Riebe v Riebe [1957] HCA 66

High Court of Australia Dixon C.J. Webb and Taylor JJ. Riebe v Riebe [1957] HCA 66

ORDER Appeal allowed. Order of the Full Court of the Supreme Court of Western Australia discharged. In lieu thereof order that the appeal to the Supreme Court be dismissed with costs. Restore the judgment of Jackson J. The appellant's costs of the appeal to this Court to be paid by the respondent Riebe.

Cur. adv. vult.

The Court delivered the following written judgment:—

Oct. 15 Dixon C.J., Webb and Taylor JJ.

This is an appeal from an order of the Full Court of the Supreme Court of Western Australia reversing a judgment of Jackson J. which dismissed an action for dissolution of marriage. Before the Full Court of the Supreme Court an objection was taken that under the law of Western Australia no appeal lies from a judgment dismissing an action for dissolution of marriage. The law of Western Australia relating to divorce and matrimonial causes is now embodied in the Matrimonial Causes and Personal Status Code 1948 (No. 73 of 1948). The long title of this statute is "An Act to amend and codify the law relating to matrimonial causes and to declarations of personal status and for other purposes incidental thereto". Part V of that Act is headed "Right of appeal, rehearing and new trial". The Part begins with s. 51 (1). That section provides that every order for dissolution of marriage or nullity of marriage or judicial separation or any other order made in any intervention proceeding or by way of ancillary relief in any action may be appealed against on grounds of fact or law or both by any party bound by the order within three calendar months of the date of the order. The sub-section goes on to enact a proviso that there shall be no appeal from any final dissolution of marriage by any party who failed to appeal against any order nisi on which such order was founded unless such failure be due to such party having had no knowledge that the action had been taken, or, if the fact of the action having been taken did come to his knowledge, he did not have reasonable opportunity of appealing and defending his rights or contesting any fact in issue raised against him. Sub-section (2) of s. 51 deals with procedure and principles affecting the appeal. Section 52 states the power of the Full Court in exercising its appellate jurisdiction. It will be seen that this provision does not extend to orders or judgments refusing relief by way of dissolution or nullity of marriage except in so far as they may be made in intervention proceedings. As the statute is a code it was contended that the provisions relating to appeals which it contained were exhaustive and that it was impossible to look elsewhere to find such a right of appeal. Before the passing of the Matrimonial Causes and Personal Status Code 1948 W.A. the jurisdiction of the Supreme Court in Matrimonial Causes was contained in Pt. VI of the Supreme Court Act 1935 W.A.. That statute was itself an Act to consolidate and amend the law relating to the Supreme Court. Part VI, Div. 5, contained provisions for appeals in matrimonial causes. Section 111, which is the first section of that division, provided that subject to rules of court, and as thereinafter provided, the Full Court should have jurisdiction to hear and determine an appeal from every judgment, decree, and order made by the judge in a matrimonial cause, whether in court or in chambers. Other sections of the division provide for new trials, for the powers of the court to be exercised on appeal, and for the making of rules of court imposing conditions and restrictions in relation thereto. Section 114 provides that no appeal from an order absolute for dissolution or nullity of marriage shall lie in favour of any person who, having had time and opportunity to appeal to the Full Court from the decree nisi on which such order may be founded, shall not have appealed therefrom. As will be seen, that is the precursor of the proviso to s. 51 of the Matrimonial Causes and Personal Status Code 1948 W.A.. It will be observed that s. 111 accorded full right of appeal to either party in a matrimonial cause. That is to say an appeal lay against the grant of relief and an appeal lay against the refusal of relief. Prima facie the repeal of Pt. VI of the Supreme Court Act and its replacement only by s. 51 of the Matrimonial Causes and Personal Status Code 1948 would seem to mean that the right of appeal against the refusal of relief had gone. But to avoid this result reliance has been placed upon other provisions of the Supreme Court Act.