Smith v The King - [1913] HCA 54

17 CLR 356

insurmountable, that he has undertaken the burden of showing that Madden C.J. was not under any circumstances entitled to make the order which he made. We think he has not discharged that burden. We are not furnished with the reasons given by Madden C.J. or informed as to the circumstances which affected him. We cannot undertake to say that he was wrong under all circumstances in making the order complained of. In addition to that the interrogatory is open to the objection embodied in the passages already referred to.

We think, therefore, that we cannot grant leave to appeal in respect of either of these two orders.

There remains the order of Madden C.J. as to the postpone- ment of the trial of the issues. As a consequence of the refusal of the applications for leave to appeal from the other orders this application fails also.

The motions therefore are dismissed.

Leave to appeal in each case refused. Solicitors, Snowball &Kaufmann.

17 CLR 357

[ ] SMITH

THE CROWN

ON APPEAL FROM THE SUPREME COURT OF Civil Servant- Superannuation allowance- Question as to period of service-

Decision by Governor in Executive Council-Jurisdiction of Court-Super- annuation Act 1871 (W.A.) (35 Vict. No. 7), sec. 1. PERTH, Oct. 28, 29.

After providing that the superannuation allowance to be granted to persons " who shall have served in an established capacity in the permanent Civil Service" of the Government of Western Australia shall be at the rates therein set out, sec. 1 of the Superannuation Act 1871 (W.A.) enacts as follows:- "Provided that if any question should arise in any department of the public service as to the claim of any person for superannuation under this clause it shall be referred to the Governor in Executive Council, whose decision shall

A question having arisen in a department of the public service of that State as to the length of time a claimant for a pension had SO served the State,

Held, that as the matter had been referred to and decided by the Governor in Executive Council, the Court had no jurisdiction to inquire whether such decision was right or wrong, or whether it was arrived at on adequate or inadequate evidence.

Judgment of the Supreme Court of Western Australia (McMillan J.)

APPEAL from the Supreme Court of Western Australia.

William Pugh Smith, who, on retirement from his office in the Civil Service of Western Australia, had lodged an application for

17 CLR 358

a superannuation allowance under the provisions of the Super- H. annuation Act 1871, and was allowed a smaller amount than that applied for, instituted proceedings under the Crown Suits Act 1898, and in his petition he claimed to be entitled to the amount for which he had made application. The case was heard by McMillan J., who gave judgment for the Crown.

From this decision the petitioner now appealed to the High Court.

The facts sufficiently appear from the judgment of Barton A.C.J.

Pilkington K.C., Northmore…

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.

Continue reading Smith v The King

Details

AGLC: Smith v The King [1913] HCA 54
Case: [1913] HCA 54
Decision Date: 29 October 1913

CaseChat Overview and Summary

This case concerned an appeal to the High Court of Australia from a decision of the Supreme Court of Western Australia. The appellant, William Pugh Smith, a former civil servant, sought a superannuation allowance under the *Superannuation Act 1871* (W.A.). He had been granted a smaller amount than he claimed upon retirement, leading him to initiate proceedings under the *Crown Suits Act 1898*. The Supreme Court had ruled in favour of the Crown, and Mr. Smith appealed this decision.

The central legal issue before the High Court was whether the Court had jurisdiction to review the decision of the Governor in Executive Council regarding the appellant's superannuation claim. Specifically, the Court had to determine if a question had arisen in a department of the public service concerning Mr. Smith's claim for superannuation, and if so, whether that question had been referred to and decided by the Governor in Executive Council, as stipulated by section 1 of the *Superannuation Act 1871*.

The High Court, in dismissing the appeal, reasoned that section 1 of the *Superannuation Act 1871* contained a proviso that if any question arose in a department of the public service as to a claim for superannuation, it was to be referred to the Governor in Executive Council, whose decision would be final. The Court found that a dispute had indeed arisen regarding the length of Mr. Smith's service in an "established capacity in the permanent Civil Service," which directly impacted the calculation of his pension. The Court concluded, based on the evidence of departmental records and the process of ministerial recommendation and Executive Council approval, that this question had been referred to and decided by the Governor in Executive Council. Consequently, the Court held that it lacked jurisdiction to inquire into the correctness or the evidentiary basis of that decision, as the Act stipulated its finality.

The High Court affirmed the judgment of the Supreme Court of Western Australia. Given that the Crown had commenced allotting the appellant a pension after the petition was delivered, the Court deemed it appropriate not to award costs of the appeal against Mr. Smith.

Orders