Renton v Renton [1918] HCA 57; (1918) 25 CLR 291 (30 September 1918)

HIGH COURT OF AUSTRALIA

Annie Renton Complainant, Appellant; and Samuel Renton Defendant, Respondent.

H C of A

On appeal from the Supreme Court of South Australia.

30 September 1918

Barton, Isaacs, Gavan Duffy and Rich JJ.

F. Villeneuve Smith (with him Abbott), for the appellant.

Mayo, for the respondent.

Barton J.

I am of opinion that this appeal should be allowed. The Federal Constitution by sec. 77 gives power to the Parliament to make laws—"(i.) Defining the jurisdiction of any Federal Court other than the High Court: (ii.) Defining the extent to which the jurisdiction of any Federal Court shall be exclusive of that which belongs to or is invested in the Courts of the States: (iii.) Investing any Court of a State with Federal jurisdiction." Acting under that power the Parliament passed sec. 39 of the Judiciary Act, by which, after providing that the jurisdiction of the High Court should be exclusive of the jurisdiction of the several Courts of the States, except as provided in the section, it is enacted in sub-sec. 2 that "the several Courts of the States shall within the limits of their several jurisdictions, whether such limits are as to locality, subject matter" (I call attention to the word "subject matter"), "or otherwise, be invested with Federal jurisdiction, in all matters in which the High Court has original jurisdiction" (a matter between residents of different States is one in which the High Court has original jurisdiction) "or in which original jurisdiction can be conferred upon it, except as provided in the last preceding section, and subject to the following conditions and restrictions:— ... (d) the Federal jurisdiction of a Court of summary jurisdiction of a State shall not be judicially exercised except by a Stipendiary or Police or Special Magistrate, or some Magistrate of the State who is specially authorized by the Governor-General to exercise such jurisdiction." I am of opinion that in the proceedings in question here the judicial exercise of jurisdiction was really by the Special Magistrate who decided the case. In issuing the summons the justice was not acting as a Court acts. The judicial exercise of jurisdiction in cases such as arise under this South Australian Act is well defined by Griffith C.J., with the concurrence of the other members of this Court, in these words: "The jurisdiction which is not to be judicially exercised is the jurisdiction to decide whether to convict or to discharge the accused, ..." (Donohoe v. Chew Ying[1]). The justice exercised no such jurisdiction as that. If the issue of a summons can be called an exercise of jurisdiction at all, it was not the jurisdiction so described, and, as I have said, a justice exercising that jurisdiction cannot be called a Court.

Then certain points were taken as to the construction of sec. 7 of the Inter-State Destitute Persons Relief Act 1910, which provides that "Whenever in this State—(a) i. Any husband leaves his wife ... without adequate means of support ... and (b) such husband ... goes to reside or resides, either temporarily or permanently, in any State other than this State, any Justice for this State may ... sign and issue a summons directed to the defaulter, to show cause why he ... should not support or should not contribute towards the support of the complainant ..." The first question is whether a man residing in another State—and ex concessis the respondent is so residing—has left his wife without adequate means of support if he has not furnished her with such means. In a certain sense of the word he has not "left" her, but that is not the sense in which the word is used in sec. 7. The judgment of this Court in the recent case of Weiler v. Weiler[2] shows the sense in which the Matrimonial Causes Act 1899 of New South Wales uses the words "has left" (his wife) "habitually without the means of support." It is really no act of locomotion that is aimed at, but the failure to provide the adequate support. The question of going from place to place is not a material question so far as that portion of sec. 7 is concerned. But it is said that the use of the expression "goes to reside" in another State than South Australia strengthens the construction that the word "leaves" means "leaves behind him" in the sense of motion. I do not think that it does. The words "goes to reside" and "resides" must be read together. The provision applies to a husband who, failing to provide his wife with adequate means of support, goes to reside or resides in another State, that is, whether he has always been residing in another State or whether he has been residing in South Australia and has gone to reside in another State. The law in fact aims at both states of things, and it seems to me that a fair reading of the section does not support Mr. Mayo's construction, ingeniously as it was urged.

The only remaining question is really that, to put it shortly, of extra-territoriality. That question is, I think, settled by Ashbury v. Ellis[3]. The Legislature of South Australia has power for the peace, order and good government of that State to legislate in respect of the matter dealt with. How far the legislation is enforceable in another country is a question that we do not touch any more than did the Privy Council in the case I have mentioned.

I would add that sub-secs. XXIV. and XXV. of sec. 51 of the Constitution cannot be relied on for a general displacement of State legislation by Federal legislation on the matters there mentioned. Those powers are given as concurrent with the powers of the States. They are intended to be of assistance in obtaining as well as enforcing judgments of the State Courts. I see nothing in the Federal Service and Execution of Process Act to show that anything that might be done under the Act in question here would be in conflict with the former Act.

Under all the circumstances I think that the appeal should be allowed.

Isaacs J.

I agree that the appeal should be allowed. Looking at this case, first, apart from the Federal Constitution, it stands in this position:—The respondent sent his wife from New South Wales to Adelaide to live, and he left her without adequate means of support in the sense that he failed to supply her with adequate means of support—left her to starve. In those circumstances she applied for a summons under the South Australian Inter-State Destitute Persons Relief Act 1910. That Act provides that in such a case any justice of the State may on an application made on behalf of a wife sign and issue a summons directed to the husband, who is called the "defaulter," to show why he should not contribute to the support of his wife. Then the summons, being issued, is intended to be served in the other State in which the husband is residing. In this case that State is Queensland, and in that State there is a reciprocal Act (the Interstate Destitute Persons Relief Act of 1914) which makes similar provisions. In both Acts there is not only a provision permitting the summons to be served in the State where the husband resides, but there is also a special Part dealing with the enforcement of orders made in other States. So that whatever order is made in one State is recognized and enforced in the other State. Apart from the Federal Constitution it appears to me that this is a stronger case than Ashbury v. Ellis[4], but it certainly falls within that decision, and the South Australian Courts must carry it out. The particular event upon which the Statute operates is the neglect or failure of the husband to do something in South Australia that he is under an obligation to do. His failure takes place in that State.

Then it is said that the Federal Constitution prevents the South Australian Court from making an order. That I am unable to see. The decision of the Supreme Court was that the Federal Parliament, under the power conferred by sec. 77 (II.) of the Constitution, had excluded a Court of a State having summary jurisdiction from any right to deal with certain matters unless it was presided over by a Stipendiary, Police or Special Magistrate or a Magistrate specially appointed by the Governor-General, and that in this case the justice who issued the summons did not fall within any one of those classes. The Court thought that sec. 39 (2) (d) of the Judiciary Act was therefore sufficient to invalidate what the justice had done in issuing the summons. But the answer is that, in doing what he did, the justice did not fall within the section at all. He was not acting as a Court when he signed and issued the summons, and, that being so, the objection falls to the ground. When the matter came up for adjudication it came before a Special Magistrate, and, assuming that tribunal to be a Court, it was in conformity with sec. 39 (2) (d).

For those reasons I think that the appeal should be allowed.

Gavan Duffy J.

I agree that the appeal should be allowed.

Rich J.

I agree with the conclusion arrived at on the ground that the issue of the summons under sec. 7 of the Inter-State Destitute Persons Relief Act 1910 is not a judicial exercise of jurisdiction by a Court within the meaning of sec. 39 (2) (d) of the Judiciary Act.

Appeal allowed. Order appealed from discharged and order of Special Magistrate restored with costs. Respondent to pay costs of appeal.

Solicitors for the appellant, Rollison & Abbott.

Solicitors for the respondent, Mayo, Murray & Cudmore.

[1] 16 C.L.R., at p. 369.

[2] [1918] HCA 41; 25 C.L.R., 109.

[3] (1893) A.C., 339.

[4] (1893) A.C., 339.