Dashwood v Maslin - [1909] HCA 62

9 CLR 451

DASHWOOD

MASLIN AND OTHERS

RESPONDENTS.

ON APPEAL FROM THE SUPREME COURT OF Husband and wife-Divorce-Intervention-Appointment of Crown Proctor H.

-Matrimonial Causes Act 1867 (S.A.) (31 Vict. No. 3), secs. 28, 36, 37. * *Secs. 28, 36, and 37 of the Matri-

from time to time remove any prac- monial Causes Act 1867 (S.A.) are as

titioner appointed to be Crown Proc- tor for any suit, and appoint some "28. In every suit instituted for dis-

other practitioner in his stead; and solution of marriage the Court, at the

the practitioner so appointed to be time when application is made to it to

Crown Proctor in any suit as aforesaid direct the mode in which the questions

shall, until removed by the Court, of fact raised and the pleadings shall

perform the duties, and have and exer- be tried, or any other period of the

eise the powers and authorities, in re- suit, may, if it think fit, appoint some

spect to the suit for which he has been practitioner of the said Court to act as

appointed, which by this Act, or by Crown Proctor in such suit; and

the said Rules and Regulations, are or the Court may, if it shall think fit,

may be imposed or conferred upon the

9 CLR 452

The power conferred by sec. 28 of the Matrimonial Causes Act 1867 to appoint a Crown Proctor is a judicial power and an appeal will lie from a

Such an application made at the instance and under the responsibility of the Attorney-General should be granted almost of course,

A reasonable suspicion entertained by the applicant is a sufficient ground for making the appointment.

Decision of the Supreme Court of South Australia reversed.

APPEAL from the Supreme Court of South Australia.

A suit was instituted in the Supreme Court of South Australia by James Frederick Maslin for dissolution of marriage against his wife, Christina Maslin, on the ground of adultery with Michael Brown, who was made a co-respondent. By her answer to the petition the respondent denied the alleged adultery, and alleged that the petitioner had committed adultery with Alice Thornton Mills, and by his reply the petitioner alleged that if he did at any time commit adultery with Alice Thornton Mills such adultery was condoned before the adultery between the respondent and the co-respondent.

The suit came on for hearing before Homburg J. on 17th December 1908 who made certain findings which were reported to the Full Court, and the Full Court on 23rd December made an order nisi for dissolution of the marriage.

On 18th June 1909 an application was made to the Full Court by Charles James Dashwood, Crown Solicitor for South Aus- tralia and a practitioner of the Supreme Court, that he or some Crown Proctor; and the Court may,

in any suit as aforesaid shall suspect if it think fit, require the parties to

that any parties to the suit are or have the suit, or either of them,…

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.

Continue reading Dashwood v Maslin

Details

AGLC: Dashwood v Maslin [1909] HCA 62
Case: [1909] HCA 62
Decision Date: 1 October 1909

CaseChat Overview and Summary

This case concerned an appeal to the High Court of Australia from a decision of the Supreme Court of South Australia. The appeal arose from a suit for dissolution of marriage instituted by James Frederick Maslin against his wife, Christina Maslin, on the grounds of adultery. The wife denied the adultery and counter-alleged adultery by the husband. Following a decree nisi for dissolution, the Crown Solicitor for South Australia, Charles James Dashwood, applied to the Supreme Court for the appointment of himself or another practitioner as Crown Proctor in the suit. This application was refused by the Supreme Court with costs.

The legal issues before the High Court were whether the power to appoint a Crown Proctor under section 28 of the *Matrimonial Causes Act 1867* (SA) was a judicial power, and if so, whether an appeal lay from the Supreme Court's refusal to exercise that power. The Court was also required to determine whether the Supreme Court had properly exercised its discretion in refusing the appointment, and if not, whether the grounds for suspicion of collusion presented by the Crown Solicitor were sufficient to warrant the appointment of a Crown Proctor.

The High Court held that the power to appoint a Crown Proctor was a judicial power, and therefore an appeal lay from the Supreme Court's refusal. The Court reasoned that the appointment was a necessary preliminary step for the Crown Proctor to potentially intervene in the suit, and that the exercise of this power should be guided by judicial principles. The Court found that the Supreme Court had erred in refusing the appointment, as the grounds presented by the Crown Solicitor, including a deed of covenant for maintenance entered into by the petitioner during the trial and the circumstances surrounding the wife's decision to cease defending the suit, provided reasonable grounds for suspecting collusion. The Court emphasised that the application for appointment of a Crown Proctor, particularly when made at the instance of the Attorney-General, should be granted almost as a matter of course, provided there was a reasonable suspicion of collusion, and that it was premature for the Supreme Court to determine the ultimate merits of the alleged collusion at that stage.

The High Court reversed the decision of the Supreme Court and ordered that the Crown Solicitor's application for the appointment of a Crown Proctor be granted. The respondent, the petitioner in the original divorce suit, was ordered to pay the costs of the appeal.

Orders