Dashwood v Maslin

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.