Machin v Josephine Machin

Harry Machin petitioned the Supreme Court of Victoria for a dissolution of his marriage to Josephine Machin on the grounds of desertion. The petition was undefended, and the respondent wife did not appear. Hood J. dismissed the petition, finding that the desertion had not been proven. The petitioner then filed a notice of appeal to the High Court but failed to serve it on the respondent, either personally or by way of substituted service.

The High Court was required to determine whether an appeal could be entertained in the absence of service of the notice of appeal on the respondent. The court considered the requirements of the Rules of the High Court 1911, specifically Order LV, Part I, rules 2 and 6, and Part II, Section III, rules 1 and 4, in relation to service of process in an appeal.

The court reasoned that service of the notice of appeal on the respondent was a necessary prerequisite for the court to entertain the appeal. Griffith C.J., delivering the judgment of the court, stated that the appeal could not be entertained without such service. While an adjournment to allow for service might ordinarily be granted, the court examined the merits of the appeal and concluded that it would be futile to adjourn, as the primary judge's finding of insufficient proof of desertion appeared sound. Consequently, the appeal was struck out.