Phyllis Maude Caroline Florence Jones v Lester John Jones

[1928] HCA 2

315

4( > C.L.R.] OF

AUSTRALIA.

schools under these words as to “ charitable purposes,” neither was C. of a .

J. ^ ^ O *

it meant to exempt schools under the words in Act No. 25.

Chr ist

I am of the opinion that the appeal must be dismissed.

College

Tru st

V.

Gava n D u f f y J.

I agree that the appeal should be dismissed.

H ob.ort Corpora­

Appeal dismissed %oith costs.

t io n .

Solicitors for the appellant, Butler, McIntyre & Butler. Solicitors for the respondent, Russell Young & Butler.

B. L.

[HIGH COURT OF AUSTRALIA.]

PHYLLIS MAUDE CAROLINE FLORENCE )

A p p l ic a n t ;

J O N

E S ....................................................\

LESTER JOHN JONES .

R e s p o n d e n t .

Execution of Process— Writ of attachment—Leave to execute in another State— H. C. of A.

Application to High Court after refusal of application by Supreme Court—

1928.

Discretion— Service and Execution of Process Act 1901-1924 (No. 11 of 1901—

No. 2fi of 1924), sec. VJ— The Constitution (63 cC- 64 Viet. c. 12), secs. ' I klbournk,

51 (XXIV.), (XXV.), 118.

^'^^Mar ' '

All application pursuant to sec. 19 of the Service and Execution of Process

Act 1901-1924, for leave to execute in Victoria a writ of attachm ent issued Lsaacs, Higgins,

out of the Supreme Court of New South Wales, having been refused by ^Sterke^U

the Supreme Court of Victoria, an application under the same section was made

for leave of a Justice of the High Court to execute the writ in any State other

than New South Wales.

------

Held, by Knox C.J., Isaacs, Powers and Starke J J ., that the High Court ought not to make an order which had been refused by a Court of co-ordinate jurisdiction in the matter on facts identical with those brought before the High Court.

Per Htggins J. : The High Court should not refuse to hear the appboation on its merits, as the order applied for was not the same as that refused by the Supreme Court.

316

HIGH COURT

[1928.

H. C. OF A.

R e f e r e n c e .

1928.

On 7th September 1923 the Supreme Court of New South Wales

J on esin its matrimonial causes jurisdiction made an order for the payment of

V.

J o n e s .alimony by Lester John Jones to Phylhs Maude Caroline Florence

Jones. On 21st October 1927, on the ex parte appHcation of Mrs. Jones, a writ of attachment was issued out of that Court against Lester John Jones for his contempt in faihng to pay the sum of £116, being arrears of such ahmony. At the time the writ was issued Lester John Jones was in New South Wales; but he subsequently went to

Victoria.

While he was there Mrs. Jones, on 8th November 1927,

apphed to the Supreme Court of Victoria, on summons, pursuant to sec. 19 of the Service and Execution of Process Act 1901-1924 for the leave of a Judge of that Court to execute the writ of attachment in Victoria. The summons was referred to the Full Court, which by a majority [Mann and Washy JJ ., Irvine C.J. dissenting) refused to grant the leave : Jones v. Jones (1).

On 16th December, while Lester John Jones was still in Victoria, an appHcation was made to Higgins J. by Mrs. Jones on smnmons in the High Court for leave to execute the writ of attachment in any State other than New South Wales or in any other part of the Commonwealth. The learned Judge made an order that the questions involved in the summons be argued before the Full Court of the High Court, and the matter now came on for argument.

Claude Robertson, for the appHcant. The High Court has jurisdiction under sec. 19 of the Service and. Execution of Process Act 1901-1924 to grant the leave asked, and it should grant the leave in the circumstances of this case. The fact that the Supreme Court of Victoria has refused an appHcation to grant leave to execute the writ in Victoria should not prevent this Court from now granting the leave asked (see In re George (2) ; O’Donnell v. Heshp (3) ). The application which was refused by the Supreme Court of Victoria was to allow the writ to be enforced in Victoria only; here the appHcation is to allow the writ to be enforced in any part of the Commonwealth other than New South Wales.

(1) (1928) V.L.R. 24; 49 A.L.T. 107.

(2) (1909) V.L.R. 15; 30A.L.T. 113.141.

(3) (1910) V L R. 162 ; 31 A.L.T. 173.

40 C.L.R.] OF AUSTRALIA.

317

Hogan,'ioi the respondent.

This Court has no authority under R- C- of A.

sec. 19 to grant the leave when it has already been refused by the

Supreme Court.

J ones

V.

[Starke J. referred to Godman v. Moses (1).]

J o n es .

Even if it has, the jurisdiction should not be exercised where a Court which in this matter is a Court of co-ordinate jurisdiction has, upon substantially the same materials, dealt with the matter. No reliance can be placed on the fact that the leave refused by the Supreme Court was to execute the writ in Victoria whereas the leave now asked is to execute the writ in any part of the Common­ wealth other than New South Wales, for upon the evidence the only order this Court could make is to permit execution of the writ in Victoria.

Claude Robertson, in reply, referred to Judiciary Act 1903-1926, sec. 35 (1) (a) ; Smith’s Weekly Publishing Co. v. Myerson (2).

Cur. adv. mdt.

The following written judgments were delivered :—

Mar. 5.

Knox C.J., Isaacs, Powers and Starke JJ. This was an application under sec. 19 of the Service and Execution of Process Act 1901-1924 for leave of a Justice of this Court to execute in any State other than New South Wales a writ of attachment issued by the Supreme Court of New South Wales in its divorce jurisdiction. The application was made to our brother Higgins and by Irim referred to the Full Court.

Before making this application, substantially the same apphcation had been made for the leave of a Judge of the Supreme Court of Victoria. That application was referred to and refused by a Full Court of the Supreme Court of the State. I t is true that the earlier application was for leave to execute the writ in Victoria while the present application is for leave to execute it in any State other than New South Wales, but this discrepancy is whoUy immaterial in \dew of the fact that no case is made on the affidavits filed in this Court for the execution of the writ in any State other than Victoria.

(1) (1900) 09 L.J. y.B. 823.

(2) (1924) 34 C.L.R. 141.

.318

HIGH COURT

[1928,

H.	C. OP A.Without deciding whether this Court has jurisdiction in the circum­
1928. stances to grant the leave applied for, we are clearly of opinion

J onesthat this Court ought not to entertain the apphcation, having regard

V.

J o n es .to the fact that an apphcation for the same order has been previously

Knox C.J. made to a Court of co-ordinate jurisdiction in this matter founded

Isaacs J.

Powers J. on facts identical with those brought before this Conrt and has been

Starke J.

refused by that Court.

In our opinion the summons should be dismissed.

H ig g in s J. I regret to find myself differing from my learned colleagues on this prehminary objection. I t should fail, in my opinion. I t is said that because an apphcation made to a Judge of the Supreme Court of Victoria for leave to execute this New South Wales writ of attachment in Victoria has been refused, this apphcation to a Justice of this High Court of Austraha for leave to execute the writ in any fart of the Commonwealth other than New South Wales should also be refused. The apphcations are not for the same th ing; and it is clear law that there can be no plea of res judicata upheld unless an order made in the second apphcation would be in a direct collision with an order made in the first. There is no estoppel by res judicata unless the very order sought in the new proceedings was also sought in the former {Moss v. Aiujh- Egyftian Navigation Co. (1) ). I t is not sufficient even to show that the same evidence supports the two apphcations {R. v. Barron (2) ). In particular if (as in this case) the decision of the Victorian Court turned on some distinctive practice of that Court, it is not right that this Court should refuse to exercise its jurisdiction unencumbered by such practice {Sfencer Bower on Res Judicata,

Supreme Court, by a majority, dismissing the apphcation for leave to execute the writ in Victoria, as being justified. The apphcant is not attempting to flout the Victorian Court, but simply asks the Australian Court to exercise its own jurisdiction, as it seemed difficult to succeed in an appeal from the Victorian Court’s exercise of discretion.

p.

123).

(1) (1865) L.R. 1 Ch. 108, a t pp. 114-116.

(2) (1914) 2 K.B. 570, at pp. 574-576.

40 C.L.R.] OF AUSTRALIA.

319

H. C. or A.

This writ of attachment is dated 21st October 1927. It was issued in a divorce suit by the New South Wales Supreme Court,

1928.

and at a time when the respondent was in New South Wales. It

J ones

V .

is founded on an alleged contempt of that Court in failing to pay J o n es .

alimony to the petitioning wife—ahmony which was ordered.

•Higgins J.

According to the evidence, uncontradicted, the respondent evaded apprehension under the writ and left New South Wales for Victoria on 22nd October. On 8th November a summons was issued for leave of a Judge of the Supreme Court to execute the writ in Victoria. This summons was referred to the Full Court; and on 1st December the Full Court, by a majority of two to one, refused to give the leave. On 12th December a summons was issued in this Court, under sec. 19 (1) of the Commonwealth Service and Eocecution of Process A d 1901-1924 ; and this summons is referred to the PuD Court.

Now, by sec. 19 of that Act, it is provided that “ (1) When a writ of attachment has been issued against any person by a Court of Record of a State or a Judge thereof for a contempt of the Court or disobedience of an order thereof, such writ may (a) by leave of a Justice of the High Court be executed in any other State or fart of the Commonwealth; or (6) by leave of a Judge of the Supreme Court of any other State be executed in such other State.” By sub-sec. 2, the leave is to be endorsed on the writ, and it shall be sufficient authority to the Marshal (where the leave is given by the High Court) to apprehend such person and bring him before the New South Wales Court. Our jurisdiction to give the leave to execute the writ in any part of the Commonwealth outside New South Wales is, therefore, express : why shall we refuse to exercise this jurisdiction, to consider the apphcation on its merits ?

If the matter be considered on its face, without looking at the reasons of the Victorian Court, the refusal of that Court may have been based on some reason pecuhar to the Victorian Court—e.g., there may not be sufficient evidence that the respondent is in Victoria.

But if the reasons of the Victorian Court be examined, it turns out that the majority of the Judges in that Court thought the writ should not be enforced in Victoria because, by the Victorian practice, a writ of attachment cannot be issued on an ex parte

320 HIGH COURT

[1928.

H. C. O F A.

application ; and this writ of attachment was granted, it appears,

1928.

on an ex parte application. Assuming that the Victorian Court

J on es

V.was right in refusing leave on such a ground—(there is no appeal

J o n es .from the Victorian Court before us) — such a ground is surely

no objection in the Commonwealth Court; we cannot submit to have our duty measured by the Victorian yardstick. The question for us is : if there had been no application to the Victorian Court for an order limited to Victoria, are there sufficient reasons for granting an application made to this Court for an order limited to Australia (other than New South Wales) ?

Higgins J.

It may not be necessary for the purpose of the preliminary objection to consider the full effect of sec. 118 of the Constitution, taken with sec. 51 (xxiv.) and (xxv.); but I am strongly inclined to think that we have no right to refuse to exercise our jurisdiction under sec. 19 because a State Court has refused to make an order which is different, though analogous, under its separate, independent jurisdiction. The jurisdiction is as separate and independent as if it were conferred by a different Act. Sec. 118 of the Constitution is based on an article of the United States Constitution, under wMcli it has been held that the words do not relate to evidence merely, but make the findings of the earlier Court conclusive as to rights {Mills v. Duryee (1) ). Sec. 51 (xxv.) of our Constitution allows provision to be made as to evidence, and (xxiv.) allows provision to be made for execution throughout the Commonwealth of the State processes and judgments. I think that imder sec. 19 of this Act, taken with sec. 118 of the Constitution, we ought to give effect to the laws of the States whether we approve of them or not and that the granting of leave should be the rule, the refusal the exception. The order made ex parte for the writ of attachment can, admittedly, be set aside by the New South Wales Court if made wrongly. If indeed we should find that the order for the -writ was made without due authority of the State Legislature, the leave should be withheld; and there may be other reasons for withholding leave. Unless due cause be shown to the contrary, we should endeavour to render the judicial process of any State effectual in other States as against persons who, as here, are evading the State’s process by leaving the

(1) (1813) 7 Cranch 481.

40 C.L.R.] OF AUSTRALIA.

321

State.

The real effect of refusing to exercise our jurisdiction is to H-

assist the respondent in evading the payment of the alimony

ordered, and merely because the Victorian law requires notice of

J ones

V.

any apphcation for an attachment in Victorian suits.

J o n es .

My opinion is that we should proceed notwithstanding the

Higgins J.

preliminary objection.

Summoyis dismissed with costs.

Sohcitor for the apphcant, W. H. Drew, Sydney, by Crisp <Sc Crisp.

Sohcitors for the respondent, P. J. Ridgeway <& Schilling.

Coni

B. L.

f *

Raufy

\ra m

Coiuintction

Piytldv

* wk>I19M)2

OdRTB

[HIGH COURT OF AUSTRALIA.]

SUMMERS .A p p e l l a n t

;

P l a in t if f ,

COCKS

R e s p o n d e n t .

D e f e n d a n t ,

ON APPEAL FROM THE SUPREME COURT OF

WESTERN AUSTRALIA.

Vendor and Purchaser—Contract—Sale of hotel—Specific performance— Orounds for

H . C. o r A.

refusal— Hotel deprived of licence— Vendor’s conduct— Want of candvur on part

1927.

of vendor— Discretion of Court—Damages— Licensing Act 1911-1922 (W .A.)

{No. 32 of 1911—No. 39 of 1922), secs. 84-95.

P e r t h ,

Sept. 12, 13,

In December 1926 S. sold to C. certain land in Western Australia on which

14.

was a hotel in respect of which S. held a publican’s licence for the year 1927.

Sy d n e y ,

Possession was to be given to the purchaser on 12th January 1927.

On 11th

Nov. 22.

January the Licences Reduction Board, pursuant to powers conferred by

sec. 84 of the Licensing Act 1911-1922 (W.A.) enabling it to reduce the number

of licences in the State, summoned S. to show cause why the hotel should

Starke JJ.

VOL. XL.

21