Cain v Cain - [1918] HCA 22

ON APPEAL FROM THE SUPREME COURT OF Justices-Special case--Service on respondent-Service on solicitor-Appedrance

in Chambers-Waiver of objection-Special leave to appeal to High Court -Matter in issue not determinable by appeal-Justices Act 1902 (N.S.W.) (No. 27 of 1902), sec. 105-Justices (Amendment) Act 1909 (N.S.W.) (No. 24 of April 25.

On an appeal from the decision of a magistrate by way of special case under sec. 101 of the Justices Act 1902 (N.S.W.), the notice of appeal and copy special case were served on the respondent's solicitor, who said that he would accept service without prejudice and on condition that all rights were reserved. The case coming on in Chambers, counsel for the respondent objected to the jurisdiction upon a ground other than that of the want of personal service, and after hearing the objection stated the Judge referred the matter to the Full Court of the Supreme Court of New South Wales. That Court held that service of the notice of appeal and copy special case on the respondent's solicitor was insufficient, and that the objection had not been waived by the appearance of the respondent in Chambers.

Held, that special leave to appeal to the High Court from that decision should be refused, as the question whether the Magistrate's decision was right would not be determined on an appeal from the decision of the Full Court.

Special leave to appeal from the decision of the Supreme Court of New South Wales: Cain v. Cain, 18 S.R. (N.S.W.), 26, refused.

APPLICATION for special leave to appeal.

In December 1914 Mary Cain obtained an order under the Deserted Wives and Children Act 1901 for the payment by her husband of

24 CLR 459

twenty-five shillings per week for her maintenance. In December 1917 the husband applied to a Magistrate to vary the order by directing the payments to cease on the ground that the wife had been guilty of adultery. The Magistrate dismissed the application, holding that proof of adultery by the wife was no ground for a variation of the order for maintenance. A special case was stated under sec. 101 of the Justices Act 1902 (N.S.W.), which was delivered to the appellant on 4th January. On 11th January a clerk of the appellant's solicitor left the notice of appeal and copy special case at the office of the respondent's solicitor, who said that he thought service must be personal, and that he did not know if he could accept service. He said, however, that he would accept service without prejudice, and on the condition that all rights were reserved, and indorsed on appellant's solicitor's copy of the special case a memorandum to that effect. The special case came on before Street J. in Chambers, when counsel for the respondent objected to the juris- diction on the ground that the special case would not lie, as it was not an appeal from a proceeding commenced by an information or complaint. After argument counsel for the respondent…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [1918] HCA 22
Decision Date: 25 April 1918

CaseChat Overview and Summary

This matter concerned an application for special leave to appeal to the High Court of Australia from a decision of the Supreme Court of New South Wales. The original dispute arose from an application by a husband to vary a maintenance order made under the Deserted Wives and Children Act 1901 (N.S.W.). The husband sought to have the order cease on the grounds of his wife's alleged adultery. A magistrate dismissed this application, finding that proof of adultery was not a ground for varying the maintenance order. The husband then appealed by way of a special case stated under section 101 of the Justices Act 1902 (N.S.W.).

The legal issues before the Supreme Court of New South Wales concerned the proper service of the notice of appeal and the special case. The notice and case were served on the respondent's solicitor, who accepted service "without prejudice" and on the condition that all rights were reserved. The matter first came before a judge in chambers, where an objection to jurisdiction was raised on a ground unrelated to service. The judge referred the matter to the Full Court. Before the Full Court, the respondent raised a preliminary objection that personal service on the respondent was required under section 105 of the Justices Act 1902 (N.S.W.) as amended, and that service on the solicitor was insufficient. The Full Court upheld this objection, finding that service on the solicitor was insufficient and that the objection had not been waived by the appearance in chambers.

The High Court considered the application for special leave to appeal. The Court indicated that special leave should be refused because an appeal from the Full Court's decision would not determine the substantive issue of whether the magistrate's original decision was correct. The Court noted that the substantive issue could be determined by initiating fresh proceedings before the magistrate. Consequently, the High Court refused special leave to appeal.

Orders