Automatic Fire Sprinklers Pty Ltd v Watson
[1946] ALR 390(Judgment by: Rich J)
Automatic Fire Sprinklers Pty Ltd
vWatson
Judges:
Latham CJ
Rich JStarke J
Dixon J
McTiernan J
Williams J
Legislative References:
Arbitration Act 1902 (NSW) - s 9(a); The Act
National Security Act 1939-1943 - s 10
Judgment date: 23 August 1946
Sydney
Judgment by:
Rich J
After studying the decision of the Court of Appeal in George v. Mitchell & King Ltd.(1), and the judgment of Atkinson J. in Woolley v. Allen Fairhead & Sons Ltd.(2), which follows this decision, and comparing the orders upon which those cases are based with the National Security (Man Power) Regulations, I have come to the conclusion that they govern the interpretation of the Regulations. There is no valid distinction between the article of the Order on which the Court of Appeal founded its decision and reg. 14 of the Man Power Regulations. It is little to the point that if the Court of Appeal had chosen to do so it might have found another article, viz. art. 4 (1) (d) in the Order upon which the same conclusion might conceivably have been reached. It preferred to rely on art. 4 (1) (a) which is indistinguishable from the Australian reg. 14. The interpretation attached to these statutory provisions is expressed by Lord Goddard C.J., as he now is, in a single sentence: "If a statute says that a person shall not terminate a contract except with the permission of a third person, in my opinion it follows that he is incapable of terminating it without that permission"(3). Atkinson J. puts it that the attempt to terminate "was ineffective, and the employment continued"(4). I see no reason why we should refuse to follow and apply these decisions. The application of the doctrine upon which they proceed to the present case is made plain by two paragraphs in the learned arbitrator's special case. In par. 18 he says:-"It was contended before me on behalf of Watson that the purported dismissals were ineffectual to determine his employment, for the reasons-(1) that by reason of reg. 14 of the National Security (Man Power) Regulations each of the purported dismissals was in law a nullity; and (2) that a purported dismissal of a servant, if wrongful, does not determine the servant's employment unless it be accepted by him as a determination thereof."
After stating what he would find if this contention were not upheld, the learned arbitrator says in par. 20:-"If the said contention should be upheld for either or both of these reasons, I find that Watson's employment as general manager of each of the companies was not determined on 29th September 1944 or at any time before 19th September 1945."
It will be seen that the finding expressed in par. 20 follows if the contention succeeds on either ground. For the reasons I have given, I am clearly of opinion that we should hold that it does for the first reason stated in par. 18. I see no reason in these circumstances for examining the validity of the second ground and I shall not do so more especially because the parties appear to differ as to the exact contention it means to describe. I answer the questions of law set out in par. 24 of the case stated as follows:-
- 1.
- (a) Yes.
- 1.
- (b) Unnecessary to answer.
- 2.
- Does not arise.