Schumann v Schumann [1961] HCA 59; (1961) 106 CLR 561 (28 September 1961)

HIGH COURT OF AUSTRALIA

SCHUMANN v. SCHUMANN [1961] HCA 59; (1961) 106 CLR 561

Practice

High Court of Australia
Dixon C.J.(1), McTiernan(1) and Windeyer(1) JJ.

CATCHWORDS

Practice - High Court - Matrimonial Causes - Dissolution of marriage - Action under State legislation - Appeal to Full Court of State - Order dismissing appeal made after commencement of Matrimonial Causes Act 1959 (Cth) - Competency of appeal as of right to High Court - Matrimonial Causes Act 1959 (Cth) (No. 104 of 1959), ss. 8 (1) (b), 93, 113, 115.

HEARING

Adelaide, 1961, September 28. 28:9:1961
OBJECTION to competency of appeal from the Supreme Court of South Australia.

DECISION

DIXON C.J. delivered the judgment of the COURT: -
This is an objection to the competency of an appeal as of right against an pronounced on 17th February 1961. It was pronounced in an action brought under State law, which action fell under the general description of a matrimonial cause. The appeal had been heard before 1st February 1961 but judgment had been reserved and the order was pronounced in pursuance of the hearing and the reservation of judgment. On 1st February 1961 the Matrimonial Causes Act 1959 of the Commonwealth commenced; that is to say, it came into force by virtue of a proclamation. (at p563)

2. It is said that the appeal to this Court which was instituted as of right by the defeated party, the husband, is incompetent because the Matrimonial Causes Act makes it necessary that special leave should be obtained before the appeal can be brought. Section 93 of the Matrimonial Causes Act says - "Notwithstanding anything contained in the Judiciary Act 1903-1959, an appeal does not lie to the High Court, except by special leave of the High Court, from a judgment, decree or order of the Supreme Court of a State given or made under this Act whether in the exercise of original or appellate jurisdiction, including a judgment, decree or order under the Third Schedule to this Act." That provision applies of course to all proceedings which are brought under the Matrimonial Causes Act 1959, and it is to be noted that judgments, decrees or orders of the Supreme Court for which special leave is required are those "made under this Act". (at p563)

3. Section 8 (1) (b) of the Matrimonial Causes Act says - "Subject to this section a matrimonial cause instituted before the commencement of this Act shall not be continued except in accordance with Part XIII of this Act". Section 113 of the Act, which does form part of Pt XIII of the Act says - "Subject to section one hundred and fifteen of this Act" certain provisions, which are described and include s. 93, "apply, so far as they are capable of application, to and in relation to pending proceedings, being proceedings for a decree of dissolution or nullity of marriage, or judicial separation, as if those proceedings had been instituted under this Act". If the provisions had stopped there, the operation of s. 113 in bringing forward s. 93 into the provisions which would govern pending proceedings, together perhaps with s. 8 (1) (b), would have meant that it would be impossible to appeal from the order of the Full Court of the Supreme Court of South Australia, delivered on 17th February 1961, except by the special leave of this Court. However, the provisions do not stop there, but as will be observed, s. 113 is subject to s. 115 of the Act. Section 115 (1) begins with the words - "Notwithstanding section one hundred and eleven of this Act". That is a section to which I have not thought it necessary to refer more particularly because it merely says pending proceedings constituting a matrimonial cause may be continued and dealt with in accordance with and by virtue of this Part or otherwise. But s. 115 says that notwithstanding that provision - "where in any proceedings constituting a matrimonial cause", which I take to mean proceedings falling within the general description of a matrimonial cause, "a decree has been made before the commencement of this Act - (a) any appeal in respect of that decree may be continued or instituted; . . . as if this Act had not been passed." Now the Full Court of the Supreme Court on 1st February were in the position of having before them a reserved judgment in a proceeding which was heard before 1st February, that is to say before the Act commenced. It was an appeal from the decree of Reed J. which had of course been made long before the Act commenced. It was therefore an appeal itself in respect of a decree and that decree, i.e. Reed J.'s decree, was one which had been made before the commencement of the Act. (at p564)

4. The Act says that the appeal in the Full Court may be continued. That meant that their Honours in Full Court were at liberty to continue the appeal by pronouncing reserved judgment. That they did. It says it may be continued "as if this Act had not been passed". That meant that when they pronounced their reserved judgment they pronounced it in the exercise of purely State jurisdiction under the legislation affecting matrimonial causes passed by the Parliament of South Australia. Their judicial act in pronouncing that decree had no Federal element in it. (at p564)

5. It seems to us that it follows from the words "as if this Act had not been passed" that that decree was as much subject to s. 73 of the Constitution and s. 35 of the Judiciary Act as any other decree of the Supreme Court pronounced in State jurisdiction. The Judiciary Act gives an appeal as of right from such a decree although it refused a decree of dissolution. That has already been decided by this Court because the refusal to dissolve the marriage did affect status. As it was a decree pronounced or an order made in ordinary State jurisdiction it appears to us that it has all the characteristics and is subject to conditions which affected a judgment, order or decree in State jurisdiction before the Act was passed, and that means that it was liable to appeal to this Court as of right. (at p564)

6. Perhaps I should add that it will be noted that under s. 8 (1) (b) of the Act what is said is that the matrimonial cause instituted before the commencement of the Act shall be continued but it shall not be continued except in accordance with Pt XIII of the Act. What I have said means that it was continued in accordance with Pt XIII of the Act as s. 8 requires, but being continued in accordance with Pt XIII of the Act it had all the qualities of a judgment under State law, including the quality that it was liable to appeal to this Court as of right. (at p565)

7. Dr. Bray advanced, as his first proposition, an argument in support of the same conclusion which was founded on an interpretation of s. 115 (1) (a) depending on the words "in respect of". I do not think it necessary to examine that argument or to say anything in respect of it. It is enough to say that on the view of the provisions that I have formulated the appeal was and is competent. (at p565)

ORDER

Objection to competency of appeal overruled. Costs of the objection reserved until the hearing of the appeal.