Connolly v Connolly [1966] HCA 47

High Court of Australia Barwick C.J. McTiernan, Taylor, Menzies and Owen JJ. Connolly v Connolly [1966] HCA 47

ORDER This cause having been removed to this Court by the operation of s. 40A of the Judiciary Act 1903-1960 order as follows:—

(1) Declare that s. 92 of the Marriage Act 1961 is a valid law of the Commonwealth.

(2) Further declare that the order sought by the applicant, James Thomas Connolly, is an order that could be made by the Supreme Court of New South Wales under the said s. 92.

(3) Order pursuant to s. 45 of the Judiciary Act 1903-1960 that the cause be remitted to the Supreme Court of New South Wales for hearing and determination.

(4) Order that each party should bear his or her own costs of the proceedings in this Court.

Cur. adv. vult.

The Court delivered the following written judgment:—

Barwick C.J., McTiernan, Taylor, Menzies and Owen JJ.

Upon proceedings by a husband in the Supreme Court of New South Wales, which were in substance an application pursuant to s. 92 (1) (b) of the Marriage Act 1961 Cth for a declaration that a child was a legitimated person, counsel for the wife—who was the respondent to the application—challenged the validity of s. 92 of the Marriage Act. A question as to the limitation inter se of the constitutional powers of the Commonwealth and the State having arisen, the cause was removed to this Court by virtue of the Judiciary Act 1903-1960 Cth, s. 40A.

The argument advanced on behalf of the respondent was that s. 92 is so widely expressed that it authorizes applications in matters not arising under any law made by the Parliament, with the consequence that it is not a law investing the Supreme Court of a State with federal jurisdiction in a matter within s. 76 (ii.) of the Constitution. It was further argued that s. 15A of the Acts Interpretation Act Cth was not sufficient warrant for construing s. 92 as limited to applications for declarations of legitimacy by virtue of laws made by the Parliament.