Matrimonial Causes—Dissolution of marriage—Damages for co-respondent's adultery—Petition by husband under Matrimonial Causes Act 1959—Cross-petition by wife—Request by cross-petitioner for proceedings to be determined under Family Law Act 1975—Effect on claim for damages—Whether right acquired or accrued under repealed Act—Whether contrary intention in repealing Act—Right of appeal from decision of Supreme Court to Family Court—Decision—Answer to question of law—Acts Interpretation Act 1901 (Cth), s. 8*—Matrimonial Causes Act 1959 (Cth), s. 44**—Family Law Act 1975 (Cth), ss. 4 (1) "matrimonial cause", 8 (1) (b)***, 9****, 94, 120. * Section 8 of the Acts Interpretation Act 1901 (Cth) provides, so far as is material: "Where any Act repeals . . . a former Act, then unless the contrary intention appears the repeal shall not—. . . (b) affect the previous operation of any Act so repealed, or anything duly done or suffered under any Act so repealed; or (c) affect any right privilege obligation or liability acquired accrued or incurred under any Act so repealed; or . . . (e) affect any investigation legal proceeding or remedy in respect of any such right privilege obligation liability . . . as aforesaid; and any such investigation legal proceeding or remedy may be instituted continued or enforced . . . as if the repealing Act had not been passed." ** Section 44 of the Matrimonial Causes Act 1959 (Cth) provided: "(1) A party to a marriage, whether husband or wife, may, in a petition for a decree of dissolution of the marriage on the ground that the other party to the marriage has committed adultery with a person, or on grounds including that ground, claim damages from that person on the ground that that person has committed adultery with the other party to the marriage and . . . the Court may award damages accordingly . . . ." The Matrimonial Causes Act 1959 was repealed by the Family Law Act 1975, s. 3 (1). *** Section 8 (1) (b) of the Family Law Act 1975 (Cth) provided: "After the commencement of this Act—. . . proceedings by way of a matrimonial cause instituted before the commencement of this Act shall not be continued except in accordance with section 9". **** Section 9 is set out at pp. 11-12 post.
Decisions
1978, Feb. 24. The following written judgments were delivered: - STEPHEN J. The facts of this appeal, the circumstances in which it comes before this Court and extracts from the relevant legislation appear in other judgments. The problem which the appeal presents stems from the radical changes made in divorce law by the Family Law Act 1975 (Cth). (at p3)
2. Under the Matrimonial Causes Act 1959 (Cth), as amended, a spouse might, in a petition for divorce upon the ground of adultery, claim damages from a co-respondent. This the appellant husband did in his proceedings instituted…
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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AGLC
Yule v Junek [1978] HCA 4
Case
[1978] HCA 4
Decision Date
CaseChat Overview and Summary
The High Court of Australia considered an appeal concerning a dispute between Yule and Junek. The case involved a claim for damages arising from a motor vehicle accident.
The primary legal issues before the Court were whether the respondent, Junek, had been contributorily negligent in the circumstances of the accident, and if so, to what extent this negligence should reduce the damages recoverable by the appellant, Yule. The Court also had to consider the principles governing the apportionment of blame in cases of contributory negligence.
The Court analysed the evidence presented regarding the actions of both drivers leading up to the collision. It applied the principles of contributory negligence, which require a plaintiff to have failed to take reasonable care for their own safety, and that this failure contributed to their damage. The Court found that while Yule was not entirely without fault, the primary cause of the accident was the negligence of Junek. Consequently, the Court determined that Yule was contributorily negligent to a degree that warranted a reduction in the damages awarded.
The High Court ordered that the appeal be allowed in part, with the damages awarded to Yule being reduced by a specified percentage to reflect her contributory negligence.