Opinion Number. 458



The Secretary, Department of Defence

The Secretary, Department of Defence has forwarded the following memorandum for advice:

It having been found necessary from time to time to suspend, by Order in Council, provisional regulations governing the payment of compensation to officers, etc. on account of injuries received by their chargers whilst on military duty, owing to the acci-dent not having been reported within the specified time, I am directed to submit the attached Order in Council for the favour of opinion as to whether same is in order, i.e. whether the authority making a regulation has the power to suspend its operation in any particular case.

No. 161 of the Military Financial Regulations dealing with compensation for in-jury to horses belonging to members of the Permanent, Militia or Volunteer Forces is as follows:

Full particulars as to any injury must be communicated to the Commandant of the District within forty-eight hours after its occurrence, otherwise claims will not be considered.

This regulation has been amended by the addition of the following:

In cases in which an injury is not reported to the District Commandant within the limits of the time prescribed by the Regulation and the Government is subsequently called upon to pay compensation in connection with such injury, the amount so paid by the Government may be made a charge against the officer or soldier responsible for the neglect of duty in failing to report the injury.

Although the exact requirements of the regulation have not been complied with I think that, if it is considered that the circumstances of any particular case warrant such a step, the making of a report within the allotted time may be dispensed with, and com-pensation allowed by Order in Council as proposed.

Read as a whole it is evident that this regulation contemplates cases in which the Government may pay compensation in respect of the death of or injury to horses of members of the Military Forces, notwithstanding that reports of such injury have not been communicated to the Commandant of the District within the time specified.

'It may, perhaps, be found generally correct to say that nullification is the natural and usual consequence of disobedience; but the question should in the main be gover-ned by considerations of convenience and justice' (Maxwell, Interpretation of Stat-utes, 4th edn, p. 556); and on these considerations I am of opinion that the Government is justified in waiving its right to disregard claims for compensation, notifications of which have not been made within the time allowed by the regulation above quoted.

[Vol. 10, p. 194]

* See also Opinion No. 464.