Section 13A of the Deserted Wives and Children Act provides " (1) Where an order has been made under S. 7 for the support of a wife or child the magistrate may grant a certificate
stating the amount due under the order at the date thereof; (2) The person entitled to receive the money ordered to be paid may file
such certificate in the Supreme and the Prothonotary
shall enter judgment for such person for the amount stated to be due on the certificate judgment may be enforced in any manner in which a final judgment in an action may be enforced."
Held that the judgment SO obtained, not being a final judgment recovered in an action, was not a final judgment within the meaning of S. 52 (j) of the Bankruptcy Act 1924-1950 (Cth.), and a bankruptcy notice could not be issued in respect of it.
Ex parte Chinery; In re Chinery, (1884) 12 Q.B.D. 342; Onslow v. Inland Revenue Commissioners, (1890) 25 Q.B.D. 465; In re Binstead Ex parte Dale, (1893) 1 Q.B. 199; In re a Bankruptcy Notice; Ex parte Official Receiver, (1895) 1 Q.B. 609, applied.
Decision of the Federal Court of Bankruptcy (Clyne J.) reversed. * The relevant provisions of S. 52 (j) of the Bankruptcy Act 1924-1950 are set out in the judgment of Dixon and Williams JJ., at pp. 371, 372 (post).
APPEAL from the Federal Court of Bankruptcy, District of New South Wales and the Australian Capital Territory.
On 4th October 1949, at the Children's Court, Ryde, a magistrate made, under the provisions of the Deserted Wives and Children Act 1901-1939 (N.S.W.), an order that James McDougall Opie should pay to his wife, Ida Opie, the sum of £10 a week for her main- tenance and the sum of £2 a week for the maintenance of a child of the marriage. On 21st September 1950, as the result of two variations made by the Court of Quarter Sessions, Parra- matta, of the order made in her favour, the wife had become entitled to maintenance at the rate of £11 a week, and also on the same date there were pending in the Children's Court, Ryde, an application by the husband to vary the order for maintenance and two summonses issued by the wife against the husband for dis- obeying the order for maintenance.
Under S. 13A (1) of the Deserted Wives and Children Act the wife obtained a certificate from a stipendiary magistrate in which were set forth particulars as to the name of the complainant and of the defendant the court at…
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.
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AGLC
Opie v Opie [1951] HCA 47
Case
[1951] HCA 47
Decision Date
CaseChat Overview and Summary
This case concerned an appeal from the Federal Court of Bankruptcy regarding the validity of a bankruptcy notice. The appellant, James McDougall Opie, sought to set aside a bankruptcy notice issued by his wife, Ida Opie, which demanded payment of £261 12s. 6d. This sum represented arrears of maintenance ordered under the *Deserted Wives and Children Act 1901-1939* (NSW), for which a certificate had been obtained and subsequently filed in the Supreme Court of New South Wales, leading to the entry of a judgment. The primary dispute revolved around whether this judgment constituted a "final judgment" for the purposes of issuing a bankruptcy notice under section 52(j) of the *Bankruptcy Act 1924-1950* (Cth).
The legal issues before the High Court were whether the judgment entered in the Supreme Court pursuant to a magistrate's certificate under section 13A of the *Deserted Wives and Children Act* was a "final judgment" within the meaning of section 52(j) of the *Bankruptcy Act*, and consequently, whether a bankruptcy notice could validly be issued based upon it. The appellant argued that such a judgment was not final because the underlying maintenance order could be varied, suspended, or discharged, and that the judgment itself was merely a mechanism for enforcing the order rather than a definitive resolution of a legal action.
The High Court, in allowing the appeals, reasoned that a "final judgment" for the purposes of section 52(j) of the *Bankruptcy Act* referred specifically to a judgment obtained in an action, which definitively ascertains or establishes a pre-existing liability. Drawing on established English case law, the Court held that a judgment entered under section 13A of the *Deserted Wives and Children Act*, while enforceable like a final judgment, was not a judgment recovered in an action. Instead, it was a statutory mechanism to facilitate the enforcement of maintenance orders, which retained the characteristic of being subject to variation. Therefore, it did not meet the strict definition of a final judgment required to found a bankruptcy notice.
Consequently, the High Court set aside the orders of the Federal Court of Bankruptcy. The bankruptcy notice was set aside, and the petition for sequestration was dismissed.