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

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.