McDonald v Victoria

In this action before the High Court of Australia, the plaintiff, Lachlan McDonald, sought to recover deductions made from his pension by the defendant, the State of Victoria. Mr. McDonald, who had served in the Victorian Department of Railways from 1879 until his retirement in 1923, claimed that the deductions made under section 13 of the Financial Emergency Act 1931 (Vict.) were unlawful. His claim was predicated on the argument that a previous High Court decision, *Flint v. The Commonwealth*, had established the invalidity of section 13 in relation to the reduction of retiring allowances for officers transferred to the Commonwealth service, and that this invalidity rendered the entire section void due to the inseparability of its provisions.

The central legal issue before the court was whether section 13 of the Financial Emergency Act 1931 (Vict.) was wholly invalid, as contended by the plaintiff, or valid in its application to his pension. This required the court to determine the scope and effect of section 13, particularly in light of section 84 of the Commonwealth Constitution, which protects the rights of officers transferred from State to Commonwealth service. The court also had to consider whether the principle of severability, as codified in section 2 of the Acts Interpretation Act 1930 (Vict.), applied to section 13, or if the section was drafted in such a way as to preclude its partial invalidation.

Evatt J. dismissed the plaintiff's action, holding that *Flint's Case* did not establish the invalidity of section 13 of the Victorian Act in any respect. His Honour reasoned that section 13 was not intended to apply to officers transferred to the Commonwealth service, as their pensions were paid by the Commonwealth, not the State of Victoria. Furthermore, even if section 13 were interpreted to apply to transferred officers, section 84 of the Constitution would render it invalid only to the extent of that inconsistency, not in its entirety. Evatt J. found that section 2 of the Acts Interpretation Act 1930 (Vict.), the "salvage" provision, was capable of application to section 13, allowing the valid portion of the section to remain operative. Consequently, the deductions made from the plaintiff's pension were lawful.