Quinn v Nott [1937] HCA 49

500 HIGH COURT

(HIGH COURT OF AUSTRALIA.)

QUINN, so uc o) + 2S bane append aeee Prawtirr,

AND

Nomina Derenpant,

ON APPEAL FROM THE SUPREME COURT OF NEW SOUTH WALES.

H.C. or A. Public Service—Officer—Leave on full pay—Death—Money value of 1937. Unmarried officer—Dependent relative—Right to payment—Pub Ww (Amendment) Act 1919 (N.S.W.) (No. 43 of 1919), sec. 14—P

Sypwry, (Amendment) Act 1929 (N.S.W.) (No. 10 of 1929), sec. 11 (c). Aug. 18; Sept. 1. Sec. 14 of the Public Service (Amendment) Act 1919 (as am

(c) of the Public Service Amendment Act 1929) (N.S.W.), which pro

Latham C.J. é i s Bich, St payment to "his widow, or in the case of a widower leaving and Men children, or their guardian, or other dependent relative, or their

sentative " of the money value of extended leave not taken

who, being entitled to such leave, dies before entering upon completing it, applies to an officer who at all material times was and, therefore, a dependent relative of such an officer is entitled to the conferred by that section,

=) So held by Latham ©.J., Rich, Dixon, Evatt and McTiernan JJ.

dissenting).

Decision of the Supreme Court of New South Wales (Full Co v. Nott, (1937) 54 W.N. (N.S.W.) 18, reversed.

Appa from the Supreme Court of New South Wales. — In an action brought in the Supreme Court of New the plaintiff, Agnes Quinn, claimed the sum of £95 2

J CLR]

Melville Charles Nott, as nominal defendant on behalf of the Govern- ment of the State of New South Wales.

In her declaration the plaintiff alleged that Thomas James Quinn, who died on 19th August 1935, was at all material times an officer

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and at the time of his death had acquired a right under those Acts to extended leave with pay and died before entering upon it or before its termination, and that Quinn was at all material times a bachelor and thereupon the plaintiff as the unmarried sister of Quinn and sole dependent relative upon him became entitled to receive from the defendant the money value of the leave not so taken or not so completed computed at the rate of salary Quinn _ received at the time of his death.

The defendant demurred to the declaration on the grounds: (a) that it disclosed no cause of action; (b) that sec. 14 of the Public Service (Amendment) Act 1919 had no application to the case of an officer who at all material times was a bachelor ; and (c) that the plaintiff was not a dependent relative within the meaning of that section.

The Full Court of the Supreme Court of New South Wales entered judgment for the defendant on demurrer: Quinn v. Nott (1).

From that decision the plaintiff, by special leave, appealed to the High Court.

Miller, for the appellant. The object of sec. 14 of the Public Service (Amendment) Act is to deal with dependent persons. Under that section the money value of extended leave not taken or not completed is payable to (a) the widow ; (b) if no widow, then to the officer's children ; or (c) the guardian of such children; and (d) if no widow or'children then to any dependent relative of the officer. The expression "legal representative " in sec. 14 includes the executor or administrator of any of the preceding persons. That expression merely describes some person who in fact may be authorized to receive the payment impressed with the trust. The word "their" means "his," or "her," or "their." The section applies to all officers whether male or female. The construction

(1) (1987) 54 W.N, (N.S.W.) 18. VOL. LVI. 33

within the meaning of the Public Service Acts in force in the State *

H.C. oF A. 1937.

Quixy

Norr.

H.C. or A. 1937.

Quiss

Nort.

HIGH COURT [1937.

put upon the section by the Supreme Court is too narrow. This court should give effect to the expression " dependent relative".

The appellant has alleged that she is the sole dependent relative of —

the deceased officer and thus is entitled to the whole of the money value of the extended leave due to him.

E. M, Mitchell K.C. (with him K. A. Ferguson), for the respondent. The benefits conferred by sec. 14 may be claimed only in two cases, namely : (a) where an officer dies leaving a widow, then his widow or those representing her may claim; and (6) in the case of a widower officer who dies leaving children, then those children or their guardian or other dependent relative or their legal representa- tive may receive payment under the section. The moneys do not

form part of the estate of a deceased officer. In differentiating

between deceased male officers and deceased female officers, and in not making any provision in regard to bachelor officers the legislature in sec. 14 followed the policy adopted in the Superannuation Act. Sec. 14 does not deal with all public servants but only with a limited class of public servants. The section does not apply to females at all, neither does it apply to bachelors. The use in the section of the words "his widow" clearly indicates that provision is made only for married male officers. The principle that the masculine gender includes the feminine gender does not apply. Another indication is that no provision is made in respect of surviving husbands, or in respect of married women officers dying and leaving children. The expression in sec. 14, "in the case of a widower leaving children," qualifies all the succeeding words in the relevant sentence. In a case where an officer is survived by a widow and children, the widow is entitled under the section to the whole payment. "Dependent relative" means someone who was part of the deceased's family, and resided with him. The word " other" indicates that "dependent relative," which, significantly, is used in the singular, is alternative to guardian who, in the majority of cases, would probably be a relative. The section confers upon the Crown the right to pay the money value to the dependent relative for the benefit of the children thus avoiding the expense and incon- venience of having to appoint a guardian. The question of payment

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. The word "other" in the section refers to some person than the guardian who is a dependent relative. The word " applies only to children. " Legal representative " means al representatives and executors and administrators (Stroud's Dictionary, 2nd ed. (1903), vol. 2, p. 1081).

filler, in reply. "Legal representative' merely means ed agent of a widow or children. The section should be trued as meaning widow whether dependent or not, children ther dependent or not, and other relatives if dependent, and, natively, as if the words after the word " widow" pointing to lian were mere surplusage.

Cur. adv. vult.

following written judgments were delivered :— « C.J. The plaintiff is the unmarried sister of Thomas Quinn, a bachelor, and was dependent upon him at the time is death. Quinn was an officer within the meaning of the Service Acts of New South Wales and at the time of his death , right to extended leave under sec. 13 of the Public Service ent) Act 1919. If an officer who has acquired such a right at ages 65 or 60 without having taken such leave he receives thereof "the money value " of the leave as a gratuity (sec. . Sec. 14 of the Act provides for the case of an officer who equired a right to extended leave but dies before entering it or before its termination. The section is as follows :— an officer or member of the board has acquired a right er this Act to extended leave with pay and dies before entering it, or after entering upon it dies before its termination, his or in the case of a widower leaving children, his children, guardian, or other dependent relative, or their legal repre- ve, shall be entitled to receive the money value of the leave en, or not completed, computed at the rate of salary the Teceived at the time of his death. Such payment shall be in m to any payment due under the provision of the Superannua- t. Provided that where payment of the money value of leave

dependent relative arises only in the event of there being H.C. oF A.

1937. we

Quinn a Norr.

Sept. 1,

H.C. or A. 1937. —-

Quisn v Nort.

Latham C.J.

HIGH COURT

has been made under this section, no action may be brought the Crown for payment of any amount in respect of such leave, . The question which arises is whether the plaintiff as a dey relative of Quinn is entitled to receive the money value of the ley which Quinn was unable to take. The Full Court of New So Wales has held that the section does not apply to bachelors, — appeal is brought to this court. .

It is contended on behalf of the defendant that the section, whi admittedly is inartistic in form, applies only to two cases: fi the case of an officer leaving a widow, and secondly, the case of officer who was a widower leaving children. The object of tl section, upon this interpretation, is to give benefits to widows children only, and not to any other persons even if they were di dants of deceased officers. Upon this view the section applies to men who have been married and not to women or to ba On the other hand, it is argued that the persons who obtain righ under the section include the following classes: (a) the ' a deceased officer; (b) the children of a deceased widower (c) the dependent relatives of any deceased officer, whether m or female, and whether married or unmarried. Upon both of the section the reference to the guardian of children is as merely in aid of the reference to the children so as to p the Crown to pay money to the guardian of children instead the children themselves. Also, upon both views, the phrase "th legal representative " may be regarded as applicable in the case any person entitled to a benefit under the section. It is un to decide for the purposes of this appeal whether " legal rep! tive " means legal personal representative or next of kin or legatee, or legally authorized agent (See Stroud's Judicial Did 2nd ed. (1903), title, " Legal Representatives ").

Against the second view it is contended that the words "or u case of a widower leaving children, his children, or their g are mere surplusage because the use of the phrase " other relative " shows that children are regarded as dependent 1 so that the children of a deceased widower officer would be i under the words " dependent relative " without the use of the which specifically refer to children, This circumstance, itis

"

:'

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be given some weight as tending to show that the construction makes the phrase mere surplusage should not be adopted. n to examine the section as a whole before dealing with argument. I therefore postpone consideration of it for the

the other hand, the first view, which denies any independent to the words "or other dependent relative," meets much Ity in finding any meaning at all for these words. Upon the section means that, if an officer dies leaving a widow, idow is entitled under the section, and that the only other case d is the case of a widower leaving children. The contention in the latter case the persons who may receive benefit under ection are " his children, or their guardian, or other dependent tive." The words " their legal representative" may then be s associated either with all the preceding persons or only with ildren, whichever view of the section is adopted. It is easy n and why reference should be made to the guardian of who are possibly not able to look after themselves. But lifficult to see why a benefit intended for the children should case be payable to any "other dependent relative." Any on covered by this phrase must first be a dependant, that is, it of the deceased officer. It seems absurd to take the at the dependent relative referred to is to be a dependant children. Further, any such person must be a relative. If n is to be a relative such person must, being described as it relative, and "dependent" meaning dependent on sed officer, be also a relative of the deceased officer. Thus ords "other dependent relative" mean other person who a dependant of and a relative of the deceased officer. It is lt to suggest any reason why such a person should be, as it

appointed by the section as a person to whom the Crown

of persons which is quite separate and distinct from any of S previously mentioned. Thus, in my opinion, the

H.C. or A. 1937. we

Quinn v Norr.

Latham OJ.

H.C. or A. section means that the Crown may pay the money value 1937.

Latham C.J.

HIGH COURT

to: (a) the widow of a deceased officer; (b) the children guardian of the children of a widower who dies leaving (c) any other person who was at the time of the death of the a dependent relative of that officer; further (d) in any of cases the Crown may discharge its liability by paying the n to the "legal representative " (whatever that may mean) of a p included under the previous headings a, b and ce.

The section contains no provision for sharing the money be the classes of persons mentioned. It should, therefore, I hin! read as involving a direction as to priority and exclusiven payment ; for example, if an officer dies leaving a widow and ch the money ought to go to the widow exclusively and in pri the children. If, on the other hand, a widower officer dies les children, his children take exclusively and in priority to any de dent relatives. Dependent relatives can take only where no widow, or, in the case of a widower, no children.

I now return to the argument that, upon the view suggest e words referring to children are mere surplusage because are included in the words " other dependent relative." Th this phrase does not necessarily mean that the persons b mentioned, namely, widows and children, are to be entitle benefit under the section only if they are dependants. A not a "relative" of her husband, and the words " other relative " would not include a widow. Children are relatiy are not necessarily dependent upon a parent. But there is no obstacle in the way of construing the section to mean that a wi is entitled to take in all cases, whether she is dependent and that, where there is no widow but there are chil children are entitled to take whether they are dependent ot and that the third class consists of any other relatives who fact dependent upon the deceased officer.

Upon this view the section will apply in the case of officers and also in the case of women officers, and not only and children, but also any dependent relative of a de may receive a benefit under the section. The husband of a de¢ woman officer, however, even though dependent upon h r,

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entitled to any benefit thereunder. Thus, in my opinion, itention of the plaintiff is right and the demurrer should be and judgment given for the plaintiff in demurrer.

J. We are called upon to construe an obscurely worded ion of the Public Service (Amendment) Act 1919, sec. 14. The e Court decided that a sister dependent upon a bachelor who died without having taken his extended leave was not d to its money value. Their Honours considered that the was limited to the case of married officers who died leaving er a widow or children. This is, I think, too narrow a construc- _ Before the amendment was introduced by sec. 14 the money nts to which an officer was entitled under secs. 13 and 13a on the death of the officer. They did not pass by will or intestacy. Sec. 14, however, was intended and does operate s on these payments. The opening words of the section are enough to include any officer, male or female, married or And reading the section as a whole I think that the intention Legislature was to prevent the extinction of the money accrued to officers after long service and to distribute them e principle of dependency. The dependants to be benefited widow, if one survive the officer, if none his children, and widow and children a dependent relative. I have had on in other cases to refer to the difficulty of ascertaining how should be attached owing to the fact that English is a language (Miller v. Hilton (1)). The difficulty in this occasioned by the position of the phrase "' or other dependent ve." The phrase is not attached to the words "in the case widower leaving children," and consequently a dependent e has a claim to the money payments where neither widow n are survivors.

appeal should be allowed.

KE J. The declaration in this action alleges that Thomas Quinn who died on 19th August 1935 was at all material an officer within the meaning of the Public Service Acts -of South Wales, and at the time of his death had acquired a right the said Acts to extended leave with pay and died before g upon it or before its termination, and that the said Thomas

(1) Ante, p. 412.

H. C. or A. 1937.

Quisw

Norn,

H.C. or A. James Quinn was at all material times a bachelor and that

1937. Ww

Quinn v Norr.

Starke J.

HIGH COURT

plaintiff was the unmarried sister of Quinn and the sole deper relative upon him and became entitled to receive the money va of the leave not so taken or not so completed computed at th of salary Quinn received at the time of his death, The defendant in the action demurred to the declaration. ' Supreme Court of New South Wales entered judgment for defendant on demurrer and an appeal against this judgment brought to this court. The question for determination upon the proper construction of the Public Service (Amendment 1919, sec. 14, as amended by Act No. 10 of 1929. The Chief Justice has stated the terms of the section and unnecessary for me to repeat it. Shortly, however, the quest whether the words of the section "or other dependent relati are attached to or governed by the opening words of the secti to the words " in the case of a widower leaving children." P ally and grammatically they attach themselves to the case widower leaving children and the words " other dependent re in their context indicate a relative or relatives other than a ( or children. I would read the section thus: Or in the case of a wid leaving children (a) his children or their guardian, (6) or depend relative other than a child or children. The words " or their representative " which occur in the section occasion, I thi little difficulty and may be regarded as the Chief Justice "as applicable to the case of any person entitled to a benefit u the section." In the result I agree with the judgment of the Supt Court but I am unable to accept the view that the relatives merely receive the benefits conferred by the s behalf of the children. The dependent relatives can take fort selves, but only in the case of a widower leaving children. In my opinion the appeal should be dismissed.

Dixon J. Under sec. 14 of the Public Service (Amendment 1919 when an officer entitled to extended leave dies before h taken it, certain dependants or potential dependants become 1 to the money value of the leave that was due to him. Unfortu the provision is obscurely expressed and it is very difficult to what class or classes of dependants it means to include.

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dying a bachelor is entitled to the money value of the d leave which he had not taken before his death. The e Court has decided against her claim on the ground that applies only to officers who have married and limits the y benefit it confers to two cases, viz., the case when the leaves a widow and the case when, being a widower, he s children. 'The terms of the section are as follows: " Where er or member of the board has acquired a right under this » extended leave with pay and dies before entering upon it, or entering upon it dies before its termination, his widow, or in of a widower leaving children, his children, or their guardian, dependent relative, or their legal representative, shall be to receive the money value of the leave not taken, or not computed at the rate of salary the officer received at of his death. Such payment shall be in addition to any nt due under the provision of the Swperannuation Act. d that where payment of the money value of leave has e under this section, no action may be brought against

"or other dependent relative " are governed by the words

case of a widower leaving children " and form an alternative

n my opinion, this construction of the provision is erroneous. s "or other dependent relative" are not governed by the in the case of a widower leaving children" and they form ative with the whole phrase " his widow, or in the case of leaving children, his children, or their guardian" and not ords "his children, or their guardian." The construction give to the material part of the section may be made clear 5 that I read it as if the words " or in the case of a widower

children, his children, or their guardian" were enclosed in

tsthus: "Where anofficer . . . dies . . . his widow (orin a widower leaving children, his children, or their guardian)

'appeal raises the question whether a sister dependent upon 3. C. oF A.

1937.Ques v. Nort.

Dixon J.

H.C. oF A. 1937.

Qurex

Nort.

Dixon J.

HIGH COURT

or other dependent relative, or their legal representative, sh; entitled to receive the money value of the leave not taken." subject to the case enclosed in brackets, there are two e provided for, namely, his leaving a widow and his leaving so other person dependent upon him. A construction prod absurd and incongruous 'results is to be avoided unless the of a statute is plain and unambiguous. The epithets " absur

incongruous" are by no means too strong to apply to the resi produced by the construction the Crown places upon the sectii For, if the section bore that construction, it would mean that dependant of an officer, except his widow, could take provisions unless the officer died a widower leaving childre would mean that, in that event, a title to the money was con upon a class of persons described as the children or their or other dependent relative or their legal representative. No these could claim unless the two conditions were fulfilled deceased died a widower and left a child or children. But if conditions were fulfilled the child or children and the dey relative or relatives would possess a title to share. In what p1 tions is not stated. Apparently "legal representative" executors or administrators and, on the Crown's constructio' "their" must mean " of the children." Yet as the officer " leaves the children, ex hypothesi they are living at his death. The " dependent relative" must mean a relative of the deceased dependent upon him. Yet it would seem to follow from the Cro construction that the only occasion when such a relative is tr as worthy of consideration is when there are children with his claim can compete. To avoid this apparently inevitable quence of the construction for which the Crown contends, argued on its behalf that the " dependent relative" was not in competition with the children, but on their behalf in lieu aguardian. In other words, we are asked to suppose that, in sea ing for a description of person who should be " entitled" to money on behalf of children left without parent or g dit legislature chose any relative of the deceased officer so lo or she had been dependent upon him in his lifetime. Ita me quite obvious that the dependent relative is to be «1

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there is a widow or when a widower leaves children. e section begins with a conditional clause covering all officers ho have extended leave due to them at death and upon the tion I adopt, the main clause is coextensive with the itional clause upon which it depends except that it does not y to an officer dying without widow, children, or any dependent . I construe it as conferring the right upon a widow if here be one, and, if there be no widow, upon every dependent ve unless there be children, and, in that case, upon them. so construing it, I treat the reference to the case of the widower ng children as a parenthesis. In a well-drawn provision this it appear to involve some violence to the order or position of ;upon which English depends so much for its meaning. But d the present provision as containing a parenthetical, or perhaps rpolated, alternative is to do no more than to give appropriate ition to the draftsman's evident incapacity for expression. astudy of the meaning of the separate terms of the provision consideration of its general sense has satisfied me that the on was meant to be read in this manner and, by so understanding iar structure, the true explanation of its meaning is found. n my opinion the appeal should be allowed. order of the Supreme Court should be set aside and judgment urrer entered for the plaintiff.

J. This appeal raises the question whether, under sec. 14 ublic Service (Amendment) Act 1919, in the case of unmarried who have acquired a right to extended leave with pay but who entering upon it, their dependants are entitled to receive y value of the leave not taken. In my opinion the depen- tives are so entitled.

sec. 14 is concerned with remedying the legal situation s where public servants have actually earned the right ed leave but are prevented by death from enjoying it in 'The general principle adopted is that the relatives of such should be given the money equivalent of the leave not

1937. Ww Quinn v. Norr.

Dixon J.

H.C. or A.

1937.

Qurss

Nort.

Evatt J.

HIGH COURT

taken. This is little more than bare justice, because extended lea

service and through no fault of the officer.

Tn what cases is the transferred right to be enjoyed by the off relatives? It would be surprising to find exceptional treat of the dependants of officers, and the 'legislative intention to all possible cases is clearly expressed in the opening phrase o section, viz., " Where an officer . . . has acquired a right und this Act to extended leave with pay and dies before en' upon it, or after entering upon it dies before its terminat This phrase indicates very clearly that the Legislature is ad itself to every case where (a) the officer has already acquired right to extended leave, but (b) death has prevented its bi enjoyed. So far, there is not the slightest reason to suppose in the case of unmarried officers, male or female, the right alr earned will not be transferred to some suitable beneficiary.

Then follows the list of the statutory beneficiaries of the tran ferred right : first, the officer's widow, second, (there being no the officer's children (or their guardian) and, third, the offic "other dependent relative." In all three cases the payment of the beneficiaries.

be made to the " legal representative "

construction. It merely follows the words of the section. It said of the phrase "or in the case of a widower leaving childr legal representative" that all the words italicized must be relat the single instance of a widower leaving children. No 1 whatever can be suggested for restricting the grant of the tran ferred right solely to cases where there are children of a wid especially as the case of infant children is already provided for allowing payment to be made to their guardian. In my op the construction suggested by the Crown is fanciful and unjust It takes no account of the broad principle of universality ¥ appears so plainly in the introductory phrase of the section. leads to the grave absurdity already pointed out. It has no stron grammatical foundation than the construction suggested by appellant which merely requires the pronominal adjective a ul

57 C.L.R.] OF AUSTRALIA.

be understood before " dependent relative," so that the legislature H.C. oF A.

is speaking of the "dependent relative " of the officer whom the hand of death has prevented from enjoying his well-earned right to leave.

The appeal should be allowed.

McTiernan J. The order of the alternatives in sec. 14 of the Public Service (Amendment) Act 1919 invites a controversy as to whether the section applies only to officers who married and provides benefits only for the widow of an officer, or, if he should die a widower, for his children.

In my opinion the construction for which the more persuasive reasons can be found in the language and the order of the alterna- tives expressed by the section is that it extends to officers who have not married and that the words "or other dependent relative " include a dependent relative of an officer who died a bachelor. These reasons have been fully gone into in the preceding judgments

and it is unnecessary to add to them. In my opinion there should be judgment for the plaintiff on the demurrer and the appeal should be allowed.

Appeal allowed with costs. Judgment for plain- tiff in demurrer with costs.

Solicitors for the appellant, Collins & Mulholland.

Solicitor for the respondent, J. E. Clark, Crown Solicitor for New South Wales. f J.B.

VOL Lv, , 34

1937. Ww

Quinn v Nort.