Crown Solicitor (NSW) v Stubbs [1929] HCA 17; (1929) 42 CLR 312 (2 August 1929)

HIGH COURT OF AUSTRALIA

Crown Solicitor for the State of New South Wales Respondent, Appellant; and Stubbs Appellant, Respondent.

H C of A

On appeal from the Supreme Court of New South Wales.

2 August 1929

Knox C.J., Isaacs and Dixon JJ.

Holman K.C. (with him Rainbow), for the appellant.

Higgins and Hastings, for the respondent,

The following judgments were delivered:—

Knox C.J.

I have no doubt that the decision of the Supreme Court was right. The question is as to the true construction and meaning of sec. 21 of the Matrimonial Causes Act 1899, which provides, by sub-sec. 3, that during a period which may be assumed for the purposes of this case to terminate on the making of the decree absolute, any person may show cause why the decree should not be made absolute; and the only question that arises is as to the point of time at which that period terminates. In construing this Act, and every other Act, one has to have regard to the rule of construction which requires that if possible every provision of an Act must be given a meaning consistent with every other provision of that Act. But this Act is distinct from many Acts that come before the Court for construction, as it deals with a most important question of status; that is to say, it deals with the condition of persons as to whether they are married or single, and incidentally, not expressly, with the legitimacy of the children of those marriages. Having this in mind, it seems to me difficult to escape from the conclusion that sec. 28 of the Act must be given the fullest force consistent with the language used. That section sets out the conditions under which parties to a divorce suit may lawfully remarry, and it must be taken as an authoritative determination of the status of all parties to a divorce suit as married or single. The section provides (inter alia) that "(1) the respective parties to a suit for dissolution of marriage may marry again as if the marriage had been dissolved by death where but not before (a) the time limited for appealing against a decree absolute has expired and no appeal has been presented or (b) any such appeal is dismissed or (c) in the result of any appeal the marriage is declared to be dissolved." Now that section imports that there has been a decree absolute against which one or more of the parties is empowered to appeal, and that a marriage contracted by either of the parties shall be a lawful marriage if contracted at any time after the expiration of the time limited for appeal when no appeal has been made. The section is an authorizing section and not a prohibiting section. The right of appeal is given by sec. 82 of the Act, which provides that "Any person aggrieved by any decree ... of the Court ... may within fourteen days next after the pronouncing or making of the same enter in the prescribed manner an appeal against such decree" &c. Mr. Holman very fairly stated that the practice had always been that the time for appeal ran from the time of pronouncement in open Court and not from the subsequent drawing up. This practice is in accordance with the Act, which says that an appeal must be lodged within fourteen days after the pronouncement of the decree. After the expiration of the time limited by the decree nisi the suit is put in the list for decree absolute and, there being no intervention or, to use the words of sec. 22, "upon a certificate from the Registrar that no matter in opposition to the final decree is then pending," the Judge pronounces the decree absolute "as of course," and, having done this, if any party to the suit objects he or she has, under sec. 82, a right to appeal within fourteen days In the view I take, sec. 28 shows that when a decree has been so pronounced, if an appeal has not been lodged within fourteen days then either party to the suit may lawfully marry again.

For these reasons I think the appeal should be dismissed.

Isaacs J.

I find it difficult to improve on the way in which the matter has been dealt with by Harvey C.J. in Eq., concurred in by the rest of the Full Court. I agree with him that the matter is determined in particular by secs. 21 and 22 of the Act. Those sections make it plain that there is only one decree, namely, the one pronounced. In the first instance it is nisi and is subject during the period prescribed or fixed to be dealt with under sub-sec. 5 of sec. 21. But after that period has expired, on compliance with sub-sec. 2 of sec. 22, the petitioner has a right to have the decree—the same decree—made absolute as of course. That is an end of the matter. The English cases as to rehearing do not assist the appellant. The case of In re St. Nazaire Co.[1] declares that the right of rehearing was essentially appellate jurisdiction. Under the statute such cases are quite inapplicable. The Act provides its own statutory methods; appeals are expressly regulated by Part XVII., and once the decree is made absolute the matter is closed.

This appeal should be dismissed.

Dixon J.

I agree. We are required to interpret sec. 21 (3) of the Matrimonial Causes Act 1899. That sub-section enables any person to show cause why the decree nisi should not be made absolute during an interval of time which it describes by the words "during such period." The period referred to is to be found in sub-sec. 2, which says: "A decree nisi shall not be made absolute until after the expiration of six months (or such shorter time as the Court fixes by special order) from the pronouncing thereof." It might perhaps be thought natural to read the words "such period" as referring to the specified period of six months or the shorter time fixed. But the provision is based upon sec. 7 of 23 & 24 Vict. c. 144, and that section has been interpreted to mean that intervention is allowable at any time between decree nisi and decree absolute (Bowen v. Bowen[2], followed in Bruell v. Bruell[3]). It is now suggested that the time which this interpretation allows for intervention does not expire until the decree absolute is drawn up, passed and filed. It is said that until the judgment or decree of a Court is drawn up and perfected it is open to reconsideration and is not finally made although, when perfected, it becomes effective from the time it was pronounced. It may be doubted whether this is so in the case of a decree which of its own force changes status and is not confined to determining and embodying pre-existing rights. But ultimately the question must be what does sec. 21 (3) contemplate as the end of the period, and it is not conceivable that that point of time could be later than the actual dissolution of the marriage. In my opinion the period referred to in that sub-section does not extend beyond the time of the pronouncement of the decree absolute in open Court. Sec. 28 and other sections of the Act contain many material considerations which show that the Legislature intended that a decree absolute should operate immediately on its pronouncement in Court.

Appeal dismissed with costs.

Solicitor for the appellant, J. V. Tillett, Crown Solicitor for New South Wales.

Solicitors for the respondent, Waddell, Davies & Sharpe.

[1] (1879) 12 Ch. D. 88, at p. 98.

[2] [1863] EngR 1063; (1864) 3 Sw. & Tr. 530.

[3] (1922) 39 N.S.W.W.N. 170.