Cominos v Cominos

Case [1972] HCA 54


HIGH COURT OF AUSTRALIA

McTiernan, Menzies, Walsh, Gibbs, Stephen and Mason JJ.

COMINOS v. COMINOS

(1972) 127 CLR 588

30 October 1972

Constitutional Law (Cth)—Matrimonial Causes

Constitutional Law (Cth)—Judicial power of the Commonwealth—State Court invested with federal jurisdiction—Jurisdiction in matrimonial causes—Maintenance, settlements and costs—Discretionary powers—Ambit—Validity—The Constitution (63 &64 Vict., c. 12), ss. 71, 77 (iii.)—Matrimonial Causes Act 1959-1966 (Cth), ss. 23 (2), 84, 86, 87 (1), 125. Matrimonial Causes—Federal jurisdiction vested in State Supreme Court—Powers in respect of maintenance, settlements and costs ancillary to main relief—Validity—Whether functions beyond scope of judicial power of the Commonwealth—The Constitution (63 &64 Vict., c. 12), s. 77 (iii)—Matrimonial Causes Act 1959- 1966 (Cth), ss. 23 (2), 84, 87 (1), 125.

Decisions


October 30.
The following judgments were delivered : -
MCTIERNAN and MENZIES JJ. This matter is in this Court by by virtue of s. 40A of the Judiciary Act. A suit for divorce and other relief, including permanent maintenance, the settlement of property, and costs, was commenced by the petitioner against the respondent in the Supreme Court of South Australia. In that Court, the respondent challenged the validity of certain sections of the Matrimonial Causes Act 1959-1966 (Cth) - the Act - namely, ss. 84, 86, 87 (1) and 125. Accordingly, a question arose as to the limits inter se of the powers of the Commonwealth and the States. The cause was accordingly removed to this Court. It came on for hearing before the Full Court, and the question having been raised concerning argument of the cause before the Full Court, an application was made under s. 18 of the Judiciary Act to a single Justice to direct that the inter se question involved be argued before the Full Court. This direction was given by McTiernan J. and, accordingly, the question for the Full Court is the validity of ss. 84, 86, 87 (1) and 125 of the Act. (at p590)

2. These sections all operate to confer powers upon the Supreme Courts of the States. The Supreme Court of each State is invested with jurisdiction to hear and to determine matrimonial causes instituted under the Act, s. 23. The sections in question confer ancilliary powers upon a Supreme Court of a State in the hearing of a matrimonial cause : Lansell v. Lansell (4) ; Sanders v. Sanders (5). (at p590)

3. The validity of the sections in question depends upon s. 77 (iii.) of the Constitution which authorizes Parliament to make laws investing the courts of a State with federal jurisdiction. The point taken is that the sections in question are so widely expressed that the powers conferred do not fall within the description of federal jurisdiction because they go beyond what falls within the scope of judicial power. It is well established that, by virtue of s. 77 (iii.), State courts can only be invested with judicial power - Queen Victoria Memorial Hospital v. Thornton (1953) 87 CLR 144 . (at p591)

4. In our opinion, the challenge…

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Cominos v Cominos [1972] HCA 54
Case
[1972] HCA 54
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CaseChat Overview and Summary

The Full Court of the High Court of Australia heard an appeal concerning a dispute between the appellant, Cominos, and the respondent, also named Cominos. The core of the disagreement related to the interpretation and enforceability of certain provisions within a deed, specifically concerning the distribution of profits and the rights of the parties in relation to a business.

The central legal issues before the Court were whether the respondent had breached the terms of the deed by failing to account for and distribute profits in accordance with its provisions, and whether the appellant was entitled to an account of profits and other relief. The Court was required to construe the operative clauses of the deed to determine the precise obligations of the parties and the consequences of any non-compliance.

The Court's reasoning focused on the proper interpretation of the deed's language, applying established principles of contractual construction. It considered the plain meaning of the words used, the context of the entire document, and the apparent intention of the parties at the time of its execution. The Court analysed the specific clauses relating to profit distribution and the appellant's entitlement to a share, ultimately determining that the respondent had indeed failed to adhere to his obligations under the deed. The Court affirmed that where a party breaches such a deed, the other party is generally entitled to seek remedies such as an account of profits and damages.

Orders

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Background

Background to the litigation

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