Appeal On Public Service Post

Press, Volume CII, Issue 30154, 11 June 1963, Page 14

Appeal On Public Service Post

(New Zealand Press Association)

WELLINGTON, June 10

The Court of Appeal this afternoon adjourned till tomorrow the appeal by Leonard Allan Atkinson and Adrian George Rodda, formerly members of the Public Service Commission, both of Wellington, against John Bruce Brown, first respondent, Harry Rosen, Clifford Jack Stace, and Stephen Roberts, second respondents.

The appeal is brought against a decision of Mr Justice McGregor delivered in the Supreme Court, Wellington, on May 3. 1963, concerning the appointment of R. J. McLachlan as Director-General of Lands.

In the Court of Appeal, the Sdlicitor-General (Mr H. R C. Wild, Q.C.). with him Mr F. R. Winkel. is appearing for the appellants, and Mr J C. White, with him Mr M. J Powles. is representing the respondents. The Court of Appeal comprises Mr Justice North. Mr Justice Turner, and Mr Jus tice McCarthy

For the appellants. Mr Wild submitted that during construction of the public service legislation having regard to both its general scheme and policy and to particular schemes that were relevant leads to the conclusion that the Public Service Board of Appeal might validly decide by a majority. Mr Wild said the construction of the relevant Section (5.17 of the Public Service Amendment Act. 1927* was consistent with a number of rules of construction and a statute was to be construed in conformity with, rather than against such a general rule except so far as statute expressly altered it.

Then, he said, where alternative meanings were possible that meaning was to be preferred which was consistent with the smooth working of the system with which the act was regulated.

In his view, said Mr Wild, the right of appeal to the Public Service Board of Appeal would be destroyed if decisions from that board were unanimous.

General Considerations

Mr White, opening the case for the respondents, submitted that this, was a statute to be decided'on general considerations, having regard to the constitution of the board and the matters it had to decide. The constitution, functions and characteristics ,of the Public Service Appeal Board, he said, were such that in the absence of contrary authority its decision must be unanimous.

Mr White said the Public Service jurisdiction was very similar to that of the war pensions scheme in England Both schemes, he said, were administrative and in both

cases the bodies were appeal boards. In both, the decisions of an appeal to a judicial body of three persons were final on questions of fact.

Where the matter for determination. he said, was not a public matter, then unless the statute showed expressly or by necessary implication that a decision might be a majority, it must be unanimous

If the question at issue before the board could be properly called a public matter, it could be shown that unanimity be required, said Mr White.

He submitted that he was concerned with the appointment of one man which became provisional if it was appealed against by another applicant. The original appointment, he said, was by the Public Service Commission which at that level was the administrative body of the State to make an appointment subject to the right of another applicant for the position, to have the matter more fully considered by the Appeal Board. The Appeal Board, he said, was a body set up to act judicially, but was not a public tribunal to determine a public question.