Allpike v Commonwealth [1948] HCA 19

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HIGH COURT

[1948.

[HIGH COURT OF AUSTRALIA.]

ALLPIKE

AND

THE COMMONWEALTH AND OTHERS

PLAINTIFE ;

DEFENDANTS.

H.C. or A. War Service Estate—Undrawn pay, deferred pay and allowances—Payment to persons

1948. Ww

PERTH, Sept. 13, 14.

Latham C.J., Dixon and McTiernan JJ.

other than personal representative—Whether beneficial interest conferred— Constitutional validity of legislation—Defence power—Severability—War Service Estates Act 1942-1943 (No. 57 of 1942—No. 39 of 1943), ss. 4*, 5, 7 (1)f, 8— Acts Interpretation Act 1901-1946 (No. 2 of 1901—No. 7 of 1941), s. 15a.

M., a member of the Australian Imperial Forces, died while a prisoner of war in Borneo. At the date of his death there was accumulated to the credit of his account with the Commonwealth as a member of the military forces the sum of £665 18s. 1d. which represented undrawn pay, deferred pay and interest on deferred pay. This sum constituted the war service estate of M. within the meaning of the War Service Estates Act 1942-1943. By his will M. gave the whole of his moneys to A., but appointed no executor. A. was granted letters of administration with the will annexed of the estate of M. Both before and after the grant A. requested payment to her from the Commonwealth and the District Finance Officer, the " authorized person " in and for the State of Western Australia appointed under the War Service

* Section 4 defines "war service estate" as follows :— (a) the net amount of pay (including deferred pay), allowances or other money due to a member by the Commonwealth after the deduction of any amounts owing to the Commonwealth and such mess debts or other debts due to naval, military or air force institutions, as the Minister, in writing, directs; and (6) personal property or effects of a mem- ber in the care, control or custody of the naval, military or air force author- ities at the time of the death of the member, or which came into that care, control or custody after the death of