Casey v R [1913] HCA 9; (1913) 16 CLR 92 (27 February 1913)

HIGH COURT OF AUSTRALIA

Casey Petitioner, Appellant; and His Majesty The King Respondent, Respondent.

H C of A

On appeal from the Supreme Court of Victoria.

27 February 1913

Griffith C.J., Barton and Isaacs JJ.

Arthur, for the appellant.

Lewers and Starke, for the respondent.

Arthur, in reply.

Griffith C.J.

This is in some respects a hard case, and the appellant possibly had some ground for thinking when he left the public service that he was retiring on a pension. But that cannot affect his legal right. He was originally employed under the Government in the year 1874, as a supernumerary officer. He was not, however, appointed by the Governor in Council, and consequently did not become a member of the civil service as regulated by Act No. 160, which was then in force. In 1880 his employment ended, and he received, by the bounty of Parliament, not under any statutory right, a compensation or gratuity on its termination.

On 24th December 1881, while he was still not employed in the service, Act No. 710 was passed, which provided that, notwithstanding any Acts then in force relating to pensions, "no pension or superannuation or retiring allowance or compensation or gratuity for loss of office or on death or on reduction of salary or other like payment shall be paid either directly or indirectly out of the consolidated revenue to any person who shall hereafter be appointed either permanently or temporarily to any public office whatsoever, or to his family or representatives."

That Act did not apply to "any person now employed in the public service" (sec. 2). As I have pointed out, the petitioner was not then employed in the public service, so that the latter provision did not operate in his favour. The result was that no person appointed to the public service after the passing of that Act, and while it was in force, acquired any pension rights.

In 1883 the appellant was again employed in the public service. His appointment was not at first made by the Governor in Council, but afterwards was so made. At that time Act No. 160 was still in force. In the same year, but after the re-employment of the appellant, the Public Service Act 1883 was passed, which, by sec. 99, restored the pension system for the future, and provided that "all persons classified or unclassified holding offices in any department of the public service at the time of the passing of this Act except persons appointed since the passing of" the Act No. 710 "shall be entitled to superannuation or retiring allowance compensation or gratuity to be computed under the provisions of Act No. 160 but save as aforesaid nothing in this Act shall in any way affect alter or vary the first mentioned Act so as to give any person appointed hereunder any claim to any pension superannuation or other allowance." The appellant, having been appointed since the passing of Act No. 710, did not therefore acquire any right to compensation under the Act of 1883. Since then the law has not been altered.

The petitioner, therefore, seems to me to come exactly within the words of what now stands as sec. 107 of the Public Service Act 1890 (sec. 99 of the Act of 1883). Whether he held "an office" or not, is a point which the Crown desires to be left open. If he did, he was a person appointed since the passing of Act No. 710. All that is urged against that view is that his former employment in 1874, which had terminated, should be taken to be an appointment made before and not since the passing of the Act No. 710, or, in other words, as was suggested by one of the learned Judges of the Supreme Court, that the word "first" must be read in before the word "appointed" in the Act of 1883. I cannot see any justification for such an interpretation. Without expressing any opinion whether, if the petitioner had been a person appointed before the passing of Act No. 710 within the meaning of sec. 107 of the Act of 1890, he would have been held to be a person "holding office," I am of opinion that his case fails for the reasons I have stated.

It was, indeed, suggested that the Act of 1893 confers some right upon the petitioner. Sec. 22 of that Act provides that for the purpose of computing the compensation of persons who were entitled to compensation, a gap in their service should not make any difference, with certain qualifications. But, unless the petitioner was entitled to compensation, that section has no application, and it is quite irrelevant to the inquiry whether he was entitled to compensation.

For these reasons, which are the same as those of the Supreme Court, I think that the appeal should be dismissed.

Barton J.

I am clearly of opinion that within the meaning of the Public Service Act 1883 the petitioner was appointed to the service after the passing of Act No. 710, and that is a fatal bar to his claim. I would add that it seems to me that the reasons given by the Supreme Court Judges are conclusive, and need no further indorsement on our part.

While it is not for this Court to make recommendations to the Crown, still it is open to me to say that this is a case of evident hardship.

I agree that the appeal will have to be dismissed.

Isaacs J.

I agree with what has been said both as to the hardship and as to the law.

Appeal dismissed with costs.

Solicitors, for the appellant, Snowball & Kaufmann.

Solicitor, for the respondent, Guinness, Crown Solicitor for Victoria.