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PUBLIC RECORD OFFICE

Reference :-

C.O. 885

15 PUBLIC RECORD OFFICE, LONDON

ALLY WITHOUT PERMISSION OF THE BE REPRODUCED PHOTOGRAPHIC- COPYRIGHT PHOTOGRAPH-NOT TO

That with reference to the formulation of charges, it would be seen that the Governor was satisfied that Colonial Regulation No. 84 was substantially, if not literally, complied with, and that this also was the view taken by you in confirming the suspension.

That Dr. Hallen's contention that he was not guilty of engaging in trade was thought to be well founded, and that this opinion was expressed in your confidential despatch of the 26th September.

That it appeared from the fourth enclosure to the Administrator's despatch, No. 70, of the 18th July, that the letters of the 9th and 14th of July, from the Colonial Secretary's Office, formulating the two distinct charges were read in the Executive Council on the 17th of July, and that you, whilst exonerating Dr. Hallen from the charge of trading, confirmed his suspension on the ground of being absent from duty without leave for the reasons given above.

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That from Dr. Hallen's correspondence with the Assistant Colonial Secretary since his suspension, it would seem not unlikely that he might attempt to bring legal proceedings for dismissal against the Colonial Government.

That the facts of this case were not identical with those of the case of Shenton r. Smith (L.R. 1895, A.C. 229), where Dr. Smith was dismissed without reason given, and failed to prove a special contract, and that it was not clear whether in a case where an officer had been tried on specific charges before the Executive Council, it would be competent for a Court of Law to review the grounds upon which the decision of the Executive Council was taken.

That he was, however, to direct our attention to the general terms employed by Lord Hobhouse in the case above referred to at page 235 to the effect that in a Crown Colony appeal to the Secretary of State exhausted the plaintiff's remedies within the Colony, and to suggest that confirmation of the sentence of suspension by the Secretary of State precluded inquiry into the case by a Court of Law.

That he was to request us to take all the facts of this case and the accompanying papers into our consideration and to report

(1.) Whether Colonial Regulation No. 84 was sufficiently complied with? (2.) Whether the charge of trading or of being absent from duty without leave was sufficiently established?"

(3.) Whether Dr. Hallen has any right of action against the Colonial Govern- ment, and if so, in what Court and what method of procedure he could adopt?

(4.) Whether, if such an action can be heard by a Court of Law, the Colonial Government would have a good defence?

We have taken the matter into our consideration, and in obedience to your com- mands have the honour to

Report-

That (1.) We think that Colonial Office Regulation 84 was sufficiently complied

with so far as the charge of being absent without leave was concerned, but not with reference to the charge of trading.

(2.) We think that the charge of trading was not sufficiently established.

We think it very doubtful whether a Court or a Jury would hold that the charge

of being absent from duty without leave was sufficiently established.

(3 and 4.) Dr. Hallen has no right of action against the Colonial Government. The only procedure which he could invoke would be à Petition of Right as it is clear that his engagement was on behalf of the Crown, and that those who engaged him are not personally liable. Any such proceeding would fail inasmuch as Dr. Hallen's engagement was terminated at the pleasure of the Crown. Paragraph 3 of the letter of the 3rd October, 1896, is not, in our opinion, to be read as incorporating the Regula- tions as a term of the contract. It is a mere reference to the procedure which the Crown thinks fit to pursue, and in no way fetters the power of the Crown to dismiss Dr. Hallen whether such dismissal be carried out in accordance with the terms of these Regulations or not.

Indeed, if this paragraph could be read as making these Regulations a term of the Contract with Dr. Hallen it would be ultra vires, and not binding on the Crown (see Dunn v. Regina, L.R., 1896, 1 Q.B. 116, and the case of Dohse v. Regina there cited at page 118). There is the further ground of defence that notice having been given sufficient to satisfy Regulation 84 (a) the decision of the Colonial Governor as to absence without leave, whether right or wrong, is binding upon Dr. Hallen, and

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cannot be reviewed in a Court of Law. We therefore think that the Colonial Government have a good defence to any legal proceedings by Dr. Hallen.

We have nothing to add by way of general observations.

The Right Honourable

Joseph Chamberlain, M.P.,

&c...

&c.,

&c.

We have, &c.,

R. B. FINLAY. EDWARD CARSON.