Johnston v Krakowski

[1965] HCA 57

HIGH COURT OF AUSTRALIA

Barwick C.J., McTiernan, Kitto, Taylor, Menzies, Windeyer and Owen

JOHNSTON v. KRAKOWSKI

(1965) 113 CLR 552

12 November 1965

Constitutional Law (Cth)—High Court

Constitutional Law (Cth)—Divorce and matrimonial causes—Maintenance of divorced wife—Provision for order under Commonwealth Act—Testator's family maintenance legislation of State—Right of divorced wife to apply as "widow" for maintenance out of estate of deceased former husband—Inconsistency—Whether Commonwealth has legislative power to provide for making of order against estate of deceased former husband—The Constitution (63 &64 Vict., c. 12), ss. 51 (xxii.), 109—Matrimonial Causes Act 1959 (Cth), ss. 5 (1), 86 (1), 87 (1), 104 (2)—Administration and Probate Act 1958 (Vict.), s. 91*—Administration and Probate (Family Provision) Act 1962 (Vict.), s. 5*. High Court—Question as to limits inter se of constitutional powers of Commonwealth and States—Proceedings in State Court—Question of validity of Commonwealth Act—Conditional upon inconsistency between Commonwealth and State Acts—Whether inter se question arising—Judiciary Act 1903-1960 (Cth), s. 40A.

Decisions

November 12.
The following written judgments were delivered:-
BARWICK C.J. This is a cause removed from the Supreme Court of Victoria into this Court by s. 40A of the Judiciary Act 1903-1960 (Cth). The cause is an application by Constance May Johnston commenced in the Supreme Court of Victoria by originating summons for an order under Pt IV of the Administration and Probate Act 1958 of the State of Victoria making provision for the proper maintenance and support of the plaintiff out of the deceased estate of Alexander Johnston of which the defendant Hans August Krakowski is the executor. The other defendants to the summons are the beneficiaries under the will of the deceased which bore date 24th September 1962. (at p557)

2. On 14th August 1962 the Supreme Court of Victoria exercising jurisdiction under the Matrimonial Causes Act 1959 (Cth) made a decree nisi for the dissolution of the marriage of the plaintiff and the deceased. The parties had entered into a written agreement with respect to the maintenance of the plaintiff and the custody of one of the children of the marriage by which the plaintiff promised to accept maintenance in conformity with the provisions of the agreement and not to seek any orders for maintenance other than orders carrying out the agreement. Orders were then made for the maintenance of the plaintiff and for the custody of the child who became one of the beneficiaries under the will of the deceased and a defendant to the summons. Also the written agreement of the parties was approved by the Court: but see Shaw v. Shaw (1965) 113 CLR 545 . (at p557)

3. On the plaintiff's application coming on to be heard before the Supreme Court, the defendant, Hans August Krakowski, contended by way of preliminary objection that by reason of the provisions made by the Matrimonial Causes Act 1959 for the making of orders for the maintenance and support of a wife, the Supreme Court could not entertain or grant an application under Pt IV of the Administration and Probate Act by the plaintiff who had been a party to a matrimonial cause within the meaning of the Matrimonial Causes Act. (at p557)

4. We do not have before us any precise record of what occurred before the learned Judge of the Supreme Court, but I think it must be taken that upon the learned Judge of the Supreme Court indicating his view that an inconsistency existed between the Administration and Probate Act, at least in so far as an application by a deserted wife is concerned, and the Matrimonial Causes Act, a distinct challenge to the validity of the federal statute construed so as to create such an inconsistency was made by the plaintiff. Thus a question inter se arose. The matter was therefore on that basis properly removed into this Court. (at p557)

5. Here the defendant's counsel, at the request of the Court, nominated the sections of the Matrimonial Causes Act which he claimed warranted the conclusion that the provisions of the Administration and Probate Act in so far as they authorized an application by a widow in whose favour an order for maintenance had been or could have been made during the lifetime of her husband under the Matrimonial Causes Act, were inoperative because of inconsistency with the paramount provisions of the last named Act. The sections specified were s. 5 (1) "matrimonial cause", the sections forming Pt VIII and s. 104 (2). (at p558)

6. The plaintiff's counsel, in order to raise the question of its validity, adopted for the purpose of his argument on that point the defendant's construction of the Matrimonial Causes Act. The plaintiff's submission then was that the provisions of that Act were void to the extent to which they would create an inconsistency between that Act and Pt IV of the Administration and Probate Act. It was said that to give the Matrimonial Causes Act an operation which would create such an inconsistency would cause it to exceed the bounds of those subject matters in s. 51 of the Constitution which justify the Matrimonial Causes Act, namely pars. (xxi.), (xxii.), and (xxxix.). In this connexion counsel for the plaintiff properly called attention to the very different legislative areas denoted by those subject matters and that occupied by Pt IV of the Victorian Act. (at p558)

7. I am clearly of opinion that there is no warrant for giving the stated provisions of the Matrimonial Causes Act or any of them or any combination of them or any other of the provisions of that Act the construction or operation which would invade in the manner suggested by the defendant the area occupied by or dealt with by Pt IV of the Victorian Act. None of those provisions of the Matrimonial Causes Act do more than provide for the making in the lifetime of the husband of orders for the maintenance of the wife which, being so made, can operate and be enforced after his death. I find no reason to doubt the capacity of the Parliament of the Commonwealth so to provide. But it is not a consequence of those provisions that an application cannot be made under Pt IV of the Administration and Probate Act, by a widow who has been party to a matrimonial cause falling within par. (a) of the definition of the Matrimonial Causes Act. Clearly, no relief of the kind sought in the present application could have been obtained after the death of the husband in the matrimonial cause where no order for maintenance had been made in his lifetime. Even if an order so made could be varied after the husband's death as to which it is unnecessary to express an opinion, that circumstance would not afford any ground for implying a legislative intention to occupy the larger legislative field suggested by the defendant; indeed, s. 8 of the Act itself strongly suggests the contrary. The possibility that a divorced wife could bring either an application to vary an order for maintenance or an application under the Administration and Probate Act would not compel a conclusion of inconsistency. Such a conclusion must derive from a legislative intention perceived in the sections to which the applicant's counsel referred; and with this I have already dealt. (at p559)

8. Consequently, in my opinion, no question of the validity of the Matrimonial Causes Act or of any part of it remains in the cause. (at p559)

9. However, as the matter was properly removed into this Court on the basis which I have indicated, it would be proper, in my opinion, for this Court, before remitting the cause to the Supreme Court of Victoria, to express formally its view as to the inconsistency said to arise between the Victorian Act and the Matrimonial Causes Act. It follows from what I have already said that, in my opinion, there is no such inconsistency. (at p559)

10. However, the existence of the orders for maintenance made under the Matrimonial Causes Act, and the content of the agreement made by the wife with her husband in his lifetime, are material factors for consideration in deciding whether any order should be made on the plaintiff's application under the Administration and Probate Act, and if so, what the amount and the nature of the provision for the plaintiff should be. (at p559)

11. In my opinion, the cause should be remitted to the Supreme Court with a declaration that there is no inconsistency between Pt IV of the Administration and Probate Act 1958 (Vict.) and the Matrimonial Causes Act 1959 (Cth). (at p559)

McTIERNAN J. I agree entirely with the reasons for judgment of the Chief Justice. (at p559)

KITTO J. This is an application initiated in the Supreme Court of Victoria and now brought on to be heard in this Court on the footing that it stands removed here by the operation of s. 40A of the Judiciary Act 1903-1960 (Cth). It is an application under the testator's family maintenance provisions contained in Pt IV of the Administration and Probate Act 1958 (Vict.) as amended by the Act No. 6920 passed in 1962. The plaintiff was a former wife of the testator, their marriage having been dissolved by a decree of the Supreme Court made in his lifetime under the Matrimonial Causes Act 1959 (Cth). Her locus standi to make the application rests upon s. 91 of the Administration and Probate Act, a section introduced by the 1962 amending Act. That section gives the Supreme Court a power, where a person dies and the distribution of his estate effected by his will (if any) or by the law of intestate succession or by both is such as not to make adequate provision for the proper maintenance and support of his widow, to order on her application that such provision as the Court thinks fit shall be made for her out of the estate of the deceased; and it goes on to provide that for the purposes of the section "widow" includes any former wife of the deceased who was at the date of his death in receipt of or entitled to receive payments of alimony or maintenance whether pursuant to an order of any court or otherwise. At the testator's death the plaintiff, who had not remarried, was within the meaning of the expression "widow" as so extended, because she was entitled to receive weekly payments for her maintenance under a deed which had been executed between them in connexion with the divorce proceedings. (at p560)

2. Upon the application coming on to be heard in the Supreme Court before Smith J. the defendant executor submitted that in so far as s. 91 operates in favour of a former wife of the testator whose marriage to the testator has been dissolved under the provisions of the Matrimonial Causes Act 1959 (Cth) it is invalid by force of s. 109 of the Constitution as being inconsistent with laws of the Commonwealth contained in Pt VIII of the Matrimonial Causes Act. It was not suggested that there is actual contrariety between the Federal and State laws; nor could such a suggestion be supported, for it is conceivable that Federal and State jurisdictions in such a field might co-exist. The submission therefore necessarily meant that the Matrimonial Causes Act exhibits an intention to lay down "completely, exhaustively or exclusively" the law that is to govern the subject of the making of orders for the maintenance of divorced wives out of the deceased estates of their former husbands: see Ex parte McLean (1930) 43 CLR 472, at p 483 ; O'Sullivan v. Noarlunga Meat Ltd. (1957) AC 1, at p 28; (1956) 95 CLR 177, at p 186 . Counsel for the plaintiff put to the Supreme Court a submission to the effect that no such intention appears anywhere in the Matrimonial Causes Act; but lest that submission should fail he prudently added another, that any Federal law which disclosed an intention to govern the subject referred to would be to that extent ultra vires and void as travelling beyond any subject of Federal legislative power, and in particular beyond the subject in s. 51 (xxii.) of the Constitution, namely divorce and matrimonial causes. The latter submission raised conditionally a question as to the limits inter se of the constitutional powers of the Commonwealth and those of the States, that is to say a question as to the extent of a legislative power of the Commonwealth which, by the operation of s. 109 of the Constitution, is paramount over the concurrent powers of the States: Attorney-General for Australia v. The Queen (1957) AC 288, at p 324; (1957) 95 CLR 529, at pp 548, 549 . I describe the submission as having raised the question conditionally, because the question could not require consideration unless and until an inconsistency between Federal and State law had been held to exist. That is why counsel for the plaintiff, when he reached this Court, was unable to specify at the outset of the case the particular provisions of the Matrimonial Causes Act which he might want to challenge; his challenge was to the Act, if and so far as it might be held to disclose an intention to deal exhaustively with a topic to which the State testator's family maintenance provisions are addressed. (at p561)

3. Smith J. came to a conclusion which he expressed by saying that if the necessary constitutional power exists it has been exercised by the Matrimonial Causes Act "not only in relation to claims against a former husband in his lifetime but also in relation to claims against his estate, at least in the field where the present case is located, namely that in which an order in respect of maintenance has been sought and obtained in a divorce suit under that Act and the new application may properly be regarded as seeking to vary what was done in relation to maintenance in the divorce proceedings". (at p561)

4. This view having been taken, it was no longer possible for the application to be decided by a judgment in favour of the defendants without a decision being given upon the inter se question, and therefore s. 40A of the Judiciary Act took effect, according to the interpretation placed upon it in Reg. v. Green; Ex parte Cheung Cheuk To (1965) 113 CLR 506, at p 518 , to remove the proceedings into the High Court. His Honour so held, and rightly he proceeded no further. (at p561)

5. The whole matter is thus before us, and the question to be considered first is whether the supposed inconsistency exists. At the threshold of the contention that it does is the proposition that the provisions of the Matrimonial Causes Act as to maintenance authorize an order against the legal personal representatives of a deceased former husband requiring payments for the maintenance of the former wife to be made out of his estate after his death. If I thought that they did I should have difficulty in resisting the conclusion to which Smith J. came; but in my opinion the powers of the Court as to maintenance which Pt VIII creates are powers exercisable only during the joint lives of the parties. It is only during that period that the question of making provision for the maintenance of a former spouse arises in consequence of, and therefore incidentally to, the granting of the principal relief. The Act, as I read it, accepts the limitations inherent in the concept of a matrimonial cause and makes no attempt to authorize the making of an order for maintenance save against a living party to a marriage and as an order to be complied with by that party personally. The order may no doubt require a party to make periodical payments of maintenance during a period, such as the life of the other party, which may extend beyond his own lifetime; but, being personal, its obligation ceases when he dies, so far at least as payments yet to fall due are concerned. Likewise an order may require a party to give security upon property for payments to be made throughout a period which may extend beyond that party's lifetime; but then the requirement of the order is that the security be given by the party personally, and if not obeyed in his lifetime its obligation ceases according to its own true import. Part VIII contains nothing to authorize an order for the making of maintenance payments or for the giving of security, after death of the party. Reference may be made in this connexion to Sugden v. Sugden (1957) P 120 , where all three members of the Court of Appeal, while holding that a particular maintenance order on its true construction did not extend beyond the joint lives of the parties, took occasion to doubt whether the order, if it had so extended, would have been within jurisdiction. See also Dipple v. Dipple (1942) P 65 ; Hinde v. Hinde (1953) 1 All ER 171 ; Mosey v. Mosey and Barker (1956) P 26 . (at p562)

6. It is true that s. 104 (2) makes a general provision to the effect that a decree (which includes an order) made under the Act may be enforced, by leave of the Court by which it was made and on such terms and conditions as the Court thinks fit, against the estate of a party after that party's death. This provision does not purport to convert an order against a party, which in its nature is purely personal to him, into an order which on his death may be made binding upon his legal personal representatives. The only decree to which its terms apply is one which admits of enforcement according to its true meaning against the party's estate. Again, it is true that s. 87 (1) authorizes the making of orders for a fixed term, for a life, or until further order; that it authorizes the variation of an order for maintenance so as to increase or decrease any amount ordered to be paid by the order; and that it enables any other order to be made which the Court thinks necessary to do justice: see pars. (h), (j) and (l). But the Court is authorized to do these things "in exercising its powers under this Part"; so that the whole scope of what may be done in regard to maintenance is limited, as it seems to me, by the personal nature of the jurisdiction. (at p563)

7. In Norton v. Norton (1916) 16 SR (NSW) 461 the report of counsel's argument, which was upheld by the Full Court of the Supreme Court, brings out the substantial point succinctly: "You cannot order a man to support his wife after he is dead . . . How could the Court . . . 'have regard to the ability of the husband' when he is dead?" (1916) 16 SR (NSW), at p 465 . Under the present Federal Act, the Court is required, in proceedings with respect to maintenance, to have regard to "the means, earning capacity and conduct of the parties to the marriage". The requirement applies not only in an original application for maintenance but also in every application to vary an existing order for maintenance. The intention seems clear that the maintenance of one party to the marriage by the other shall be subject to constant review by the Court in the light of the means of the parties from time to time, their earning capacity from time to time, and their conduct from time to time. All this is inappropriate when one of the parties is dead. It seems to me the plain assumption of the maintenance provisions as a whole that the subject of regulation is an aspect of a personal relationship between the parties to a marriage. It would require, I think, clear language to justify a conclusion that the Act intends a departure from the long-standing general rule to which Farwell L.J. was referring when he said in Brydges v. Brydges and Wood (1909) P 187 that "the decree was for divorce against a living man; the suit abated at his death and cannot be revived; there is no jurisdiction to alter that decree now so as to make it a decree against the executor, who could never have been made a party to the divorce proceedings" (1909) P, at p 194 . Nowhere in the Federal Act are the necessary clear words to be found, and it seems to me that subject to the limited exception implied in s. 104 (2) the situation is still as it was when Bonney J. said in Hobden v. Hobden (1940) 58 WN (NSW) 48 : "This Court has no power to bring the executor or administrator of a deceased party before it" (1940) 58 WN (NSW), at p 50 . See also Diamond v. Diamond and Elliott (1950) 51 SR (NSW) 84; 68 WN 100 , and cf. Kelly v. Kelly and Brown (1961) P 94 . (at p563)

8. In the United Kingdom the situation has been acknowledged and met by the enactment of s. 3 of the Matrimonial Causes (Property and Maintenance) Act, 1958, which provides that where a person is survived by a former wife of his who has not remarried she may apply for an order under this section on the ground that the deceased has not made reasonable provision for her maintenance after his death. Note the words "under this section" - not under the ordinary maintenance provisions of the Act. There is no provision in the Federal legislation which adverts to the topic of maintenance out of the estate of a deceased former spouse. In my opinion the argument for inconsistency fails and the order proposed by the Chief Justice should be made. (at p564)

TAYLOR J. Before the Supreme Court objection was taken to the competency of that Court to entertain an application made under Pt IV of the Administration and Probate Act 1958 (Vict.). The plaintiff in the proceedings was Constance May Johnston and she sought an order making provision for her proper maintenance and support out of the estate of Alexander Johnston deceased. She had formerly been the wife of the deceased but a decree for the dissolution of her marriage had been made in his lifetime pursuant to the Matrimonial Causes Act 1959 (Cth) and, since at the time of his death she had not remarried and was in receipt of maintenance, she fell within the extended meaning of "widow" in the former Act. (at p564)

2. The ground of the objection was that, in so far as the provisions of the former Act purport to authorize the making of orders for the proper maintenance and support of a divorced wife out of the estate of her deceased husband, when the marriage has been dissolved in the husband's lifetime under the Commonwealth Act, it is, by force of s. 109 of the Constitution, invalid, in that, it is inconsistent with the provisions of Pt VIII of the Commonwealth Act. The submission involves the contention that the relevant provisions of the Commonwealth Act exhibit an intention to prescribe exclusively the law governing the making of orders for provision by way of maintenance for widows, whose marriages have been dissolved under the Commonwealth Act, out of the estates of their former husbands. (at p564)

3. To this contention the plaintiff made two answers. The first denied that such inconsistency existed whilst, alternatively, it was contended that if the provisions of the Commonwealth Act extended so far, they were beyond the powers of the Parliament of the Commonwealth to make laws with respect to divorce and matrimonial causes. (at p565)

4. The learned judge before whom the matter came considered that, upon its true construction, the operation of the Commonwealth Act extended so far that the provisions of the State Act were inconsistent with it and then proceeded no further, holding that the matter was removed into this Court by force of s. 40A of the Judiciary Act 1903-1959. (at p565)

5. It is as well to notice that the defendant's contention is that there is inconsistency between the two sets of statutory provisions and that this results in the invalidity of the provisions of the State Act. It is immaterial, therefore, whether in any particular case an order for the wife's maintenance has been made under the Commonwealth provisions, as in the present case, for the joint lives of the husband and wife, or for the life of the wife or whether no order at all has been made. The contention simply is that by force of s. 109 the Commonwealth Act is the sole source of authority to make orders for the maintenance of a wife whose marriage has been dissolved under that Act and that the form of relief provided for by the provisions of Pt IV of the Administration and Probate Act is no longer available to such a person. Likewise, it would seem, it denies the availability of that form of relief to children of the marriage. (at p565)

6. I observe, first of all, that orders for maintenance under the Commonwealth Act must, if they are to be made at all, be made in the lifetime of the husband. They can be made only "in a matrimonial cause", as defined, for it is only in respect of matrimonial causes that jurisdiction is given to the Courts specified in s. 23. Thus it seems, an order for maintenance, though it may be made for a fixed term or for a life or during joint lives or until further order, must be made during the husband's lifetime. The order creates a personal liability on the husband to pay which comes to an end on his death so that if an order be made to continue for the duration of the wife's life, notwithstanding the earlier decease of her husband, it is necessary that the order be secured if it is to have any efficacy after the death of the husband (cf. Norton v. Norton (1916) 16 SR (NSW) 461 ; Maconochie v. Maconochie (1916) P 326 ; Dipple v. Dipple (1942) P 65 ; and Sugden v. Sugden (1957) P 120 .) I should add that the jurisdiction under s. 86 is exercisable only by requiring "the parties to the marriage" to make a settlement for the benefit of all or any of the parties to and the children of the marriage. (at p565)

7. As I apprehend the power to make orders for maintenance under the Commonwealth Act it is limited to the making of such orders during the lifetime of the husband as the Court thinks proper, having regard to the means, earning capacity and conduct of the parties to the marriage and all other relevant circumstances. (at p566)

8. On the other hand the jurisdiction conferred by Pt IV of the Administration and Probate Act is exercisable only after the death of the husband. The condition for its exercise is that it should appear that the husband has died leaving a will and without making therein adequate provision for the proper maintenance and support of his widow or his children. This, of course, is to be determined upon the facts as they exist at the date of the testator's death: Coates v. National Trustees Executors and Agency Co. Ltd. (1956) 95 CLR 494 and Dun v. Dun (1957) 99 CLR 325; (1959) 100 CLR 361 . (at p566)

9. In my view these provisions are not in conflict with the provisions of the Commonwealth Act. It is true that they both deal with what is called maintenance although they deal with entirely different problems. The Commonwealth Act empowers the Court to fix what, at the time of the application, it thinks reasonable maintenance having regard to the matters referred to in s. 84. In such a case the order must, of necessity, take into account the needs of the husband and to this extent the wife is in competition with her husband. The State Act, on the other hand, is concerned with the situation at the death of the husband when the relevant circumstances may be quite different and when the husband's needs are no longer of any consequence. The former set of provisions, it seems to me, does no more than confer an auxiliary jurisdiction to make orders during the husband's lifetime in relation to what is called a matrimonial cause; the second set of provisions confers a jurisdiction to afford relief in appropriate circumstances upon the death of a testator. (at p566)

10. In my opinion the case should be remitted to the learned judge of first instance with a declaration that the provisions of Pt IV of the Administration and Probate Act are not in conflict with the provisions of the Matrimonial Causes Act. (at p566)

MENZIES J. The plaintiff, Mrs. C. M. Johnston, is the former wife of Alexander Johnston deceased who in 1962 had divorced him under the provisions of the Matrimonial Causes Act 1959 and had obtained what was, in effect, an order for 10 pounds 10s. 0d. per week maintenance for the joint lives of the parties. After the death of Alexander Johnston in March 1964, the plaintiff instituted proceedings in the Supreme Court of Victoria under Pt IV - Family Provision - of the Victorian Administration and Probate Act against the executor of the deceased's will and beneficiaries under that will seeking an order for her proper maintenance and support out of the estate. (at p567)

2. At the hearing of the application before Smith J., the defendants contended that because of inconsistency between Pt VIII - Maintenance, Custody and Settlements - of the Commonwealth Act and Pt IV of the State Act, the State law could have no application to the plaintiff. The plaintiff thereupon contended that the Parliament of the Commonwealth lacked power to make a law inconsistent with Pt IV of the Administration and Probate Act and, further, that it had not attempted to do so - that is, presumably, that in fact there is no inconsistency between the Commonwealth and State laws. Smith J. thereupon held that an inter se question had arisen and that s. 40A of the Judiciary Act applied to remove the cause to this Court. (at p567)

3. I agree with Smith J. that, in the circumstances, an inter se question did arise but, after hearing argument both as to the invalidity of the Commonwealth law and the inconsistency between the Commonwealth and State laws, I consider that both the contentions lack substance. (at p567)

4. In a case like this, it is difficult to deal separately with what are two related contentions, one conditional upon the other. Counsel for the plaintiff did advance one particular proposition which I reject - that is, that the Parliament cannot validly confer jurisdiction upon a court exercising matrimonial causes jurisdiction to make an order for maintenance operating beyond the lifetime of the person against whom the order is made. It appears to be recognized that the ordering of secured provision is a way of providing maintenance after the death of the party to a suit against whom the order is made: Sugden v. Sugden (1957) P 120 . The power of the Parliament to authorize provision for maintenance cannot, however, be confined to provisions of a particular kind and, in my view, the power extends to authorizing a court exercising matrimonial causes jurisdiction to provide maintenance for the party to, or the children of, a dissolved marriage after the death of the party against whom the order is made. The only other suggestion of invalidity depended upon the acceptance of what the plaintiff resolutely opposed, viz. the defendants' argument that Pt VIII of the Matrimonial Causes Act was intended to be the only source of power to provide maintenance for an ex-wife out of her ex-husband's estate after his death. (at p568)

5. Counsel for the defendants, to support his argument that the provisions of Pt VIII operate exhaustively and to the exclusion of Pt IV of the Administration and Probate Act to authorize orders for maintenance of a divorced wife, payable after his death, out of the estate of her former husband, relied upon the wide powers granted to a court exercising matrimonial causes jurisdiction to make orders for maintenance (ss. 84 and 87) and for the settlement or division of property "for the benefit of all or any of the parties to, and the children of, the marriage" (s. 86). Of course, it must be recognized that State law cannot effect or authorize any variation of, or departure from, an order made pursuant to Federal law but, in the absence of any such conflict, I have found no inconsistency between Pt VIII of the Matrimonial Causes Act and a State law such as the Administration and Probate Act governing the distribution after death of the estates of deceased persons generally, including, of course, that of a man who was, during his lifetime, a party to a matrimonial cause and against whom, upon or after the dissolution of his marriage, an order for maintenance or for a settlement or a division of property was, or could have been, made under Pt VIII. In the absence of any provision of a State law interfering, or authorizing interference, with an order made under the Commonwealth law, the two laws simply do not meet, notwithstanding that each law deals with what is described as "maintenance". I hardly think that it would occur to anyone to regard the State law here under consideration as inconsistent with laws such as divorce laws of the United Kingdom or the United States of America providing for an order for the maintenance of spouses and their families in divorce proceedings even if the order could be made in terms that would bind the estate of the person against whom the order is made. Nor do I think that there would be any inconsistency between the provisions of Pt IV of the Administration and Probate Act and a Victorian law providing for maintenance in divorce proceedings even if an order made thereunder could endure for the lifetime of the person in whose favour it is made. Such laws could operate together without the need for any judicial adjustment by way of inferring pro tanto repeal or otherwise, although no doubt any order made under the divorce law would have to be taken into account in proceedings under the Administration and Probate Act. The federal division of powers and s. 109 of the Constitution stimulate a search for inconsistency but, if there be inconsistency, it cannot be rested upon that division. I regard an order for maintenance and support out of the estate of a deceased former husband made under Pt IV of the Administration and Probate Act as something entirely different from an order for maintenance against a husband or former husband made under Pt VIII of the Matrimonial Causes Act which could or does continue to operate after his death; it is made against a different person, in different circumstances, and by reference to different criteria. (at p569)

6. Mr. Opas, for the defendants, was not prepared to push his argument to the point of saying that the children of the parties to a matrimonial cause could not, after the death of their father, apply under Pt IV of the Administration and Probate Act for maintenance against his estate, but it seems to me there is no way in which Pt VIII of the Matrimonial Causes Act could be inconsistent with Pt IV of the Administration and Probate Act with respect to "a widow", the party to a matrimonial cause, and yet not inconsistent with respect to children of the parties to the matrimonial cause. The orders that may be made pursuant to Pt VIII may be made not only for the benefit of the parties to the cause but for the benefit of the children of the marriage and a differential operation - in one case exhaustive and in the other not exhaustive - of Pt VIII in support of orders made thereunder cannot be conceded. (at p569)

7. In my opinion, this Court should declare that the provisions of Pt VIII of the Matrimonial Causes Act 1959 do not debar the plaintiff from obtaining an order under Pt IV of the Administration and Probate Act and should remit the cause to the Supreme Court for further hearing. (at p569)

WINDEYER J. I agree in the order proposed. I have had the advantage of reading the judgment of Kitto J. I have nothing to add to what his Honour has said. (at p569)

OWEN J. For the reasons given by my brothers Kitto and Taylor, I agree that no inconsistency is to be found between the provisions of Pt VIII of the Matrimonial Causes Act (Cth) and those of Pt IV of the Administration and Probate Act (Vict.). (at p569)

2. I am also of opinion that an inter se question arose in the course of the proceedings before Smith J. in the Supreme Court. In his reasons the learned judge explained why he considered that such a question had arisen and that s. 40A of the Judiciary Act applied to the case. His Honour said: "The defendants in this proceeding contend, by way of preliminary objection, that the Commonwealth Parliament has power to make an exclusive provision as to the rights of a woman who has been granted a divorce under the Matrimonial Causes Act 1959, to obtain orders for her maintenance and support against her former husband or out of his estate and they contend that the Commonwealth Parliament, by the Act last-mentioned, has exercised this power so that, if the present plaintiff now has any rights to proceed against the estate of her former husband, they must be rights under the Matrimonial Causes Act 1959. For that reason they say that the procedure under Pt IV of the Administration and Probate Act 1958 can have no application. The plaintiff, on the other hand, contends that the procedure under Pt IV is available to her. She says that the defendants' contention that the Commonwealth Parliament has power to make an exclusive provision in the field here in question is unfounded; and she says that if such power does exist, it has not in fact been exercised." (at p570)

3. After referring to a contention put forward on behalf of the plaintiff that no inter se question should be regarded as having arisen if the view was taken that the defendants' contention as to the construction of the Commonwealth Act was without substance, he went on: "In my view the contention that the constitutional power, if it exists, has been exercised, cannot be regarded as an unsubstantial one. On the contrary, I consider that if the legislative power exists, then it has here been exercised by the Matrimonial Causes Act 1959. I think that it has been exercised not only in relation to claims against a former husband in his lifetime, but also in relation to claims against his estate, at least in the field where the present case is located, namely that in which an order in respect of maintenance has been sought and obtained, in a divorce suit under that Act and the new application may properly be regarded as seeking to vary what was done in relation to maintenance in the divorce proceedings." (at p570)

4. It thus appears that his Honour was of opinion that the construction of Pt VIII of the Commonwealth Act for which the defendants had contended was correct and that there was an inconsistency between State and Federal law. In these circumstances, the question whether the Commonwealth Parliament had power to enact such a law had necessarily to be decided and this raised an inter se question. For these reasons I am of opinion that s. 40A of the Judiciary Act applied and his Honour rightly refused to proceed further. (at p570)

Orders

Declare that there is no inconsistency between the Administration and Probate Act 1958 of the State of Victoria and the Matrimonial Causes Act 1959 (Cth).

Application remitted to the Supreme Court of Victoria for further hearing. Costs of all parties of the hearing of the application in this court (those of the defendant Hans August Krakowski as between solicitor and client) to be paid out of the estate of the deceased Alexander Johnston.