Martin v The King

[1927] HCA 41

HIGH COURT

192

[HIGH COURT OF AUSTRALIA.!

MARTIN..............................................................Appellant ;

Petitioner,

AND

THE KING...........................................................................

Respondent.

Respondent,

ON APPEAL FROM THE SUPREME COURT OF

VICTORIA.

Police Force—Pension—Police officer acting as licensing

Allowance in

addition to pay as police Whether part of “pay” of police officer— Police Regulation Act 1915 (Viet.) (No. 2709), secs. 13, 22*, 29*—Licensing Act 1915 (Viet.) (No. 2683), secs. 80*, 81*, 312, 313.

For the performance of their duties as such, Inspectors of Licensing Districts, who were appointed under the Licensing Act 1915 (Viot.) and were required under that Act to be officers of police, received an allowance in addition to their ordinary pay as members of the police force. But this allowance was paid out of the Licensing Fund established under the Licensing Act, and not out of the Consolidated Revenue as was their ordinary pay.

Held, that the allowance was not part of the “ pay ” of a member of the police force, within the meaning of sec. 22 of the Police Regulation Act 1915 (Viet.).

Decision of the Supreme Court of Victoria (Mann J.) affirmed.

* The Police Regulation Act 1915

twelve consecutive mon

(Viet.) by sec. 22 provides that “ A

preceding the date of

member of the force was served and an increase of one fi

for a period of not lessten years

succeeding year up to

and has attained the full fifty-five

e completed ” ; a

years may be superannuatanshall

des that “ Where u

on retirement receive ... aearly amount of any

pension according to the fowing

g allowance to be

scale ; that is after ten y’

any member of the force is

service ten fiftof the y

the rate of pay of such

received by him the perif

the force, such rate of pa

Appeal from the Supreme Court of Victoria.

By a petition of right filed in the Supreme Court of Victoria pursuant to the provisions of the Crown Remedies and Liability Act 1915 (Viet.), the petitioner, John Henry Martin, alleged that (1) he was, within the meaning of the Police Regulation Act 1915 (Viet.), a member of the force from 5th January 1886 until 16th March 1925 ; (2) during the period of such service he passed through various ranks in such force, and among other offices was appointed to that of Licensing Inspector for specified districts in the metro­ politan area on 7th March 1921, Superintendent on 19th June 1922, and Licensing Inspector for every district in the State of Victoria on 1st September 1922 ; (3) on 16th March 1925, having then attained the full age of sixty years, he was superannuated and retired from the force ; (4) upon being superannuated and retiring he became and was entitled to receive a pension in accordance with the provisions of the Police Regulation Act 1915, and to have included in such pension pursuant to secs. 22 and 29 of the said Act thirty fiftieths of the amount of £100 received bv him as Licensing Inspector during the period of twelve consecutive months immediately preceding the date of his retirement ; (5) it was wrongly claimed by His Majesty’s Government of Victoria that the petitioner was entitled to a pension based only upon a sum of £612 (being the amount received by him as Superintendent, £500, and an amount alleged to be fixed in lieu of allowances at £112) instead of a sum of £712 upon which the said pension should be based. The petitioner claimed a declaration that he was entitled as from 16th March 1925 to a pension calculated as aforesaid, and such judgment or orders as might seem proper to the Court for the payment thereof. The answer of the Attorney-General for the State of Victoria on behalf of His Majesty alleged (inter alia) that the sum of £100

de not only the salary o “ remson so

may receive but like­ted ” ; an

provides

valent for the several “ It shall

ty of every

he is entitled as a

Inspector of Licensing Districts

ce . . .”out or cause to be carried ou

Act 1915 (Viet.) by

visions of this Act in any

n which he is

where no o	in
that behalf	the

as

recovery of all penalties for offences

aLicensDistricts ”

against this Act in such district . .

HIGH COURT

11927

mentioned in par. 4 of the petition was not the pay of the petitioner within the meaning of the Police Regulation Act 1915 ; that such sum was paid to the petitioner under the Licensing Acts of the State of Victoria out of the Licensing Fund established under the provisions of the said Acts and not out of the Consolidated Revenue of Victoria.

The petition was heard by Mann J., who gave judgment for His Majesty with costs.

From that decision the petitioner now appealed to the High Court. The other material facts are stated in the judgments hereunder.

Sir Edward Mitchell K.C. (with him Phillips), for the appellant. By virtue of sec. 22 of the Police Regulation Act 1915 the appellant is entitled to a pension calculated by reference to his “ pay.” Sec. 4 of that Act empowers the Governor in Council to appoint and remove officers of police. Sec. 12 obliges each member of the police force to take an oath to “ discharge all the duties legally imposed upon ” him ; and sec. 13 gives the oath the force of a contract. By sec. 14 a member cannot resign, unless expressly authorized by the Chief Commissioner, except upon giving three months’ notice. Accordingly, by virtue of the Police Regulation Act, the appellant was bound, by his oath and by contract, to carry out the duties imposed on him by the Licensing Act 1915 upon his appointment as a Licensing Inspector under that Act. Sec. 80 of the Licensing Act empowers the Governor in Council to appoint as Licensing Inspector any person who is an officer of police not below the rank of sub-inspector. There is no power to appoint any other person, and, therefore, it was only by reason of the appellant’s office in the police force that he could be appointed a Licensing Inspector. Further, by reason of his position in the force, he was bound to perform the duties under the Licensing Act when appointed, although he had no option as to accepting or refusing the appointment. If the appellant had been guilty of any dereliction of duty as a Licensing Inspector, he could have been dealt with only under Part IV. of the Police Regulation Act; the Public Service Act 1915 (Viet.) does not apply to the police force (see sec. 3 of that Act). It follows that the duties performed by

the appellant as Licensing Inspector were in fact police duties,

r

and the allowance he received as Licensing Inspector was part of his ‘ ‘ payThe fact that the allowance was paid out of the Licensing Fund, and not out of the Consolidated Revenue, is immaterial, as, by sec. 29 of the Police Regulation Act, such an allowance must be taken to be “ pay ” for the purposes of sec. 22. [Counsel also referred to Police Regulation Act 1915, secs. 16, 17, 32, 33, 34, 41 ; Licensing Act 1915, secs. 81, 83, 85, 86, 312, 313, 321 ; Licensing Act 1916 (Viet.), sec. 44 ; Appropriation Act 1910 (Viet.) (No. 2283).]

C. Gavan Daffy and Clayton Davis, for the respondent, were not called upon.

Cur. adv. vult.

The following written judgments were delivered :—

Isaacs A.C.J. and Powers J.

The question is whether the

appellant’s pension under sec. 22 of the Police Regulation Act 1915 is to be computed on the basis of £712 or £612 as “ the pay received by him during the period of twelve consecutive months immediately preceding the date of his retirement.” The appellant, when he retired in 1925, was a Superintendent receiving, in addition to £612 admitted salary, a further sum of £100 a year as Inspector of Licensing Districts under the Licensing Act 1915. The ultimate point for determination, therefore, is whether that sum of £100 was part of his “ pay ” within the meaning of sec. 22 of the Police Regulation Act.

Mann J. answered that question in the negative; and, although Sir Edward Mitchell presented the matter in the most favourable light possible for the appellant, we cannot doubt the decision of the learned primary Judge was right. Mann J. held (inter alia) that the word “ pay ” in sec. 22 of the Police Regulation Act

capable of including remuneration for services as Licensing Inspector if in fact it is given as extra police pay added by way of increase to his ordinary police salary. On examination of the circumstances he concluded that the £100 allowance was not so given. We agree with the learned Judge’s method of approaching this question and with the result, but with some slight change in the factors.

There can be no doubt that the position of Licensing Inspector is in itself a distinct office, created by the Licensing Act. The appointee must, by sec. 80 of that Act, be an officer of police not below the rank of sub-inspector. But that is only by way of qualification. It is clear that the Legislature believed that it woidd be highly advantageous, and at the same time economical, to restrict the occupancy of the new office by the condition mentioned. But the two offices were not merged. Special and separate provision is made for removing a Licensing Inspector at will and appointing another officer in his place. No direct legislative provision is made for remunerating Licensing Inspectors as such, and perhaps it was thought their additional duties might not require additional remuneration. But it has been found that their duties deserve extra reward, and so £100 a year is paid as equitable compensation for these services. As we view the matter, everything depends on the way in which that remuneration is granted. If it is granted so as to be an accretion to ordinary police pay, the appellant should succeed. If police pay is left altogether clear of the licensing remuneration, the latter being quite separate and independent, he should fail.

The administrative grant of the £100 began with a recommendation by the then Chief Commissioner on 5th September 1923, which remained undealt with until renewed on 6th December 1923. Its terms are very important in view of the way in which Parliament dealt with the matter. It was a recommendation (1) of an increase to £100 of the then allowance of £50 per annum to Licensing Inspectors ; (2) of a similar increase to two Superintendents, namely, to those in charge of the Criminal Investigation Branch and the Melbourne District; (3) of a similar increase to the Officer in Charge of No. 1 Division. The latter memorandum was on 8th December 1923 minuted by the Chief Secretary as follows : “ Forwarded to Treasurer for early favourable consideration.” On 12th December 1923 the Treasurer minuted it “ Pay.” The document was returned to the Chief Secretary’s Department on the same date. This, which needed legislative confirmation as to police pay, was carried out in the Appropriation Act, No. 3389, in Part I. of the Second Schedule, Division 29, Sub-division 4, except as to the Licensing Inspectors.

The latter payment was not out of the Consolidated Revenue, and was left to be borne by the Licensing Fund under the Act. In the same Appropriation Act, Part II. of the Second Schedule, Division 29, Sub-division 5, period 1924-1925, appears to us to be decisive of the present case. It is headed :—“ Salaries and Wages—General Police.” It proceeds as follows:—“ 11 Superintendents, including allowances to Officers in Charge of Melbourne District and Criminal Investigation Branch of £100 per annum . . . £5,700. 10 Inspectors, including allowance of £100 per annum to Senior Officer, Russell-Street Station . . . £4,300. 17 Sub-inspectors . . . £6,630.” Then follow Sergeants and Constables, and finally, “ Extra pay to members of the Force on plain-clothes and special duties.” The last item is explained in a foot-note at the end of Division 29, and has no relation to this case. The significance of the parliamen­ tary appropriation—which is the only legal provision for police pay —is this : By Order in Council dated 13th December 1923 the yearly rates of pay are administratively stated to be £390 for Sub-inspectors, £420 for Inspectors, and £500 for Superintendents. Now, if those rates are multiplied by the respective number of officers, the calculation shows that Parliament has, with respect to the extra allowances for the two Superintendents and the Officer in Charge Russell Street, declared them to be part of their “ Salaries and Wages,” whilst the Licensing Act allowances are not so declared. It is therefore clear that not only is the office of Licensing Inspector distinct and separate, but that Parliament has kept the remuneration of that office altogether clear and separate from the Police Salaries and Wages, and therefore outside the scope of sec. 22 of the Police Regulation Act. That is the more significant when we find in the same Appropriation Act an item of £6,870 to be repaid from the Licensing Fund, being the pay of members of the force wholly employed in Licensing Act duty, an item not referable to Licensing Inspectors’ duty. If, however, Parliament, in passing Subdivision 5 of Division 29 in the Appropriation Act, had under the general heading “ Salaries and Wages—General Police ” chosen to include in the item “ Superintendents ” an “ allowance of £100 per annum to officers acting as Inspectors of Licensing Districts,” we cannot imagine any reason why that allowance should not have been taken

HIGH COURT

[1927

into account in computing pension. “ Salary or Wages ” is the expression in sec. 29 of the Police Regulation Act, and is manifestly at least included in the “ pay ” mentioned in sec. 22. In that case it would have been no more than an accretion to police pay, and part of it, making it so much larger. The Licensing Act in that event would not of itself, in our opinion, have interposed any legal bar to that accretion. That course, however, was not taken. We are in accord with Mann J. that the matter cannot be disposed of without examining the mode and circumstances of making the allowance, as elements in determining its character, and having done so, we think, having regard to the mode and circumstances appearing in this case, that the allowance does not fall within sec. 22 of the Police Regulation Act 1915.

For these reasons we are of opinion the appeal should be dismissed and the judgment of Mann J. affirmed.

Gavan Duffy, Rich and Starke JJ. The appellant is entitled to a pension calculated on the pay received by him as a member of the police force of Victoria during the period of twelve consecutive months immediately preceding the date of his retirement from the force (Police Regulation Act 1915, sec. 22). In addition to his ordinary pay mentioned in sec. 13, the appellant received an allowance of £100 per annum for certain duties which he performed as an Inspector of Licensing Districts under the Licensing Act 1915. Mann J. has held that this allowance of £100 per annum cannot be included in the appellant’s pay as a member of the police force for the purpose of calculating his pension under sec. 22. Pay, no doubt, includes the current rate of pay mentioned in sec. 13, the allowances mentioned in sec. 29, and also any other payments made to an officer of police in respect of the performance of his duties as such. The Licensing Act, sec. 80, empowers the Governor in Council to appoint an officer of police not below the rank of sub-inspector as an Inspector of Licensing Districts and to remove any person so appointed. The appellant was appointed pursuant to this power and his duties and authorities are regulated by the Act (cf. sec. 81). Moreover, his allowance of £100 has been paid out of the Licensing Fund established under the Licensing Act (see secs. 312, 313) and

has never been thrown upon the Consolidated Revenue. Under c- or A'

1927

these circumstances the learned Judge concluded rightly, in our

,__

opinion, that the allowance was not paid to the appellant in respect

Mamin

V.

of the performance of duties as an officer of the police force. The King.

Consequently the appeal ought to be dismissed.

Appeal dismissed with costs.

Solicitors for the appellant, P. J. Ridgeway & Schilling.

Solicitor for the respondent, F. G. Menzies, Crown Solicitor for

Victoria.

E. F. H.

[HIGH COURT OF AUSTRALIA.]

THE PUBLIC TRUSTEE OF NEW SOUTH ,

Appellant

;

WALES........................................................j

Defendant,

AND

GAVEL..........................................................................Respondent.

Plaintiff,

ON APPEAL FROM THE SUPREME COURT OF

NEW SOUTH WALES.

Vendor and Purchaser—Sale of Land—Sale subject to consent of Minister for Lands H. C. OF A.

to transfer—Application for transfer to purchaser—Withdrawal of application

1927.

by purchaser—Right of purchaser to another application for consent to transfer to

nominee—Specific performance—Readiness and willingness.

Sydney,

Nov. 8, 9.

A contract for the sale of certain conditionally purchased and conditionally

Knox C.J.,

leased land in New South Wales provided that the sale was subject to the

Isaacs,

Qavan DuSy

consent of the Minister for Lands being obtained to the proposed transfer and Starke JJ.

and that if for any reason that consent should be refused the contract should