Crown Solicitor (NSW) v Stubbs - [1929] HCA 17

CROWN SOLICITOR FOR THE STATE OF

NEW SOUTH WALES RESPONDENT, STUBBS

ON APPEAL FROM THE SUPREME COURT OF Husband and Wife-Dissolution of marriage-Decree absolute-Pronouncement in

Court-Subsequent intervention by Crown Solicitor-Matrimonial Causes Act 1899 (N.S.W.) (No. 14 of 1899), secs. 21-22*, 28*, 30, 82*. SYDNEY,

A decree nisi for dissolution of marriage is "made absolute' " within the Aug. 1, 2.

meaning of the Matrimonial Causes Act 1899 (N.S.W.) when it is so pronounced in Court; and, subject only to the right conferred by sec. 82 (1) upon any person aggrieved by the decree of the Court to appeal within fourteen days next after such pronouncement, the matter is then closed.

pending make the decree absolute as of (N.S.W.), sec. 21, contains the following

course." Sec. 28 (1) provides that provisions :- " (1) Every decree for dis-

The respective parties to a suit for dis- solution of marriage shall in the first

solution of marriage may marry again as instance be a decree nisi. (2) A decree

if the marriage had been dissolved by death where but not before (a) the after the expiration of six months (or

time limited for appealing against a such shorter time as the Court fixes by

decree absolute has expired and no special order) from the pronouncing

appeal has been presented or (b) any thereof. (3) During such period any

such appeal is dismissed or (c) in the person may in such manner as the Court

result of any appeal the marriage is by a general or special order directs

declared to be dissolved." And by show cause why the said decree should

sec. 82 (1) it is provided that Any not be made absolute." Sec. 22 pro-

person aggrieved by any decree or order vides that "(1) After the expiration of the time limited in that behalf the

teen days next after the pronouncing petitioner may make request in writing

or making of the same enter in the that such decree nisi be made absolute.

prescribed manner an appeal against (2) The Court shall upon a certificate

such decree or order to the Full Court' from the Registrar that no matter in opposition to the final decree is then

42 CLR 313

After a decree absolute for dissolution of marriage had been duly pronounced by the Supreme Court, the Crown Solicitor made an application to the Court that the decree nisi be not made absolute, on the ground of concealment of material facts.

Held, by the High Court, that the Supreme Court had no jurisdiction to entertain the application.

Decision of the Supreme Court of New South Wales (Full Court): Stubbs V. Stubbs, (1929) 29 S.R. (N.S.W.) 508, affirmed.

APPEAL from the Supreme Court of New South Wales.

By petition to the Supreme Court in its matrimonial causes jurisdiction dated 12th September 1927 Harold Sidney George Stubbs prayed for the dissolution of his marriage with his wife, Gertrude Mary Harboard Stubbs, on the ground that she had deserted him…

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: [1929] HCA 17
Decision Date: 2 August 1929

CaseChat Overview and Summary

The case of *Crown Solicitor (NSW) v Stubbs* involved an appeal to the High Court of Australia concerning the finality of a decree absolute for the dissolution of marriage. The dispute arose after the Crown Solicitor sought to intervene in a divorce proceeding to show cause why a decree nisi should not be made absolute, alleging concealment of material facts. The Supreme Court of New South Wales had previously held that the decree absolute was not final until it was formally drawn up and filed, allowing the Crown Solicitor's intervention.

The central legal issue before the High Court was the precise point in time at which a decree absolute for the dissolution of marriage becomes final and unassailable, thereby terminating the court's jurisdiction to entertain further intervention. Specifically, the court had to determine whether the pronouncement of the decree absolute in open court was sufficient to render it final, or if further administrative steps, such as the drawing up and filing of the decree, were necessary for its completion and finality.

The High Court, in dismissing the appeal, reasoned that under the *Matrimonial Causes Act 1899* (NSW), a decree absolute is made when it is pronounced in open court. The court emphasised that section 28 of the Act, which governs when parties may remarry, and section 82, which outlines the right to appeal, both indicate that the pronouncement of the decree absolute is the critical event. The right of appeal, as established by practice and consistent with the Act's language, commences from the time of pronouncement, not from the subsequent drawing up of the decree. Therefore, once a decree absolute is pronounced and the time for appeal has expired without an appeal being lodged, the matter is closed, and the court loses jurisdiction to entertain further applications to show cause.

The High Court affirmed the decision of the Full Court of the Supreme Court of New South Wales, ordering that the decree absolute pronounced on 9th October 1928 be drawn up and signed by the Registrar and filed as prescribed. The appeal by the Crown Solicitor was dismissed with costs.

Orders