC:

    [1979] FC 15

  • Court:

    QSC

  • Judge(s):

    Stable S.P.J., Kelly J., Dunn J.

  • Date:

    16 Mar 1979

Litigation History

No Litigation History

Appeal Status

No Status