Smith v Attorney-General for Victoria Intervener

This case concerned an appeal to the High Court of Australia from a decision of the Supreme Court of Victoria. The appellant, Thomas John Smith, sought to have a decree nisi for the dissolution of his marriage made absolute. The Attorney-General for Victoria had been granted leave to intervene in the proceedings to show cause why the decree nisi should not be made absolute. The central dispute was whether the Attorney-General's entry of an appearance within the time limited by the decree nisi constituted a sufficient "showing cause" to prevent the decree from being made absolute.

The legal issues before the High Court were: (1) whether the entry of an appearance by the Attorney-General, pursuant to an order granting leave to intervene, was a sufficient compliance with section 140 of the *Marriage Act 1915* (Vic.) (as amended) to prevent a decree nisi from being made absolute; and (2) whether, if the entry of appearance was sufficient, the opposition to the decree nisi was still "pending" within the meaning of section 136 of the *Marriage Act 1915* (Vic.) even if the opposition had not been fully heard and determined by the expiry of the time limited by the decree nisi.

The High Court, by a majority, dismissed the appeal. The Court reasoned that the entry of an appearance by the Attorney-General, following an order granting leave to intervene, was a fundamental step in initiating the process of showing cause. This act signified the Attorney-General's intention to contest the making absolute of the decree nisi and constituted the commencement of the opposition. The Court held that the term "appearance" carries a historical legal meaning of entering the court as a contestant, and that this act, performed within the time limited by the decree nisi, was sufficient to satisfy the requirement of "showing cause" under section 140. Furthermore, the Court found that once this opposition was commenced, it remained "pending" until finally concluded, irrespective of whether the full hearing and determination occurred within the initial time limit set by the decree nisi.

The High Court affirmed the decision of the Supreme Court of Victoria and ordered that the appeal be dismissed with costs.