Attorney-General (Vic) v Roberts - [1931] HCA 44

[ ] ATTORNEY-GENERAL FOR THE STATE

OF VICTORIA DEFENDANT, ROBERTS

RESPONDENT. PLAINTIFF,

ON APPEAL FROM THE SUPREME COURT OF Superanination-State school teacher-Appointment prior to 24th December 1881-

Pupil teacher without salary-Appointment by Governor in Council - Whether necessary-Public Service Act 1928 (No. 3757), secs. 150, 151-Public Service Act 1862 (Vict.) (No. 160)-Public Service (Pensions Abolition) Act 1881 (Vict.) MELBOURNE, (No. 710)-Public Service Act 1883 (Vict.) (No. 773), see, 70-Education Act Oct. 19, 20. 1872 (Vict.) (No. 447). secs. 3, 5, 22.

The respondent claimed to be entitled to superannuation or retiring allowance computed under the provisions of Act No. 160. The claim was made under the provisions of secs. 150 and 151 of the Public Service Act 1928. Sec. 150 provides that no public officer shall receive a pension, superannuation or retiring allowance if he was appointed since the passing of Act No. 710, which was passed on 24th December 1881. Sec. 151 provides that all persons classified or unclassified holding offices in any department of the Public Service at the time of the passing of the Public Service Act 1883 except persons appointed since the passing of Act No. 710 shall be entitled to superannuation

46 CLR 2

or retiring allowance computed under the provisions of Act No. 160. The Public Service Act 1883 was passed on 1st November 1883. From these provisions it follows that in order to succeed in his claim the respondent must establish that, being an officer in the Education Department or a teacher in (VICT.)

a State school, he held office whether classified or unclassified on 1st November 1883 and was not a person appointed since 24th December 1881. The records showed that the respondent had been appointed as an unpaid pupil teacher from 23rd June 1881; and in the classified rolls this was the date given as the date of his appointment. On 4th July 1882 his name was submitted to the Governor in Council, when he was appointed by the Minister but not by the Governor in Council as a paid pupil teacher. It was not disputed that he was a teacher holding office on 1st November 1883.

Held, by Rich, Dixon aud Evatt JJ. (Gavan Duffy C.J. and Starke J. dissenting), that, though his appointment by the Governor in Council was not proved, he was a person appointed prior to 24th December 1881, and that

any case the possibility of such an appointment was not completely excluded, and that he was accordingly entitled to superannuation allowance.

Per Rich and Evatt JJ. Even if the respondent's appointment was not formally approved by the Executive Council he would still be entitled to his pension.

Jenkin v. Attorney-General of Victoria, (1921) V.L.R. 79; 42 A.L.T. 141, Decision of the Supreme Court of Victoria (Irvine C.J.) affirmed.

APPEAL from the Supreme Court of Victoria.

In an action brought in the Supreme Court by the respondent, Edward Henry Roberts, against the Attorney-General for the State of Victoria, the plaintiff claimed…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [1931] HCA 44
Decision Date: 3 December 1931

CaseChat Overview and Summary

The Attorney-General for the State of Victoria appealed to the High Court of Australia from a decision of the Supreme Court of Victoria. The respondent, Edward Henry Roberts, a former teacher in the Education Department, sought a declaration that he was entitled to a superannuation or retiring allowance computed under the provisions of Act No. 160, as preserved by sections 150 and 151 of the Public Service Act 1928. The core of the dispute concerned whether Mr. Roberts had been appointed to his position before 24th December 1881, the date after which new appointments were disentitled to such allowances.

The High Court was required to determine whether Mr. Roberts qualified for a superannuation allowance under the relevant provisions of the Public Service Act 1928. Specifically, the court had to ascertain if he held an office in the Public Service on 1st November 1883 and, crucially, if he was appointed prior to 24th December 1881. The Crown contended that Mr. Roberts was first appointed on or about 4th July 1882, thus falling within the excluded category.

A majority of the High Court, comprising Rich, Dixon, and Evatt JJ., allowed the appeal, holding that Mr. Roberts was entitled to the superannuation allowance. The majority reasoned that despite the absence of proof of formal appointment by the Governor in Council, the evidence, including official records and departmental classifications dating his appointment to 23rd June 1881, created a strong presumption in his favour. They found that the Crown had not discharged the burden of proving that no such appointment occurred. Furthermore, the majority considered that the legislative intent behind the superannuation provisions was to include those who were in fact employed in the Public Service, irrespective of minor irregularities in their appointment process. Gavan Duffy C.J. and Starke J. dissented, finding that the respondent's appointment as an unpaid pupil teacher in June 1881 was not a lawful appointment under the Education Act 1872, and that his effective and lawful appointment occurred after the critical date.

Orders