Miller v Major

[1906] HCA 62

4 C . L . K . J OF AU8TRAL1A.

219

[HIGH COURT OK AUSTRALIA,]

MILLER

A p p e l l a n t ;

AND

MAJOR

(FALSELY CALLED M iLLER) .

R e s p o n d e n t .

ON a p p e a l f r o m t h e SUPREME COURT

OF

NEW SOUT’H WALKS.

Marriage— Prohibited degree/*—Xullily—Latos of England inlrodnre.d into Colony H. C. o f A.

on settlement—28 Henry VIII. c. 7, sec. 11.

1906.

Practice—Appeals front Supreme Courts— Time for lodging security—Extension—

S y d n k v ,

Aug. S ;

Lapsed appeal—Special leave—Appeal Rules, sec. IV ., r. 10.

Oct. 9.

Tlie mari'iage laws of England were part of the body of Englisli law introduced into the Colony of New South Wales on its first settlement.

Griffith C .J.,

Barton and

O’Connor JJ .

Marriages within the prohibited degrees prescribed in 28 Henry VIII. c. 7 are therefore voidable during the lifetime of the parties by the .Supreme Court of that State in its Matrimonial Causes Jurisdiction.

An appellant omitted to lodge security within the time prescribed by the rules, and, after the time had expired, applied to the High Court for extension of time and reduction of the security.

The Court expressed a doubt whether they had power to extend the time owing to the appeal having lapsed, but, having regard to the special circum­ stances of the case, granted special leave to appeal and reduced the security conditionally upon the appellant setting down the appeal for the current sittings.

Decision of the Supreme Court, Major (f.c. Miller) v. Miller, (1906)6 S.R. (N.S.W.), 24, affirmed.

A ppea l from a decision of the Supreme Court of New South

Wales.

220 HIGH COURT

[1906.

H.C. OF A. The re.spondeut was petitioner in a suit for declaration of

1906.	nullity of marriage in the Supreme Court of New South Wales
.M 11.t.KR	in its Matrimonial Causes Juri.sdiction. The ground of the

V.

M A.JOR.petition was that the present appellant was the divorced hus­

band of the petitioner’s mother, that is to say the stepfather of the petitioner. The petitioner’s mother had obtained a divorce from her husband for his adultery with his stepdaughter, the present respondent, who was his wife’s daughter by another marriage, and was alleged by the appellant to be illegitimate. After the divorce the stepdaughter and stepfather married. The petition was heard by Walker J., from whose judgment the above short statement of the facts is taken. He held that, even if the petitioner was illegitimate, the parties were within the prohibited degrees of affinity, and that the marriage was void­ able. He therefore pronounced a decree nisi for nullity of marriage returnable in six months, but, by reason of the peti­ tioner’s knowledge of her relationship to the appellant at the time of the marriage, made no order as to costs.

From this decision the appellant appealed in forma pauperis to the P’ull Court (consisting of Darleij C.J., Colten and Pring JJ.), who dismis.sed the appeal without co.sts; Major (f.c. Miller)

appeal in forma j)aaperis, but failed to lodge security within the time allowed by the rules. On August 1st 1906, after the time for giving security had elapsed, he applied to the High Court to have the security reduced, and the time for giving security extended. Objection was taken by the respondent that, the appellant being out of time, the High Court had no power to extend the time, as by the rules the appeal must be deemed to have been abandoned.

V.

Miller {1).

Per Curiam.—A question of status and legitimacy is involved. Even if security had been duly given the appeal could not in any case have come on for hearing before these sittings. If the petitioner is willing to set the appeal down for the present sittings we think that, under the .special circumstances of the case, special

(1) (1906) 6 S.R. (N.S.W.), 24.

4 C.L.K.]

OF AUSTRALIA.

leave to appeal .should be given, but it must not be assumed that ft- t-'-

an appellant can with safety allow the time for security to lap.se.

1906.

We have grave doubts as to the power of the Court to extend

M i llkk

V.

the time for giving .security at this stage.

M a JOI!.

Tlie Court granted special leave to appeal conditional!}" upon the appellant .setting the case down for the present sittings, and

-----

1 educed the .security to £1.

The appellant, in person, read an argument, in the course of nctobei'jui,

which lie contended—that the Act 28 Henry VIII. c. 7 was not in force in New South Wales (referring to Brook v. Brook {\ )\ that the High Court decided that English Acts in force in England in 1828 should be applied in New South Wales only .so far as they were capable of enforcement: Quan Tick v. Hinds (2); and on the settlement of the Colony there was no Court having jurisdiction to avoid marriages within prohibited degrees; that there was no Ecclesiastical Court established in New South Wales by the Charter of Justice, except the Prol)ate Court, to enforce the puni.shment of incest; that the Imperial Act 28 & 2!) Viet. c. (JJ, would, if 28 Henry VIII. c. 7, were in force, make sec. 18 of the Act 1899 (No. 15) inoperative and void for repugnancy; that marriage with a deceased wife’s sister having been legalised by Statute in New South Wales, no prohibition of marriage on the ground of affinity can remain; and that the divorce of the appellant from his former wife .severed and deter­ mined the relationship that previouslj' existed between the appellant and the respondent.

Windeyer, for the respondent. The “ applicability” of the Statute need not be considered, as the marriage laws of England were part of the English law brought to the Colony by the first settlers. They are part of the fundamental law of English com­ munities : Quan Tick v. Hinds (3). The non-exi,stence of a Matrimonial Causes Court at the date of the foundation of the Colony did not prevent the marriage laws from being in force. It was merely an obstacle in the way of their enforcement. The prohibited marriages were then only valid in the sense that a

(1) 9 H.L.C., 19.9.

(•2) 2 C.L.R., .94,5.

(3) 2 C.L.R., ;i4.5, iit p. 355.

222 HIGH COURT

[1906.

H.	C. OF A. competent Court had not declared them invalid ; and a.s soon as a
1906. Court was established to deal with such matters it had power to

Mu.r.ER declare them void. All difficulty is removed by sec. 5 of the

c.

Matrimonial Causes Act 1899.

The principles there referred to

M a j o r .

include the provisions of 4 & 5 William IV. The doctrine that marriages which were within the prohibited degrees were only voidable, not void, arose from the fact that only Ecclesiastical Courts could declare them invalid, and conse(]uently the Common Law Courts treated them as good until declared to be void by the Ecclesiastical Courts. The Act 28 Henry VIII. c. 7 rendered tliem void at law in England : Brook v. Brook (1); Reg. v. Chadwick (2); Wing V. Taylor (f.c. Wing) (3). The divorce of the appellant from the respondent’s mother did not destroy the affinity. Death would not have that effect, and divorce has no greater effect than death. The English law that such mfirriages are voidable has been assumed to be in force in Queensland and in Victoria : In re Kreutz, deceased (4); In the Will of William Swan (5); Wade v. B'xker (f.c. Wade) (6).

G r if f it h C.J. There can be no doubt that amongst the laws

introduced upon the settlement of the Colony of New South Wales were tlie marriage laws of England. There can be no doubt, also, that amongst the prohibited degrees prescribed in the Act 28 Henry VIII. c. 7, is the case of a man who marries his wife's daughter. That has always been accepted as the law of Australia, and I see no reason to doubt that it is so. The only doubt that lias been thrown upon it now arises from the fact that when Australia was settled there was no Court that could declare such a marriage to be void, and it had some time before the settlement been determined by the English Courts that, as recited in the Act o & 6 William IV. c. .54, marriage.s within the prohibited degree were voidable only by Ecclesiastical Courts in the lifetime of the parties. There are only three pos.sible alternatives:—(1) That such marriages were void in Australia; (2) that they were valid and cannot be impeached at all ; and

(1) 9 H.L.C., I9:i.(4) 4 Q.L..J., 16.

(2) 11 Q.B.D., 17:1, 205. (o) 2 V.R. (I. E. & M.), 47.

(:l) 2 Sw. & Xi-., 278.

(6) 5 \V.\V. & aB. (I. E. 6.3.

4 C.L.K.] OF AU8THALIA.

223

(:̂ ) that they were, as in England, voidable, but, owing to the

H C. OF A.

circumstances of the country, there was no immediate available

1906.

means open to persons seeking to have such a marriage declared

M i l l e e

V.

void. The third view is the one that has always been accepted,

M a jo r .

and, I think, is the sound one.

Griffith C.J.

The fact, therefore, remains that the marriage between these parties was in its inception voidable, and would be void as soon as either party took proceedings in the lifetime of the other to have it declared void. That has been done, and the Supreme Court has made the ordy decree that it could make.

I do not think it nece.s.sary to add anything to the reasons which have been given by Walker J. The appeal therefore must be dismissed, but, as it was made in forma 'paui'xris, no costs should be allowed.

H.vuton and O’Connor JJ. concurred.

A ppeal dis m iifsed.

Proctors, for the respondent, Fisher (& Macansh.

C. A. W.

[HIOH COUll'J’ OF AUSTRALIA.]

GREAT FINGALL ASSOCIATED GOLD I

.

> A p p e l l a n t s

:

MINING CO. AND ANOTHER .

. i

HARNESS AND OTHERS

R e s p o n d e n t s .

ON APPEAL FROM THE SUPREME COURT OF

WESTERN AUSTRALIA.

H.

C. OF A.

Voluntar;/and Coinpiihory Wimlhuj-np— Companieit Act 1893 ( IF.A.), (56 Viet.

1906.

So. 8), .sfc.4. 26, 107, 150, 152—Riijht of credidors to demand compulso7 i/

nindiny-np.

P e r t h ,

Sor. 5, 6.

Where a company is in voluntary liquidation the petitioning creditors for a compulsory liquidation must sliow a primo facie case that they would be

Griffith C.J., Barton and

prejudiced by a voluntary winding up.

Hisfgrins JJ .