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Yirrell v Yirrell

Yirrell v Yirrell

Case [1939] HCA 33 17 October 1939

Jurisdiction

Statutory Construction

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62 CLR 287

YIRRELL AND OTHERS

RESPONDENTS. RESPONDENTS,

ON APPEAL FROM THE SUPREME COURT OF Maintenance-Husband and Wife-" Leave without support"--Husband in New H. C. OF

South Wales-Wife in Victoria-Order by New-South- Wales court of summary jurisdictionProhibition-Absence of jurisdiction on face of complaint--Whether on face of proceedings-Discretion of court-Deserted Wives and Children Act 1901-1931 (N.S.W.) (No. 17 of 1901-No. 33 of 1931), sec. 4-Justices Act 1902-1931 (N.S.W.) (No. 27 of 1902-No. 17 of 1931), secs. 20, 85.

Sec. 4 of the Deserted Wives and Children Act 1901-1913 (N.S.W.) provided that "in any case where

any husband or father his "wife or child without means of support

any justice may, upon complaint on oath

issue his summons requiring such husband, father, or mother to appear before two justices to show cause why he should not support such wife or child."

A complaint purporting to be made under this section alleged that " on and since the fourteenth day of December 1925 in the State of Victoria the said defendant" (the appellant in the present appeal) " has left (the respondent in the present appeal) 'without means of support." Upon this complaint a Children's Court at Sydney, New South Wales, in 1925 ordered the appellant, who resided in Sydney, to pay certain weekly amounts for the maintenance of the respondent and the children of the marriage, all of whom, both prior to the complaint, and thereafter, resided in Victoria. The only record of the order of the Children's Court was a memorandum, apparently made under sec. 85 of the Justices Act 1902 (N.S.W.), which merely set forth that the husband had been ordered to make certain payments and the manner in and the dates upon which such payments were to be made; that the legal custody of the children had been committed to the wife and that the husband

62 CLR 288

had been ordered to enter into recognizances for the due performance on his part of the order. A rule nisi for prohibition obtained in 1939 by the appellant and directed to the respondent and others was discharged by the Supreme Court of New South Wales, which held that whether there was or was not want of jurisdiction it did not appear on the face of the proceedings, SO that the court had a discretion to refuse a writ of prohibition on the ground of delay

(1) By the whole court, that the Children's Court had no jurisdiction to (2) By Latham C.J., Rich, Starke and Evatt JJ. (McTiernan J. dissenting) that the want of jurisdiction appearing on the face of the complaint was a want of jurisdiction appearing on the face of the proceedings, so that the appellant was entitled to a writ of prohibition as of right.

Per Evatt J.: The Supreme Court could, and should, have required the production of a formal order. The order would have shown upon its face that the material leaving without support of the wife was alleged to have shown the…

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 Yirrell v Yirrell

Details

AGLC: Yirrell v Yirrell [1939] HCA 33
Case: [1939] HCA 33
Decision Date: 17 October 1939

CaseChat Overview and Summary

The appellant, Mr. Yirrell, was ordered by a New South Wales Children's Court to pay maintenance for his wife and children, who resided in Victoria. The order was made by consent in 1925, following the withdrawal of a warrant for his apprehension. Mr. Yirrell had not made any payments under the order, and by 1939, significant arrears had accrued. He subsequently sought a writ of prohibition from the Supreme Court of New South Wales, arguing the Children's Court lacked jurisdiction to make the order. The Supreme Court discharged the rule nisi, holding that any want of jurisdiction did not appear on the face of the proceedings, thus leaving the grant of prohibition to the court's discretion, which it declined to exercise. Mr. Yirrell appealed this decision to the High Court.

The High Court was required to determine two primary legal issues. Firstly, whether the New South Wales Children's Court possessed jurisdiction to make a maintenance order against a husband residing in New South Wales for a wife and children residing in Victoria, based on a complaint alleging the husband left them without support in Victoria. Secondly, if the court lacked jurisdiction, whether this lack of jurisdiction was apparent on the face of the proceedings, thereby entitling the appellant to a writ of prohibition as a matter of right, or if it was a matter within the discretion of the court.

A majority of the High Court (Latham C.J., Rich, Starke, and Evatt JJ., with McTiernan J. dissenting) held that the Children's Court had no jurisdiction to make the order. The Court reasoned that the Deserted Wives and Children Act 1901 (N.S.W.) applied to cases where a wife or child was left without support within New South Wales. The complaint, which alleged the desertion occurred in Victoria, therefore failed to establish a basis for the New South Wales court's jurisdiction. Crucially, the majority found that this want of jurisdiction *did* appear on the face of the proceedings. They reasoned that the complaint, being an essential part of the proceedings, clearly demonstrated that the alleged act of leaving without support occurred outside the territorial limits of New South Wales, thus rendering the order void. The Court distinguished the situation from cases where a defect might only be revealed by extrinsic evidence, holding that a defect apparent in the initiating document itself means prohibition lies as of right.

The High Court reversed the decision of the Supreme Court of New South Wales. The majority ordered that a writ of prohibition should issue. However, in the exercise of its discretion regarding costs, the High Court ordered that Mr. Yirrell pay the costs of the respondent wife in both the Supreme Court and the High Court, acknowledging her role in supporting the maintenance order for herself and her children.

Orders