Felton v Mulligan

[1971] HCA 39

HIGH COURT OF AUSTRALIA

Barwick C.J., McTiernan, Menzies, Windeyer, Owen, Walsh and Gibbs JJ.

FELTON v. MULLIGAN

(1971) 124 CLR 367

2 September 1971

Constitutional Law (Cth)—Courts—Matrimonial Causes

Constitutional Law (Cth)—Privy Council—Appeal from State Supreme Court invested with federal jurisdiction—Matter arising under law made by Common- Commonwealth Parliament—Raised by defence—Whether court exercising concurrent State and federal jurisdiction—The Constitution (63 &64 Vict. c. 12), s. 76 (ii.)—Judiciary Act 1901-1968 (Cth), ss. 39, 40. Courts—Ouster of jurisdiction—Public policy—Proceedings for divorce—Agreement between husband and wife concerning maintenance—Whether invalid—Whether invalidity derived from common law or statute—Matrimonial Causes Act 1959-1966 (Cth). Matrimonial Causes—Agreement between husband and wife concerning maintenance—Whether enforceable—Whether attempt to oust jurisdiction of court—Matrimonial Causes Act 1959-1966 (Cth), ss. 5, 8, 23 (2) (3), 87 (1) (k).

Decisions

September 2.
The following written judgments were delivered: -
BARWICK C.J. The applicant seeks leave to appeal to Her Majesty in Council from a decretal order of the Supreme Court of New South Wales dismissing a suit in Equity brought by her against the executor and executrix of her deceased husband's estate. She sought a declaration that she is entitled to be paid by the executor and executrix certain sums of money as set out in a deed entered into between the applicant and her husband. These sums of money constituted permanent maintenance agreed to be paid by the husband at a time when matrimonial proceedings under the Matrimonial Causes Act 1959 (Cth) were pending in the Supreme Court of New South Wales. By the deed the deceased convenanted for himself his heirs, executors and administrators to pay such sums of money during the lifetime of the applicant. (at p372)

2. The defence to the applicant's claim was an assertion that the relevant covenant of the deed was void as being against public policy because it was said that it attempted to "oust" the jurisdiction of the Court. (at p372)

3. The application for special leave was made to the Supreme Court (Court of Appeal Division) but was removed into this Court under s. 40 of the Judiciary Act 1901-1964 (Cth) upon the motion of the Attorney-General of the Commonwealth. The question for the decision of this Court is whether the decretal order dismissing the applicant's suit was made by the Supreme Court in the exercise of a jurisdiction invested in the Supreme Court by s. 39 (2) of the Judiciary Act. If it was, no appeal may be brought therefrom to Her Majesty in Council; see s. 39 (2) (a). (at p372)

4. I have had the advantage of reading the reasons for judgment prepared in this matter by my brother Walsh. The full facts and circumstances of the case are there set out and I have no need to repeat or supplement any of them. My brother expresses his conclusion that this Court upon the removal into it under s. 40 of this application for leave to appeal has jurisdiction to entertain and to grant or to refuse the application. This is the consequence of a combination of the Constitution, the Judiciary Act and the Order in Council providing for appeals to Her Majesty in Council from judgments of the Supreme Court of New South Wales. I fully agree with this conclusion and with the reasons given by my brother Walsh for it. (at p372)

5. The applicant's claim to a declaration might be said to be a claim with respect to the maintenance of a party to proceedings for a decree of dissolution of marriage. The matrimonial proceedings to which I earlier referred were of that kind. The Matrimonial Causes Act seems to have intended that the maintenance of a party to the matrimonial proceedings so far as the same is the subject of proceedings in a court should be the subject of a matrimonial cause within s. 8. See definition of 'matrimonial cause' in s. 5 (1) (c). Had I not other reasons for thinking that the decretal order in this case was made in the exercise of a jurisdiction invested in the Supreme Court by the Judiciary Act, I should further explore the possibility that the instant proceedings constituted a matrimonial cause as defined by the Act. However, I am prepared to consider this matter on the footing that the applicant's suit was not such a matrimonial cause, either because it did not seek relief founded upon the order for maintenance made by the Supreme Court in the suit for divorce, or because the suit for a declaration of entitlement to the payment of maintenance is not relevantly a proceeding with respect to the maintenance of a party to a completed proceeding for a decree of divorce. (at p373)

6. The statement of claim did not seek a declaration that the deed between the parties had been validly sanctioned by the Supreme Court pursuant to s. 87 (1) (k). Thus, it cannot, in my opinion, in that respect be said itself to raise a matter arising under a law made by the Parliament: Constitution s. 76 (ii.). (at p373)

7. On the footing of these views, the initiating process in the suit did not involve the exercise of any jurisdiction invested in the Supreme Court by s. 39 (2) of the Judiciary Act. One other matter with which I find it unnecessary to concern myself at present is the question whether the covenants of the deed merged in the order for maintenance made by the Supreme Court. The suit had proceeded on the footing that they did not. (at p373)

8. But the jurisdiction invested in the Supreme Court by the Judiciary Act may be attracted by the defence raised to the applicant's claim for relief. If it is, the jurisdiction which is exercised by the Supreme Court throughout the case will be federal, that is to say, part of the jurisdiction invested in the Supreme Court by the Judiciary Act, unless perhaps there is some completely disparate claim constituting in substance a separate proceeding. In this connexion, I agree with my brother Walsh's analysis of the case law and with his view of the opinions expressed in the decided cases to which he refers. I further agree with the view that if federal jurisdiction is attracted at any stage of the proceedings, there is no room for the exercise of a State jurisdiction which apart from any operation of the Judiciary Act the State court would have had. In my opinion, s. 109 of the Constitution, working with the Judiciary Act, ensures that there is no State jurisdiction capable of concurrent exercise with the federal jurisdiction invested in the State court. I agree with my brother Walsh's opinion in relation to this matter and with his reasons for entertaining it. (at p373)

9. The critical question in the case is whether the defence did involve the exercise of federal jurisdiction by the Supreme Court. It would do so if the matter before the Supreme Court became or involved by reason of the defence raised to the applicant's claim, either wholly or partly a matter arising under a law made by the Parliament, in this case the Matrimonial Causes Act: see Constitution s. 76 (ii.) and Judiciary Act s. 39 (2). Further the matter arising under a law of the Parliament will have arisen if the suit could have been disposed of by deciding the matter, whether or not the suit was so disposed of: cf.Nelungaloo Pty. Ltd. v. The Commonwealth (1952) 85 CLR 545 ; The Commonwealth v. Bank of New South Wales (1949) 79 CLR 497 . It is of course not enough that a law made by the Parliament must be construed in the course of the decision of the case. There must be a matter arising under a law of the Parliament. The contrast between the language of s. 76 (i.) and 76 (ii.) is relevant in this connexion. The point at which interpretation of the federal statute, prima facie an apparently incidental consideration, may give rise to a matter arising under the statute is not readily expressed in universally valid terms. But the distinction between the two situations must be maintained. (at p374)

10. As I have said, the defence to the applicant's suit was that the covenant on which the applicant founded its claim to a declaration was void or perhaps, more accurately, unenforceable for want of any valid promise of the applicant to support it. The only express promise of the applicant in the deed was to consent to an order on the terms of the deed. The deed contained no express provision that the applicant should accept the covenants of the deed in lieu of her rights under the Matrimonial Causes Act. Indeed the deed provided for the making of an order under the Act. There was no express provision by the applicant not to seek a variation of the order which the deed contemplated. But it was said that the deed contained by implication a promise by the applicant not to seek such a variation, that is to say, not to invoke the court's power under the Matrimonial Causes Act to make such an order. See s. 87 (1) (f). That implied promise was said to be an attempt to "oust" the jurisdiction of the court to vary its order and therefore void "as being against public policy". As the promise of the applicant thus implied was said to form part of the consideration for the covenant on which the applicant sued and, as in any case, the implied promise could not be severed out of the deed, the promise to pay the sums of money by way of permanent maintenance was therefore unenforceable. So ran the argument. The primary judge accepted it. He found the suggested implied promise to have been made by the applicant. He did so largely under the compulsion, as he thought, of a decision of this Court. See Brooks v. Burns Philp Trustee Co. Ltd. (1969) 121 CLR 432 . (at p375)

11. The propriety of his Honour's acceptance of the respondent's submission is not presently before us: consequently, I withhold any comment upon his decision and upon the relevance or acceptability of this Court's decision in relation to the alleged implied covenant by the applicant. I approach the question to be decided by this Court on the assumption that upon its true construction the deed contained an implied promise by the applicant not to seek a variation of the order which according to the deed the Court would make with her consent in the matrimonial proceeding. (at p375)

12. The Supreme Court in fact sanctioned the deed and purported to do so pursuant to s. 87 (1) (k) of the Matrimonial Causes Act. The first step in making out the defence that the applicant's implied promise was void, must therefore have been that the order in fact made in the matrimonial proceeding sanctioning the deed was invalid and ineffective. For in my opinion, it cannot be said that the covenants of a deed satisfying the terms of s. 87 (1) (k) and sanctioned by the Court are void as offending public policy. (at p375)

13. The implied promise not to sue to vary the order for maintenance contemplated by the deed might well be said to be in substance an agreement to accept the benefits of the deed in lieu of any right to seek an order varying that order for maintenance. But it does not seem to have been so treated in the Supreme Court. The primary judge held that the order sanctioning the deed was ineffective though apparently on the concession of the applicant's counsel. That he did so decide on the parties' concession or under the compulsion of authority is of no consequence for present purposes. He had necessarily to decide the matter; and he did. Again, I withhold any comment on the propriety of the concession or of the decision that the implied promise not to seek a variation of the order did not satisfy the terms of s. 87 (1) (k). (at p375)

14. But, in my opinion, that step in the defence clearly involved a matter arising under the Matrimonial Causes Act and in entertaining and deciding it the Supreme Court, in my opinion, was exercising its invested jurisdiction. That step in the defence was, as I have said, a step indispensable to the success of the defence. (at p375)

15. But, the matter need not end there. In my opinion, it is appropriate to examine what is further involved in the defence said to be founded on considerations of public policy. Those considerations are not themselves the foundation of a cause of action. They involve principles developed by the common law on which courts have acted sometimes in determining matters of statutory construction and sometimes in deciding the meaning and the validity of agreements or of parts of agreements. Historically they were developed when the jurisdiction of the courts with respect to which they were applied was derived from the royal prerogative and the common law. (at p376)

16. In relation to such courts the matter of the validity of an agreement said to be an attempt to prevent the exercise of a court's jurisdiction arose under the common law. But we are not here concerned with a court of that kind or with a right to invoke its aid derived from the common law. Here the jurisdiction of the court which it is said was sought to be "ousted" is wholly derived from the Acts of the Parliament - the Matrimonal Causes Act and the Judiciary Act. In Australia the exclusive source of jurisdiction to order the payment of maintenance to a divorced wife and the exclusive source of such a wife's right to such an order is that Act. It is, in my opinion, nothing to the point that there is a history of the provision of alimony or maintenance which precedes and may in a sense have prompted the statutory provisions now obtaining. The right to an order for permanent maintenance, whether as an initial or as a varying order is in Australia essentially and exclusively derived from the Matrimonial Causes Act. The question which the defence raises is whether a party to a matrimonial proceeding may validly agree not to seek the court's aid to obtain maintenance by the other party to such proceedings. (at p376)

17. It is not the law, as I understand it, that a person who has a right under a statute to seek the aid of a court cannot in any case agree not to exercise that right: cf. Admiralty Commissioners v. Valverda (Owners) (1938) AC 173, at p 185 per Lord Wright. But it is true that some statutory rights may not be so foregone. Whether or not the right in question is a right which may not be validly bargained away must depend on the subject matter to which it relates and the terms of the statute from which it is derived. The construction of the statute will be influenced by the principles as to public policy which have been developed by the courts. No doubt it may readily be decided that a statute creating a right to an order of a court for maintenance, upon its proper construction does not intend to allow the right it creates to be foregone. But whether the wife in such a case can validly agree not to enforce the right the statute gives her must be answered by a consideration of the statute itself. Here, as I have said, the right of a party to a matrimonial cause to an order for maintenance is given by the Matrimonial Causes Act. To assert that the agreement of a party to a matrimonial cause not to seek an order is against public policy is in reality and in substance to assert that the agreement offends the statute which is in truth the relevant expression of public policy. Such an assertion in my opinion does not merely involve the construction of the statute:it necessarily involves, in my opinion, a matter arising under the statute. The assertion is that the statute according to its proper construction, avoids the agreement. (at p377)

18. However in this case the statute is not silent on the question. In its enactment, the Parliament has concerned itself with the public policy relating to the capacity of a person entitled to seek an order for maintenance, including a varying order, to agree to forego that right. It has expressed itself in s. 87 (1) (k) quite clearly. By implication it has said that without the sanction of a court under that provision the right to such an order may not be foregone. Thus, the defence in this case necessarily involved, in my opinion, the assertion that the implied promise offended the provisions of the Matrimonial Causes Act. Indeed it could be said that there was in reality only one point in the defence, namely that the deed had not been sanctioned by the court. But however expressed, the defence in my opinion necessarily involved a matter arising under a law made by the Parliament. (at p377)

19. In my opinion the application for conditional leave to appeal to Her Majesty in Council should be refused on the ground that s. 39 (2) precludes any appeal from the Supreme Court to Her Majesty in Council in this matter. (at p377)

McTIERNAN J. In this case an application before the Court of Appeal of New South Wales for leave to appeal to Her Majesty in Council has been removed into this Court upon the application of the Attorney-General of the Commonwealth pursuant to s. 40 of the Judiciary Act 1903-1970 (Cth). (at p377)

2. The relevant history of the case begins with a deed made between Herta Lucy Felton ("the plaintiff") and her then husband, Hans Peter Oser, and dated 21st June 1961. The plaintiff had at that time commenced proceedings for dissolution of marriage against her husband. By this deed the plaintiff's husband covenanted to pay certain moneys and to do certain acts upon a decree nisi for dissolution of the marriage being pronounced. By the fourth covenant of the deed the plaintiff's husband agreed for himself, his heirs, executors and administrators during the lifetime of the plaintiff to pay weekly sums to the plaintiff by way of permanent maintenance. A decree nisi was pronounced on 25th October 1961 and made absolute on 26th January 1962. The learned judge who heard the petition purported to make an order sanctioning the deed pursuant to s. 87 (1) (k) of the Matrimonial Causes Act 1959-1966 (Cth). (at p378)

3. The plaintiff's husband died on 27th April 1967. The executors of his estate refused to make any payments in respect of weekly sums of maintenance to the plaintiff. The plaintiff sought a declaration from the Supreme Court of New South Wales (designated "in Equity" in the originating summons taken out by the plaintiff) that she was entitled to be paid out of the estate the weekly sums of maintenance specified by the deed. (at p378)

4. The learned judge of the Supreme Court of New South Wales who heard the matter found that the agreement was not one which might be sanctioned under s. 87 (1) (k) of the Act and that consequently the plaintiff was relegated to the express provisions of the deed. The learned judge held, however, that the plaintiff's covenant to consent to an order in the terms of the deed amounted to a promise not to seek more than the agreed sums and was therefore an attempt to bind the Court to make such an order and no other. He further held that this attempt to oust the jurisdiction of the Court rendered the deed void as being against public policy. (at p378)

5. The question for decision before this Court is whether s. 39 (2) (a) of the Judiciary Act 1903-1970 (Cth) deprives the plaintiff of the right that she would otherwise have to seek leave from the Court of Appeal of New South Wales to appeal from the decision of the learned judge of the Supreme Court of New South Wales to Her Majesty in Council. The material part of s. 39 (2) reads as follows:

"The several Courts of the States shall within the limits of their several jurisdictions, whether such limits are as to locality, subject-matter, or otherwise, be invested with federal jurisdiction, in all matters in which the High Court has original jurisdiction or in which original jurisdiction can be conferred upon it, except as provided in the last two preceding sections, and subject to the following conditions and restrictions: - (a) A decision of a Court of a State, whether in original or in appellate jurisdiction, shall not be subject to appeal to Her Majesty in Council, whether by special leave or otherwise."

Section 23 (2) (a) of the Matrimonial Causes Act provides that:

"Subject to the succeeding provisions of this section, the Supreme Court of each State is invested with federal jurisdiction, and jurisdiction is conferred on the Supreme Court of each Territory to which this Act applies, to hear and determine - (a) matrimonial causes instituted under this Act."

Section 23 (3) is also relevant and states that:

"The jurisdiction with which the Supreme Court of a State is invested by this section is subject to the conditions and restrictions specified in sub-section (2) of section thirty-nine of the Judiciary Act 1903-1959 so far as they are applicable." (at p379)

6. If, therefore, the proceedings before the learned judge of the Supreme Court of New South Wales were in truth a "matrimonial cause" within the meaning of s. 23 (2) of the Matrimonial Causes Act that Court was invested with federal jurisdiction with respect to those proceedings and by virtue of s. 23 (3) the restriction set out in s. 39 (2) (a) of the Judiciary Act is applicable to that jurisdiction. Section 5 (1) of the Matrimonial Causes Act defines "matrimonial cause" as, inter alia:

"(a) proceedings for a decree of - (i) dissolution of marriage; (ii) nullity of marriage; (iii) judicial separation; (iv) restitution of conjugal rights;or (v) jactitation of marriage;

(b) proceedings for a declaration of the validity of the dissolution or annulment of a marriage by decree or otherwise or of a decree of judicial separation, or for a declaration of the continued operation of a decree of judicial separation, or for an order discharging a decree of judicial separation;

(c) proceedings with respect to the maintenance of a party to the proceedings, settlements, damages in respect of adultery, the custody or guardianship of infant children of the marriage or the maintenance, welfare, advancement or education of children of the marriage, being proceedings in relation to concurrent, pending or completed proceedings of a kind referred to in either of the last two preceding paragraphs, including proceedings of such a kind pending at, or completed before, the commencement of this Act . . ." (at p379)

7. The material words for the purposes of this case seem to me to be:"(c) proceedings with respect to the maintenance of a party to the proceedings . . . being proceedings in relation to . . . completed proceedings of a kind referred to in either of the last two preceding paragraphs . . . ." In the present case there were completed proceedings for dissolution of marriage which are proceedings referred to in one of the two preceding paragraphs (par. (a)). In my opinion the deed in relation to which the proceedings were taken indicates that the proceedings were "proceedings with respect to the maintenance of a party to the proceedings" within the meaning of s. 5 (1) (c). The deed was expressed to be made between Hans Peter Oser as "Respondent" and Herta Lucy Oser as "Petitioner". It read thus in its preamble:

"WHEREAS the said Petitioner in the Matrimonial Causes Jurisdiction of the Supreme Court of New South Wales has instituted a suit No. 3840 of 1960 for dissolution of her marriage with the Respondent on the ground of desertion for three years and upwards AND WHEREAS the Respondent has not filed any defence to the said suit AND WHEREAS on the pronouncement of the said suit of a decree for dissolution of her marriage the Petitioner will become entitled to an order against the Respondent for the payment to her of periodical and other sums by way of permanent alimony and maintenance and for such further payments as are hereinafter mentioned."

The covenant on which the plaintiff relied stated:

"THAT the Respondent his heirs executors and administrators during the lifetime of the Petitioner will pay to the Petitioner at 16 Alan Street, Cammeray or at such other address as she may from time to time in writing require him as and by way of permanent maintenance free of exchange and all other charges a weekly sum of money which shall be calculated . . . ." (at p380)

8. In my judgment, the proceedings before the Supreme Court of New South Wales fall within the term "matrimonial cause" as defined by s. 5 (1) (c) of the Matrimonial Causes Act. The result is that s. 23 (3) of that Act makes the restriction embodied in s. 39 (2) (a) of the Judiciary Act applicable in this case. In my opinion, the application for leave to appeal from the judgment of the Supreme Court of New South Wales to Her Majesty in Council is not competent. (at p380)

MENZIES J. Hans Peter Oser and Herta Lucy Felton, as she now is, were married in 1938. This marriage was dissolved by a decree of the Supreme Court of New South Wales in its matrimonial causes jurisdiction in 1962. On the 21st June 1961, after the institution of divorce proceedings but before the making of the decree nisi, the parties entered into a deed whereby the husband covenanted to pay to the wife upon decree nisi certain moneys. In particular, by par. 4, he covenanted that he, his heirs, executors and administrators would pay to the wife during her life a weekly sum of maintenance based upon an initial figure of 35 pounds 0s. 0d. per week but varying with changes in the basic wage. It was provided that upon the decree nisi the husband would consent to an order in the terms of par. 4 and further would "consent to an order that the covenant contained in paragraph 4 hereof shall be security for the payment of the moneys therein referred to". As part of the decree nisi it was ordered "that the deed between the parties dated the 25th day of October 1961 . . . . be sanctioned and approved pursuant to s. 87 (1) (k) of the Matrimonial Causes Act 1961". A further order was made in the terms of cl. 4 of the deed. No order was made to the effect that the covenant should be security for the payment of the moneys. (at p381)

2. Hans Peter Oser died on 27th April 1967 and from that date weekly payments under par. 4 of the deed ceased. (at p381)

3. The wife, now Herta Lucy Felton, sued the executor and executrix of the will of the deceased husband seeking a declaration that she is entitled to payments of the weekly sums of maintenance in accordance with par. 4 of the deed. (at p381)

4. The suit was heard by Helsham J., Judge in Equity, who refused the declaration sought and dismissed the suit (1970) 16 FLR 439 . No question as to the source of his Honour's jurisdiction arose at the hearing. (at p381)

5. Prima facie in hearing and determining the suit the learned Judge in Equity was doing no more than exercising the jurisdiction given to him by the laws of the State of New South Wales. (at p381)

6. The unsuccessful wife applied to the Court of Appeal of the Supreme Court of New South Wales for leave to appeal to Her Majesty in Council against the order dismissing her suit. This application was made under the Privy Council Appeal Rules 1909. It is that application that is now before this Court by virtue of an order made by this Court under the Commonwealth Judiciary Act, s. 40. (at p381)

7. To those unversed in the intricacies of the laws governing the jurisdiction of this Court it could seem surprising that this Court should be hearing an application which, under the foregoing Rules, was properly made to the Supreme Court of New South Wales. The explanation is that, upon the hearing of the application to the Court of Appeal, the question arose whether s. 39 (2) (a) of the Judiciary Act precluded the proposed appeal. It did if the Judge in Equity was, as the respondents contend, exercising federal jurisdiction. Section 39 (2) of the Judiciary Act invests the Supreme Court with jurisdiction to hear matters falling within s. 76 (ii.) of the Constitution, viz. matters "arising under any laws made by the Parliament", but it does so on condition that every decision of the Court shall not be subject to appeal to Her Majesty in Council, whether by special leave or otherwise: s. 39 (2) (a) Judiciary Act 1903-1968. If, therefore, Helsham J. was exercising federal jurisdiction, no appeal to Her Majesty in Council lies under the Rules. To decide the contention of the respondent required the construction of s. 76 (ii.) of the Constitution. Accordingly, the application to the Court of Appeal was a cause involving the interpretation of the Constitution within s. 40 of the Judiciary Act. That section therefore applied and upon the application of the Attorney-General of the Commonwealth the cause - i.e. the application for leave to appeal - was removed to this Court. It is now for this Court to determine that cause. (at p382)

8. The principal question for decision is whether the learned Judge in Equity, in hearing and determining the suit, was deciding a matter arising under a law made by the Parliament. If this question be answered "No" that is an end to the matter and the application for leave to appeal should be granted as of course. (at p382)

9. It is the contention of the respondents, supported by the Attorney-General of the Commonwealth, that the matter decided by the learned Judge in Equity did arise under the Matrimonial Causes Act of the Commonwealth. (at p382)

10. It is to be observed from s. 76 (i.) and (ii.) of the Constitution that there is a difference between a matter arising under a law and a matter involving the interpretation of a law. A matter may involve the interpretation of a law without arising under that law. Thus, for instance, if, upon a claim for damages for negligence at common law, it became necessary to interpret some statutory provision imposing some duty upon the defendant, the litigation would involve the interpretation of the statutory provision but would not arise under it. A matter arises under a law when it is necessary in litigation to determine whether that law confers a right or affords a defence which is an issue in the litigation. A matter arises under a law of the Parliament when in a proceeding it is necessary that there should be a decision upon a claim made by one of the parties to the litigation which is based upon that law. It is to be observed that there is a difference between a "proceeding" arising under a law and a "matter" arising under a law. A "proceeding" arises under a law only when it is authorized by that law; see Collins v. Charles Marshall Pty. Ltd. (1955) 92 CLR 529, at p 537 . A "matter" need not be a "proceeding"; it may be part of a proceeding, e.g. a defence that the law authorizing the proceeding is unconstitutional. So it is that a matter may arise under a law made by the Parliament in a proceeding which does not arise under that law. (at p383)

11. The suit before the learned Judge in Equity was upon the deed. It did not arise under the Act nor did it involve any matter arising under the Act. The defendant impugned the validity of the deed on the ground that it was void, not as being in conflict with the Act but as being against public policy: Brooks v. Burns Philp Trustee Co. Ltd. (1969) 121 CLR 432 . Prima facie, therefore, no matter arose under the Commonwealth Matrimonial Causes Act 1959-1966. It was argued, however, that the defence was itself based upon that Act because the public policy invalidating attempts to oust jurisdiction of the courts itself stems, in some way, from it. I am disposed to think that the defence which was raised has a more ancient source that the Matrimonial Causes Act, but even if the conception of public policy adumbrated in Brooks v. Burns Philp Trustee Co. Ltd. (1969) 121 CLR 432 had some relationship to the Act - and it is not insignificant that none of the judgments of the majority who there decided that the deed was void as against public policy referred to the Act - I would not be prepared to hold that, by reason of that circumstance, the defence that the deed was void as against public policy arose under the Matrimonial Causes Act. The defence arose under the common law and, even assuming some connexion between the Act and the defence, such connexion as existed was not of the character to make the defence one arising under the Act in the sense already stated. (at p383)

12. As the Court said in Lorenzo v. Carey (1921) 29 CLR 243, at p 252 :

"A State Court must recognize the laws of the Commonwealth and be guided by them in exercising its State jurisdiction" (at p383)

13. In my opinion the learned Judge in Equity in hearing and determining the suit was not exercising federal jurisdiction. I found my conclusion on the simple ground that the matter which his Honour was determining did not arise under the Matrimonial Causes Act. (at p383)

14. Before leaving the case I should advert to the narrower ground for concluding that in the suit before Helsham J. a matter arose under the Matrimonial Causes Act. It is that the suit being upon a deed which the Judge in Divorce had purported to sanction and approve pursuant to s. 87 (1) (k) of the Matrimonial Causes Act, there was therefore in the suit a matter arising under that Act. I do not think that this is correct. When a proceeding does not arise under a law made by Parliament whether or not there is a matter arising under the Constitution or a law of Parliament will often depend upon the course which proceedings take. Thus a defendant prosecuted, let me say, for an offence of selling goods without a licence, could, if he so desired, rely upon s. 92 of the Constitution. Were he to do so, even with no prospects of success, there would be a matter arising under the Constitution; if he were not to do so there would be no such matter. Again, by a pleading, a defendant might rely upon a section of the Bankruptcy Act; were he to do so there would be a matter arising under a law of Parliament, but if he chose not to do so there would be no such matter. Here there was no reliance by either party upon the purported sanctioning of the deed; it was conceded, rightly or wrongly, that the deed was not one that could be sanctioned under s. 87 so that there was no matter at issue depending upon that section. How then can it be said that in the proceeding there was a matter arising under the section? In my opinion, in the suit before Helsham J. there was no matter arising under the Matrimonial Causes Act on this technical, narrower ground. (at p384)

15. Having reached this conclusion it is not necessary to consider other matters which were argued, such as what would be the situation if the duty of the court to decide the suit was to be performed under two jurisdictions, both federal and State: cf. Lorenzo v. Carey (1921) 29 CLR, at p 252 . Here, as I have said, the duty was to be performed as a matter of State jurisdiction only. (at p384)

16. In my opinion the leave sought should be granted. (at p384)

WINDEYER J. The facts that lie behind the question that is before us are set out in the judgment of my brother Walsh, which I have had the great advantage of reading. I need not repeat them. I merely add that further details may be found in the judgment of the Supreme Court of New South Wales, given in an earlier episode of this litigation, reported as Felton (formerly Oser) v. Oser (1969) 14 FLR 484 (sub nom Oser v Felton); 72 SR (NSW) 24; 90 WN (Pt 2) 146. . The terms of the deed in question are fully set out in that report. My brother Walsh has dealt with the way by which the present matter now comes to this Court. I agree in his conclusion that it is properly before us. I do not doubt that we are bound to consider it simply as a question of whether the Supreme Court of New South Wales can make an order authorizing an appeal to the Privy Council from the judgment that Helsham J. gave in the equity jurisdiction of that Court(1a). I shall in this judgment refer to Mrs. Felton, who seeks leave to appeal to the Privy Council, as the applicant, to the executor and executrix of H.P. Oser, deceased, as respondents, and to H.P. Oser as the former husband of the applicant. (at p385)

2. The central question in the case is whether or not the decision that Helsham J. gave on an originating summons in the equity jurisdiction of the Supreme Court of New South Wales was given in a matter arising under a law made by the Commonwealth Parliament, within the meaning of that phrase in s. 76 (ii.) of the Constitution. If it was, then his Honour was exercising a federal jurisdiction with which the Supreme Court was invested by s. 39 (2) of the Judiciary Act, a law made by virtue of s. 77 (iii.) of the Constitution. In that event, s. 39 (2) of the Judiciary Act 1903-1968 would prevent an appeal to the Privy Council. (at p385)

3. Helsham J. did not expressly base his decision on any Act of the Commonwealth Parliament. He held that the convenants of the deed in question before him were not enforceable by the applicant against the estate of her former husband, the covenantor. Following the decision of this Court in Brooks v. Burns Philp Trustee Co. Ltd. (1969) 121 CLR 432 , by which he was bound, his Honour held that the deed was void as against public policy, because he read it as purporting by implication to oust the jurisdiction of the Divorce Court with respect to orders for maintenance. (at p385)

4. There is no doubt a common law principle expressed by the aphorism that an agreement to oust the jurisdiction of the courts - or, as it was put in the earlier cases, to oust the courts of their jurisdiction - is unlawful and void as being contrary to public policy: that, said Pollock C.B. in Horton v. Sayer (1859) 4 H &N 643, at p 649 (157 ER 993, at p 996) , was "the rule which has been acted on for above a century". The earliest enunciations of it were, so far as I have noticed, in Kill v. Hollister (1746) 1 Wils, KB 129 (95 ER 532) ; Wellington v. Mackintosh (1743) 2 Atk 569 (26 ER 741) ; and Thompson v. Charnock (1799) 8 TR 139 (101 ER 1310) . These were all cases upon agreements to refer disputes to arbitration, a disputable topic until the law was settled in Scott v. Avery (1856) 5 HLC 811 (10 ER 1121) . But the grandiloquent phrases of the eighteenth century condemning ousting of the jurisdiction of courts cannot be accepted in this second half of the twentieth century as pronouncement of a universal rule. It is simply not correct to say that all agreements foregoing a right to have the adjudication of a court are void or unenforceable. Claims for redress for breach of contract or for a remedy for tortious damage can be settled out of court; and actions and suits of many kinds can be compromised by agreement, after they have been commenced, provided that each of the parties is sui juris. As Latham C.J. said in Lieberman v. Morris (1944) 69 CLR, at p 80 :

"It certainly cannot be said generally that covenants not to take particular legal proceedings are necessarily void - the case of the ordinary covenant not to sue provides a sufficient answer to any such suggestion."

The policy of the law that prevents a woman making a binding agreement not to invoke the jurisdiction of a court to order her husband to provide for her has its origin in the statutes which confer jurisdiction to make such orders. It is the policy and purpose of this jurisdiction that produces the rule that agreements purporting to oust a court from the exercise of it can be ignored. It is a mistake to speak of the ouster of a statutory jurisdiction as being against public policy regardless of the nature of the statutory rights involved. Lord Wright's statement has often been quoted :

"Wherever there is a question whether there can be contracting out or waiver of statutory provisions, the problem must be solved on a consideration of the scope and policy of of the particular statute": Admiralty Commissioners v. Valverda (Owners) (1938) AC 173, at p 185 .

I venture to repeat what on this aspect I said in Brooks v. Burns Philp Trustee Co. Ltd. (1969) 121 CLR, at p 456 , and, without naming them here, to refer to the supporting authorities that I cited for the proposition that:

"When a statute creates and confers rights and imposes corresponding duties, persons for whose benefit this was done may by contract waive or renounce their rights, unless to do so would be contrary to the statute. It may be seen that it would be so, because of an express prohibition against 'contracting out', or because the provisions of the statute, read as a whole, are inconsistent with a power to forego its benefits: or the policy and purpose of the statute may shew that the rights which it confers on individuals are given not for their benefit alone, but also in the public interest, and are therefore not capable of being renounced."

If the question that Helsham J. had to consider had been whether the applicant was precluded from enforcing the covenant of her former husband on the ground that her doing so would be a contravention of the Matrimonial Causes Act 1959, I would have no doubt that his Honour was concerned with a matter arising under a law made by the Commonwealth Parliament. But, as will appear, I do not think the question for us is so simply answered. (at p387)

5. First I should explain how I understand the critical phrase in s. 76 of the Constitution, "any matter arising under any laws made by the Parliament". It is derived from Art. III, s. 2 of the Constitution of the United States. There the words are, ". . . all cases, in law and equity, arising under this Constitution, the laws of the United States, and treaties made, or which shall be made, under their authority". The course of decisions in the United States on that provision has not run altogether smoothly. It may be that a case would not now be there held to arise under a law of the United States unless a right under such a law was claimed by the plaintiff, as distinct from raised as a defence: see Gully, State Tax Collector for Mississippi v. First National Bank in Meridian (1936) 299 US 109, at pp 112-113 (81 Law Ed 70, at p 72) . However that may be now, it was not always so. At an early date John Marshall C.J. said, in Cohens v. Virginia (1821) 6 Wheat 264, at p 379 (5 Law Ed 257, at p 285) , speaking of a contention there advanced:

"If it be to maintain that a case arising under the constitution, or a law, must be one in which a party comes into court to demand something conferred on him by the constitution or a law, we think the construction too narrow. A case in law or equity consists of the right of the one party, as well as of the other, and may truly be said to arise under the constitution or a law of the United States, whenever its correct decision depends on the construction of either."

If the last few words are read as meaning that a question of the construction as distinct from the operation of federal law must be involved, they do not for us describe an essential of a matter arising under a law of the Parliament. It is enough to say - and I quote Latham C.J. in R. v. Commonwealth Court of Conciliation and Arbitration; Ex parte Barrett (1945) 70 CLR 141, at p 154 - that :

". . . a matter may properly be said to arise under a federal law if the right or duty in question in the matter owes its existence to federal law or depends upon federal law for its enforcement, whether or not the determination of the controversy involves the interpretation (or validity) of the law."

Story took the same view as did Marshall, that a matter could arise under a law whether the law was put forward in support of a claim or as a defence to a claim. In his Commentaries on the Constitution (par. 1641) he wrote :

"Cases arising under the laws of the United States are such, as grow out of the legislation of Congress, within the scope of their constitutional authority, whether they constitute the right, or privilege, or claim, or protection, or defence, of the party, in whole or in part, by whom they are asserted."

Translated into our Constitution this would mean that whenever a defence or answer based on a Commonwealth law is tendered as stating an issue for decision in a case that matter arises under Commonwealth law. Story's view was accepted in the United States when our Constitution was enacted. It was adopted by this Court as early as 1907: Baxter v. Commissioners of Taxation (N.S.W.) (1907) 4 CLR 1087, at pp 1136-1137 ; and Miller v. Haweis (1907) 5 CLR 89, at p 93 . And it has not I think been departed from. That a more restricted view is perhaps now taken in the United States need not weigh with us. The words of our Constitution, "any matter arising", are at least as extensive as the United States form, "all cases in law and equity arising". But I do not suggest that merely because some Commonwealth law lies behind a question that comes before a State court that court is then exercising federal jurisdiction. I adhere to what I wrote in Anderson v. Eric Anderson Radio &T.V. Pty. Ltd. (1965) 114 CLR 20, at p 45 and repeat without repentance these sentences:

"Federal and State jurisdiction may overlap and be exercised concurrently. But a State court does not exercise federal jurisdiction whenever it has to apply or take into consideration some law made by the Parliament of the Commonwealth as part of the body of law that binds it. Every Australian court, State or federal, is bound by all laws validly made by the Parliament of the Commonwealth."

As a reinforcement of that I quote from the judgment of Cardozo J. delivering the opinion of the Supreme Court of the United States in Gully, State Tax Collector for Mississippi v. First National Bank in Meridian (1936) 299 US 109 (81 Law Ed 70) . Denying that there was a case arising under the laws of the United States, he said (1936) 299 US, at p 115 (81 Law Ed, at p 73) , "Not every question of federal law emerging in a suit is proof that a federal law is the basis of the suit". It is not so if "The most one can say is that a question of federal law is lurking in the background" (1936) 299 US, at p 117 (81 LawEd, at p 74) . (at p388)

6. In my view a matter does not arise for adjudication under a law made by the Commonwealth Parliament unless a statute is relied upon as giving a right claimed or as the direct source of a defence asserted. It is not easy to formulate with precision criteria which will suffice in every case. I shall confine myself to the facts of this case. It is of course indisputable since the decision of the House of Lords in Hyman v. Hyman (1929) AC 601 that a woman cannot by contract with her husband waive, renounce or barter away her right to seek from the court an order for maintenance as an incident of a decree dissolving her marriage. But the reason for this is in the nature of the right, not in an express provision of the Matrimonial Causes Act. The statute creates the right. It is the common law that makes it inalienable. This consequence is removed if the Divorce Court sanctions the agreement of the parties. The Court's authority to do this is a statutory power to displace in a particular case a common law rule. This does not mean that the rule thus displaced was the creature of statute. (at p389)

7. The jurisdiction of the Divorce Court to make orders for maintenance when dissolving a marriage is historically distinct from the power to make orders for permanent alimony on a decree for judicial separation; for the latter, although now governed by statute, is derived from ancient practice in the ecclesiastical courts: see Lush on Husband and Wife, 4th ed., p. 454. But that does not make any difference here. The inability of a wife to forego her right to seek an order for maintenance accords with early concepts in the law, commonly stated as that a man has a duty to support his wife. This expression reflects the common law rule making a husband liable upon contracts made by his wife for her necessaries. This liability was not abrogated by the husband making his wife an allowance if it was not adequate, even if she had acquiesced in it: Hodgkinson v. Fletcher (1814) 4 Camp 70 (171 ER 23) . The whole doctrine of the husband's obligation has been sometimes seen as a by-product of the Act for the Relief of the Poor, 1601 (43 Eliz. I, c. 2). That Act did not expressly include wives among the relatives for whose support a man was chargeable. But it seems to have been thought to throw a wife's maintenance upon the parish was against the policy of the law: see the references in the article "Criminal Omissions" by Mr. Glazebrook, 76 Law Quarterly Review, pp. 395-396 . This is significant because the whole basis of the public policy which precludes a woman from contractually releasing her husband from his obligation to maintain her has been constantly said to be to prevent putting on the public a burden that a husband should bear: see National Assistance Board v. Parkes (1955) 2 QB 506, at pp 517, 523 (at p389)

8. In the result I do not regard the invalidity of a wife's promise not to seek maintenance when her marriage is dissolved as a consequence of the provisions of the Matrimonial Causes Act. I am not able to see s. 87 (1) (k) of the Act as, by implication, the source of the rule that an agreement that is not sanctioned is unenforceable. Rather, I think that rule arises from the common law. I appreciate that another view is open and that others take it and are able to see statutory provisions in the foreground. It is I suppose partly a conceptual partly a terminological problem to determine in a case like this whether or not a proposition of law arises under a particular statute or by the combined impact of statutory provisions and common law principle. (at p390)

9. However, it is important to remember that the question in this case was not whether a wife's covenant not to sue for maintenance contravened the Matrimonial Causes Act. The decision from which the applicant seeks leave to appeal was a stage further removed from that Act. The question for the trial judge was whether the former husband's estate is now bound by his covenant in the applicant's favour, not whether a covenant by her, supposedly implied, was binding upon her during his lifetime. Were his representatives bound to perform his covenant and pay her what he had, for himself and his executors and administrators, promised her? That they are exonerated is said to follow from a rule said to be established by Bennett v. Bennett (1952) 1 KB 249 following Gaisberg v Storr (1950) 1 KB 107. and Combe v. Combe (1951) 2 KB 215 I expressed my view of those cases in what I wrote in Mrs. Brooks's case (1969) 121 CLR 432. . Whether I was right or wrong is for present purposes immaterial. Support can be found in the judgments in Bennett v. Bennett (1952) 1 KB 249 for the proposition that the deed as a whole should be treated as void. Nevertheless, as I see it, the question of the continued operation of the former husband's covenants is not a matter arising under the Matrimonial Causes Act. It arises I think as a question of common law doctrine concerning dependent covenants and the invalidity of a promise given as consideration for a promise that is void. (at p390)

10. If the only question in this case had been the effect of the deed as executed, I would consider that the applicant is not debarred from access to the Privy Council. But the case did not turn simply upon the deed as made between the parties. It was submitted to the judge exercising the matrimonial causes jurisdiction for the sanction of the court. On making the decree nisi for divorce he made and signed a note "I sanction the agreement": and the formal decree nisi states this. Whether the present suit should be treated as raising the question of the rights of the applicant under the order of the Divorce Court or as confined to a claim under the deed I need not, in the view I take, determine. I do not find it necessary to say more than that the efficacy and enforceability of the provisions of the deed cannot I think be properly debated or determined on appeal regardless of the Divorce Court's express sanction and approval of it and the incorporation of its provisions in that Court's order. The effect of that was a matter which to my mind arose directly under a law of the Parliament as it turns on the construction and operation of the Matrimonial Causes Act. It is said that by reason of the decision of this Court in Shaw v. Shaw (1965) 113 CLR 545 and the judgments in that case in the Supreme Court, (1965) 66 SR (NSW) 30 , this case did not fall within s. 87 (1) (k) of that Act. I am not persuaded of that, nor do we have to decide whether it is so or not. I do not mean to hold that the proceedings in the Supreme Court in Equity were a "matrimonial cause" as defined by s. 5 of the Act. That at first sight seems a far-fetched proposition: but it is arguable that once a court exercising jurisdiction under the Act sanctions an agreement by deed in lieu of an order for maintenance, then any kind of proceeding to enforce the provisions of the deed can fall within the terms of pars. (c) and (d) of the definition of "matrimonial cause". However, I express no final opinion as to the effect of the order made by the Supreme Court in the exercise of the jurisdiction with which it was invested by the Matrimonial Causes Act. All that I say is that it is a question that must arise on any appeal in this case. It is not a question that is lurking in the background. It stands on the threshold. Before it could be said that the deed was void as against public policy it was necessary to decide whether or not it was saved from annihilation by the sanction of the Supreme Court. That is a question that arises under the Act, a matter of federal jurisdiction, and it is to my mind inseparably and inescapably involved in the case. It is not a question, like that in Miller v. Haweis (1907) 5 CLR 89. , which could be by-passed to determine the case. (at p391)

11. I have so far left aside the troublesome question that arises when a State court exercises federal jurisdiction with which it has been invested and in the same case exercises jurisdiction that belonged to it as a State court over the same subject matter. I now turn to it. It creates an abstract almost ontological problem. I do not think it necessary that I examine all the cases and all the textbook comments on this vexed subject. Mine may be an ingenuous view, but to me it seems that the law that a court must apply and administer, in the exercise of whatever jurisdiction pertains to it, may be derived from different sources, but that it is still, so far as any particular case is concerned, a single though composite body of law. It is the law of the land, governing the parties in their relation to a case in hand. The law of the land for us - I use the term in its colloquial modern sense, not as the mediaeval lex terrae - is made up of inherited common law principles and equitable doctrine, Imperial statutes, Commonwealth statues and State statutes and delegated legislation of various kinds. The topic has lent itself to metaphors, although physical metaphors can be misleading when applied to concepts. In Eric Anderson's Case (1965) 114 CLR 20 , I spoke of an "overlapping" of federal and State jurisdictions. In the present case counsel in the course of argument described them as "interwoven". At other times they have been said to exist "side by side". All this is reminiscent of the statement in Ashburner on Equity that the result of the "fusion" of law and equity by the Judicature Act is that "the two streams of jurisdiction, though they run in the same channel, run side by side and do not mingle their waters". In Lorenzo v. Carey (1921) 29 CLR 243, at p 252 , the Court saw an analogy between the coexistence in the one court of federal and State jurisdictions and the position of the courts "which have administered law and equity in distinct proceedings before the same tribunal". (at p392)

12. I do not find easy their Honours' statement in that case that,

"When federal jurisdiction is given to a State court and the jurisdiction which belongs to it is not taken away, we see no difficulty in that court exercising either jurisdiction at the instance of a litigant." (1921) 29 CLR, at p 252

I do not think that this should be read as meaning that a court invested with federal jurisdiction, and adjudicating upon a matter arising directly under a Commonwealth Act, can at the dictation of a litigant declare itself as not bound by the conditions on which the jurisdiction is conferred upon it. The passage can I think be read as a recognition that in some cases a litigant may base his claim either expressly on a Commonwealth statute, say the Trade Marks Act, or on some concurrent jurisdiction under State law, say to restrain passing-off. It may be that in its context it means more than that. If so I can only say that I do not think that we are to read this sentence as standing in the place of the words of the Judiciary Act. We should accept the exposition of the passage that Dixon J. proffered in Ffrost v. Stevenson (1937) 58 CLR 528, at p 573 . In most cases where there is a conflict between rights, whether of appeal or otherwise, arising under federal and State law the question is resolved by s. 109 of the Constitution. In other cases it seems to me that the difficulty need not really arise. The existence of federal jurisdiction depends upon the grant of an authority to adjudicate rather than upon the law to be applied or the subject of adjudication. But once a court is duly seised for adjudication of a matter arising under a Commonwealth law, it seems to me impossible to say that it is not exercising federal jurisdiction and that the provisions of s. 39 (2) of the Judiciary Act are not to apply. The difficulties of federal jurisdiction are I suppose inherent in what it has become the fashion to call the "autochthonous expedient", the expression that this Court used in Reg. v. Kirby; Ex parte Boilermakers' Society of Australia (1956) 94 CLR 254, at p 268 . It is a mistake to suppose that investing State courts with federal jurisdiction is an unprecedented homegrown Australian arrangement. The United States Congress at an early date invested State courts with jurisdiction to enforce some federal laws. Then came a period during which this practice was abandoned. Then it was revived. State courts there have an obligation to administer federal criminal laws. Illustrations of these statements, which I need not amplify, may be found in the Congressional publication, The Constitution of the United States of America, Analysis and Interpretation (1964 ed.), pp. 725-727. (at p393)

13. The contrasts of our judicial arrangements with those of the United States are as striking as their similarities. The statesmen who brought together the independent communities, formerly British colonies in America, as a federation, the United States of America, were captivated in their thinking by the dominant political philosophy of the time. The new Government that they created must, they considered, be expressly given as separately recognized functions its own executive, legislative and judicial powers. The manner in which this was stated has been broadly copied into our Constitution. But in the United States it was thought that the Union should have its own system of courts to administer and enforce federal law. This seemed to the framers of our Constitution to be both unnecessary and undesirable. The arguments that Hamilton had urged in The Federalist, No. 81, against entrusting to State courts jurisdiction to give effect to federal laws had no corresponding force in Australia. The American concept of federal law as a separate system and of federal jurisdiction was really alien to our conditions. Courts in the Australian colonies were before federation linked by the authority of the Privy Council. Subject to the Colonial Laws Validity Act, they administered, as the law of the land in each colony, statute law of the Imperial Parliament along with the inherited law and the statutes of their own Parliaments. Upon federation s. 5 of the Constitution Act made all valid laws made by the Commonwealth Parliament "binding on the courts, judges and people of every State and of every part of the Commonwealth". This and s. 109 of the Constitution assured the paramountcy of federal law. As Higgins J. noticed in Lorenzo v. Carey (1921) 29 CLR, at p 255 , the effect of s. 39 of the Judiciary Act was really to withdraw from State courts a jurisdiction to apply federal laws which they would have had by s. 5 of the Constitution Act, and then to restore it sub modo as an invested federal jurisdiction. This arrangement was autochthonous. It derives its efficacy from s. 77 (iii.) of the Constitution and involves the importation into the judicial system of Australia of the words "federal jurisdiction" and the concept they embody. Although I think that that has led to needlessly complex and abstruse legalism, I realize that the weight of authority and the words of the Constitution prevent us discarding it. I am not free to suggest that. Accepting it, so far as I must, I reach the conclusion that the element of federal jurisdiction in this case precludes the applicant appealing to the Privy Council. (at p394)

8. I hold therefore that the decision of Helsham J. was not given in the course of exercising federal jurisdiction and that there is, therefore, no reason to deny the applicant her ordinary right to appeal to Her Majesty in Council. (at p419)

9. The application for leave to appeal was removed into this Court from the Supreme Court under s. 49 of the Judiciary Act because the application involved the interpretation of the Constitution - in particular of s. 76 (ii.) No doubt the whole cause has been removed and this Court has authority to determine it completely. However, this Court is not, in my opinion, bound to determine a cause removed under s. 40 but may in its discretion remit it to the Court in which it originated. The view seems to have been taken that the power of this Court to remit a cause removed under s. 40 is not limited to that conferred by s. 42 of the Judiciary Act (see Lambert v. Weichelt (1954) 28 ALJ 282, at p 283 and O'Neill v. O'Connell (1946) 72 CLR 101, at p 125 ) and I find it impossible to regard s. 42 as defining exclusively the circumstances in which a cause so removed may be remitted. In the present case once the view is taken that s. 39 (2) of the Judiciary Act does not prevent an appeal to Her Majesty in Council every consideration of convenience seems to me to favour remitting the cause to the Supreme Court. (at p420)

10. I would remit the application to the Supreme Court of New South Wales. (at p420)

Orders

Application for conditional leave to appeal refused. Order that the Commonwealth pay half of the costs of the applicant and of the respondent of this application and of the application under s. 40 of the Judiciary Act.