Miller v Commonwealth [1904] HCA 34; (1904) 1 CLR 668 (8 November 1904)

HIGH COURT OF AUSTRALIA

E. D. Miller Plaintiff and The Commonwealth Defendant.

H C of A

8 November 1904

Griffith, C.J., Barton and O'Connor, JJ.

Isaacs K.C, and Cussen, for the plaintiff.

Mitchell K.C., and Lewers, for the defendants.

Cussen in reply.

CJ Griffith delivered the judgment of the Court as follows:—

Griffith, C.J.

In this case the Court is called upon to construe sec. 19 of the Public Service Act 1900 of Victoria, which was passed on 27th December, 1900, four days before the Commonwealth came into existence. That section provides that "From the commencement of this Act every officer of the Trade and Customs Defence and Post and Telegraph Departments shall be entitled to receive a salary equal to the highest salary then payable to an officer of corresponding position in any Australian colony. Provided that this section shall not entitle any officer to receive more than One hundred and fifty-six pounds per annum." The plaintiff's case is that when this Act came into operation he was an officer, a letter carrier, in the Post and Telegraph Department of Victoria, and was in the first year of his service; that officers in a corresponding position in the Post and Telegraph Department of South Australia were then entitled to a salary of £100 a year, and that he, therefore, was, under this Act, entitled to £100 a year. And so the Supreme Court of Victoria decided in an action brought by the present plaintiff against the Victorian Government (Miller v. The King, 28 V.L.R., 530; 24 A.L.T., 150.) But the plaintiff now says that, under the same South Australian law, a South Australian officer was entitled to get £110 for his second year's service, £120 for his third year's service, and so on up to £150 for his sixth year's service, and he claims the benefit of that provision.

It seems to us that there is more difficulty in finding a difficulty in the case than in solving it. The words of the Act seem tolerably plain. As soon as this Act was passed, every officer in any of the departments concerned was entitled to enquire what was the highest salary payable on 27th December, 1904, to an officer in a corresponding position in any of the Australian Colonies. On inquiry he finds that in South Australia a salary of £100 a year is payable to an officer in a corresponding position, and he is therefore entitled to demand that salary from the Victorian Government. The typical officer in the other State is a person in the service of that State on the 27th December, holding a corresponding position. Having discovered him, and having ascertained what salary is then payable to him, the Victorian officer is entitled to demand the same salary, and there, it seems to us, the section is exhausted. That seems so simple that it is difficult to find the puzzle to be solved.

It is contended by Mr. Isaacs that the section should be read in this way, that, instead of the words "the highest salary then payable to an officer of corresponding position in any Australian colony" there should be read the words "the highest salary payable under the law then in force in any Australian colony." We do not know that that would carry the matter any further, but those are not the words used. The words that are used point to an immediate present enquiry what is the highest salary then payable to an officer in a corresponding position, so as to create an obligation between the government and the officer when it is ascertained. It is a matter of then existing fact, and, when ascertained, it is to be the test of the salary of the officer in the Victorian Public Service.

Mr. Cussen most ingeniously contended that this was an Act that might have remained in force for an indefinite time, and would have applied to officers in the Victorian Public Service as long as they remained in that service; that it was a section under which benefit might be claimed from year to year; and that the section might be read in effect thus:—Every officer shall from time to time be entitled to receive a salary equal to the highest salary payable under the law in force in any Australian colony on 27th December, 1900, to an officer then holding in that colony a position corresponding to that of the Victorian officer at the time when the question arises. That is a most ingenious suggestion. We do not think the words are open to that construction. Assuming that they are, we have to enquire whether it is a probable construction, and, for this purpose, we may regard the context. The words are certainly open to the other construction. The rights are to be ascertained on 27th December, 1900. If Mr. Cussen's view were correct, the result would be that officers then in the Victorian Public Service would, for an indefinite period, be entitled to refer to the laws of any State—in this case, of South Australia—which provide for periodical increases of salary. Those increases were, in South Australia, dependent upon various contingencies, one of which was the good conduct of the officer, and another was that Parliament should not have interfered. It would seem singular that the Parliament of Victoria should have incorporated into their laws, without express reference, provisions of that kind. Again, the Act is to be read and construed as one with the Public Service Act of 1890. That Act made express provision for increases of salaries of public officers, and made those increases dependent upon a certificate of good conduct, and also upon the voting of the money by Parliament. Moreover, by the Act of 1900 itself the government was enjoined by sec. 13 to pass regulations with respect to rates of pay, and to re-issue regulations which had been in force before 22nd October, 1894. In those regulations provisions were made for increments which, again, were discretionary, and dependent upon the voting of the money by Parliament. So that is improbable that the legislature, having, in the same Act, directed their attention to the subject of increments, should have intended to adopt a stereotyped rule as to increments by reference to the laws of another colony, not even knowing which colony it might be. Now, when an Act is said to be open to two constructions, you may always, to use the words of Tindal, C.J., "call in aid the ground and cause of making the Statute." This Statute was passed four days before the establishment of the Commonwealth, and it was evidently passed in view of the fact that the Constitution of the Commonwealth required the taking over of certain departments by the Commonwealth, and must, therefore, be considered in that view. It is just as if the Statute had recited that "Whereas certain departments will shortly be transferred to the Commonwealth," and then proceeded to enact this section. If those words are read into the section, it is almost impossible to argue that it was intended to do more than fix the salary which each officer should be entitled to receive when those departments were transferred.

For all these reasons it seems to us that the construction suggested by Mr. Cussen is excluded by the considerations usually called in aid in construing an ambiguous section of an Act. The plain meaning is that, as soon as the enquiry has been made what is the salary to which an officer is entitled on 27th December, 1900, the section is exhausted. The plaintiff says that he was entitled to a salary of £100 a year at that time, and he has received it. He has not made out any cause of action in respect of any addition to that salary.

Other questions have been raised with which it is unnecessary for us to deal.

Questions answered in favour of defendants.

Solicitors, for petitioner, Rigby & Fielding, Melbourne.

Solicitor, for respondent, Powers, Commonwealth Crown Solicitor.