Flint v Commonwealth [1932] HCA 49; (1932) 47 CLR 274 (3 October 1932)

HIGH COURT OF AUSTRALIA

Flint Plaintiff; and The Commonwealth Defendant.

H C of A

3 October 1932

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

C. Gavan Duffy, for the plaintiff.

Wilbur Ham K.C. (with him Fullagar), for the defendant.

The following judgments were delivered:—

Gavan Duffy C.J.

In this case we are all of opinion that the plaintiff ought to succeed on the demurrer.

Sec. 84 of the Constitution fixes the amount of the pension as that which the retiring officer would have enjoyed if up to the time of his retirement he had still remained in the service of the State. That, at all events, is the latest time at which the criterion of the amount of the State pension can apply.

The demurrer will be allowed with costs, and there will be judgment for the plaintiff as sought in the action.

Dixon J.

I should like to add that, although sec. 84 of the Constitution presents a number of difficulties, in my opinion it gives to the transferred officer a constitutional right which cannot be affected by legislation of the Commonwealth or of the State. When the section says he "shall be entitled to retire from office at the time, and on the pension or retiring allowance, which would be permitted by the law of the State if his service with the Commonwealth were a continuation of his service with the State," it converts into a constitutional right a right which previously had rested upon the authority only of a statute of the State Parliament.

Demurrer allowed. Judgment in the action for plaintiff.

Solicitors for the plaintiff, Tolhurst & Druce.

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