Stuart-Robertson v Lloyd - [1932] HCA 33

STUART-ROBERTSON

RESPONDENT LLOYD

ON APPEAL FROM THE COURT OF BANKRUPTCY. Bankruptcy-Constitutional Law-Member of State Parliament-Allowance granted by

State Act-Appropriation under Federal Act for benefit of creditors-Validity - Pay, pension, salary, emoluments, profits, wages, earnings, or income SYDNEY,

Discretion of CourtConstitution Act 1902 (N.S.W.) (No. 32 of 1902), sec. 28*- May 12;

Bankruptcy Act 1924-1930 (No. 37 of 1924-No. 17 of 1930), secs 5, 101* Aug. 8.

The Constitution (63 &64 Vict. C 12), secs. 51 (XVII.), 106.

Sec. 101 of the Bankruptcy Act 1924-1930 applies to the allowance to which members of the Legislative Assembly of New South Wales are entitled under sec. 28 of the Constitution Act 1902 (N.S.W.): The proviso to sec. 101 of the Bankruptcy Act does not exclude such an allowance from the operation of * The Constitution Act 1902 (N.S.W.)

The Bankruptcy Act 1924-1930 provides, by sec. 28 :- Every mem-

provides, by sec. 101 Subject to ber of the Legislative Assembly now

this Act, where a bankrupt is in serving or hereafter to serve therein

receipt of pay, pension, salary, emolu- be entitled to receive,

ments, profits, wages, earnings, or by way of re-imbursement for expenses

income, the trustee shall receive for incurred by him in the discharge of his

distribution amongst the creditors SO parliamentary duties, an allowance at "

much thereof as the Court, on the a specified rate per annum

application of the trustee, directs Such allowance shall be charged on the

Provided that this section shall not Consolidated Revenue Fund, and shall

apply to any pay, pension. salary, be payable monthly at the rate afore-

or wages which by any Act or State said to every such member from the

Act is made exempt from attachment time of his taking his seat, and, in every

or incapable of being assigned or case, until he resigns or his seat is vacated," &.

47 CLR 483

Sec. 101 of the Bankruptcy Act 1924-1930 in its application to allowances under sec. 28 of the Constitution Act 1902 (N.S.W.) is a valid exercise of the power vested in the Parliament of the Commonwealth by sec. 51 (XVII.) of the

The estate of a member of the Legislative Assembly of New South Wales having been sequestrated, the Official Receiver applied for an order under sec. 101 of the Bankruptcy Act 1924-1930 in respect of the allowance to which the bankrupt was entitled under sec. 28 of the Constitution Act 1902 (N.S.W.). The Court of Bankruptcy, having regard to the circumstances of the case, including the nature of the allowance and its purpose, to the fact that the bankrupt was a married man with a wife and family dependent upon him, and on the assumption that he had no other source of income, ordered that out of his parliamentary allowance the bankrupt should contribute the sum of £4 per week to the trustee of his estate for distribution amongst his creditors.

Held, by Gavan Duffy C.J., Rich, Starke, Dixon and McTiernan JJ. (Evatt…

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 Stuart-Robertson v Lloyd

Details

AGLC: Stuart-Robertson v Lloyd [1932] HCA 33
Case: [1932] HCA 33
Decision Date: 8 August 1932

CaseChat Overview and Summary

The case of *Stuart-Robertson v Lloyd* concerned an appeal from the Court of Bankruptcy regarding the sequestration of the estate of Robert James Stuart-Robertson, a member of the Legislative Assembly of New South Wales. The Official Receiver sought an order under section 101 of the *Bankruptcy Act 1924-1930* (Cth) to appropriate a portion of the bankrupt's parliamentary allowance for the benefit of his creditors. The Court of Bankruptcy had made an order directing the bankrupt to contribute £4 per week from his allowance, which was granted under section 28 of the *Constitution Act 1902* (N.S.W.) as reimbursement for expenses. The bankrupt appealed this decision to the High Court.

The central legal issues before the High Court were: first, whether the parliamentary allowance received by a member of a State Parliament constituted "pay, pension, salary, emoluments, profits, wages, earnings, or income" within the meaning of section 101 of the *Bankruptcy Act*; second, whether the allowance was excluded from the operation of section 101 by its proviso, which exempts payments made exempt from attachment or incapable of assignment or charge by any Act or State Act; and third, whether section 101 of the *Bankruptcy Act*, as applied to State parliamentary allowances, was a valid exercise of the Commonwealth Parliament's legislative power.

A majority of the High Court held that the parliamentary allowance was "income" within the meaning of section 101 of the *Bankruptcy Act*. While acknowledging the allowance was described as reimbursement for expenses, the Court found that it formed part of the member's general resources and could be applied as he saw fit, thus falling within the broad definition of income. The Court also determined that the proviso to section 101 did not exclude the allowance, as there was no specific State Act making it exempt from attachment or incapable of assignment, and the common law principles of public policy did not, in the Court's view, automatically render it unassignable in this context. Furthermore, the Court found that the Commonwealth Parliament had the constitutional power under section 51(XVII) of the *Constitution* to legislate with respect to bankruptcy, and that section 101 was a valid exercise of this power, not unduly interfering with State legislative functions. The Court concluded that the discretion conferred by section 101 had been exercised according to law by the Judge in Bankruptcy, and therefore the appeal should be dismissed.

Orders