Curley v Commonwealth [1909] HCA 8; (1909) 8 CLR 178 (23 March 1909)

HIGH COURT OF AUSTRALIA

Curley Plaintiff; and The Commonwealth Defendants.

H C of A

23 March 1909

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

McArthur (with him Lewers), for the defendants in support of the demurrer.

Duffy K.C. (with him Macfarlan), for the plaintiff contra.

McArthur, in reply,

Griffith C.J.

The Court is invited once more to consider sec. 19 of the Public Service Act 1900, which came into operation four days before the establishment of the Commonwealth. It 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 Court has on previous occasions pointed out that this section is to be read in view of the fact that four days later the Trade and Customs Department would be transferred to the Commonwealth—because 1st January 1901 was fixed as the day upon which the Constitution of the Commonwealth was to come into operation—and that the other Departments, though they might not be taken over so soon, would, it was known, be taken over before long. Then this section was passed. It formed part of an Act which dealt with a number of matters relating to the Public Service of Victoria and principally with officers who would not be transferred to the Commonwealth. I myself am unable to derive much assistance from the rest of the Act. This sec. 19 stands by itself, and is intended to confer on the officers mentioned certain distinct privileges. If the words are quite clear and unambiguous, as I think they are, we need go no further. What idea does this section convey to anybody who reads it knowing that in four days, in the one case, and in a very short time in the others, these officers would cease to be officers of the Government of Victoria and would take over to the Commonwealth all their existing rights as public servants. To my reading, knowing those facts only, they seem to suggest this:—Hitherto there have been six several Departments administering the Customs of Australia. Next week there will be only one, and there will be officers from Victoria and officers from the other Colonies in the one Department. The section then speaks of officers of corresponding positions in any Australian Colony.

The idea that conveys to my mind is a comparison between officers in a Victorian Department and officers holding corresponding positions in the same Department in some other Australian Colony. That is the only idea the words convey to my mind.

It is quite possible for the words "any Australian Colony" to include Victoria also. If there is an ambiguity the second of the rules in Heydon's Case[1], is very apropos. What was the mischief and defect for which the Constitution of the Commonwealth, which was coming into operation in a few days, did not provide? As soon as that question is asked the answer is apparent. There were then six different Departments in Australia which were about to be united in a few days. The remuneration of officers holding corresponding positions in those Departments varied very greatly. In some cases the officers in other Australian Colonies might be better off than officers holding corresponding positions in Victoria, in other cases they might be worse off. The section plainly says that officers transferred from a Victorian Department should not be in a worse position than those transferred from any other Colony. I do not think the words are apt to express any other idea, and if they are, having regard to all the circumstances, I think it is quite impossible for them to have any other meaning in this Act.

The other meaning contended for is that every officer in the Departments mentioned shall be entitled to receive a salary equal to the highest salary then payable to an officer of corresponding position in his Department. That would be a most extraordinary thing to say. If the legislature meant that, I think we would certainly expect to find some such words as these "Every officer," &c., "shall be entitled to receive the highest salary payable to any other officer holding a corresponding position in his Department or holding a corresponding position in any other Australian Colony." I think that we are practically asked to interpolate these words in the section. As said by counsel on both sides, it is difficult to come to any conclusion except that the words are plain. In my opinion they are plain, and the plaintiff fails.

Barton J.

I concur. I cannot see how any other conclusion could be come to by any reasonable person.

O'Connor J.

I concur. The matter is so plain that I do not think it worth while to add anything.

Judgment for defendants with costs.

Solicitors, for the plaintiff, Rigby & Fielding.

Solicitors, for the defendants, C. Powers, Commonwealth Crown Solicitor.

[1] 3 Rep. 7a.