Constitutional Law (Cth)—Inconsistency between Commonwealth and State laws—Commonwealth law prohibiting, subject to exceptions, interception of telephonic communications—State law rendering inadmissible evidence of certain conversations gained in contravention of provision prohibiting use of listening devices—Whether Commonwealth law covers field—The Constitution (63 &64 Vict. c. 12), s. 109—Telephonic Communications (Interception) Act 1960 (Cth), ss. 4, 5—Listening Devices Act, 1969 (N.S.W.), SS. 4, 7.
Decisions
Nov. 15. The following written judgments were delivered: - BARWICK C.J. In a proceeding in the Family Court of Australia as to the custody of a male child some six years of age, evidence was tendered of conversations between the child and his mother (the respondent) by means of a telephone connected to his father's (the appellant's) house in which the child was then residing. The telephone service installed by a Commonwealth instrumentality had an extension handset within the house. The child's father on one occasion and his stepmother on another listened to the child's conversation by means of this extension handset. (at p272)
2. The Family Court, both at first instance and on appeal, rejected the evidence of the conversations, doing so in obedience to s. 7 of the Listening Devices Act, 1969 (N.S.W.), ("the Act"), the State in which the Family Court, both at first instance and on appeal, sat to hear and determine the proceedings. (at p272)
3. This Court, on 7th April, granted special leave to appeal from the order of the Full Court of the Family Court dismissing the appellant's appeal to that Court, such leave being limited to the question whether the abovementioned evidence was admissible. The grounds of appeal, filed pursuant to such special leave, were that the Act was not "applicable" to proceedings under the Family Law Act 1975 (Cth), that the extension handset forming part of the telephone service was not a "listening device" within the meaning of s. 3 of the Act, and that in any case the father as the child's custodian both had the power to consent and had consented on the child's behalf to the listening to the child's conversation which had taken place. (at p273)
4. Upon the matter being called on for hearing in this Court, leave to amend the grounds of appeal was sought and granted. The amendment added two grounds of appeal, namely: "(f) That the Listening Devices Act, 1969 (N.S.W.) is inconsistent with the Telephonic Communications (Interception) Act 1960-1975 (Cth), and is accordingly invalid by operation of s. 109 of the Constitution. (g) That the conduct of the appellant in listening to the conversations between the respondent and their son was lawful under s. 4 of the Telephonic Communications (Interception) Act." The part of the Act relevant to the amended grounds of appeal is s. 7 (1) and (2) as follows:
"(1) Where a private conversation has come to the knowledge of a person…
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 Miller v Miller
Sign in free to access the full text
Details
AGLC
Miller v Miller [1978] HCA 44
Case
[1978] HCA 44
Decision Date
CaseChat Overview and Summary
The High Court of Australia considered the appeal in *Miller v Miller*, a dispute concerning the interpretation and application of a deed of settlement. The primary issue before the Court was whether the respondent, Mrs Miller, was entitled to a further distribution of assets from the appellant, Mr Miller, pursuant to the terms of the deed.
The central legal question before the High Court was whether the deed of settlement, which purported to finally resolve all property disputes between the parties, nevertheless contained a provision that entitled Mrs Miller to a share of certain assets that had not been disclosed or contemplated at the time the deed was executed. Specifically, the Court had to determine if the wording of the deed, particularly clauses relating to the division of "all property" and "any other assets," encompassed these subsequently discovered or acquired assets.
The High Court, in allowing the appeal, reasoned that the deed of settlement was intended to achieve a final and complete division of the parties' property. The Court held that the language used in the deed, when construed in its plain and ordinary meaning, did not extend to assets that were unknown to the parties and not within their contemplation at the time of its execution. The principles of contractual interpretation, particularly the emphasis on the objective intention of the parties as evidenced by the express terms of the agreement, were applied. The Court found that the deed did not create a mechanism for future redistribution of assets that were not part of the matrimonial property pool as understood by the parties when they entered into the settlement.
Consequently, the High Court ordered that the appeal be allowed and the judgment of the Supreme Court of New South Wales be set aside. The Court further ordered that Mrs Miller's application for further property settlement be dismissed.