Allpike v Commonwealth

Allpike v Commonwealth - [1948] HCA 19 - HCA 1948 case summary — Zoe

[13]

If that is so the only other question which arises is the question as to the effect of payment or delivery by an authorized person of the whole or any part of the war service estate of a deceased member in pursuance of the provisions of s. 7. Here the question is whether the payment in the present case produces the result that the recipients, the brother and sisters of the deceased, will receive the £665 beneficially so that they will become full owners thereof, or whether they will receive it subject to an obligation to account to the person who is the beneficiary under the will of the deceased. It is submitted for the plaintiff that this provision should be construed as a provision dealing only with payment or delivery of things which have been in the possession of the deceased member at the time of his death so as to secure a legal quittance to the Commonwealth so that all the rights of persons in relation to that property remain in force in accordance with the ordinary law. On the other hand, it is pointed out that though payment or delivery to the personal representative of the deceased member is a payment or delivery to him in that capacity so that he is bound by the obligations of a personal representative, and though similarly payment or delivery to a public trustee is payment or delivery to the public trustee subject to the performance of his functions as a public trustee, yet in s. 7 (1) (b) there is provision for payment to any person who in the opinion of the authorized person is beneficially entitled to the property in question. That provision certainly provides for a direct payment to a person beneficially entitled for the purpose of enabling that person to hold the property as his own. Now, does s. 7 provide effectively for a payment which will confer a beneficial interest upon the recipients in this case? Light is thrown upon this provision by the amendment made in 1943, when par. (d) was omitted from s. 7 (1) and other provisions were inserted. The amending Act inserted in s. 7 the following paragraphs, which I read in conjunction with the initial words: - "An authorized person may pay or deliver the war service estate of a deceased member - (d) to such persons or persons included in such classes of persons as are prescribed; (e) to such persons or persons included in such classes of persons as the Minister specifies; or (f) to any one or more of the persons referred to in the preceding paragraphs of this sub-section." Prior provisions provide for payment to the personal representative of the deceased member or to the public trustee. It is therefore apparent that this amendment is intended to bring about the result that payment or delivery may be made to a person who does not receive the property in a representative capacity and subject to the duties of either a personal representative as executor or administrator or as a public trustee. These provisions show that it was intended by Parliament that when payment was made to persons not holding the positions or having the status to which I have referred, the payment could be made so as to confer upon them the beneficial interest.

[17]

The War Service Estates Act contains provisions which may extend further than the defence power of the Commonwealth warrants. It deals with the war service estate as an artificially defined conception consisting of three classes of property or personal effects. It first of all speaks of the nett amount of pay, including deferred pay and allowances. It then speaks in the second place of other money due to a member of the forces by the Commonwealth. Thirdly, it speaks of the personal property or effects of a member in the care, control or custody of the naval, military or air force authorities at the time of the death of the member or which come under that care, control or custody after the death of the member. With respect to the mass which is composed of those items, it enables or purports to enable the authorized person to pay or deliver the war service estate of a deceased member to any of a category of people. An attack has been made upon what the authorized person in this case has decided to do and the attack is based upon substantially three positions. It is said that as a matter of construction s. 7 does not enable him to do what he intends to do. It is said that if as a matter of construction it does enable him to do it the statute is to that extent void. I have said that the grounds of attack amount to three because the first argument, which concerns construction, is divided into two. It is said that in enumerating a list of things which the authorized person may do the statute is setting out an order of acts and that he must go through the list in an order of priority. If he is unable by reason of the facts to do the first thing authorized he must proceed to the second, and so on toties quoties. Thus in every case he is to pay or deliver the war service estate to, first the personal representative if he can, and if he cannot, then to a person he thinks should be entitled, third to the public trustee, fourth to such persons as are prescribed, fifth to such persons as the Minister specifies, and lastly to any one or more of them.

[22]

Upon the assumptions I have mentioned the problem in the case, as it seems to me, comes down to the question whether, in applying s. 15A of the Acts Interpretation Act so as to adopt no construction which would spell invalidity, you are to be governed by the natural meaning of s. 7 (1) and are to apply s. 15A to the definition or you are to be governed by the definition and are to apply s. 15A to s. 7 (1). On the one hand it would be possible perhaps to adopt Mr. Seaton's construction of s. 7 (1) and thus save the definition. On the other hand, it is possible, on the assumptions as to validity which I am making, to consider how the definition can be severed so as to leave s. 7 (1) bearing its natural meaning. I think that the validity of the definition must give way in part to s. 7 (1) because, while the definition is plainly divisible, the meaning of s. 7 (1) is incapable of the moulding that would be necessary. It seems to be abundantly clear that the legislature, at all events in making the amendment, if not in adopting the original provision, intended to vest in the authorized person complete power to dispose as he thought just of the war estate; that is to say, of the beneficial interest as well as formal legal control or title. Artificially to narrow the meaning of s. 7 (1) is to give it an unintended operation at the expense of a very clearly expressed intention. I think that such a course ought not to be adopted. Assuming that the parts of the definition which I have mentioned could not be supported upon the basis of the intended meaning of s. 7 (1), I think that it is quite possible to excise notionally from the definition of "war service estate" the references to other money and the whole of par. (b) and to leave an operative provision which pro tanto gives effect to the intention of the legislature. It is a course which s. 15A would authorize. There is nothing to suggest in the context of the Act that the legislature meant that all the parts of the definition of "war service estate" should be interdependent so that if any part went the rest would go as not being intended to stand alone. It appears to me to be a provision setting out two or three descriptions of assets, each description being of a distributive character and intended to apply to anything which came within the description, even though other things which, according to the literal meaning of the language, come within the description, might be found incapable of doing so. It follows that the definition is severable and may be good as to one description of asset although bad as to another. Accordingly, so much of par. (a) of the definition of "war service estate" as relates to pay which is due and to deferred pay and to any accessory of deferred pay, stands as not necessarily invalidated by any other portion of the provision.

[23]

Upon this view, the present case must depend upon the question whether, standing alone and on its own basis, the provision relating to the nett amount of pay, deferred pay and allowances due is outside the legislative power of the Commonwealth. It is quite clear that it cannot be outside legislative power if the view submitted by Mr. Louch for the Commonwealth is correct, viz., that there is nothing contained in the legislation affecting the army which would overcome the common law rule, a rule obtaining traditionally in the British armed forces, that all engagements between those in the military service of the Crown and the Crown are voluntary only on the part of the Crown, and give no occasion for an action in respect of any alleged contract, as Lord Esher said in Dunn v. The Queen [1] . We have not perhaps had an adequate opportunity of studying the War Financial (Military Forces) Regulations, upon which in part Mr. Seaton rests his argument that a change has been effected in the operation of this rule, and I do not propose to pronounce any concluded opinion upon the effect of those regulations. But my impression is that they do not effect a change and that they do leave the common law position of the army unaffected by anything but s. 12 of the Defence Act. But whether that is so or not, I think that pay, deferred pay and allowances are so closely associated with defence and with the maintenance of an army that the Commonwealth has legislative jurisdiction over the whole subject. I do not think that any reasonable ground exists upon which to base an attack upon the legislative power to direct the destination of the unpaid pay or allowances of a deceased soldier. The provision applies prospectively from the passing of the Act in 1942 to persons who die after the date of the statute. So far as they are concerned, the provision deals with the devolution on death of money which will become payable under statute. Whether there will or will not be a right vested in them to the pay or deferred pay or allowances while they are serving as soldiers, the provision attaches to their title to the money a condition affecting its devolution on death. To do this is within the defence power. I think there is no basis for the argument that s. 51 (xxxi.) of the Constitution must be invoked in order to support a legislative direction of the course of devolution on death of property when such a thing falls within the purposes of the Commonwealth. Such a direction involves no acquisition of property and raises no question of just terms. The whole matter of the disposition on death of the pay, deferred pay and allowances of a soldier appears to me to be within Federal legislative power.

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Judgment (27 paragraphs)

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