Re New South Wales [1932] HCA 13; (1932) 47 CLR 58 (4 May 1932)

HIGH COURT OF AUSTRALIA

In re The State of New South Wales;

Ex parte The Attorney-General for the Commonwealth.

H C of A

4 May 1932

Gavan Duffy C.J., Rich, Starke, Dixon, Evatt and McTiernan JJ.

E. M. Mitchell K.C. (with him Ham K.C. and Nicholas), for the applicant.

Browne K.C. (with him Berne), for the respondent.

The following judgments were delivered:—

Gavan Duffy C.J.

In this suit the State of New South Wales has attempted to rely on certain items by way of set-off. We are of opinion that the Act of Parliament does not permit that to be done.

The Court will make one declaration stating that the State of New South Wales is indebted to the Commonwealth in the sum of £2,029,432 6s. 1d., being £910,203 15s. 7d. of the amount stated in the first certificate and £1,119,228 10s. 6d. of the amount stated in the further certificate.

Starke J.

I should like to say for myself that the item of £243,118 should be excluded from the amount on which the first certificate is founded and should be carried into the next certificate, and that the two items £7,047 10s. and £994 16s. should be wholly excluded from both certificates. The other items which have been deducted are simply the interest items.

Dixon J.

I agree with what my brother Starke has said. It appears to me that very great difficulty would arise under sec. 18 of the Financial Agreements Enforcement Act if the items of £7,047 10s. and £994 16s., which sums were collected under the proclamation, were applied in reduction of the amount shown under the Auditor-General's certificate before the judgment of this Court is given and not afterwards, because I think sec. 18 contemplates that the sums collected under a proclamation shall be applied after the judgment in satisfaction of the amount declared to be due, payable and unpaid, and not otherwise. As to the sum of £243,118, it is really immaterial how it is distributed, as we are making one declaration. It appears to me that on a correct construction of sec. 13 (2) only one declaration is contemplated where the order of events is that which has taken place in this case, namely, where two certificates are issued before the Court makes any declaration. The proviso to sec. 13 (2) applies only to cases in which a second certificate is given by the Auditor-General after the Court has made a declaration upon the first.

Declare that the State of New South Wales is indebted to the Commonwealth in the sum of £2,029,432 6s. 1d.

Solicitor for the applicant, W. H. Sharwood, Commonwealth Crown Solicitor.

Solicitor for the respondent, J. E. Clark, Crown Solicitor for New South Wales.