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…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Johnston v Krakowski

Details

AGLC: Johnston v Krakowski [1965] HCA 57
Case: [1965] HCA 57
Decision Date: 12 November 1965

CaseChat Overview and Summary

The High Court of Australia considered an appeal concerning a dispute between Johnston and Krakowski. The case involved a claim for damages arising from a motor vehicle accident that occurred in New South Wales.

The central legal issues before the High Court were whether the trial judge had erred in finding the appellant solely liable for the accident and, consequently, in awarding damages to the respondent. Specifically, the court had to determine the correct application of the principles of negligence and contributory negligence in the context of the evidence presented at trial.

The High Court, in its judgment, analysed the evidence relating to the driving conduct of both parties leading up to the collision. The court applied established principles of negligence, focusing on the duty of care owed by drivers to other road users and the standard of care expected of a reasonable driver. The judges considered whether the appellant had breached that duty and whether such a breach had caused the respondent's injuries. The court also examined the possibility of contributory negligence on the part of the respondent. After a thorough review of the evidence and the relevant legal principles, the High Court upheld the trial judge's findings.

The appeal was dismissed, and the orders of the trial court were affirmed.

Orders