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New South Wales v Bardolph

New South Wales v Bardolph

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Case Copied 30 November 1934 74 min read

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THE STATE OF NEW SOUTH WALES BARDOLPH

RESPONDENT. PLAINTIFF, Constitutional Law-Crown contract-Industrial undertaking-Validity of contract

-Necessity for express parliamentary authority-Executive power-Power to contractPayment-Parliamentary appropriation-Special Deposits (Indus- trial Undertakings) Act 1912-1930 (N.S.W.) (No. 22 of 1912-No. 40 of 1930), sec. 3*-The Constitution (63 &64 Vict. C. 12), sec. 75 (IV.)-Judiciary Act 1903-1933 (No. 6 of 1903-No. 65 of 1933), secs. 64-66.*

The Tourist Bureau of New South Wales is a department of the Public Service of that State under the control of the Chief Secretary, who is the responsible Minister. It is an industrial undertaking within the meaning of the Special * The Special Deposits (Industrial

a party, the rights of parties shall as Undertakings) Act 1912-1930 (N.S.W.)

nearly as possible be the same, and Aug. 10, provides :- sec. 2: "The Colonial

judgment may be given and costs Nov. 30, 1934. Treasurer shall cause special deposit

awarded on either side, as in a suit accounts to be opened in the Treasury

between subject and subject." By to which shall be paid all moneys re-

sec. 65 No execution or attachment, ceived from all sources in the course of

or process in the nature thereof, shall be the management of

issued against the property or revenues industrial undertaking that the

a State in any such suit; Governor may specify by notification

but when any judgment is given against in the Gazette." By sec. 3 (1): 'There

a State, the Registrar shall shall be paid out of any such account

give to the party in whose favour the any expenditure of or in relation to the

judgment is given a certificate in the industrial undertaking to which it

form of the Schedule to this Act, or relates, including charges for manage-

to a like effect." By sec. 66 On ment, maintenance, working expenses,

receipt of the certificate of a judgment and interest on capital at the current rate for loan money payable by the Government." The Judiciary Act

satisfy the judgment out of moneys 1903-1933 provides sec. 64 In

legally available." any suit to which a State is

52 CLR 456

Deposits (Industrial Undertakings) Act 1912-1930. An incident of its work is continual advertising. It is the duty of an officer of the Premier's department to arrange for advertisements relating to the various Government departments. On the authority of the Premier "as a matter of Government policy," this officer entered into a contract with the plaintiff, a resident of South Australia, for the weekly insertion in a newspaper owned by the latter, of advertisements relating to the Tourist Bureau. The contract, which was for a period which affected more than one financial year, was not expressly authorized by the Legislature, nor was it sanctioned or approved by any Order in Council or Executive minute In the Supply Acts and Appropriation Acts for the financial years affected provision was made under the heading "Government adver- tising" for the expenditure of sums much larger in amount than the amount involved…

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: [1934] HCA 74
Decision Date: 30 November 1934

CaseChat Overview and Summary

The case of *New South Wales v Bardolph* involved an action brought by Kenneth Edward Bardolph, a South Australian resident and newspaper owner, against the State of New South Wales in the High Court of Australia. Bardolph sought to recover payment for advertising services rendered to the New South Wales Government Tourist Bureau under a contract and its subsequent extension. The State of New South Wales defended the claim on the grounds that the contract was not authorised by Parliament and therefore not binding, and alternatively, that no parliamentary appropriation had been made to cover the payments.

The High Court was required to determine the validity of a contract entered into by a government officer on behalf of the Crown, particularly when the contract extended beyond a single financial year and was not expressly authorised by specific parliamentary legislation. A key issue was whether the general appropriations for "Government advertising" in Supply and Appropriation Acts were sufficient to cover liabilities arising from such a contract, or if a more specific parliamentary authorisation was necessary. The Court also had to consider the implications of the *Special Deposits (Industrial Undertakings) Act 1912-1930* (NSW) and the extent to which parliamentary appropriation was a condition precedent to the Crown's liability under a contract.

The Full Court of the High Court held that the contract was a valid contract of the Crown, binding on the State, subject to the provision of sufficient moneys by Parliament for its performance. The Court reasoned that while there was an implied condition that payments would only be made from lawfully available parliamentary appropriations, this did not invalidate the contract itself. The Court found that the general appropriations for government advertising, along with the provisions of the *Special Deposits (Industrial Undertakings) Act*, were sufficient to satisfy the constitutional requirement for parliamentary funding. The Court applied the principle that a specific reference to a particular contract in parliamentary legislation was not necessary, provided the appropriation covered the class of service to which the contract related and a fund existed from which payments could lawfully be made.

The High Court dismissed the appeal by the State of New South Wales. The Court affirmed the decision of Evatt J., holding that the contract was validly entered into by authorised government officers and was enforceable against the State, provided Parliament had made sufficient moneys available. The Court found that the existing parliamentary appropriations and statutory provisions were adequate to meet the liabilities under the contract.

Orders