Viant v Viant - [1955] HCA 40

94 CLR 347

possessed over disputes confined to its own borders " 1. Much the same thing was said by O'Connor J. in the same case 2.

THE QUEEN

These observations, which are by no means conclusive of the question in this case, do however serve to indicate the special character of the arbitral functions of the Commonwealth Court of Conciliation and Arbitration. They bear little, if any, resemblance to executive or legislative functions as generally conceived; on the contrary, both in their nature and exercise they present a number of features which are characteristic of judicial functions. These considerations, coupled with the fact that the combination in one tribunal of both arbitral and limited judicial authority is and has been for over half a century a well-recognized concept, induce me to think that, unless there is to be found in the Constitu- tion any clear provision or implication which denies to the legislature the right to combine these two functions in a court constituted under SS. 71 and 77 (i.), the prosecutor's submissions must fail. While I am conscious of the weight of the arguments advanced by the prosecutor they have failed to convince me that there is to be found in the Constitution any implication which, in the face of the special character of the power conferred by par. (xxxv.), could

SO operate. Accordingly I am of the opinion that the order nisi should be discharged.

Order absolute for a writ of prohibition prohibiting

further proceedings upon the order dated 31st May 1955 and the order dated 28th June 1955 made by the Commonwealth Court of Conciliation and Arbitration. The respondent the Metal Trades Employers' Association to pay the prose- cutor's costs. Solicitors for the prosecutor, Maurice Blackburn &Co. Solicitor for the respondent judges of the Court of Conciliation and Arbitration and for the Attorney-General of the Commonwealth intervening by leave, D. D. Bell. Crown Solicitor for the Common- wealth.

Solicitors for the respondent Metal Trades Employers' Associa- tion, Salwey &Primrose.

1(1909) 8 C.L.R., at pp. 526-527. 2(1909) 8 C.L.R., at p. 504.

94 CLR 348

[ ] VIANT

VIANT AND ANOTHER

RESPONDENTS. DEFENDANTS, Matrimonial causes-Dissolution of marriage-Unreasonable delay-Delay of thirty-

two years-Exercise of discretion- Matrimonial Causes Act 1929-1941 (S.A.) (No. 1946 of 1929-No. 51 of 1941), 8. 12 (1) (b).

In an action by a husband for dissolution of marriage on the grounds of adultery and desertion, it appeared that the husband had delayed for thirty- two years before commencing the action. Throughout this period the wife had been living with the co-defendant and they had several children, all of whom were now grown up. The husband had appeared completely indifferent to whatever life the wife might live. He had no desire to re-marry. He was led to commence the action for dissolution by a request made to him by his wife's brother, who induced him to commence proceedings by interviewing a solicitor with him and by accepting personal responsibility for the costs…

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.

Continue reading Viant v Viant

Details

AGLC: Viant v Viant [1955] HCA 40
Case: [1955] HCA 40
Decision Date: 18 July 1955

CaseChat Overview and Summary

This case involved an appeal by a husband against the dismissal of his divorce action by the Supreme Court of South Australia. The husband sought dissolution of his marriage on the grounds of adultery and desertion, which were established by the evidence. However, the trial judge refused the divorce, finding the action to be collusive and the husband to be suing without good faith and guilty of unreasonable delay. The spouses had been married in 1918 and separated in 1920, with the husband subsequently learning of his wife's adulterous relationship and their subsequent children. Despite this knowledge, the husband took no action for thirty-two years until prompted by his wife's brother, who agreed to cover the costs of the proceedings.

The legal issues before the court were whether the husband's thirty-two-year delay in commencing divorce proceedings constituted unreasonable delay, and whether the arrangement for the payment of costs rendered the action collusive. The court was required to consider the exercise of discretion by the trial judge in refusing the divorce on these grounds. The Matrimonial Causes Act 1929-1941 (S.A.) provided for unreasonable delay as a discretionary bar to relief.

The court affirmed the trial judge's decision, holding that the husband had been guilty of unreasonable and culpable delay. The court reasoned that the unreasonableness of delay is not solely determined by its duration but must be culpable, indicating acquiescence, condonation, indifference, or insincerity. In this instance, the husband's prolonged inaction and apparent indifference to his wife's circumstances demonstrated a complete lack of concern, falling short of consent to the indefinite continuation of the situation. While the trial judge also considered the arrangement regarding costs to be collusive, the court found it unnecessary to definitively rule on this point, as the unreasonable delay alone provided sufficient grounds to uphold the refusal of the divorce. The court emphasised that the discretion to grant or refuse divorce must be exercised with due regard for the public interest in maintaining respect for marriage and established standards of conduct.

The appeal was dismissed, and the decision of the Supreme Court of South Australia was affirmed.

Orders