Young v Williams [1916] HCA 18; (1916) 21 CLR 145 (29 March 1916)

HIGH COURT OF AUSTRALIA

Young Plaintiff, Appellant; and Williams Defendant, Respondent.

H C of A

On appeal from the Supreme Court of New South Wales.

29 March 1916

Griffith C.J., Barton, Gavan Duffy and Rich JJ.

Armstrong (with him Hodgson and Baxter Bruce), for the appellant.

Blacket K.C. and Pickburn, for the respondent,

Griffith C.J.

The plaintiff was employed by the Railway Department of New South Wales. He alleges in his declaration that at a time not mentioned, but which we are told was in 1886, the then Commissioner of Railways promised that if he continued in the service until he attained the age of sixty years the Government would pay him a gratuity on his retirement. The question is whether such a promise is binding upon the Government. The learned Judge at the trial was of opinion that it was not, and that any evidence as to the terms of the alleged promise was irrelevant. He therefore rejected the evidence tendered on the point, so that there was nothing to go to the jury, and the plaintiff was nonsuited.

The appellant's counsel relied upon company cases, in which directors of companies had granted gratuities or pensions to retiring servants or the dependants of deceased servants, and one case in which directors had given extra payment for past services. The questions to be determined in those cases were, first, whether it was within the objects of the company, i.e., within its corporate power, to make payments of the particular kind, and, secondly, whether it was within the powers of the directors administering the affairs of the company to authorize the payments. Those cases, however, have no relation to an action against the Government.

The principles of constitutional government are well settled. One most important principle is that no public money can be expended without the authority of Parliament, which, in theory (though not always in fact), is given in advance. How, then, can any other authority, even the Executive Council or a Minister, make a binding promise that money shall be paid irrespective of the sanction of Parliament? Of course it is impossible. It is equally impossible for a superior officer administering a department of Government to make such a promise. It is impossible for any officer without statutory authority, such as is given, for instance, in the case of mail contracts, to pledge the revenue of the Crown for future years. It has never been suggested that such a charge could be created except by Statute. Such Statutes are not uncommon, as, for instance, in the case of retiring allowances and pensions. In the absence of such a Statute, an officer of the Government has no power to pledge the future revenues of the Crown. Another well known principle is that the tenure of office under the Government is determinable at will.

The plaintiff must therefore rely upon some Statute in force in 1886 authorizing the Commissioner to make a binding promise to pay money out of the Treasury to servants who should remain in the employment of the Government until they had attained sixty years of age, that is to say, at some indefinite and probably far off time. There is nothing in the Railways Act then in force (22 Vict. No. 19) to suggest that any such power was given to the Commissioner. The plaintiff's case therefore fails, and the learned Judge was right in granting a nonsuit.

The appeal must consequently be dismissed.

Barton J.

I am entirely of the same opinion. I regret that it is necesary to disappoint the expectations of a large and faithful body of public servants. But the question is purely one of law, and can only be answered in the way proposed.

Gavan Duffy J.

I agree.

Rich J.

I agree.

Appeal dismissed with costs.

Solicitor for the appellant, J. B. Moffatt.

Solicitor for the respondent, J. V. Tillett, Crown Solicitor for New South Wales.