Moss v Moss [1936] HCA 21; (1936) 55 CLR 166 (8 May 1936)

HIGH COURT OF AUSTRALIA

Audray Ilma Moss Plaintiff, Appellant; and Leonard Bowley Bolton Moss Defendant, Respondent.

H C of A

On appeal from the Supreme Court of Queensland.

8 May 1936

Starke, Dixon and McTiernan JJ.

Spender K.C. (with him Clancy), for the appellant.

Badham, for the respondent.

The following judgments were delivered:—

Starke J.

In this case we are all of opinion that the appeal should be allowed, and the wife should have leave to present a petition for permanent maintenance under the Matrimonial Causes Act of Queensland. The facts which the wife has put forward as an excuse for the comparatively long delay of sixteen months since the decree for dissolution are as follows. She left her husband in May 1931, and obtained her decree nisi for dissolution of marriage in November 1932. In March 1933 that decree was made absolute. Since November 1932 the husband had in no way contributed to her support. She had obtained an order for costs, which were taxed at about £187. The husband did not pay those at the time, nor for a considerable time afterwards. But the wife saw him in Bundaberg in December 1933, and consulted her solicitor as to the position. The costs had not then been paid, and the solicitor considered, and informed the wife, that it was inadvisable to waste more money in pursuing a maintenance application when it was very doubtful if her husband had means or would pay. So the matter was left, and in March 1934 the husband proceeded to New Zealand, and stayed there several months, but in April, while he was in New Zealand, he seems to have paid on account of costs a sum of £150. Soon afterwards, namely, in the month of May, the wife discovered him living in Sydney, apparently in a somewhat expensive manner. This discovery seems to have induced her to reconsider the matter of her maintenance, for in August 1934 she applied to the Supreme Court of Queensland for leave to file a petition, which was granted. Subsequently, the Full Court reversed that decision and refused her leave.

In my opinion, the Full Court of the Supreme Court were wrong. I think they exercised their discretion upon grounds which hardly did justice to the position of the wife. The cases show plainly enough that the decree for dissolution is the occasion upon which these permanent maintenance orders can be made, and Fox v. Fox[1] shows that an application may be made before decree, it may be made on decree, or it may be made after decree. But if it be made after decree, the Courts have said that it should at least be made within a reasonable time of the decree being made, and for very good reasons, of course—partly as evidence of sincerity and partly to protect the husband from incurring obligations which ought to have been considered near the time of making the decree. But, the legal position being clear, it seems to me that the Supreme Court acted upon too narrow a view. It was said that the wife could have served the husband with her petition for maintenance by delivering it to the solicitor upon the record. I do not stay to inquire whether the wife would have been within the Rules of Court in so serving her husband, but it is quite plain that, in this class of case, he ought not to be so served. The matter raised the whole question of the respondent's means—his property and many other aspects of his affairs—and was properly a matter in which he ought to be personally served. That ground, therefore, has little to support it. Another ground taken was that when the husband was known to be in Bundaberg in 1933, her solicitors advised the wife that it was not worth while pursuing her husband, and that was regarded as finalizing her rights. I do not suppose by that phrase is meant that the wife gave up effectively, or released, her rights in point of law, but that she had resolved or come to the conclusion that she would not pursue her application in the circumstances then existing. What were those circumstances? The circumstances were that she was entirely without means for taking proceedings for maintenance, she was owed a considerable amount of money for costs which had not been paid and which, for all she knew, she could not recover, she did not know her husband's means, and she was, in fact, without any means whatever until the present time, apart from the costs which were paid in April 1934. But in May, as I have said, the husband returned from New Zealand, and the wife discovered him living in Sydney in circumstances which suggested considerable means on his part. She within a very short time, namely, in August 1934, took proceedings—applied to the Supreme Court for leave to file a petition. The delay of about sixteen months was not, in my opinion, in all these circumstances, at all unreasonable: Macrossan S.P.J. did not, I think, give sufficient weight to them.

Webb J. put the position on even narrower grounds than those already mentioned. He was of opinion that the cases require that there shall be circumstances of a compelling nature to support the jurisdiction, such as the applicant's ignorance of her rights, her inability to transact business for physical or mental reasons, or the existence of some arrangement between the parties. The cases do not so restrict the jurisdiction of the Court. The wife's delay in presenting her petition cannot be viewed from any narrow standpoint; the question is: Was her conduct reasonable in all the circumstances of the case?

Dixon J.

I agree and I have very little to add. Both here and in England the words of sec. 27 of the Matrimonial Causes Act have caused difficulty from the time they were enacted. But the result of the decisions now appears to be to make the word "on" equivalent to "on the occasion of" in the wide and, no doubt, proper sense of that expression. In Scott v. Scott[2] Scrutton L.J., citing from R. v. Arkwright[3], pointed out that the words "on" or "upon" might mean either before the act to which it related or simultaneously with the act done or after the act done as reason and good sense required with reference to the context and subject matter. When those observations were referred to in the subsequent case of Fox v. Fox[4], Sargant L.J. said that if you expand "on" to "on the occasion of" it would clearly embrace all three. It is necessary, no doubt, in each case to ascertain whether more than a reasonable time has elapsed. But what is a reasonable time must always be judged according to circumstances which are relevant to the subject in hand. The subject in hand in cases arising under sec. 27 is a re-arrangement of the relations of two parties who have been husband and wife, after their matrimonial relations have been determined. It has become necessary because of the dissolution of the marriage to make arrangements for their future financial and other relationships. In this way the pronouncing of a decree of dissolution is connected with the order for permanent maintenance and is the "occasion of" the latter order. In determining, therefore, whether more than a reasonable time has elapsed, it is necessary to consider the position of the two parties and the position of the Court which must make a complete determination in respect of the matrimonial alliance dissolved and the matters which arise out of its dissolution.

In the present case the parties had separated in May 1931, and, except for occasional interviews, they had seen nothing of one another until the decree nisi on 23rd November 1932. From that time, although orders had been made for payment of costs before the decree, the husband made no payment and his wife heard nothing of him until she read that he had been married on 1st April 1933. She then heard nothing of him until she learned in December 1933, from information, that he was in Bundaberg and carrying on his activities as a share salesman. She says she consulted her solicitor who advised her that it would be very difficult to obtain money from him and that his advice was not to expend more money. Macrossan S.P.J. has taken that to mean that she accepted the advice, that the advice related to maintenance and that she, therefore, determined she would not, in the circumstances, further consider attempting to obtain maintenance from him. I doubt very much whether that conclusion is justified by the statement in the affidavit. The suggestion appears to me to be rather that they were considering whether the order for costs could be enforced. In any case there is nothing in the affidavits to show that she accepted the solicitor's advice. Indeed, in the next month, on 8th January 1934, steps were taken to recover costs from him. Those steps resulted in nothing, because information was obtained that he was not in New South Wales or Queensland but in New Zealand. Bankruptcy proceedings were prepared but his whereabouts were not ascertained until March, except that it was known that he was somewhere in New Zealand. It was not until April 1934 that she was able to obtain any of the money from him that was owing. At that time she appears to have definitely made up her mind to proceed against him for permanent maintenance, and, as a first step, she swore an affidavit on 23rd June 1934. Those dates appear to me to show first of all that he was not in a position reasonably to complain of delay on her part. From the time he failed to defend the suit, he seems to have avoided any communication with or reference to her. He moved about in a way which would make it difficult for her to ascertain his whereabouts. She, on her side, was placed in considerable difficulties. She found that, whether he could or could not pay, he was unwilling to obey the orders for costs. She and her solicitors were unable to obtain money from him.

In all these circumstances, I think a delay of seventeen months was not more than might be considered reasonable. Further, there is nothing to suggest that lapse of time led him to act to his prejudice upon the assumption that no claim to permanent maintenance would be made. There was no such delay as would make it difficult to adjust the relations of the parties as they would have been dealt with at the time when the decree was pronounced. Macrossan S.P.J. allowed his discretion, if the decision of such a matter be discretionary, to be affected by considerations to which my brother Starke has already referred. With one of them I have already dealt. As to the other, neither from the point of view of the litigants themselves, nor from that of their legal advisers, do I think weight should be given to the technical position that the husband's former solicitor was the proper person upon whom service could be made. Their legal advisers would be aware that it was one thing to obtain a formal order for maintenance and another thing to make it fruitful. It was of little use to obtain an order by serving process upon the solicitor upon the record or by substituted service, unless something further could be done to enforce it. Moreover the Court would naturally throw obstacles in the way of a proceeding which would really be behind the back of the respondent. I wish to add that of the judgments delivered by the Supreme Court, that of Hart A.J. expresses the view I take.

McTiernan J.

The judgment of the Supreme Court was not, in my opinion, a sound exercise of its discretion under sec. 27 of the Matrimonial Causes Acts 1864 to 1931 to decline to hear the appellant's petition for permanent maintenance because of her delay in presenting it. I agree with the criticism which my brethren have made of the reasons of the Supreme Court for deciding that the appellant's petition was unreasonably delayed. In my judgment the appellant did present her petition within a reasonable time after the decree absolute. The circumstances proper to be taken into consideration are fully stated in the judgments which have just been delivered. These circumstances are sufficient to justify the exercise of the Court's discretion to hear the petition, notwithstanding the lapse of time since the decree absolute, in the appellant's favour.

The appeal should be allowed.

Appeal allowed. Order of the Supreme Court of Queensland of 2nd August 1935 set aside, and in lieu thereof it is ordered that the appellant, the plaintiff in the proceedings before the Supreme Court, be at liberty to file a petition in the Supreme Court for permanent maintenance. The respondent will pay the costs of this appeal and the costs in the Supreme Court.

Solicitors for the appellant, Carruthers, Hunter & Co.

Solicitors for the respondent, McLachlan, Westgarth & Co.

[1] (1925) P. 157.

[2] (1921) P., at p. 125.

[3] [1848] EngR 67; (1848) 12 Q.B. 960, at p. 970; [1848] EngR 67; 116 E.R. 1130, at p. 1134.

[4] (1925) P., at p. 163.