Cominos v Cominos

[1972] HCA 54

High Court of Australia|1972-07-01|Before: Mason JJ, Menzies JJ, McTiernan J, Walsh J

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Source facts

Court

High Court of Australia

Decision date

1972-07-01

Before

Mason JJ, Menzies JJ, McTiernan J, Walsh J

Source

Original judgment source is linked above.

Judgment (85 paragraphs)

[1]

High Court of Australia McTiernan, Menzies, Walsh, Gibbs, Stephen and Mason JJ. Cominos v Cominos [1972] HCA 54

[2]

ORDER The question whether ss. 84, 86, 87 (1) and 125 of the Matrimonial Causes Act 1959-1966 Cth are invalid is answered: No. Order that the cause be remitted to the Supreme Court of South Australia and that the petitioner's costs of and incidental to the determination of the said question be paid by the respondent to the petitioner.

[3]

This matter is in this Court by by virtue of s. 40A of the Judiciary Act. A suit for divorce and other relief, including permanent maintenance, the settlement of property, and costs, was commenced by the petitioner against the respondent in the Supreme Court of South Australia. In that Court, the respondent challenged the validity of certain sections of the Matrimonial Causes Act 1959-1966 Cth - the Act - namely, ss. 84, 86, 87 (1) and 125. Accordingly, a question arose as to the limits inter se of the powers of the Commonwealth and the States. The cause was accordingly removed to this Court. It came on for hearing before the Full Court, and the question having been raised concerning argument of the cause before the Full Court, an application was made under s. 18 of the Judiciary Act to a single Justice to direct that the inter se question involved be argued before the Full Court. This direction was given by McTiernan J. and, accordingly, the question for the Full Court is the validity of ss. 84, 86, 87 (1) and 125 of the Act.

[14]

In Reg. v. Trade Practices Tribunal; Ex parte Tasmanian Breweries Pty. Ltd. [3] , Kitto J. expressed the opinion that the power to determine whether restrictions or practices of certain kinds described in the Act then under consideration were contrary to the public interest was a power to determine a question which did not depend upon the application of an ascertained criterion or of any objective test or standard supplied by the legislature. He considered that the question was whether the restrictions or practices satisfied a description the content of which had no fixity and which referred the tribunal ultimately "to its own idiosyncratic conceptions and modes of thought". His Honour cited [1] the passage I have quoted above from Reg v. Spicer; Ex parte Waterside Workers' Federation of Australia [2] . It has been submitted that the statements made in those two cases, referring to tests and standards by which a discretionary power is to be governed, support the view that in the relevant provisions of the Act there has been such a failure to direct the court concerning the tests by reference to which its powers are to be exercised that in making orders pursuant to those provisions it cannot be said to be exercising judicial power. But it is quite incorrect, in my opinion, to say that in exercising its powers under those provisions (assuming they are valid, the court is at liberty to act in an arbitrary way or is at liberty to give effect (in the phrase used by Kitto J. [3] ) to "its own idiosyncratic conceptions and modes of thought". The court is not at liberty, in making under s. 84 (1) of the Act such order "as it thinks proper" or in making under s. 86 (1) of the Act an order requiring a party to make such a settlement of property as it considers "just and equitable in the circumstances of the case", to act upon broad policy considerations, unrelated to the facts of the particular case or to what is adjudged appropriate to the means, interests and needs of the parties to the marriage or the children of the marriage.

[44]

The existence of some judicial discretion to apply or withhold the appointed legal remedy is not necessarily inconsistent with the determination of such a matter in the exercise of the judicial power of the Commonwealth. But it is perhaps necessary to add that the discretion must not be of an arbitrary kind and must be governed or bounded by some ascertainable tests or standards. Similarly, in Reg. v. Trade Practices Tribunal; Ex parte Tasmanian Breweries Pty. Ltd. [2] , Kitto J., speaking of powers conferred on the Tribunal set up by the Trade Practices Act 1965-1968 Cth, said: To confer a power of discretionary judgment as to whether a restriction or practice has a specified quality may be to confer judicial power, but only if the quality is so described that its existence is to be judged by applying an objective test or standard supplied by the legislature. It was submitted that by each of the impugned sections of the Act the Parliament has attempted to confer on the court a discretion which is arbitrary rather than one which must be exercised in accordance with ascertainable or objective tests or standards laid down in the legislation itself. It is true that s. 84 requires the court, in considering an application for an order for maintenance, to have regard "to the means, earning capacity and conduct of the parties to the marriage and all other relevant circumstances", but it was said that the words "all other relevant circumstances" would allow the court to have regard to any other matters which it deemed to be relevant, and thus give the court a virtually unfettered discretion as to what matters might be considered. For example, it was said, Parliament has not declared whether it would be a relevant circumstance that one or other of the parties to an application for maintenance is in receipt of a pension, or has potential rights as a claimant under testator's family maintenance legislation or has the custody of the children of the marriage. Section 86, unlike s. 84, does not expressly refer to any matters to which the court should have regard in the exercise of its discretion but, provided that the specified conditions for its exercise exist, leaves it to the court to do what it considers "just and equitable", and it was submitted that the section grants in wide and vague terms an extensive power to vary proprietary rights without giving any guide as to the manner in which the discretion is to be exercised. Section 87 (1) gives a power to make other orders, but, it was said, places no restriction on the kind of order that may be made. Section 125 gives the court power to make such orders for costs as it thinks just. It was said that all these sections leave the court free to make its decision by giving effect to considerations of social policy and that the powers attempted to be conferred are legislative rather than judicial. 1. (1957) 100 C.L.R. 312, at p. 317. 2. (1970) 123 C.L.R. 361, at p. 377.

[45]

These arguments were addressed with especial force to s. 86 and it is therefore convenient first to turn to consider that section. The nature of the power which s. 86 confers was discussed in Lansell v. Lansell [1] . It was there made clear that an order for settlement of property under s. 86 may be made only as a form of incidental relief in a substantive proceeding, actual or completed, of a kind described in par. (a) or (b) of the definition of matrimonial cause in s. 5 (1) of the Act. In other words, the section gives power to make only such orders as are ancillary or incidental to proceedings that are incontestably judicial proceedings. The power given is, of course, conferred only upon a court. It is to be exercised in the course of a controversy between parties and not by the court upon its own motion but in proceedings instituted as required by s. 68 (3) of the Act and, of course, after both parties have had an opportunity to be heard. The order of the court, although subject both to variation (s. 87 (1) (j)) and appeal (s. 92) is, while it stands, binding and effective (s. 94 and s. 5 (2) decree). The power is thus one that is exercised as an incident to judicial proceedings, it is committed to a court and a judicial process is prescribed for its exercise. It can hardly be doubted that such a power is itself judicial (cf. Reg. v. Davison [2] ). It is true that in determining an application under s. 86 the court, after deciding such questions of fact and law as have arisen, is called upon to make a discretionary judgment. The discretion, although wide, must, as was said by Windeyer J. in Sanders v. Sanders [3] , "be exercised according to accepted principle, for what is just and equitable in this jurisdiction is not a matter of unfettered individual opinion". It is not a discretion of an arbitrary kind. The standard imported by the familiar words "just and equitable" is "by no means foreign to the judicial function" (cf. Steele v. Defence Forces Retirement Benefits Board [4] nor is it "so indefinite as to be insusceptible of strictly judicial application" (cf. Reg. v. Commonwealth Industrial Court; Ex parte The Amalgamated Engineering Union, Australian Section [5] ). It is also true that s. 86 enables the court to create new rights and impose new duties and not merely to enforce legal right already existing, but the fact that a court is authorized to create or alter rights and not merely to declare and give effect to pre-existing rights does not necessarily show that the powers conferred are not judicial powers: Peacock v. Newtown Marrickville and General Co-operative Building Society No. 4 Ltd. [1] .