Knight v Knight

[1971] HCA 21

HIGH COURT OF AUSTRALIA

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

KNIGHT. V. KNIGHT

(1971) 122 CLR 114

28 May 1971

Constitutional Law (Cth)—Matrimonial Causes

Constitutional Law (Cth)—Judicial power of the Commonwealth—State court invested with federal jurisdiction—State Supreme Court—State law providing for exercise of a part of jurisdiction by master—Whether master invested with federal jurisdiction—Composition of Supreme Court of a State—The Constitution (63 &64 Vict. c. 12), s. 77 (iii.)—Matrimonial Causes Act 1959-1966 (Cth), ss. 5 (1), 23, 84 (2), 91—Matrimonial Causes Act, 1929-1941 (S.A.), SS. 4, 16 (3)—Supreme Court Act, 1935-1969 (S.A.), ss. 5, 7, 72, 82, 83. Matrimonial Causes—Federal jurisdiction vested in Supreme Court of State—Jurisdiction to hear and determine matrimonial cause—Order for maintenance pending suit—Jurisdiction of master to hear and determine—The Constitution (63 &64 Vict., c. 12), s. 77 (iii.)—Matrimonial Causes Act 1959-1966 (Cth), ss. 5 (1), 23, 84 (2), 91—Matrimonial Causes Act, 1929-1941 (S.A.), ss. 4, 16 (3).

Decisions

May 28.
The following written judgments were delivered : -
BARWICK C.J. The Court decided in Kotsis v. Kotsis (1970) 122 CLR 69 that the Supreme Court of New South Wales, which was the body in New South Wales which s. 23 (2) of the Matrimonial Causes Act 1959-1966 (Cth) (the Act) invests with federal jurisdiction to hear and determine matrimonial causes instituted under that Act, was composed exclusively of the judicial officers appointed to be members of that court with the title of judges. Consequently, it was held that an officer of the court, not being a member of it, could not exercise the federal jurisdiction invested in the court. In order to identify the constituent members of the court, it was convenient if not indeed necessary in that case to examine the statutory instruments by which that court was created and under which its composition was determined namely, the Charter of Justice issued under 4 Geo. IV c. 96 and the Supreme Court and Circuit Courts Act, 1900-1969 (N.S.W.). This examination established that the Supreme Court of New South Wales was composed of the judges appointed to be members of it and that the order made in that case by the officer of that court known as the Deputy Registrar in Divorce was not an order made by the court. (at p117)

2. We are now asked whether an order purporting to be made in a matrimonial cause within the meaning of the Act is an order of the Supreme Court of South Australia. In conformity with this Court's decision in Kotsis v. Kotsis (1970) 122 CLR 69 it can only be such an order if the master who made it is a constituent member of that Supreme Court. It needs little examination of the constating statute of that court, namely, the Supreme Court Act, 1935-1969 (S.A.), in my opinion, to conclude that the master is not a member of the court. Sections 6 and 7 of that Act read with the provisions for the appointment of acting judges (s. 11) say expressly of whom the Supreme Court shall consist, namely the judges, including acting judges appointed to be members of it. It is unnecessary to review here the other provisions of that Act and the other statutory provisions to which we were referred in argument. Suffice it to say that they emphasize the fact that the master is but an officer of the court though entrusted in matters of exclusively State jurisdiction with the performance of judicial functions. (at p117)

3. It was submitted that though not generally a member of the court the master was so, pro tem and ad hoc, in respect of certain matrimonial causes. On this view he could not hear and determine any matrimonial cause but only such as the provisions of State law allowed him to entertain. But this submission involves the clearly untenable proposition that the State may determine that a body invested with federal jurisdiction may not exercise it or may only exercise it in matters and on occasions selected by the State. Obviously a State law cannot do this. The body validly invested by Commonwealth law with federal jurisdiction may not be controlled in its exercise by State law except to the extent the federal legislation may permit. (at p117)

4. At the hearing of this case, the State of Victoria sought and was given leave to intervene in order to bring under notice the manner in which the jurisdiction under the Act in relation to certain ancillary relief is exercised in that State and so that nothing might be said per incuriam which might bring into question the validity of proceedings so conducted. In that State, the rights of the parties are dealt with by orders of a judge of the court though the ascertainment, subject to appeal to a judge, of the facts upon or by reference to which the court will by its order decide those rights is committed to an officer of the court. This manner of exercising the federal jurisdiction is in accord with the intendment of the Act as expressed in s. 127 (1) (c), (d) and (f) of the Act and as illustrated in Div. 3 of Pt XIV of the Matrimonial Causes Rules. (at p118)

5. In Kotsis v. Kotsis (1970) 122 CLR, at pp 92, 93 my brother Windeyer said :

"I do not mean to suggest that when a Supreme Court is exercising the judicial power of the Commonwealth its officers may not be charged with duties to be performed in a judicial manner. But those duties must I think be only such as are truly ancillary to an adjudication by the court. That is to say it is not enough that they be in what in the Matrimonial Causes Rules are called 'proceedings for ancillary relief'. They must be truly subservient to adjudication. They must be undertaken pursuant to a direction by the court for the purpose of either quantifying and giving effect to an adjudication already made by the court, or of providing material upon the basis of which an adjudication by the court is to be made. The taxation of costs by a taxing master is an example of a matter of the first kind. The taking of accounts or an inquiry as to damages for the purpose of reporting the result to the court to enable a judgment to be given are of the latter kind. So too are proceedings before a registrar for a certificate of means pursuant to the Matrimonial Causes Rules 211-213. Reports and certificates rendered to a court resemble in substance the verdicts of juries impanelled to try facts according to the tradition of the common law. Jurymen must arrive at their verdict after considering the evidence in a judicial manner ; but they are not part of the court. Their verdict only becomes binding upon the parties when it is accepted by the court, and providing it is not set aside on a motion non obstante veredicto. Indeed at one time the judge sitting at nisi prius did not give judgment when the jury returned its verdict - Why ? Because he was not the court : see Wilson v. Hood

(1864) 3 H &C 148 (159 ER 484)

In short, I can see no reason why, assuming that the process of giving judgment is not taken from the court, matters arising before the hearing of the principal cause, or afterwards for working out the effect of a judgment should not be inquired into and reported on by officers of the court. The court would not then confirm the decision of an officer. It would itself pronounce judgment on material he provided, which judgment might I suppose be in most cases in accordance with any recommendation emerging from the report, but would not necessarily be so. In my view what is not legitimate is for a Supreme Court invested with federal jurisdiction under the Constitution to entrust the determination of the rights of parties, in regard to any matter great or small, to persons who are not the court. The ascertainment of facts by the direction of the court is an essentially different thing from determining rights."

I entirely agree with these observations. (at p119)

6. In my opinion the answer to the question asked in this case is provided by this Court's decision in Kotsis v. Kotsis (1970) 122 CLR 69 That answer is in the negative (at p119)

MCTIERNAN J. In order to determine this special case it is necessary to decide whether "the court" to which s. 84 (2) of the Matrimonial Causes Act 1959-1966 (Cth) refers comprises the master of the Supreme Court of South Australia. In this Act, "the court", in relation to any proceedings, means the court exercising jurisdiction in those proceedings by virtue of this Act. This definition is in s. 5 (1) of the Act. Section 84 (2) applies to "proceedings for an order for the maintenance of a party to a marriage or of the children of the marriage" pending suit. The subsection provides that "the court" may in such proceedings make such order as it thinks proper, having regard to matters which are set forth in the subsection. Proceedings of this kind constitute a separate "matrimonial cause". Each of the proceedings referred to in the various paragraphs of s. 5 (1) of the Act constitutes a "matrimonial cause". The proceedings now in question are referred to in par. (c). So far as is material here, s. 23 of the Act provides that a person may institute a matrimonial cause under this Act in the Supreme Court of a State, and that the Supreme Court of each State is invested with federal jurisdiction to hear and determine a matrimonial cause constituted under this Act. The present proceedings were instituted by the respondent against the petitioner by an application made to the Supreme Court of South Australia. According to the practice of that court, the application came on for hearing before the master, as provided by the Supreme Court Rules made by the judges of the court. This was correct procedure in the federal jurisdiction of the court invested by s. 23 of the Act, according to the decision of the Full Court of the State in Thomas v. Thomas (1969) 16 FLR 113 ; (1969) SASR 177 . In that case the court decided that the jurisdiction invested by s. 23 attached to the master of the Supreme Court of the State, hence to a deputy master also. By s. 5 of the Supreme Court Act, 1935-1969 (S.A.), master includes deputy master. In that case the deputy master of the court had made successive orders under s. 87 of the Act. The power to make an order under the section is expressly given to "the court". The Full Court held, however, that the orders of the deputy master which were challenged were within the jurisdiction and powers, and therefore valid. The definition of "the court" in s. 5 (1) applies in the expression "the court" in s. 87 in the same way as it applies to that expression in s. 84 (2). A submission was made to the master before he entered upon the hearing of the present proceedings that, notwithstanding the decision in Thomas v. Thomas (1969) 16 FLR 113 ; (1969) SASR 177 , he had no jurisdiction to proceed in the respondent's application under s. 84 (2). This submission was based upon Kotsis v. Kotsis (1970) 122 CLR 69 , a case decided by this Court. It was heard after Thomas v. Thomas (1969) 16 FLR 113 ; (1969) SASR 177 was decided by the Full Court of South Australia. (at p120)

2. The master did not decide the question raised by the submission questioning his jurisdiction. He referred the application before him to a judge of the Supreme Court. This was done under the Supreme Court Rules. The judge then stated the present case. This was done under s. 91 of the federal Matrimonial Causes Act 1956-1966. The question propounded by the case is whether the master has jurisdiction to hear and determine the application under s. 84 (2) referred by the master to the judge. In my opinion the question ought to be resolved in the negative. (at p120)

3. With respect to the learned judges who decided Thomas v. Thomas (1), I do not agree that the master of the Supreme Court of South Australia is invested with any federal jurisdiction by s. 23 (2). This subsection, so far as it relates to a Supreme Court of a State, was enacted by the Parliament in pursuance of s. 77 (iii.) of the Constitution. In my opinion, the master of the Supreme Court of South Australia is not by virtue of anything in the Supreme Court Act, 1935-1967 (S.A.), or in any other Act of South Australia a "court" within the meaning of the Constitution. Isaacs J. explained in Le Mesurier v. Connor (1929) 42 CLR 481, at pp 510, 511 what the Constitution means by "court of a State". I have considered whether the Supreme Court of South Australia as constituted by the Supreme Court Act comprehends the master of the court for the purposes of the Constitution in the light of what appears at those pages. Section 7 of the Supreme Court Act provides that the Supreme Court of the State "shall be constituted of the following judges, that is to say, the Chief Justice and not more than six puisne judges" ; and that "subject to any express provision in this or any other Act, all the judges shall have, in all respects, equal power, authority, and jurisdiction". Section 82 creates the office of master. The section provides that - "The court shall have a master and not more than two deputy masters". The office of master is, by s. 82, an office in the Public Service of South Australia. Section 83 (2) reads as follows : "The master, when engaged in the exercise of any jurisdiction conferred upon him by this or any other Act, shall be deemed to have and to exercise the jurisdiction of the court." The Full Court of South Australia regarded this subsection as properly leading to the decision reached in Thomas v. Thomas (1969) 16 FLR 113 ; (1969) SASR 177 . It seems to me to be plain that the provisions of the Act do not make the jurisdiction of the master co-extensive with that of a judge and that, in my opinion, the provisions of the Act generally do not support the proposition that the master is a part of the Supreme Court of South Australia. I consider that the exclusiveness of s. 7 of the Supreme Court Act is not affected by anything express or implied in the Act in such a way as to admit the master and deputy master as members of the court. Nothing in the Act makes master or deputy master a synonym for judge. The Act leaves the master in the situation of an important judicial officer, next to a judge in status but, in my opinion, outside the judicature of the State. The Act in my judgment does not manifest an intention to blend the office of master with that of judge or to incorporate the office of master into the court. The master of the Supreme Court of South Australia is under Pt VI of the Supreme Court Act an office in the Public Service of the State. There appertains to the office only the jurisdiction and powers ascertainable from the provisions of the Supreme Court Act and the Supreme Court Rules. It seems to me that an inquiry into the nature and jurisdiction of the office of master going beyond this Act and Rules would not be useful in determining the present matter. My conclusion is that the master of the Supreme Court of South Australia is not invested with any federal jurisdiction by s. 23 of the Matrimonial Causes Act, and that for that reason the question in the special case ought to be resolved in the negative. (at p121)

MENZIES J. The question for decision submitted to this Court by Mitchell J. of the Supreme Court of South Australia is whether the master of the Supreme Court of South Australia has jurisdiction to hear and determine an application for maintenance pendente lite made by the respondent to proceedings for divorce in the court. The cause is a matrimonial cause. (at p122)

2. If the cause were not a matter of federal jurisdiction the master would have had the jurisdiction he was invited to exercise, but the cause, of course, arises under the Commonwealth Matrimonial Causes Act 1959-1966, and the question is whether the investiture of the Supreme Court of South Australia, effected by s. 23 of that Act and by s. 39 (2) of the Judiciary Act, confers upon the master the jurisdiction in question. (at p122)

3. In Kotsis v. Kotsis (1970) 122 CLR 69 , a question of the same kind arose in relation to the registrar of the Supreme Court of New South Wales, and it was decided by this Court that the investiture of that court with federal jurisdiction in matrimonial causes did not give the registrar of that court jurisdiction to make an order in a matrimonial cause because the registrar was but an officer of the court which consisted of the judges of the court. The only question here is whether that decision is distinguishable. (at p122)

4. Consideration of this question involves an examination of the relevant State laws to determine whether the master, in the exercise of his judicial functions, does so as part of the Supreme Court itself. Section 7 of the Supreme Court Act enacts that the Supreme Court shall be constituted by the Chief Justice and not more than six puisne judges. Provision is made for acting judges (s. 11) and for Commissioners, who need not be judges, to hold circuit sessions of the court (s. 53). Sections 82 and 83 provide for a master and deputy master. These sections are as follows :

"82. (1) The court shall have a master and not more than two deputy masters. (2) No person shall be qualified for appointment as master or deputy master unless he is a practitioner of the court of at least six years' standing. (3) Appointments to the offices of master and deputy master shall be made by the Governor whenever necessary. (4) After the commencement of this Act no person shall be appointed to the office of master or deputy master except on the recommendation of the Public Service Commissioner, concurred in by the Chief Justice, and no master or deputy master, whether appointed before or after the commencement of this Act, shall be dismissed or reduced in status nor shall his office be abolished except on the recommendation of the Chief Justice. (5) Nothing in this section shall restrict the application to the master and deputy master of the provisions of the Acts prescribing the retiring age for public servants. 83. (1) Subject to the rules made under this Act every order or decision made or given by the master in exercise of any power conferred upon him pursuant to this Act shall be as valid and binding on, and be enforceable in the same manner against, all parties concerned as an order or decision made by a judge : Provided that any person affected by any such order or decision of the master may forthwith, or within such time as is prescribed by any rules made under this Act, and subject to any conditions prescribed by those rules, appeal from that order or decision to a judge. (2) The master, when engaged in the exercise of any jurisdiction conferred upon him by this or any other Act, shall be deemed to have and to exercise the jurisdiction of the court." (at p123)

5. Section 83 stands as it does by virtue of amendments made thereto by s. 7 of Act No. 29 of 1963 which came into force after the Matrimonial Causes Act. (at p123)

6. Section 72 of the Supreme Court Act authorizes the judges of the Supreme Court to make rules of court. By virtue of this power O. 54, r. 20, has been made which provides as follows :

"20. The Master may do and transact all such business, and exercise all such authority and jurisdiction in respect of the same, including the jurisdiction to refer a bill of costs for taxation or any other matter as by virtue of any Statute, custom, or Rule or practice of Court may be done, transacted, or exercised by a Judge sitting in Chambers. . . ."

This is subject to exceptions stated in (a) to (s) thereof which do not refer to maintenance. (at p123)

7. I do not regard s. 82 as adding masters to the Supreme Court constituted by s. 7. Its words deny that conclusion. It is the court that shall have a master ; that master "shall be deemed to have and to exercise the jurisdiction of the court" ; and orders of the master "shall be as valid and binding on, and be enforceable in the same manner against, all parties concerned as an order or decision made by a judge". These provisions recognize the difference between the master and the court as well as the difference between the master and a judge. The difference between a judge and a master is one kind, not merely of jurisdiction. A judge with the other judges constitutes the court ; the master is an officer of that court. To enact that the court shall have a judge or judges would be inconsistent with the very character of a court. This Court does not have judges ; it consists of judges : see Constitution, s. 71. To enact, however, that the court shall have a master is to use appropriate language to provide the court with an officer. (at p123)

In Kotsis v. Kotsis(1970) 122 CLR 69 I referred to the decisions of the Supreme Court of South Australia upon the question now before this Court and indicated that I had taken them into account in reaching my decision in that case. In these circumstances I do not think it necessary to do more than say that, with great respect, I differ from such of the judgments of the Supreme Court of South Australia as decide that the Supreme Court of South Australia is a court composed not of judges alone but partly of judges and partly, for some purpose at least, of masters. (at p124)

9. Accordingly, I would answer the question "No". (at p124)

WINDEYER J. I agree that the question in the stated case should be answered "No". The reasoning in Kotsis v. Kotsis (1) I think provides that answer. To my mind the terms of the Supreme Court Act of South Australia, and the history of the administration of justice by courts constituted as courts are according to the law of England, and having court officers variously described and performing various functions, compel that conclusion. The master of the Supreme Court of South Australia is an important officer of the court. He may validly according to the law of that State exercise certain functions of a judicial character. But he is not a judge and thus is not a member of the court. This is not a matter of mere nomenclature. If the master be appointed a judge - as has happened in the past - his preferment is not simply a change of title : it is an appointment to a different office on assuming which he becomes a member of the court. I need not repeat what I said in Kotsis v. Kotsis (1), as to the manner in which officers of a court can be employed to aid the court in the discharge of its judicial functions by undertaking references and inquiries for it. I adhere to that entirely, provided that final adjudication as to the rights of parties remain always the province of a member of the court. (at p124)

OWEN J. In Kotsis v. Kotsis (1) I refrained from expressing any opinion on the question which has arisen in this case since the New South Wales legislation which we had then to consider differed in a number of respects from the South Australian legislation to which we were referred in the present case. Upon an examination of that legislation in the light of the decision in Kotsis v. Kotsis (1), I am unable to find any sound ground for holding that for relevant purposes the Supreme Court of South Australia consists of the judges of that court and, at least for some purposes, includes the master. While it is true that under the law of South Australia the master is empowered to exercise a number of judicial functions, I am of opinion that he nevertheless is an officer of the court and not a member of it. That conclusion seems to me to be inevitable when a comparison is made between s. 7 of the Supreme Court Act on the one hand and ss. 82 and 83 of that Act on the other and when regard is had to the reasoning of a majority of the Justices of this Court in Kotsis v. Kotsis (1970) 122 CLR 69 (at p125)

2. I am therefore unable, with respect, to agree with the decision of the Full Supreme Court in Thomas v. Thomas (1969) 16 FLR 113; (1969) SASR 177 I would answer the question asked in the stated case "No". (at p125)

WALSH J. In Kotsis v. Kotsis (1) this Court held that an order of a deputy registrar of the Supreme Court of New South Wales for the payment of interim costs, in a matrimonial cause instituted under the Matrimonial Causes Act 1959-1966 (Cth) (the Act), was made without jurisdiction. In reaching its decision on that question the Court had the benefit of examining the judgments in the cases in which the Supreme Court of South Australia had considered whether or not the master, or a deputy master, of that court had authority to make certain orders in matrimonial causes instituted under the Act. These included the decision of the Full Court in Thomas v. Thomas (1969) 16 FLR 113; (1969) SASR 177 , in which it was held that certain orders made by deputy masters varying an order for maintenance had been validly made. (at p125)

2. There is now before this Court a special case stated by Mitchell J. in accordance with s. 91 of the Act. It sets out that a petitioner in a suit in the Supreme Court of South Australia claimed a decree of dissolution of marriage and that the respondent wife, by a cross petition, sought a decree of dissolution and other relief including maintenance pending suit. Paragraph (2) of the special case is in these terms :

"On the 8th day of February 1971 the respondent applied to this Court for an order for maintenance pending suit for herself. The said application came on for hearing on the 12th day of February 1971 before the Master of this Court."

The special case states that the petitioner by his counsel submitted that the master had no jurisdiction to hear and determine the application and that the master referred it to Mitchell J., pursuant to O. 54, r. 21, of the rules made under the Supreme Court Act, 1935-1969 (S.A.) (the Supreme Court Act). It is stated that but for the decision in Kotsis v. Kotsis (1970) 122 CLR 69 , the learned judge would have referred the application back to the master for hearing and determination in accordance with the practice of the court and the judgment in Thomas v. Thomas (1969) 16 FLR 113; (1969) SASR 177 . The question of law submitted for determination by this Court is : "Has the Master of the Supreme Court of South Australia jurisdiction to hear and determine the said application ?" (at p126)

3. In this Court it has been argued that the relevant statutory provisions of the State of South Australia and rules made thereunder are such that the decision in Kotsis v. Kotsis (1970) 122 CLR 69 does not govern this case. It is not contended that the master is a judge of the Supreme Court of South Australia under another name, but it is contended that he is an integral part of that court. Although his judicial authority is less extensive than that of a judge of the court it is said that, when acting within the limits of the authority which has been conferred on him, he is part of the court and that the orders made by him are orders of the Supreme Court. (at p126)

4. We were referred to many of the provisions of the Supreme Court Act, the Rules of the Supreme Court, the Matrimonial Causes Act, 1929-1941 (S.A.) and the rules set out in the Second Sch. to that Act. The relevant provisions were reviewed in the judgments in Thomas v. Thomas (1969) 16 FLR 113; (1969) SASR 177 . It will be sufficient for me to refer to some of them, including those upon which most reliance was placed by counsel who contended that the master could exercise federal jurisdiction, with which the Supreme Court was invested by s. 23 (2) of the Act. I have not found in any of the provisions of the laws of South Australia any sufficient reason for coming to a different conclusion from that reached by this Court in Kotsis v. Kotsis (1970) 122 CLR 69 in relation to the position of the registrar in the Supreme Court of New South Wales. So far as my own judgment in that case is concerned, I consider that almost all that I wrote is as applicable to the judicial functions of the master in South Australia as it is to those of the registrar or of other officers of the Supreme Court of New South Wales. (at p126)

5. Section 6 of the Supreme Court Act provides that the Supreme Court of South Australia as by law established is hereby continued and s. 7 (1) provides that the court "shall be constituted of the following judges, that is to say, the Chief Justice and not more than six puisne judges". It is argued that that provision should not be taken as definitive of the constitution of the court, for the reason that it is qualified by other provisions, such as s. 11 which deals with acting judges, s. 53 which deals with commissions for the holding of circuit sessions of the court and ss. 82 and 83 which deal with the master and the deputy masters. But this argument cannot assist the respondent to maintain that the master is a part of the court, unless the provisions which relate to him are so framed that, notwithstanding the clear words of s. 7 (1), they can be read as providing that he is included in those persons of whom the court is constituted. In my opinion ss. 82 and 83 have no such effect. The enactment of s. 82 that the court "shall have a master and not more than two deputy masters" does not make these officers members of the court. Section 83 (1) gives the same validity, binding effect and enforceability to an order of the master as an order made by a judge, subject to the right of any person affected to appeal from that order or decision to a judge. Such an enactment is quite consistent, in my opinion, with the view that the jurisdiction exercised by the master is the exercise by a designated person, not being a court or a member of the court, of an authority given to him by a law of the Parliament of the State and is not the exercise by the court of its jurisdiction: see Kotsis v. Kotsis (1970) 122 CLR, at pp 97,98 (at p127)

6. Section 83 (2), which was added in 1963, provides that the master, when engaged in the exercise of any jurisdiction conferred upon him by that Act or any other Act, shall be deemed to have and to exercise the jurisdiction of the court. Like the similar provision enacted in s. 8 of the Administration of Justice Act, 1968 (N.S.W.), this provision serves rather to indicate, in my opinion, that the master is not a part of the Supreme Court than that he is a part of it. (at p127)

7. Section 72 (1) IV provides:

"(1) Rules of court may be made under this Act by any three or more judges of the Supreme Court for any of the following purposes : - . . . . IV For empowering the master to do any such thing and to transact any such business and to exercise any such authority and jurisdiction in respect of the same, including the jurisdiction to refer a bill of costs for taxation, or to refer any other matter to the master, as by virtue of any statute, custom, or rule or practice of court may be done, transacted, or exercised by a judge."

Until 1963 this power was more limited, because the words "sitting in chambers" appeared after the word "judge". (The same words formerly appeared, but do not now appear, in s. 83 (1).) The rules which were made in exercise of the power given by s. 72, before it was amended, have not since been enlarged. They are contained in O. 54, rr. 20-23, of the Supreme Court Rules. Rule 20 provides that the master may do and transact all such business, and exercise all such authority and jurisdiction in respect of the same "as by virtue of any Statute, custom, or Rule or practice of Court may be done, transacted, or exercised by a Judge sitting in Chambers", except in respect of certain enumerated proceedings and matters. The exceptions include any application relating to the custody of infants. They do not include applications for maintenance. The rules which follow r. 20 of O. 54 provide for the referring by the master of an application or matter to a single judge or to the Full Court and for the making by the master of interim orders (r. 21), for appeals from orders or decisions of the master (r. 22) and for the making of certain consent orders (r. 23). (at p128)

8. In my opinion, there is no relevant difference between the effect of s. 72 (1) IV and the said rules and the effect of s. 91 (2) of the Matrimonial Causes Act, 1899-1958 (N.S.W.) and r. 198, made thereunder, which were considered in Kotsis v. Kotsis (1970) 122 CLR 69 . It is true that s. 91 (2) used the word "delegate", whereas s. 72 (1) IV used the word "empowering". But whether the rules of court made by the judges delegate authority to an officer or simply confer authority on him, the authority which he obtains is not an authority which he has as a member of the court and by virtue of that office. Although it is an authority to do things which would otherwise be done by the members of the court, it is a statutory authority given to an officer who is not, in my opinion, a member of the court. I am of opinion that what I wrote concerning this distinction in Kotsis v. Kotsis (1970) 122 CLR, at pp 97-101 is applicable to the exercise by the master of the authority conferred on him. (at p128)

9. In the Matrimonial Causes Act, 1929-1941 (S.A.), s. 4, it is provided that the word "court" in that Act "includes a single judge or the Master when exercising, in accordance with the rules, the jurisdiction of the court". The rules to which reference is there made are the Rules of Court, 1913, as amended by the rules in the Second Sch. to the said Act. These remained in force (as amended) when new Supreme Court Rules were made in 1947. See r. 2 and the Fourth Sch. in the latter rules. In the rules in the Second Sch. to the Matrimonial Causes Act, it is provided that unless the Act, the rules, the master or judge otherwise direct applications or proceedings other than the hearing of the action shall be made to the master in chambers (r. 28). There shall be an appeal to a judge in chambers from any decision of the master and the master may refer any application to a judge in chambers or the Full Court (r. 30). The appeal shall be by way of rehearing and a judge shall exercise his own discretion without regard to the manner in which the discretion has been exercised by the master (r. 31). (at p129)

10. In my opinion s. 4 is not a provision by which the constitution of the Supreme Court, as defined in s. 7 of the Supreme Court Act, is altered, so as to make the master a part of the court. It is a declaration of what the word "court" is to be taken to include, when used in the Act of which it is a part. In my opinion, it does not alter or affect the meaning that should be assigned, so far as the Supreme Court of South Australia is concerned, to the words "the Supreme Court" in s. 23 (2) of the Act. It is true that s. 4 of the Matrimonial Causes Act (S.A.) refers to the exercise by the master of "the jurisdiction of the court". In this respect it may be said that it indicates that the master's jurisdiction is not something which is merely deemed to be the jurisdiction of the court, but is something which is the jurisdiction of the court. Nevertheless in this same Act a distinction is drawn between the master and the court, as appears from s. 16 (3). That is in addition to the distinction between the master and a judge which is made in rr. 28, 30 and 31 in the Second Sch., to which I have already referred. (at p129)

11. The distinction is made also in r. 50 in the Second Sch. which provides :

"Applications relating to the custody of children shall be made to a judge in chambers or at the hearing, and applications relating to the education and maintenance of and access to children may be made to the Master."

This provision demonstrates a difficulty which seems to stand in the way of accepting the view that the investing of jurisdiction by s. 23 (2) of the Act operated so as to include the conferring of authority upon the master to exercise federal jurisdiction, in relation to those matters which were previously within the scope of his authority under the State laws. According to one view which has been put forward in this case, the master is, by reason of the State legislation, an integral part of the Supreme Court, but his jurisdiction is limited so as to extend only to certain specified matters and in consequence, the grant of federal jurisdiction to the Supreme Court operates, so far as the master is concerned, to empower him to deal only with the same matters. Upon that view, s. 85 of the Act would operate so that the power of the court to make such orders as it thinks proper in respect of the matters mentioned in sub-s. (1) thereof would be exercised so far as custody was concerned by a judge, but might be exercised by the master with respect to the other matters there mentioned. Furthermore, this division of functions could be changed, according to some of the submissions made to the court, if the relevant rules were altered, in accordance with the State laws, so as to enlarge or so as to reduce the scope of the master's authority. (at p130)

12. The considerations, to which I have just referred, indicate to me that there are grave difficulties in accepting the view that the master, although his functions are different from and subordinate to those of a judge, is yet an integral part of the court, which consisted (so it was submitted) of some who might be described as "first-class judges" and some who might be described as "second-class judges". If the court were held to be constituted in that way, the exercise by the court of a new federal jurisdiction conferred upon it would be subject, according to one of the submissions made on behalf of the respondent, to the same distinctions between the respective functions of its constituent parts. But it would be difficult to accommodate that view to the provisions of the Act. However, I do not regard those considerations as decisive of the question before this Court. Independently of them, I reject the submission that the master is a constituent part, or, as it has been put in argument, "an integral part", of the Supreme Court. To accept that submission would be, in my opinion, contrary to the decision and to the reasons of this Court in Kotsis v. Kotsis (1970) 122 CLR 69 since, in my opinion, there is no satisfactory ground of distinction between that case and this. (at p130)

13. It should be mentioned that, in relation to the argument that the master is an integral part of the Supreme Court and as such is within the ambit of the grant of federal jurisdiction, a submission was made that it did not matter to those who advanced that argument whether the consequence of it was that the federal jurisdiction which the master could validly exercise was confined to those matters which had been assigned to him by the State laws or that it extended (subject to any express indication to the contrary contained in the Act) to all the jurisdiction in matrimonial causes with which the Supreme Court has been thereby invested. Since I am of opinion, as I have stated, that the main argument itself should be rejected, it is not necessary to consider which of those consequences would follow from its acceptance. (at p130)

14. I am of opinion that the question should be answered : "No". (at p130)

GIBBS J. This case stated under s. 91 of the Matrimonial Causes Act (Cth) ("the Commonwealth Act") by a judge of the Supreme Court of South Australia raises for decision the question whether the master of the Supreme Court of South Australia has jurisdiction to hear and determine an application made by a wife, the respondent in proceedings for dissolution of marriage instituted by her husband, for an order for maintenance pending suit. (at p131)

15. The application is a proceeding of a kind referred to in par. (c) of the definition of "matrimonial cause" in s. 5 (1) of the Commonwealth Act, and it was instituted, as s. 8 of the Commonwealth Act requires, under the Commonwealth Act. By s. 23 (2) of that Act, which was passed in exercise of the power conferred by s. 77 (iii.) of the Constitution, "the Supreme Court of each State is invested with federal jurisdiction" to hear and determine (inter alia) all matrimonial causes instituted under the Commonwealth Act. (at p131)

In Kotsis v. Kotsis(1970) 122 CLR 69 this Court held that a deputy registrar of the Supreme Court of New South Wales had no jurisdiction to make an order for the payment by a husband of a sum by way of interim costs in a matrimonial cause instituted under the Commonwealth Act. The decision establishes that the federal jurisdiction vested in a State Supreme Court by s. 23 of the Commonwealth Act may only be exercised by persons who are members of that court and that the section does not empower an officer who is not a member of the court to exercise the jurisdiction, notwithstanding that under the law of the State he was empowered to exercise judicial functions in cases of a like kind. I could not agree with this conclusion but I am bound by the decision. It constrains me to hold that unless the master of the Supreme Court of South Australia is a member of that court he has no jurisdiction to make an order for the payment of costs in a matrimonial cause. (at p131)

17. The question whether the master is a member of the Supreme Court of South Australia depends on the law of South Australia. If the question were answered in the affirmative further questions might arise. It might then be necessary to consider whether a Supreme Court whose membership was expanded to include persons other than judges would be a court within s. 77 (iii.) of the Constitution, and whether, if so, the Commonwealth Act nevertheless discloses an intention that the federal jurisdiction in matrimonial causes with which the Supreme Courts are invested should only be exercised by judges and, if it does, whether the Constitution permits the Parliament to impose conditions of that kind when effecting an investiture of federal judicial power. These questions were debated but not decided in Kotsis v. Kotsis (1970) 122 CLR 69 (at p132)

18. The constitution and organization of the Supreme Court of South Australia are dealt with in the Supreme Court Act, 1935-1969 (S.A.) ("the Supreme Court Act"). Some amendments to sections material to the present questions were made subsequent to 1st February 1961, the date on which the Commonwealth Act took effect, but this is not of importance. When the Commonwealth Parliament invests a State court with federal jurisdiction, it confers federal judicial power on "a State court as it is or as it may become", or in other words, on the court as it is constituted from time to time (see Kotsis v. Kotsis (1970) 122 CLR, at pp 88, 89, 109, 110 ), so that the Supreme Court which is now invested with jurisdiction under s. 23 of the Commonwealth Act is the Supreme Court as presently constituted and not the Supreme Court as constituted under the Supreme Court Act in force when s. 23 was passed, if there is a difference. (at p132)

19. By s. 6 of the Supreme Court Act the Supreme Court of South Australia as already established is continued in existence and by s. 7 (1) it is provided as follows :

"The court shall be constituted of the following judges, that is to say, the Chief Justice and not more than six puisne judges."

The Act makes provision for the appointment of acting judges (s. 11) and for the issue of commissions to persons who are not judges (s. 53) and I shall later make further mention of those provisions. Section 82 (1) provides that "The court shall have a master and not more than two deputy masters". The qualifications for appointment to the office of master are different from those necessary for appointment as a judge and the tenure of the offices is different (cf. ss. 8 and 9 and s. 82 (2) (4) (5)). Section 72 (1) provides that rules of court may be made under the Act (inter alia) -

"IV For empowering the master to do any such thing and to transact any such business and to exercise any such authority and jurisdiction in respect of the same, including the jurisdiction to refer a bill of costs for taxation, or to refer any other matter to the master, as by virtue of any statute, custom, or rule or practice of court may be done, transacted or exercised by a judge".

This power was exercised by O. 54, r. 20, of the Supreme Court Rules (S.A.) which empowers the master to "do and transact all such business, and exercise all such authority and jurisdiction in respect of the same, including the jurisdiction to refer a bill of costs for taxation or any other matter as by virtue of any Statute, custom, or Rule or practice of Court may be done, transacted, or exercised by a Judge sitting in Chambers", with certain specified exceptions. Section 72 (1)IV in its original form did not authorize the making of rules to empower the master to exercise any jurisdiction that a judge must exercise in court and although the section was amended in 1963 by deleting the words "sitting in chambers" where they appeared after the word "judge", no corresponding amendment was made to O. 54, r. 20, to expand the jurisdiction of the master. However, the details of the rules made under the authority of s. 72 (1) IV do not seem to me to be of any great importance, since the rules cannot make the master a part of the court if the Act does not do so. It may perhaps be mentioned that one of the matters in respect of which the master may not exercise jurisdiction is an application relating to the custody of infants (O. 54, r. 20 (n)), and that provision is made for references by the master either to a single judge or to the Full Court (O. 54, r. 21) and for appeals, which are by way of rehearing, from a master either to a judge in chambers (O. 54, r. 22) or in certain cases to the Full Court (O. 58, r. 32). Section 83 of the Supreme Court Act provides as follows:

"(1) Subject to the rules made under this Act every order or decision made or given by the master in exercise of any power conferred upon him pursuant to this Act shall be as valid and binding on, and be enforceable in the same manner against, all parties concerned as an order or decision made by a judge: Provided that any person affected by any such order or decision of the master may forthwith, or within such time as is prescribed by any rules made under this Act, and subject to any conditions prescribed by those rules, appeal from that order or decision to a judge. (2) The master, when engaged in the exercise of any jurisdiction conferred upon him by this or any other Act, shall be deemed to have and to exercise the jurisdiction of the court."

This section, before 1963, also contained the words "sitting in Chambers" after the words "judge" (twice occurring) and "master" (where it first appears). Subsection (2) was added in 1963. (at p133)

20. The provision of s. 72 (1) IV and s. 83 (1) of the Supreme Court Act, before their amendment in 1963, were in substance the same as those of s. 1 (1) and s. 4 of the Judges Chambers (Despatch of Business) Act, 1867 (Eng.), which was passed to regulate the position of the masters of the three superior courts of common law at Westminster, although s. 1 (1) of the English Act contained an exception in respect of matters relating to the liberty of the subject. It is, therefore, not irrelevant to notice that in England the masters of the superior courts of common law, and the masters of the Queen's Bench Division who succeeded them, were never regarded as members of the court, and that on the contrary there are authorities that support the view that an order of such a master is not an order of the court or a judge: Foster v. Edwards (1879) 48 LJQB 767 ; Bryant v. Reading (1886) 17 QBD 128 . The position of masters in Chancery was different, in that they were deputies of the judges, but although their orders were in theory made by the court or a judge, acting through the master, they were not members of the court. The history of the office of master, at common law and in Chancery, is discussed in two interesting articles in the Law Quarterly Review (76 L.Q.R. 504 and 77 L.Q.R. 331). There is nothing in that history that supports the conclusion that the master forms part of the Supreme Court of South Australia. (at p134)

21. Special provision as to the position of the master in matrimonial causes was made in the Matrimonial Causes Act, 1929-1941 (S.A.). Most of the powers conferred by that Act are conferred on "the court", but s. 4 provides that in the Act, unless the context otherwise requires, or some other meaning is clearly intended, "'court' includes a single judge or the Master when exercising, in accordance with the rules, the jurisdiction of the court". One section in which this special meaning is excluded is s. 16, which refers both to the court and the master and obviously draws a distinction between them. By s. 39 (3), the Rules of Court, 1913, were amended by inserting therein O. 68 as set out in the Second Sch. to the Act. When the Rules of Court, 1913, were repealed by the present Supreme Court Rules, the rules in the Second Sch. to the Matrimonial Causes Act were preserved in force (see Parts I and III of the Fourth Sch. to the Rules of Court). Rule 28 of those rules provides that:

"Unless the Act, these rules or the Master or judge in a particular case otherwise directs all applications and proceedings other than the hearing of the action or appeal shall be made to the Master in chambers, and unless otherwise directed evidence on applications in chambers shall be on affidavit."

Rule 30 provides that there shall be an appeal to a judge in chambers from any decision made by the master and that the master may refer any application to a judge in chambers or to the Full Court. The appeal from the master is by way of rehearing (rule 31). When hearing applications in chambers, the master has all the powers as to contempt, production of documents and attendance of witnesses which a judge hearing the action would have "and all other powers of a judge in chambers" (r. 32). Other rules give the master power to dispense with compliance with the rules, extend time and regulate procedure (see rr. 91 and 92). Rule 86, rather curiously, provides that, in addition to all other powers exercisable by him, a judge in chambers or at the hearing may exercise all the powers given by the rules to the master. (at p135)

22. It appears from these statutes that under the law of South Australia the master is an official of the Supreme Court who is empowered to perform judicial functions of considerable importance. He had jurisdiction in matrimonial causes arising under State law to deal with applications for interlocutory relief, including applications for orders for maintenance pending suit. He is empowered to make decisions which are judicial in character and which have the same effect as those made by a judge. In short, he is an officer of the court who exercises judicial powers of the kind which a judge of the court may exercise. This, however, does not mean that he is a member or a part of the court itself. A comparison between ss. 7 and 82 of the Supreme Court Act seems to me to establish that the master is not a member of the court. The court consists of the Chief Justice and the puisne judges, but is to have a master; in other words the master is part of the establishment of the court but not part of the court itself. Those who argue in support of the contrary view naturally place special reliance upon s. 83 (2) of the Supreme Court Act and on the definition of "court" in s. 4 of the Matrimonial Causes Act, 1929-1941 (S.A.). By the former of those provisions the master is deemed to have and to exercise the jurisdiction of the court. Although as Griffith C.J. said in Muller v. Dalgety &Co. Ltd. (1909) 9 CLR 693, at p 696 , the word "deemed" is commonly used "for the purpose of creating . . . a 'statutory fiction' . . . that is, for the purpose of extending the meaning of some term to a subject matter which it does not properly designate", it is not always used in that way and does not necessarily import artificiality or fiction: see Hunter Douglas Australia Pty. Ltd. v. Perma Blinds (1970) 122 CLR 49, at pp 65-67 and St. Aubyn v. Attorney-General (1952) AC 15, at p 53 . However, even if it is an indisputable fact that the master has and exercises the jurisdiction of the Supreme Court, it does not follow that he is the court or part of it. If, on the other hand, s. 83 (2) brings about an artificial result, it does not assist in determining the present question, because, as Menzies J. said in Kotsis v. Kotsis (1970) 122 CLR, at p 87 , "a State cannot extend the investment of federal jurisdiction by deeming somebody, not the court so invested, to be exercising the jurisdiction of the court which has been invested with federal judicial power". The provisions of s. 83 (2) are similar to those of the section of the New South Wales Act which in Kotsis v. Kotsis (1970) 122 CLR 69 was held not to assist the conclusion that the deputy registrar was part of the Supreme Court of New South Wales (see at pp. 66, 68, 72, 73 and 75). Similarly, the fact that for the purposes of the Matrimonial Causes Act, 1929-1941 (S.A.) the word "court" is given an extended meaning, so as to include a master, does not mean that the master was part of the Supreme Court. (at p136)

23. In Thomas v. Thomas (1969) 16 FLR 113; (1969) SASR 177 the Full Court of the Supreme Court of South Australia considered the question to which I have been devoting my attention. Bray C.J. (1969) 16 FLR, at p 118; (1969) SASR, at p 182 was of the opinion that s. 83 (2) left it in no doubt that "the masters are part of the structure, constitution and organization of the court", and that in any case the same result followed from the State legislation in force on 1st February 1961. Mitchell J. (1969) 16 FLR, at p 134; (1969) SASR, at p 196 said that the master is not himself a member of the court, but that he is part of the structure of the court. The conclusion of the Full Court that the master was invested with federal jurisdiction under the Commonwealth Act cannot be maintained since Kotsis v. Kotsis (1970) 122 CLR 69 , which establishes that when the Parliament in the exercise of its constitutional power invests a State court with federal jurisdiction, the mantle of investiture falls only on the court, and not on officials who form part of its structure or organization but who are not members of the court itself. However the judgment of Mitchell J. supports the view that I have formed that the master is not a member of the Supreme Court of South Australia and there is nothing in the other judgments in Thomas v. Thomas (1969) 16 FLR 113; (1969) SASR 177 that would support the contrary view. (at p136)

24. Since the master of the Supreme Court of South Australia is not a member of that court, I am bound by Kotsis v. Kotsis (1) to hold that he is not invested with federal jurisdiction in matrimonial causes by s. 23 of the Commonwealth Act. (at p136)

25. It was submitted that if the master is not invested by s. 23 of the Commonwealth Act with jurisdiction to hear and determine matrimonial causes, the same must be held in relation to acting judges and commissioners appointed under the Supreme Court Act. Although it is strictly unnecessary to deal with this contention, in view of the arguments submitted it seems desirable to add that this conclusion does not necessarily follow. By s. 11 (1) of the Supreme Court Act an acting judge is appointed "to act in the stead" of the judge who is absent or unable to discharge his duties and it seems clearly right to imply that for all purposes the acting judge occupies the position of the judge in whose stead he is appointed, and, like that judge, is a member of the Supreme Court. Even if the acting judge continues in office after the judge in whose stead he was appointed has died, resigned or returned to his duties, as may be the case under s. 11 (3) and (4), it seems to me that he must be treated as retaining the judicial status which he acquired on his appointment. No difficulty thus arises in relation to the exercise of federal jurisdiction by acting judges of the Supreme Court of South Australia. The position of commissioners is regulated by s. 53 of the Supreme Court Act, which empowers the Governor to issue a commission directing any judge to hold circuit sessions of the court but provides that it shall be lawful for the Governor upon the recommendation of the judges of the court to issue the commission to a practitioner of the court of at least seven years' standing and that every practitioner so assigned shall, for the purposes of the commission, have all the power, authority and jurisdiction of a judge of the court. Section 53 (4) provides that every commissioner, when engaged in the exercise of any jurisdiction assigned to him by the commission, shall be deemed to have, and to exercise, the jurisdiction of the Supreme Court of South Australia and any sessions held under the commission shall be sessions of the said court. The position of commissioners is not as clear as that of acting judges, and since the question whether commissioners are invested with federal jurisdiction under the Commonwealth Act may fall for decision on another occasion I do not think it right to express any opinion on it here beyond saying that it is not necessarily determined by the present decision. (at p137)

26. For the reasons I have given, I am of the opinion that the master of the Supreme Court of South Australia has no jurisdiction to hear and determine the application in question. It will be apparent, from the reasons that I gave in Kotsis v. Kotsis (1970) 122 CLR 69 , that I reach this conclusion with regret. (at p137)

27. I would answer the question: No. (at p137)

Orders

The question asked in the case stated, namely:

"Has the Master of the Supreme Court of South Australia jurisdiction to hear and determine the said application?"
Answered "No".

Order that the petitioner husband pay to the respondent wife her costs of and in connexion with the stated case. Further order that the State of South Australia which in being granted leave to intervene submitted to any order the Court might make as to costs, do pay to the petitioner husband his costs of and in connexion with the stated case and the amount of the costs paid by him to the respondent wife under this Court's order.