Allpike v Commonwealth [1948] HCA 19

High Court of Australia Latham C.J. Dixon and McTiernan JJ. Allpike v Commonwealth [1948] HCA 19

ORDER Questions answered as follows:—(1) Yes; (2) Yes; (3) No, in respect of the moneys in question in this case. Action dismissed. Plaintiff to pay costs of the defendants other than the Commonwealth and the District Finance Officer, Mr. R. J. McDonald.

The following judgments were delivered:—

Latham C.J.

This is a special case stated upon questions of law arising in an action in which the plaintiff Danah Allpike as administratrix with the will annexed of the estate of Henry Arthur Marsh deceased claimed against the defendants the Commonwealth of Australia and the District Finance Officer of the 5th Military District and a brother and four sisters of the deceased, certain declarations.

In the first place, a declaration was claimed that the deceased, who was a soldier who died while a prisoner of war in Borneo, was immediately prior to his death entitled to a sum of £665 18s. 1d. or such other sum as represented undrawn and deferred pay and other allowances due to him as a member of the Australian Imperial Forces. Secondly, the plaintiff, being not only the administratrix with the will annexed of the deceased, but also the sole beneficiary under that will, claimed that she was entitled to have paid to her the whole of the said moneys. The defendants other than the Commonwealth of Australia and Robert James McDonald are, as I have said, a brother and sisters of the deceased soldier. It has been determined by the relevant authorities that the deferred pay and allowances should be paid to and distributed among the brother and sisters of the deceased, and the Commonwealth and the Finance Officer have refused to pay the moneys to the plaintiff.

The questions which arise depend upon the true construction of the War Service Estates Act of 1942 as amended in 1943. Section 7 of the 1942 Act provides that:—"An authorized person may pay or deliver the war service estate of a deceased member—(a) to the personal representative of the deceased member; (b) to any person who, in the opinion of the authorized person, is beneficially entitled thereto; (c) to a Public Trustee, in accordance with section ten of this Act; or (d) to such persons or classes of persons as are prescribed or as the Minister specifies." The reference to s. 10 introduces inferentially into s. 7 the provision that payment of money to a public trustee shall be a discharge to the Commonwealth and, further, that where money has been paid or delivered to a public trustee he shall, "upon receipt of a request in writing from an authorized person, repay or re-deliver to that person the money or property, or such part thereof as remains unadministered."