Jones v Jones [1928] HCA 2; (1928) 40 CLR 315 (5 March 1928)

Phyllis Maude Caroline Florence Jones Applicant; and Lester John Jones Respondent.

This was an application under sec. 19 of the Service and Execution of Process Act 1901-1924 for leave of a Justice of this Court to execute in any State other than New South Wales a writ of attachment issued by the Supreme Court of New South Wales in its divorce jurisdiction. The application was made to our brother Higgins and by him referred to the Full Court.

Before making this application, substantially the same application had been made for the leave of a Judge of the Supreme Court of Victoria. That application was referred to and refused by a Full Court of the Supreme Court of the State. It is true that the earlier application was for leave to execute the writ in Victoria while the present application is for leave to execute it in any State other than New South Wales, but this discrepancy is wholly immaterial in view of the fact that no case is made on the affidavits filed in this Court for the execution of the writ in any State other than Victoria. Without deciding whether this Court has jurisdiction in the circumstances to grant the leave applied for, we are clearly of opinion that this Court ought not to entertain the application, having regard to the fact that an application for the same order has been previously made to a Court of co-ordinate jurisdiction in this matter founded on facts identical with those brought before this Court and has been refused by that Court.

I regret to find myself differing from my learned colleagues on this preliminary objection. It should fail, in my opinion. It is said that because an application made to a Judge of the Supreme Court of Victoria for leave to execute this New South Wales writ of attachment in Victoria has been refused, this application to a Justice of this High Court of Australia for leave to execute the writ in any part of the Commonwealth other than New South Wales should also be refused. The applications are not for the same thing; and it is clear law that there can be no plea of res judicata upheld unless an order made in the second application would be in a direct collision with an order made in the first. There is no estoppel by res judicata unless the very order sought in the new proceedings was also sought in the former (Moss v. Anglo-Egyptian Navigation Co.[1]). It is not sufficient even to show that the same evidence supports the two applications (R. v. Barron[2]). In particular if (as in this case) the decision of the Victorian Court turned on some distinctive practice of that Court, it is not right that this Court should refuse to exercise its jurisdiction unencumbered by such practice (Spencer Bower on Res Judicata, p. 123).

This is not an appeal; and I shall treat the order of the Victorian Supreme Court, by a majority, dismissing the application for leave to execute the writ in Victoria, as being justified. The applicant is not attempting to flout the Victorian Court, but simply asks the Australian Court to exercise its own jurisdiction, as it seemed difficult to succeed in an appeal from the Victorian Court's exercise of discretion.

This writ of attachment is dated 21st October 1927. It was issued in a divorce suit by the New South Wales Supreme Court, and at a time when the respondent was in New South Wales. It is founded on an alleged contempt of that Court in failing to pay alimony to the petitioning wife—alimony which was ordered. According to the evidence, uncontradicted, the respondent evaded apprehension under the writ and left New South Wales for Victoria on 22nd October. On 8th November a summons was issued for leave of a Judge of the Supreme Court to execute the writ in Victoria. This summons was referred to the Full Court; and on 1st December the Full Court, by a majority of two to one, refused to give the leave. On 12th December a summons was issued in this Court, under sec. 19 (1) of the Commonwealth Service and Execution of Process Act 1901-1924; and this summons is referred to the Full Court.

Now, by sec. 19 of that Act, it is provided that "(1) When a writ of attachment has been issued against any person by a Court of Record of a State or a Judge thereof for a contempt of the Court or disobedience of an order thereof, such writ may (a) by leave of a Justice of the High Court be executed in any other State or part of the Commonwealth; or (b) by leave of a Judge of the Supreme Court of any other State be executed in such other State." By sub-sec. 2, the leave is to be endorsed on the writ, and it shall be sufficient authority to the Marshal (where the leave is given by the High Court) to apprehend such person and bring him before the New South Wales Court. Our jurisdiction to give the leave to execute the writ in any part of the Commonwealth outside New South Wales is, therefore, express: why shall we refuse to exercise this jurisdiction, to consider the application on its merits?

If the matter be considered on its face, without looking at the reasons of the Victorian Court, the refusal of that Court may have been based on some reason peculiar to the Victorian Court—e.g., there may not be sufficient evidence that the respondent is in Victoria.

But if the reasons of the Victorian Court be examined, it turns out that the majority of the Judges in that Court thought the writ should not be enforced in Victoria because, by the Victorian practice, a writ of attachment cannot be issued on an ex parte application; and this writ of attachment was granted, it appears, on an ex parte application. Assuming that the Victorian Court was right in refusing leave on such a ground—(there is no appeal from the Victorian Court before us)—such a ground is surely no objection in the Commonwealth Court; we cannot submit to have our duty measured by the Victorian yardstick. The question for us is: if there had been no application to the Victorian Court for an order limited to Victoria, are there sufficient reasons for granting an application made to this Court for an order limited to Australia (other than New South Wales)?

It may not be necessary for the purpose of the preliminary objection to consider the full effect of sec. 118 of the Constitution, taken with sec. 51 (XXIV.) and (XXV.); but I am strongly inclined to think that we have no right to refuse to exercise our jurisdiction under sec. 19 because a State Court has refused to make an order which is different, though analogous, under its separate, independent jurisdiction. The jurisdiction is as separate and independent as if it were conferred by a different Act. Sec. 118 of the Constitution is based on an article of the United States Constitution, under which it has been held that the words do not relate to evidence merely, but make the findings of the earlier Court conclusive as to rights (Mills v. Duryee[3]). Sec. 51 (XXV.) of our Constitution allows provision to be made as to evidence, and (xxiv.) allows provision to be made for execution throughout the Commonwealth of the State processes and judgments. I think that under sec. 19 of this Act, taken with sec. 118 of the Constitution, we ought to give effect to the laws of the States whether we approve of them or not and that the granting of leave should be the rule, the refusal the exception. The order made ex parte for the writ of attachment can, admittedly, be set aside by the New South Wales Court if made wrongly. If indeed we should find that the order for the writ was made without due authority of the State Legislature, the leave should be withheld; and there may be other reasons for withholding leave. Unless due cause be shown to the contrary, we should endeavour to render the judicial process of any State effectual in other States as against persons who, as here, are evading the State's process by leaving the State. The real effect of refusing to exercise our jurisdiction is to assist the respondent in evading the payment of the alimony ordered, and merely because the Victorian law requires notice of any application for an attachment in Victorian suits.

[1] (1865) L.R. 1 Ch. 108, at pp. 114-116.

[2] (1914) 2 K.B. 570, at pp. 574-576.

[3] [1818] USSC 20; (1813) 7 Cranch 481.

High Court of Australia

Jones v Jones [1928] HCA 2; (1928) 40 CLR 315 (5 March 1928)

HIGH COURT OF AUSTRALIA