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Posner v Collector for Inter-state Destitute Persons (Vic)

Posner v Collector for Inter-state Destitute Persons (Vic)

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Case Copied 18 December 1946 62 min read

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74 CLR 461

COLLECTOR FOR INTER-STATE DESTITUTE

PERSONS (VICTORIA)

ON APPEAL FROM THE SUPREME COURT OF Husband and Wife-Maintenance of deserted wife-Enforcement in Victoria of order

made in another State-Validity of order-Order made in absence of husband- Process not served Maintenance Acts 1928-1938 (Vict.) (No. 3722-4550) Part IV., Div. 3-Married Women's Protection Act, 1922 (W.A.) (No. 28 of 1922), 88. 2, 4, 5, 12, 14, 18-Justices Act 1902-1936 (W.A.) (No. 11 of 1902 No. 11 of 1936), 88. 56, 57, 135.

In 1941 an order for the payment of a weekly sum for the maintenance of his wife was made against the defendant by a court of summary jurisdic- tion at Perth (W.A.), where he then resided. The defendant did not appear, but the summons in the proceedings was indorsed with a statement that he had been served personally. In fact he had not been served, and he had no knowledge of the proceedings until January 1946. In that month the defendant, who had come to reside in Victoria, was proceeded against in a court of petty sessions at Melbourne under Part IV., Div. 3, of the Maintenance Acts 1928-1938 (Vict.), and, notwithstanding an objection on his behalf that the Western-Australian order had been made without jurisdiction, an order was made against him in accordance with Part IV., Div. 3, for the enforcement of payment of the arrears due under the Western-Australian order.

Held, by Latham C.J., Starke, Dixon and McTiernan JJ. Williams J. dissenting), that the fact that the defendant had not been served with the summons in the Western-Australian proceedings did not render the order made in those proceedings null and void; under the Justices Act 1902-1936 (W.A.) the Western-Australian court had jurisdiction to determine the fact of service, and by reason of S. 57 of that Act the indorsement on the summons was sufficient evidence of service the order, therefore, was not made without jurisdiction, and, unless and until set aside by appropriate proceedings in Western Australia, it could properly be made the subject of proceedings under Part IV., Div. 3, of the Victorian Act and, by Starke, Dixon and McTiernan

74 CLR 462

462

HIGH COURT JJ., that in the circumstances of the case the order of the court of petty sessions at Melbourne had been rightly made, but, by Latham C.J., that an order should not have been made against the defendant under Part IV. Div. 3, unless he had first been afforded a sufficient opportunity of taking proceedings in Western Australia to have the original order set aside, and be had not in fact been afforded such an opportunity.

Decision of the Supreme Court of Victoria (Gavan Duffy J.), affirmed. (VICT.).

APPEAL from the Supreme Court of Victoria.

On 24th October 1941 an order for the payment of £2 a week for the maintenance of his wife was made against the defendant, Mordka Hirsch Posner, by a court of summary jurisdiction at Perth (W.A.), where he then resided. The defendant did not appear,…

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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Details

Case: [1946] HCA 50
Decision Date: 18 December 1946

CaseChat Overview and Summary

The case of *Posner v Collector for Inter-state Destitute Persons (Vic)* involved an appeal to the High Court of Australia from a decision of the Supreme Court of Victoria. The dispute concerned the enforcement in Victoria of a maintenance order made in Western Australia. The appellant, Mordka Hirsch Posner, argued that the Western Australian order was invalid because he had not been personally served with the summons for the original proceedings, and therefore the Western Australian court lacked jurisdiction. The respondent, the Collector for Inter-State Destitute Persons, sought to enforce the order under Victorian legislation.

The central legal issues before the High Court were: firstly, whether the failure to personally serve the summons in the Western Australian proceedings rendered the maintenance order a nullity, thereby depriving the Western Australian court of jurisdiction; and secondly, if the order was not a nullity, whether it could nevertheless be refused enforcement in Victoria on grounds of natural justice or due to the lack of prior opportunity for the appellant to challenge the order in Western Australia. The Court was also required to consider the scope of the Victorian Maintenance Acts in enforcing orders from other Australian states.

A majority of the High Court (Latham C.J., Starke, Dixon, and McTiernan JJ., with Williams J. dissenting) held that the fact of non-service did not render the Western Australian order void. They reasoned that under the Western Australian Justices Act, the court of summary jurisdiction had the authority to determine the fact of service, and the indorsement on the summons constituted prima facie evidence of service. Therefore, the court had jurisdiction to make the order, and it was not a nullity unless set aside by appropriate proceedings in Western Australia. The majority further held that the Victorian Maintenance Acts provided a mechanism for enforcing such orders, and the initial stage of making an order enforceable in Victoria was ministerial, not judicial, meaning principles of private international law regarding foreign judgments were not directly applicable at that point.

However, Latham C.J. also found that the enforcement of the order in Victoria, particularly the order for immediate payment and imprisonment in default, should not have been made without affording the appellant a sufficient opportunity to seek to have the original Western Australian order set aside. Starke, Dixon, and McTiernan JJ. concluded that the order of the Court of Petty Sessions in Melbourne had been rightly made in the circumstances. The appeal was ultimately allowed in part, with the order of the Supreme Court and the Court of Petty Sessions being set aside, and the case remitted for rehearing to allow the appellant an opportunity to seek an adjournment to pursue proceedings in Western Australia to challenge the original order.

Orders