On 29 March 1922, the Court of the King’s Bench delivered Bayley v Bayley [1921] 2 KB 227.

The court considered whether or not allowances and command pay, paid to a major in the army over and above regimental pay, were “pay” within the meaning of an award under a divorce settlement.

An arbitrator had awarded the defendant, Major Bayley, to make monthly payments to the plaintiff, Mrs Bayley, for a certain sum of money and that “should Major Bayley’s pay reach 400l. per annum he is to pay to Mrs. Bayley 10l. per month,….should Major Bayley’s pay reach 500l. per annum he is to pay Mrs Bayley 12l. per month, should Major Bayley’s pay exceed 500l. per annum these monthly payments are to be increased by 25 per cent. of the resulting excess over 500l. per annum.”

Pursuant to royal warrants issued under the prerogative of the crown, the defendant received “Regimental Pay and Additional Pay” of 16s per day as a major and “Command Pay” of 5s per day for being “in actual command of depots, of camps of instruction, of regiments or battalions, of detachments of regiments or corps, or of mixed bodies of troops”. Under separate regulations, the defendant also received allowances.

McCardie J held that the allowances were not considered to be pay within the meaning of the award (at 230).

McCardie J held that the Regimental Pay and the Command Pay was considered be pay within the meaning of the award (at 229).

With respect to the Command Pay, McCardie J found (at 231):

“In my opinion “command pay” is distinct in substance and fact from mere allowances. It is “pay” in the true sense. It is a definite financial remuneration for discharging the duties of a definite rank. I think that it falls within the fair meaning of the word “pay” as used in the award.”

His Honour considered the cases of Goodwin v Sheffield Corporation [1902] 1 KB 629 and Upperton v Ridley [1901] 1 KB 384. In Goodwin v Sheffield Corporation, free use of fuel, gas and water was not considered to be part of a police officer’s pay. Channell J said ‘pay’ is a technical word having a very technical meaning – that is, the amount fixed by the scale of pay”.

In Upperton v Ridley, a police officer had received 1s per day in addition to his ordinary pay to attend permanently on special duty at the House of Lords. It was held that the extra remuneration was not part of his “pay” for the calculation of his pension as “the police commissioners were under no obligation to pay the appellant the additional 7s a week while he was on special service, but that the payment was made partly as a recognition of good conduct and partly because, by being withdrawn from ordinary duty, the appellant to some extent lost his chance of promotion”.

After considering Goodwin and Upperton, McCardie said: “In the present case the defendant as a commanding officer became entitled to a definite, well-known and substantially permanent remuneration under the express provisions of the royal warrants” (at 232).

Sydney, Australia

1300 00 2088