Vass v Commonwealth of Australia [2000] FCA 47

FEDERAL COURT OF AUSTRALIA

Vass v Commonwealth of Australia [2000] FCA 47 CONSTITUTIONAL LAW- whether absence of appropriation affected Executive's power to contract – whether a failure to appropriate to meet a debt of the Commonwealth could involve a breach of s 51(xxxi) of the Constitution – whether a Commonwealth contract incidentally beneficial to a Minister would amount to a breach of ss 44(v) and 45 of the Constitution. CONTRACT – whether implementation of a Cabinet decision to pay costs of proposed litigation involved a contract – power of Commonwealth to contract before Parliament has made a necessary appropriation – whether contract illegal – authority – intention to contract, judged objectively. STATUTORY CONSTRUCTION– Parliamentary Entitlements Act 1990 – provision drafted per maiorem cautelam not to affect construction of other provisions – consideration of background to and context of the statute – meaning of "payable". WORDS & PHRASES – "payable". Bill of Rights 1689 (UK), Article 9 Commonwealth Constitution, ss 44(v), 45, 49, 51(xxxi), 61 Constitution Act 1889 (WA), s 36 Parliamentary Privileges Act 1987 (Cwlth), ss 5, 16 Appropriation Act (No. 4) 1995-96 (Cwlth), s 4 Appropriation Act (No. 4) 1996-97 (Cwlth), s 6 Parliamentary Entitlements Act 1990 (Cwlth), ss 3, 4, 5, 8, Sch 1 Federal Court of Australia Act 1976 (Cwlth), s 51A Parliamentary Privileges Act 1891 (WA), s 1 Re Webster (1975) 132 CLR 270, referred to Australian Woollen Mills Pty Limited v Commonwealth (1954) 92 CLR 424, referred to Australian Broadcasting Corporation v XIVth Commonwealth Games Ltd (1988) 18 NSWLR 540, applied Gissing v Gissing [1971] AC 886, applied Brown v West (1990) 169 CLR 195, discussed Commonwealth v Human Rights and Equal Opportunity Commission (X's case) (1998) 76 FCR 513, applied X v The Commonwealth [1999] FCA 63, applied The State of New South Wales v Bardolph (1934) 52 CLR 455, applied Clyne v Deputy Commissioner of Taxation (1981) 150 CLR 1, applied Ashfield Municipal Council v Joyce [1978] AC 122, applied The Minister of State for the Army v Dalziel (1944) 68 CLR 261, referred to Georgiadis v Australian and Overseas Telecommunications Commission (1994) 179 CLR 297, referred to The Commonwealth of Australia v Mewett (1997) 191 CLR 471, referred to Monroe Schneider Associated (Inc) v No. 1 Raberem Pty Ltd (1991) 33 FCR 1, referred to CEDRIC BOHRSMANN VASS & ORS v THE COMMONWEALTH OF AUSTRALIA NG 96 of 1997 BURCHETT J 2 FEBRUARY 2000 SYDNEY