Cain v Cain

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.