Johnston v Johnston

[1965] HCA 15

HIGH COURT OF AUSTRALIA

Barwick C.J., Kitto, Menzies, Windeyer and Owen JJ.

JOHNSTON v. JOHNSTON

(1965) 113 CLR 572

9 April 1965

Divorce

Divorce—Maintenance—Settlement of property—Discretion of court—Irrelevant or erroneous matters taken into account—Validity of exercise of discretionary power—Variation of order—Whether judge has power to prevent later discharge or variation of order—Matrimonial Causes Act 1959 (Cth), ss. 84, 86, 87.

Decisions

April 9.
The following written judgments were delivered:-
BARWICK C.J. The appellant petitioned the Supreme Court of Victoria for a decree of dissolution of her marriage with the respondent on the ground of his cruelty to her. In her petition she claimed custody of her child by a former marriage (who was ordinarily a member of the household of the appellant and the respondent), maintenance pending suit for herself and for the child, maintenance for herself and for the child and a settlement of property for the benefit of herself and of the child. (at p575)

2. The learned judge hearing the proceedings granted the appellant a decree nisi for dissolution of her marriage and made an order for her maintenance. Up till the time of his order for maintenance, an arrangement between the parties had been on foot for the payment to her of 30 pounds per week for her maintenance. Also, the father of the appellant's child had by that time undertaken adequately to provide for the welfare and education of the child. (at p575)

3. Both the appellant and the respondent had formerly been married, the appellant's previous marriage having been dissolved by decree of the Supreme Court of Victoria and that of the respondent by the death of his wife. There were no children of their marriage to each other. The appellant at the date of the decree was forty-five years of age and the respondent fifty-five. The respondent is a man of considerable means but said to be in poor health and with impaired capacity for business activity. The appellant is without any substantial means but with some prospect of a not very substantial accretion in the future from her mother's estate. The appellant was born in Switzerland where she wishes now to reside. Though she might remarry, the learned trial judge thought that her age and her two unsuccessful matrimonial ventures might discourage her. (at p576)

4. His Honour decided that the case was one in which he should order maintenance to be provided by the respondent for the appellant by the payment of a lump sum. The amount he decided to be appropriate in the circumstances of the case was the sum of 21,000 pounds . In expressing his reasons for choosing to order a lump sum payment rather than a periodic payment by way of maintenance his Honour said: "From a not inconsiderable experience, I am convinced that the most satisfactory course in a matter such as this is to order payment of a lump sum where the means of the parties make it possible and proper to do so. There is now not even friendship between these parties; there are no children or fruitful ties that will link them in any way if the marriage bond is severed. It is better, when the marriage is dissolved, that they should go their respective ways without reference to each other, and that upon the decree absolute respondent's financial obligations to her should be ended by a provision made once and for all. Indeed, I am puzzled that he and his advisers have not taken this view, but I suppose they have not done so because of some expected financial advantage that has not been made clear to me." (at p576)

5. After reviewing what he considered to be the principal relevant aspects of the case, his Honour expressed his conclusions as follows: "Making allowance for the contingencies and vicissitudes of living, and in the light of the facts before me and the considerations to which I have adverted, I think it is proper, fair and just to order respondent to pay to petitioner upon decree absolute a lump sum of 21,000 pounds in satisfaction of her claim for permanent maintenance and for a settlement under s. 86." (at p576)

6. In making his order his Honour said: "It is ordered that respondent shall pay to petitioner on decree absolute in full satisfaction of her claims for maintenance and for a settlement under s. 86, a lump sum of 21,000 pounds, and until payment thereof shall pay to her the sum of 30 pounds per week for her maintenance, payments to be made as at present. It is ordered further that the petitioner shall have custody of the child Christine Jacqueline, who is a child of the marriage, by virtue of s. 6. Leave is granted to the petitioner to amend her petition by deleting claims for maintenance of and settlement on the said child. Dispense further verification and service. Liberty to apply generally is reserved. It is declared under s. 71 (1) (a) that the Court is satisfied that proper arrangements in all the circumstances, being the arrangements concerning welfare and maintenance described in Exhibit "B", have been made for the welfare and education of the said child. A declaration as to advancement is not appropriate." The relevant portion of the formal order drawn up in the suit is as follows: "That the respondent pay to the petitioner upon this decree nisi becoming absolute the lump sum of 21,000 pounds in full satisfaction of her claims for maintenance and for a settlement under s. 86 of the Act." (at p577)

7. During the course of the hearing, at his Honour's instance, evidence was given of the cost of an annuity for the appellant of 30 pounds per week. This was stated to be 27,178 pounds . His Honour said he did not intend to order an amount sufficient to purchase an annuity but found the knowledge of its cost of use in deciding what lump sum should be ordered. Referring to the amount he did order, he said: "When complied with, the order will put her in possession of a substantial capital sum which should ensure that she will enjoy a moderate degree of financial independence. From it she can set aside a sum of, say, 1,000 pounds, which will be available to her for wants and emergencies above the expenses of daily living and the balance, wisely invested, should provide her with an income adequate for her needs in the station of life to which she has been accustomed and which would have been hers had this marriage not been disrupted." (at p577)

8. On the respondent's appeal to the Full Court of the Supreme Court of Victoria the order for payment of a lump sum was set aside and in lieu thereof an order was made for the payment of the sum of 30 pounds per week during the lifetime of the appellant or until further order, which sum was ordered to be secured. (at p577)

9. The Full Court decided that, if his Honour had not misdirected himself in point of law in the exercise of his discretion to award a lump sum rather than a periodic sum for maintenance, an order for a lump sum could, in the circumstances of the case, have properly been made and that in that event, the amount ordered by his Honour was not such as would itself indicate an improper exercise of discretion warranting the intervention of the Full Court. (at p577)

10. With respect, I find myself in agreement with these conclusions of the Full Court and with the reasons therefor expressed by Smith J. (at p577)

11. The Full Court, however, thought that the learned judge had misdirected himself in point of law with the result that his exercise of discretion to order a lump sum rather than a periodic sum by way of maintenance had miscarried and was invalid. The misdirection or misconception was said to be that "He (his Honour) wrongly assumed that he had power to make, and was making, an order which would operate in law as a final settlement, putting an end to the right of the wife to apply for a further provision, and to the power of the Court to grant it." (at p578)

12. The passages which I have quoted from his Honour's reasons for judgment and the form of his Honour's order formed the basis of the Full Court's conclusion that his Honour conceived himself as having power to make, and intended to make, an order for maintenance which would be insusceptible of variation in the future for any reason by any court under the Matrimonial Causes Act 1959 (Cth). The Full Court concluded upon the same material that his Honour's decision to order a lump sum rather than a periodic sum was materially influenced by his Honour's view as to his power to make such an invariable order. (at p578)

13. With respect, I am unable to agree with these conclusions. (at p578)

14. The use of the expression "in full satisfaction of her claims to maintenance and a settlement" in the order for maintenance was, with due respect, on any view, inapt. If his Honour was intending to prevent either party from seeking a variation of his order, this language would fail in its object: for in my opinion it could not be held that the terms of the order itself prevented such an application being made or a court, having jurisdiction under the Act, from entertaining the application and varying the order for maintenance. If, as I think to be the case, his Honour was merely intending by his order for a lump sum to dispose of both the appellant's relevant claims, namely that for an order for maintenance and that for a settlement, the language was scarcely felicitous. It would have been preferable in my opinion simply to order the payment of the sum for maintenance and to dismiss the application for a settlement, particularly as under the Matrimonial Causes Act, each claim in the petition gives rise to a "proceeding", and thus becomes itself a matrimonial cause. See definition "matrimonial cause", and s. 84. (at p578)

15. None the less I think his Honour's purpose in using the expression is tolerably clear. At the outset of my reasons I listed the claims made by the appellant in her petition. With all these his Honour clearly intended to deal in his order. He ordered custody of the child, reserving the question of access; he gave leave to withdraw the claims for maintenance and for a settlement for the child, declaring his satisfaction with the arrangements made for its welfare and maintenance. He satisfied the claim for maintenance pending suit by an order for payment of the agreed sum of 30 pounds per week till the order for payment of a lump sum should be satisfied. He responded to the claim for maintenance by the order for payment of the lump sum. Unless his expression as to full satisfaction is taken as implicitly rejecting the claim for a settlement, that claim would remain undealt with by his order. It is clear to my mind that by the use of the expression which I have quoted from his order, his Honour intended no more than to deal with the claims the appellant had made, not with the rights she might yet have. Cf. the language of s. 87 (1) (k). His intention was to grant the claim for maintenance and to refuse that for a settlement. (at p579)

16. It was faintly submitted by the appellant's counsel that there is power under the Matrimonial Causes Act to make such an order as it is supposed his Honour was seeking to make. The generality of s. 84 (1) and the presence of paragraphs (i), (k) and (l) in s. 87 (1) were called in aid in this respect. But with all respect to the submissions made, it is, in my opinion, an egregious error to think that there is power given by the Matrimonial Causes Act to a court having jurisdiction thereunder to prevent the variation by a competent court of an order for maintenance made under the Act. The principal ground upon which the Matrimonial Causes Act permits such a variation is that there has been such a change in the circumstances which obtained at the date of the making of the order that it is just to vary it. One would expect clear and compelling language in the statue to warrant the existence of a power in the court making an order for maintenance to prevent its variation which justice in the changed circumstances may require. I am clearly of opinion that the Act gives no such power and, with respect, I agree with the reasons expressed by Smith J. for reaching the same conclusion. (at p579)

17. Apart from the terms of the order and the use of the expression "in full satisfaction" in the learned judge's reasons for judgment, much emphasis was placed in argument on that part of the first quotation I have made from his Honour's reasons which says: "and upon the decree absolute respondent's financial obligations to her should be ended by a provision made once and for all". (at p579)

18. The question is whether the use of this language in the setting of his reasons taken as a whole, convinces the Court that his Honour really entertained the views the Full Court attributed to him and that these views significantly influenced his decision to order a lump sum rather than a periodically recurring sum. Not only am I not convinced on either point but I am of opinion that the question of the power to make any such order as supposed was not really in his Honour's mind. (at p580)

19. In the passage in his Honour's reasons for judgment which I have quoted, he appeared to be contrasting the respondent's position under an order for a periodic payment with his position under an order for a lump sum, the one producing a recurrent obligation and the other an obligation which is terminated by a single payment. However, his Honour's language was not confined to the respondent's financial obligations under an order but extended to the respondent's financial obligations to the appellant, which is a different thing. But this transference occurred, in my opinion, not because his Honour turned to contrast an order for a lump sum which was susceptible of variation in the future with such an order which was not susceptible of variation, but because his Honour in dealing with the present situation of the parties thought that in practical terms an order for a lump sum would finally dispose of the financial relationship between them. The respondent was not likely to extend his business and might well curtail his business activities. There was no reason to suppose any increase in his wealth. The appellant apart from the receipt of a relatively small sum from her mother's estate had no prospect of substantially increasing her assets. Having in mind the size of the provision he proposed to order and the reasons he would give for its amount, his Honour might well think that for all practical purposes he was finally resolving the husband's financial obligations to his wife. In my opinion, he meant no more by the language he used. (at p580)

20. Consequently, in my opinion, the exercise of his Honour's discretion was not affected by any error of law and ought not to have been set aside for the reasons given by the Full Court. No other reasons were advanced to this Court for doing so. In these circumstances, his Honour's order should be restored. (at p580)

21. The appeal should be allowed. (at p580)

KITTO J. I am afraid I cannot read the learned primary Judge's reasons for judgment in a sense that would enable me to support his order. I am willing to assume that his Honour was not unmindful of the provisions in s. 87 which give the Court power to vary an order made in respect of maintenance or the settlement of property, and realized that by no order that he might make could those provisions be contradicted in their application to the case. But his Honour's language seems to me to express an intention of ensuring, and of making quite clear to the parties, that any future application by either of them in respect of maintenance or settlement of property would have no chance of success, because he was awarding the wife a lump sum assessed so as to cover all those possibilities of the future for which it would have been proper to allow if his task had been to make an end of the matter. (at p581)

2. With great respect to those who read the judgment in a different sense, I do not understand what could have been meant in the context of this case by "making allowance for the contingencies and vicissitudes of living" in ordering payment of a lump sum "in satisfaction of her claim for permanent maintenance and a settlement under s. 86", unless it were ordering payment of a lump sum quantified by making due allowance for all the eventualities that might occur during the wife's lifetime, and by that means exhausting at one blow every right to apply with respect to maintenance or settlement that either party had or might thereafter have. My belief that this is what his Honour intended is strengthened by the fact that the process by which he made his assessment began with actuarial evidence as to the cost of an annuity of 30 pounds a week for a woman of forty-five (the wife's age) for the whole of her life. His Honour said that he would not order the husband to purchase an annuity for the wife, but that he had found the information as to the cost of an annuity of some use; and he arrived at a figure which he described as less than would be required to purchase an annuity of 30 pounds a week "for her life", "making allowance for the contingencies and vicissitudes of living". His Honour did not leave to inference what his purpose was in following this course. "It is better", he said, "when the marriage is dissolved, that they should go their respective ways without reference to each other, and that upon the decree absolute respondent's financial obligations to her should be ended by a provision made once and for all". I find myself unable to read these words otherwise than as meaning that the learned Judge was concerned to make it clear both to the parties and to any Judge who might be called upon in the future to hear an application by either spouse with respect to maintenance or the settlement of property that the lump sum he was awarded contained within it an allowance for finality in precisely the same way as a jury's verdict giving damages for personal injury allows for finality because it is an award made "once and for all". (at p581)

3. The appellant's suggestion that the learned Judge intended only to dispose finally of the particular applications for maintenance and settlement which were before him encounters a difficulty, I think, in the fact that he had no application for a settlement before him at the time. The petition contained a claim in general terms for "such a settlement of property to which the Respondent is entitled for the benefit of the Petitioner and the said child as the Court considers just and equitable in the circumstances of the case"; but as no property was ever specified and no evidence on the topic was ever led the Judge was not faced with any concrete question as to a settlement. That being so, it seems to me that he could only have meant, when he said that the lump sum was "in full satisfaction of her claims . . . for a settlement under s. 86", that if any such claim should thereafter be brought before a Court his order for payment of a lump sum should stand as an obstacle in the way of the claimant's success, and an obstacle which he intended should prove insuperable. (at p582)

4. It seems clear to me that his Honour was taking a calculated risk as to both maintenance and settlement. It might turn out at some future period of the wife's life that he had over-estimated or under-estimated the provision that would be proper for her maintenance. On the one hand, she might die or remarry after a time so short that the lump sum he was fixing would be out of all proportion to her needs and would merely benefit her testamentary beneficiaries or next-of-kin; or she might come into money from some other source. On the other hand, she might suffer ill-health or other misfortune, or the husband's means might significantly increase, and in consequence the provision might prove completely inadequate. His Honour evidently thought that the advantages of creating a practical barrier against any future proceedings between the parties in respect of maintenance more than offset the disadvantages involved in such possibilities as I have mentioned. Then as to the question of a settlement, it might turn out that there was property vested in one or both of the parties as to which at some future time it might prove just and equitable that a settlement should be ordered; but on the evidence that, too, evidently appeared to his Honour to be a chance worth taking for the sake of what seemed to him the solid advantages of ordering the payment by the husband of such a lump sum that the parties would of necessity "go their respective ways without reference to each other". (at p582)

5. As to the wisdom or unwisdom of taking these calculated risks in the circumstances of the case I have nothing to say. But the fact remains that it was by making allowance for these considerations that his Honour fixed the amount of the lump sum. I should think it clear that the purpose of defeating in advance all future applications for maintenance is a purpose which lies outside the scope of the discretionary power committed to the Court by s. 84. I should also think it clear that the power to order payment of a lump sum is, in the nature of things, unavailable for the purpose of foreclosing the spouses' rights to apply for a settlement of property to which they are, or either of them is, entitled. If I am right on these two points it must follow that the amount of the lump sum was influenced by extraneous considerations and therefore could not be allowed to stand. Accordingly I am of opinion that the Full Court was right in setting aside the order made at first instance, and in exercising for itself the Court's discretion as to maintenance. (at p583)

6. I see no sufficient reason for interfering with the Full Court's order. In particular, I see no point to be made against that order from the fact that it provided for the giving of security by the husband for the weekly payments which it directed him to make. True it is that neither the security nor the amount ordered to be secured are capable of being subsequently increased or decreased except in a narrow class of cases: see s. 87 (3), and that consequently the Full Court's order has some measure of finality about it. But that is the work of the statute, and it does not mean that the Full Court fell into any error which vitiated its exercise of the discretion conferred by s. 84. (at p583)

7. I would dismiss the appeal. (at p583)

MENZIES J. The Full Court of the Supreme Court of Victoria, by the decision under appeal, set aside the order of Barry J. for the appellant's maintenance in a lump sum of 21,000 pounds to be paid by her husband upon decree absolute and substituted therefor an order for 30 pounds per week to be secured. The order made by Barry J. was set aside because, in the view of the appeal court, the learned trial judge, in ordering the payment of a lump sum, did so on the mistaken footing that, once the decree had been made absolute, his order would put an end to the respondent's financial obligations to the appellant "by a provision made once and for all" so that the order would not be subject to discharge or variation. Having so decided, the Full Court exercised a discretion of its own as to the character and amount of the maintenance to be awarded. The appellant seeks to have the order of Barry J. restored or, in the alternative, to obtain from this Court a more favourable order than that made by the Full Court. The former would be the appropriate order if the Full Court were wrong in deciding that the trial judge's discretion had miscarried; the latter could be made only if, an occasion having arisen for the Full Court to exercise a discretion of its own, this Court were to be satisfied that its discretion had in turn miscarried. (at p584)

2. In ascertaining whether the order of Barry J. was made as a final order not subject to discharge or variation, little is to be gained by speculation; the form of the order and the reasons his Honour gave for making it must be the determining factors. The order to pay a lump sum of 21,000 pounds is expressed to be "in full satisfaction of her claims for maintenance and for a settlement under Section 86 of the Act". The appellant contends that this provision is explicable once it is appreciated what claims were made in the petition and what happened to those claims. The relevant orders which the appellant, as petitioner, sought originally, were (1) maintenance for her child of a former marriage, Christine Jacqueline Earle; (2) maintenance for herself; and (3) a settlement for herself and the child. In the course of the hearing, after the father of Christine Jacqueline Earle had undertaken full responsibility for her support, the petitioner was given leave to amend her petition by the deletion of the claims for maintenance and a settlement in favour of the child. Accordingly, when his Honour made the order which he did, the claims he was dealing with were simply for maintenance of the petitioner and a settlement in her favour. I cannot read the words in the decree nisi, "in full satisfaction of her claims for maintenance and for a settlement under Section 86 of the Act", as doing no more than to emphasize that the order was intended to dispose of the claims both for maintenance and for a settlement. Although it is true that the order was intended to refuse the claim for a settlement under s. 86, I cannot but regard the words "in full satisfaction" in the decree nisi as intending to produce finality with regard to the petitioner's claims both for maintenance and for a settlement. However this may be, I agree with the Full Court that the words the learned trial judge used in his reasons for judgment make quite clear that what he had in mind was a provision that would put an end once and for all to the husband's financial obligations to his wife. His words were: "From a not inconsiderable experience, I am convinced that the most satisfactory course in a matter such as this is to order payment of a lump sum where the means of the parties make it possible and proper to do so. There is now not even friendship between these parties; there are no children or fruitful ties that will link them in any way if the marriage bond is severed. It is better, when the marriage is dissolved, that they should go their respective ways without reference to each other, and that upon the decree absolute respondent's financial obligations to her should be ended by a provision made once and for all". This can but mean that the payment of the lump sum awarded upon decree absolute will, come what may, free the respondent from financial obligation to the appellant. (at p585)

3. The next question is whether the basis upon which I have found the order to have been made was, in law, mistaken. Dr. Coppel, for the appellant, argued that by virtue of the Matrimonial Causes Act, s. 87 (1) (i) and (l), an order could be made in terms effectively precluding its subsequent discharge or variation so that, if the order in question here were to be regarded as making a final provision, it could be given that effect. However, any attempt - either by way of a direct order imposing a condition, or by requiring an undertaking - to make the order final, in the sense that it was not open to subsequent review, would fail. The clear intention of the Act is that matters dealt with by ss. 84, 85 and 86 should be subject to all the powers provided therein and by s. 87, except in so far as par. (k) of sub-s. (1), and sub-s. (3) of s. 87 make a different provision. Accordingly, no condition and no undertaking embodied in an order could exclude the review of the order for which s. 87 (1) (j) provides. It is, however, not without significance that it was argued that the learned trial judge had power to make the order that, it seems to me, he attempted to make. (at p585)

4. Accordingly, I agree with the Full Court that the order was made upon a wrong basis and that therefore it cannot be regarded as an effective exercise of the discretion which the learned trial judge possessed to determine whether the maintenance to be awarded should be by way of a lump sum or otherwise. It may be conjectured that if the learned trial judge had not been influenced by the consideration of binding finality, he might nevertheless have ordered maintenance by way of a lump sum, but that possibility cannot save the discretion as exercised. The fact that a permissible exercise of a discretionary power might perhaps have resulted in the same order as did an invalid exercise of the power is not a sufficient reason for allowing the latter to stand. Accordingly, I agree with the Full Court that the case before it became one where it was required to set aside the learned trial judge's order and exercise its own discretion with regard to the character and amount of the maintenance to be awarded. (at p585)

5. The award made by the Full Court was trenchantly criticized upon a number of grounds but none of these seemed to me to go to the validity of the exercise of the Full Court's discretion. They went rather to the calculation of the amount awarded and to the requirement of security. The argument based upon the order for security unwarrantably assumed that the Full Court had overlooked or misunderstood s. 87 (3). This Court is not a court of appeal to reconsider the merits of the order under review and we can make an order of our own only if we find that the discretion of the Full Court was invalidly exercised. I do not think it was. (at p586)

6. For these reasons I consider that this appeal should be dismissed. (at p586)

WINDEYER J. I agree in the conclusion of the Chief Justice. (at p586)

2. I have hesitated somewhat in arriving at this decision. But my hesitation was, I think, really engendered by a feeling that an order on the lines of that made by the Full Court might meet the circumstances of this case better than does that which Barry J. made. But that is a consideration that I must put out of my mind; for it is virtually conceded, and I think rightly, that, as indeed the Full Court held, an award of a lump sum of 21,000 pounds was within his Honour's discretion. The only question therefore is whether his Honour, a very experienced judge in matrimonial causes, so misdirected himself that he thought he could make an order which would prevent any application being made to the Court at any time in the future in respect of the wife's maintenance. The argument for the husband, which succeeded in the Full Court, is that in making the order that he did, his Honour misunderstood his powers and proceeded on the basis that his order would in law preclude the wife from applying in the future for further provision for her maintenance. This, it is said, vitiated his order. This contention of the husband, the present respondent, is, of course, not the result of any solicitude for the appellant or of any desire to ensure that a right to make further applications is preserved to her. In the Full Court he succeeded, using the terms of his Honour's order and the words he used in delivering judgment as evidence that he had proceeded on an erroneous view of the law, in agitating again the question that had been the central issue before his Honour. That was whether provision for the wife's maintenance should be by a lump sum, as she sought, or by periodic payments, as the husband urged. His Honour stated, in decisive words, his opinion that the case was one for a lump sum, as the parties would then be the more free to go their separate ways in the future, unconcerned by past ties. This was not an illegitimate consideration. It may be that in deciding on a lump sum as large as he ordered, his Honour had in mind that the practical result would be that the wife could not expect to ask for more later with much prospect of success. But I do not think that anything that his Honour said should be taken to mean that he thought that in law he had prevented her from applying so far as the Act permits. His choice of words may perhaps be open to some criticism; and the propriety of inserting in the formal order the words "in full satisfaction of her claims for maintenance and a settlement" seems questionable. But I am not persuaded that either what his Honour said or the terms of the order as drawn up justifies a conclusion that he misunderstood the law that he was administering. The proper construction of the language of the order is, as I read it, that upon payment of the lump sum ordered to be paid the claims that the wife had made for maintenance and for a settlement would be satisfied. I read the words as relating only to satisfaction and discharge by payment of the claims that had been made in the proceedings in which his Honour was giving judgment. I do not read them as referring at all to claims that might be made in the future based upon changed circumstances or as meant to bar any right the law gives the appellant to bring any claim in the future. (at p587)

3. I would therefore allow the appeal. (at p587)

OWEN J. I agree with the Chief Justice that the appeal should be allowed and for the reasons given by him. I would only add that I find it difficult to think that the learned judge of first instance, with a wide experience in the Matrimonial Causes jurisdiction, could have overlooked the existence in s. 87 of the Matrimonial Causes Act of the provisions which enable an order for maintenance to be varied or could have thought that it lay within his power to make an order which was incapable of variation in any circumstances. It is true that in his Honour's reasons and in the formal order expressions are used which are capable of the meaning which the Full Supreme Court attributed to them. But in the light of all the circumstances they are also capable, I think, of bearing the meaning which the Chief Justice attaches to them and they should, I think, be so read. (at p587)

Orders

Appeal allowed with costs.

Order of the Full Court of the Supreme Court set aside: in lieu thereof, order that appeal to the Full Court of the Supreme Court be dismissed with costs.