Felton v Mulligan

Felton v Mulligan - [1971] HCA 39 - HCA 1971 case summary — Zoe

[59]

It certainly cannot be said generally that covenants not to take particular legal proceedings are necessarily void - the case of the ordinary covenant not to sue provides a sufficient answer to any such suggestion. The policy of the law that prevents a woman making a binding agreement not to invoke the jurisdiction of a court to order her husband to provide for her has its origin in the statutes which confer jurisdiction to make such orders. It is the policy and purpose of this jurisdiction that produces the rule that agreements purporting to oust a court from the exercise of it can be ignored. It is a mistake to speak of the ouster of a statutory jurisdiction as being against public policy regardless of the nature of the statutory rights involved. Lord Wright's statement has often been quoted: Wherever there is a question whether there can be contracting out or waiver of statutory provisions, the problem must be solved on a consideration of the scope and policy of of the particular statute: Admiralty Commissioners v Valverda (Owners) [2] . I venture to repeat what on this aspect I said in Brooks v Burns Philp Trustee Co. Ltd. [3] , and, without naming them here, to refer to the supporting authorities that I cited for the proposition that: When a statute creates and confers rights and imposes corresponding duties, persons for whose benefit this was done may by contract waive or renounce their rights, unless to do so would be contrary to the statute. It may be seen that it would be so, because of an express prohibition against "contracting out", or because the provisions of the statute, read as a whole, are inconsistent with a power to forego its benefits: or the policy and purpose of the statute may shew that the rights which it confers on individuals are given not for their benefit alone, but also in the public interest, and are therefore not capable of being renounced. If the question that Helsham J. had to consider had been whether the applicant was precluded from enforcing the covenant of her former husband on the ground that her doing so would be a contravention of the Matrimonial Causes Act 1959, I would have no doubt that his Honour was concerned with a matter arising under a law made by the Commonwealth Parliament. But, as will appear, I do not think the question for us is so simply answered. 1. (1859) 4 H. & N. 643, at p. 649 [157 E.R. 993, at p. 996]. 2. (1746) 1 Wils. K.B. 129 [95 E.R. 532]. 3. (1743) 2 Atk. 569 [26 E.R. 741]. 4. (1799) 8 T.R. 139 [101 E.R. 1310]. 5. (1856) 5 H.L.C. 811 [10 E.R. 1121]. 6. (1944) 69 C.L.R., at p. 80. 7. [1938] A.C. 173, at p. 185. 8. (1969) 121 C.L.R., at p. 456.

[63]

Cases arising under the laws of the United States are such, as grow out of the legislation of Congress, within the scope of their constitutional authority, whether they constitute the right, or privilege, or claim, or protection, or defence, of the party, in whole or in part, by whom they are asserted. Translated into our Constitution this would mean that whenever a defence or answer based on a Commonwealth law is tendered as stating an issue for decision in a case that matter arises under Commonwealth law. Story's view was accepted in the United States when our Constitution was enacted. It was adopted by this Court as early as 1907: Baxter v Commissioners of Taxation (N.S.W.) [1] ; and Miller v Haweis [2] . And it has not I think been departed from. That a more restricted view is perhaps now taken in the United States need not weigh with us. The words of our Constitution, "any matter arising", are at least as extensive as the United States form, "all cases in law and equity arising". But I do not suggest that merely because some Commonwealth law lies behind a question that comes before a State court that court is then exercising federal jurisdiction. I adhere to what I wrote in Anderson v Eric Anderson Radio & T.V. Pty Ltd [3] and repeat without repentance these sentences: Federal and State jurisdiction may overlap and be exercised concurrently. But a State court does not exercise federal jurisdiction whenever it has to apply or take into consideration some law made by the Parliament of the Commonwealth as part of the body of law that binds it. Every Australian court, State or federal, is bound by all laws validly made by the Parliament of the Commonwealth. As a reinforcement of that I quote from the judgment of Cardozo J. delivering the opinion of the Supreme Court of the United States in Gully, State Tax Collector for Mississippi v First National Bank in Meridian [4] . Denying that that was a case arising under the laws of the United States, he said [5] , "Not every question of federal law emerging in a suit is proof that a federal law is the basis of the suit". It is not so if "The most one can say is that a question of federal law is lurking in the background" [6] . 1. (1907) 4 C.L.R. 1087, at pp. 1136-1137. 2. (1907) 5 C.L.R. 89, at p. 93. 3. (1965) 114 C.L.R. 20, at p. 45. 4. (1936) 299 U.S. 109 [81 Law. Ed. 70]. 5. (1936) 299 U.S., at p. 115 [81 Law. Ed., at p. 73]. 6. (1936) 299 U.S., at p. 117 [81 Law. Ed., at p. 74].

[70]

If the only question in this case had been the effect of the deed as executed, I would consider that the applicant is not debarred from access to the Privy Council. But the case did not turn simply upon the deed as made between the parties. It was submitted to the judge exercising the matrimonial causes jurisdiction for the sanction of the court. On making the decree nisi for divorce he made and signed a note "I sanction the agreement": and the formal decree nisi states this. Whether the present suit should be treated as raising the question of the rights of the applicant under the order of the Divorce Court or as confined to a claim under the deed I need not, in the view I take, determine. I do not find it necessary to say more than that the efficacy and enforceability of the provisions of the deed cannot I think be properly debated or determined on appeal regardless of the Divorce Court's express sanction and approval of it and the incorporation of its provisions in that Court's order. The effect of that was a matter which to my mind arose directly under a law of the Parliament as it turns on the construction and operation of the Matrimonial Causes Act. It is said that by reason of the decision of this Court in Shaw v Shaw [1] and the judgments in that case in the Supreme Court, [2] , this case did not fall within s. 87 (1) (k) of that Act. I am not persuaded of that, nor do we have to decide whether it is so or not. I do not mean to hold that the proceedings in the Supreme Court in Equity were a "matrimonial cause" as defined by s. 5 of the Act. That at first sight seems a far-fetched proposition: but it is arguable that once a court exercising jurisdiction under the Act sanctions an agreement by deed in lieu of an order for maintenance, then any kind of proceeding to enforce the provisions of the deed can fall within the terms of pars. (c) and (d) of the definition of "matrimonial cause". However, I express no final opinion as to the effect of the order made by the Supreme Court in the exercise of the jurisdiction with which it was invested by the Matrimonial Causes Act. All that I say is that it is a question that must arise on any appeal in this case. It is not a question that is lurking in the background. It stands on the threshold. Before it could be said that the deed was void as against public policy it was necessary to decide whether or not it was saved from annihilation by the sanction of the Supreme Court. That is a question that arises under the Act, a matter of federal jurisdiction, and it is to my mind inseparably and inescapably involved in the case. It is not a question, like that in Miller v Haweis [3] , which could be by-passed to determine the case.

[75]

When federal jurisdiction is given to a State court and the jurisdiction which belongs to it is not taken away, we see no difficulty in that court exercising either jurisdiction at the instance of a litigant. [3] I do not think that this should be read as meaning that a court invested with federal jurisdiction, and adjudicating upon a matter arising directly under a Commonwealth Act, carr at the dictation of a litigant declare itself as not bound by the conditions on which the jurisdiction is conferred upon it. The passage can I think be read as a recognition that in some cases a litigant may base his claim either expressly on a Commonwealth statute, say the Trade Marks Act, or on some concurrent jurisdiction under State law, say to restrain passing-off. It may be that in its context it means more than that. If so I can only say that I do not think that we are to read this sentence as standing in the place of the words of the Judiciary Act. We should accept the exposition of the passage that Dixon J. proffered in Ffrost v Stevenson [1] . In most cases where there is a conflict between rights, whether of appeal or otherwise, arising under federal and State law the question is resolved by s. 109 of the Constitution. In other cases it seems to me that the difficulty need not really arise. The existence of federal jurisdiction depends upon the grant of an authority to adjudicate rather than upon the law to be applied or the subject of adjudication. But once a court is duly seised for adjudication of a matter arising under a Commonwealth law, it seems to me impossible to say that it is not exercising federal jurisdiction and that the provisions of s. 39 (2) of the Judiciary Act are not to apply. The difficulties of federal jurisdiction are I suppose inherent in what it has become the fashion to call the "autochthonous expedient", the expression that this Court used in Reg. v Kirby; Ex parte Boilermakers' Society of Australia [2] . It is a mistake to suppose that investing State courts with federal jurisdiction is an unprecedented homegrown Australian arrangement. The United States Congress at an early date invested State courts with jurisdiction to enforce some federal laws. Then came a period during which this practice was abandoned. Then it was revived. State courts there have an obligation to administer federal criminal laws. Illustrations of these statements, which I need not amplify, may be found in the Congressional publication, The Constitution of the United States of America, Analysis and Interpretation (1964 ed.), pp. 725-727. 1. (1921) 29 C.L.R., at p. 252. 2. (1937) 58 C.L.R. 528, at p. 573. 3. (1956) 94 C.L.R. 254, at p. 268.

[76]

The contrasts of our judicial arrangements with those of the United States are as striking as their similarities. The statesmen who brought together the independent communities, formerly British colonies in America, as a federation, the United States of America, were captivated in their thinking by the dominant political philosophy of the time. The new Government that they created must, they considered, be expressly given as separately recognized functions its own executive, legislative and judicial powers. The manner in which this was stated has been broadly copied into our Constitution. But in the United States it was thought that the Union should have its own system of courts to administer and enforce federal law. This seemed to the framers of our Constitution to be both unnecessary and undesirable. The arguments that Hamilton had urged in The Federalist , No. 81, against entrusting to State courts jurisdiction to give effect to federal laws had no corresponding force in Australia. The American concept of federal law as a separate system and of federal jurisdiction was really alien to our conditions. Courts in the Australian colonies were before federation linked by the authority of the Privy Council. Subject to the Colonial Laws Validity Act, they administered, as the law of the land in each colony, statute law of the Imperial Parliament along with the inherited law and the statutes of their own Parliaments. Upon federation s. 5 of the Constitution Act made all valid laws made by the Commonwealth Parliament "binding on the courts, judges and people of every State and of every part of the Commonwealth". This and s. 109 of the Constitution assured the paramountcy of federal law. As Higgins J. noticed in Lorenzo v Carey [1] , the effect of s. 39 of the Judiciary Act was really to withdraw from State courts a jurisdiction to apply federal laws which they would have had by s. 5 of the Constitution Act, and then to restore it sub modo as an invested federal jurisdiction. This arrangement was autochthonous. It derives its efficacy from s. 77 (iii.) of the Constitution and involves the importation into the judicial system of Australia of the words "federal jurisdiction" and the concept they embody. Although I think that that has led to needlessly complex and abstruse legalism, I realize that the weight of authority and the words of the Constitution prevent us discarding it. I am not free to suggest that. Accepting it, so far as I must, I reach the conclusion that the element of federal jurisdiction in this case precludes the applicant appealing to the Privy Council.

[88]

It seems remarkable that this Court should be called upon to hear, in its original jurisdiction, an application based upon the Order in Council, which does not itself confer any authority to make an order upon any court other than the Supreme Court. But the decisions of this Court have laid down principles which appear to me to establish the propriety, not only of the removal of such an application into this Court, but also of its being heard and decided by this Court when it has been so removed. The Commonwealth Parliament has power to enact, and has enacted, provisions which preclude an appeal as of right from the Supreme Court to the Privy Council in matters of federal jurisdiction. In a case to which those provisions apply the Supreme Court is bound to refuse an application relating to such an appeal: see The Commonwealth v Limerick Steamship Co. Ltd. [1] . From that it does not necessarily follow that this Court may hear and decide at first instance an application under the Order in Council, which was made under the authority of Imperial legislation and which provides for the making of such applications to the Supreme Court. In The Commonwealth v Kreglinger & Fernau Ltd. [2] , this Court was dealing, as it was in the Limerick Steamship Co. Ltd. Case [1] , with an appeal from an order of the Supreme Court granting leave. Therefore, the question of the original jurisdiction of this Court in such matters did not arise directly for consideration. But the view was expressed by Isaacs J. that s. 40A operated to remove into this Court any application for leave to appeal in which an "inter se question" arose. It was there argued [3] that ss. 38A and 40A of the Judiciary Act apply only in cases with which this Court would have jurisdiction to deal on the merits and that therefore they could not apply to an application for leave to appeal to the Privy Council since, it was said, this Court had no authority under the Order in Council to grant the application. Isaacs J. said [4] :

[89]

The cause as it then stood was removed into this Court, not for the purpose of exercising any of the powers of the Supreme Court under the Order in Council, but for the purpose of determining whether s. 39 (2) (a) was operative or not in insisting that no appeal lay except to this Court. If yes, then the application must be dismissed as incompetent. If no, then "the cause" could be fairly said to be one that should be remitted to the Supreme Court to be dealt with. It appears that Isaacs J. accepted the view that if this Court decided that s. 39 (2) (a) did not apply, it would not itself make an order granting leave to appeal. I am of opinion that if a cause has been properly removed into this Court, either by an order under s. 40 or by force of s. 40A, this Court has power to deal with it, so as to dispose of the matters in dispute and to give such judgment and make such order as may appear right upon the facts and the law: see O'Neill v O'Connell [5] . The contrary view which had been taken earlier, e.g. in R. v Maryborough Licensing Court; Ex parte Webster & Co. Ltd. [6] , has not prevailed. In my opinion in the present case this Court has power to grant the application or to refuse it. That power is not given directly by the Order in Council itself. It depends upon the combined operation of the Constitution, the relevant provisions of the Judiciary Act and the Order in Council. The curtailment by s. 39 (2) (a) of the rights given by the Order in Council was a valid exercise of Commonwealth legislative power. So also was the enactment of s. 40 of the Judiciary Act: see Ex parte Walsh and Johnson; In re Yates [1] . The foundation for the authority of this Court to deal with the "cause" is that it involves the interpretation of the Constitution. Once it is clothed with that authority, this Court may do whatever is necessary for the complete adjudication of the cause and therefore it may exercise any relevant power which the Supreme Court would have had, whatever may be the source of that power. I do not think that the view should now be accepted that the Order in Council itself has no application whatever to federal jurisdiction. That view was expressed by Isaacs and Rich JJ. in the Limerick Steamship Co. Ltd. Case [2] . That would mean that, even if s. 39 (2) (a) had not been enacted, no orders could be made pursuant to the Order in Council in cases in which federal jurisdiction had been exercised. I do not think that is so. But I am satisfied, for the reasons stated, that this Court may deal finally with this application. 1. (1924) 35 C.L.R. 69. 2. (1926) 37 C.L.R. 393. 3. (1924) 35 C.L.R. 69. 4. (1926) 37 C.L.R., at pp. 398-399. 5. (1926) 37 C.L.R., at p. 420. 6. (1946) 72 C.L.R. 101, at pp. 116, 125. 7. (1919) 27 C.L.R. 249. 8. (1925) 37 C.L.R. 36. 9. (1924) 35 C.L.R., at pp. 105, 109.

[93]

In the suit which was heard by Helsham J. the applicant asked for a declaration that she "is entitled to be paid by the defendants, as executor and executrix respectively of the estate of the late Hans Peter Oser deceased the sums of money in accordance with the fourth covenant contained" in the deed. In an affidavit in support of the originating summons she stated that since 27th April 1967 no payments had been made to her, either under the fourth covenant of the deed, or under the order made on 25th October 1961, and that the defendants had maintained that they are not under any obligation to pay to her any amount of maintenance, either under the covenant or under the fourth of the orders made on 25th October 1961. In his reasons for judgment Helsham J. referred to difficulties that stood in the way of the making by the applicant of a claim to enforce the order and said that, as a result, she was thrown back on to the express provisions of the deed [3] . In these circumstances, it may be suggested that in the suit the applicant put forward two distinct claims, one based upon the order of the Court and the other upon the personal covenant and that, although it was recognized that she would not succeed at first instance upon the former claim, it would nevertheless be open to her to maintain it on appeal. If that were so, I think that the suit would be, so far as it included that claim, a "matrimonial cause" within the meaning of s. 5 and s. 8 of the Act and for that reason a decision in the suit would be a decision made in the exercise of federal jurisdiction. On the assumption now being considered, the dismissal of the suit involved necessarily a decision that the order could not be enforced by the applicant against the respondents. However clearly it may have appeared to Helsham J., having regard to authorities by which he was bound, that the applicant could not succeed upon a claim under the order, a decision to that effect could not have been made otherwise than by the exercise of the federal jurisdiction with which the Supreme Court is invested by s. 23 (2) of the Matrimonial Causes Act and which is expressly made subject, by s. 23 (3), to the conditions and restrictions specified in s. 39 (2) of the Judiciary Act, so far as they are applicable. But I am of opinion that, when regard is had to the previous litigation between the parties, the originating summons should be understood as making one claim only, namely a claim to be entitled to payment under the deed. In Felton (formerly Oser) v Oser [1] what was actually decided was that the court could not make an order, in proceedings brought after the divorce suit had abated by reason of the death of the husband, rectifying the earlier order made in that suit. But the court made it plain that it was of opinion that the maintenance order which had been made in the suit against the husband did not remain operative after his death. It was an order which bound the husband personally and could have no continuing effect beyond his lifetime. The court based that view upon statements made in this Court in Johnston v Krakowski [2] . Whether or not that was a correct view, it was known when the originating summons was issued that it was a view that had been taken by the Court of Appeal and had been taken earlier by several members of this Court. The proceedings to obtain rectification of the order had been taken on the assumption that, as it stood, it could not be enforced against the executors as an order imposing a continuing obligation to make the weekly payments. That view had been confirmed by the reasons for judgment of the Court of Appeal, which had indicated also that the applicant could recover the payments under the deed. If, in spite of all that had happened previously, the applicant had been advised to bring proceedings based upon the order itself, it can hardly be supposed that this would have been done without any prior application under s. 104 (2) of the Matrimonial Causes Act or that the suit would have been expressed to be brought in the Supreme Court of New South Wales in Equity and would have been instituted in accordance with the procedure appropriate to that jurisdiction of the Court. I am of opinion that the originating summons should be construed as not including a claim based on the order.

[98]

An objection which may be urged against that view may be stated as follows. Section 39 (2) grants federal jurisdiction in the matters in which this Court has original jurisdiction or may have original jurisdiction conferred upon it, that is to say, the matters enumerated in ss. 75 and 76 of the Constitution. If jurisdiction were to be conferred in general terms upon this Court in all matters arising under any laws made by the Parliament, it would be essential that from the moment of the institution of the proceedings it should be known whether this Court had jurisdiction or not. Therefore, the federal nature of the matter must be apparent from the claim itself. It would not be possible to allow the question of jurisdiction to remain in abeyance, so to speak, until all the issues were known. But I am of opinion that such arguments cannot lead to the conclusion that the invested federal jurisdiction of a State court can never be attracted by a matter raised by way of defence. The difficulty which is posed by the arguments in relation to the jurisdiction of this Court is perhaps of theoretical rather than of practical significance. But, in any event, it cannot be decisive, in my opinion, of the question whether the federal jurisdiction, with which the State courts have been invested, may become exercisable by reason of matters raised by a defence. I am of opinion that it may be attracted by a defence or by an answer which is made to a defence if a "title, right, privilege, or immunity", upon which the defence or its rebuttal is founded, is given by and depends upon the Constitution or upon a Commonwealth law. In a prosecution based upon a State law, if the defence is raised that the defendant is immune by reason of s. 92 of the Constitution from any obligation under that law, the State court exercises federal jurisdiction and, consequently, an appeal lies from its decision to this Court pursuant to s. 39 (2) (b) of the Judiciary Act. In such cases it is only because the defence raises a constitutional question that the jurisdiction which is exercised is federal: see e.g. Western Interstate Pty Ltd v Madsen [1] . See, also, in relation to a defence relying upon s. 109 of the Constitution, Collins v Charles Marshall Pty Ltd [2] .

[106]

But, in my opinion, there was a more fundamental question concerning the operation of the Matrimonial Causes Act than the questions relating to s. 87 (1) (k), although those latter questions were relevant in considering the fundamental question. The contention that the covenant was void has been said, on behalf of the applicant, to be based upon an established general rule that an attempt by agreement to oust the jurisdiction of the courts will not be recognized and enforced. But clearly there is no rule of universal application that parties to litigation may not bind themselves by an agreement settling the terms of an order which a court is to be asked to make. Agreements are commonly made to compromise an action and to ask the court to give a verdict or a judgment for an agreed amount and such agreements are recognized and enforced. I am of opinion, therefore, that the question whether the courts will treat as void an agreement not to invoke the jurisdiction of the court or an agreement by a party to litigation not to seek more than a specified amount must depend upon the nature of the right which would be denied or restricted if the agreement were enforced. I am of opinion, also, that when the right is based upon a statute, its nature and the freedom or lack of freedom to forego it in whole or in part must be determined by reference to the statute. Although there may not be in the statute any express provision that such an agreement shall or shall not be valid, it has to be determined whether or not the intention of the statute was that the right given by it to approach a court and to seek the exercise of its discretion in the making of an order must not be extinguished or fettered. If that is the intention of the statute, any agreement which conflicts with it will not be recognized or enforced. There is weighty authority for the view that that is the basis upon which, in relation to statutory rights of certain kinds, it has been held that it would be against public policy to enforce an agreement to forego them. The statute itself has been regarded as conferring the right as a matter of public policy and not as a private benefit. In support of that statement it is sufficient to refer to Davies v Davies [1] ; Hyman v Hyman [2] ; and Lieberman v Morris [3] . I do not think it is a valid objection to the proposition which I have just affirmed to say that a general rule has been established that any Act which provides for orders for the maintenance of wives or children or widows is incapable of being restricted as to its operation by agreement or that this general rule may be applied without examining the provisions of a particular Act under which maintenance is claimed, unless it should appear that it contains an express provision to the contrary. That would be to say that the court will always make the same assumption as to the intention and the policy of an Act providing benefits of that kind. But the intention of an Act can be ascertained only by examining it. If it contains no express provision upon the subject then "the problem must be solved on a consideration of the scope and policy of the particular statute": see Admiralty Commissioners v Valverda (Owners) [4] , cited by Latham C.J. in Lieberman v Morris [5] .

[128]

The applicant's claim to a declaration was founded on the deed and on the deed alone. It is true that the deed was entered into by the applicant and Oser, who was then her husband, while a suit for the dissolution of the marriage was pending and that the deed expressly provided that upon the pronouncement of a decree nisi the parties would consent to certain orders, including an order in terms of the fourth covenant, and that the applicant would submit the deed to the Court for its sanction on the hearing of the suit. Moreover the Court when making a decree in fact purported to sanction the deed and made orders in terms of certain of the covenants of the deed, including the fourth covenant. However, in the proceedings before Helsham J., the applicant did not seek to enforce against the respondents any order made by the Court. It was said in Johnston v Krakowski [2] , by some members of the Court whose views may have commended themselves to a majority, that the obligation created by an order made under the Matrimonial Causes Act 1959 (as amended) (Cth) requiring one party to a marriage to make periodic payments of maintenance to the other party ceases when the former party dies, at least so far as payments yet to fall due are concerned, and although it is unnecessary to pause to consider whether those remarks went beyond what was necessary for the purposes of the decision, and, if so, whether they are correct, it is understandable that the applicant should have regarded them as a formidable obstacle to the enforcement of the order itself, and her conduct in applying (although unsuccessfully - see Felton (formerly Oser) v Oser [3] ) to rectify the decree nisi by inserting an order that the fourth covenant of the deed be security for the payment of the maintenance suggests that she regarded it as necessary that the order should be secured if it were to be enforceable after the death of the former husband. Whether or not the applicant formally conceded that the order was not enforceable against the respondents, it is impossible to treat the originating summons as an attempt to enforce it. The right which the applicant sought to have declared depended entirely on the deed and derived no support from the order which the Court had made in terms of the deed.

[134]

The terms of par. (i.) show that a matter may arise under the Constitution without involving its interpretation, and that a case may involve the interpretation of the Constitution without arising under the Constitution. Paragraph (ii.) is limited to matters arising under federal statutes, and does not extend to matters involving the interpretation of such statutes if they do not arise thereunder. This variation in language supports the view that, in order to bring a matter within s. 76 (ii.) - which is the relevant provision in the present case - the inquiry to be made is not whether the determination of the matter involves the interpretation of a federal law. The relevant inquiry is whether the matter arises under the law. Thus one is compelled to the conclusion that a matter may properly be said to arise under a federal law if the right or duty in question in the matter owes its existence to federal law or depends upon federal law for its enforcement, whether or not the determination of the controversy involves the interpretation (or validity) of the law. In either of these cases, the matter arises under the federal law. If a right claimed is conferred by or under a federal statute, the claim arises under the statute. What Latham C.J. there decided was that a matter may arise under a law of the Parliament, notwithstanding that no question of the interpretation or validity of the law is involved. It follows from his reasoning, which, with respect I find most persuasive, that a matter does not arise under a law of the Parliament simply because the interpretation of the law is involved in the case and it was so held in Collins v Charles Marshall Pty Ltd [1] . The observation of Windeyer J. in Anderson v Eric Anderson Radio & T.V. Pty Ltd [2] , that "a State court does not exercise federal jurisdiction whenever it has to apply or take into consideration some law made by the Parliament of the Commonwealth as part of the body of law that binds it", is completely consistent with these decisions. I regard it as now settled that a matter cannot be said to arise under a law made by the Parliament within s. 76 (ii.) simply because to decide the matter it is necessary to consider or construe the law. To adapt some of the language used in James v South Australia [3] , in relation to s. 30 of the Judiciary Act, it may be said that a matter arises under a law made by the Parliament when a right, title, privilege or immunity is claimed under that law. A right, title privilege or immunity may be claimed under a law, either because the law is the source of the right, title, privilege or immunity or because the right, title, privilege or immunity can only be enforced by virtue of the law. 1. (1945) 70 C.L.R. 141, at p. 154. 2. (1955) 92 C.L.R., at p. 540. 3. (1965) 114 C.L.R., at p. 45. 4. (1927) 40 C.L.R. 1, at p. 40.

[137]

The question then is whether the respondents' submission that the fourth covenant in the deed is unenforceable raised a matter arising under the Matrimonial Causes Act. Upon analysis that submission is seen to involve a number of subsidiary issues. First, it must be determined as a matter of construction whether the deed does contain an undertaking by the applicant not to seek any benefits by way of maintenance except those provided by the deed. The second question is whether such an undertaking, if found to be expressed or implied in the deed, is unenforceable. If so, a third question arises, whether the fourth covenant by Oser is also unenforceable because the failure of the applicant's promise causes the whole deed to fail. These questions may be expressed in other forms of words, but what I have said indicates the general nature of the issues involved. Plainly the first and third of these questions in no way depend upon the provisions of the Matrimonial Causes Act. If there is a matter arising under that Act it must be raised by the second question. It may be assumed that the deed contains a promise by the applicant not to invoke the jurisdiction of the court in respect of maintenance, at least in respect of any greater amount than that fixed by the deed. It is sometimes said that an agreement by which a wife renounces a statutory right to apply to a court for maintenance is void or unenforceable as being contrary to public policy: see Bennett v Bennett [1] ; Brooks v Burns Philp Trustee Co. Ltd. [2] . If the covenant is rendered unenforceable because it is contrary to public policy it cannot be said that the invalidity of the agreement has its source in any statute, for the rules as to public policy form a part of the principles of the general law: see Egerton v Brownlow (Earl) [3] . However this is a field in which principles of public policy and questions of statutory construction may run together. Sometimes when it has been held that a person was not precluded from making an application to the court by reason of having covenanted not to do so, the decision has been explained by saying that such a covenant is not binding if the jurisdiction has been conferred on the court not merely in the interests of private individuals but in the interest of the public and that whether this is so or not depends "on a consideration of the scope and policy of the particular statute": see Lieberman v Morris [4] . Put in another way, the question is whether the statute confers a right which it is impossible by covenant to exclude or barter away: Hyman v Hyman [5] . Viewed in this light, "the public interest was simply an element in the determination of the nature of statutory rights", as Windeyer J. said in Brooks v Burns Philp Trustee Co. Ltd. [6] . It is true that the scope and policy of a statute may be discerned without any close consideration of the details of its provisions, but the question nevertheless depends upon the effect of the statute. In the present case, therefore, the respondents' argument on the second of the questions mentioned may be supported on two different, but not unrelated, grounds: (1) that an agreement not to seek increased maintenance is contrary to public policy; (2) that the Matrimonial Causes Act confers a right to apply for maintenance of such a kind that it is not permissible by covenant to renounce it. The argument therefore involves the interpretation of the Matrimonial Causes Act, but the authorities to which I have referred show that this does not mean that the matter arose under that Act. It may be conceded that if the question for determination in the present case were whether the applicant had the right to apply to a court for an order for maintenance under the Matrimonial Causes Act, there would be a matter arising under that Act. But assuming that a matter may be raised by way of defence within a proceeding, the matter raised in the present case - "the subject matter for determination" (In re Judiciary and Navigation Acts) - is whether the fourth covenant in the deed is unenforceable. In my opinion it is not correct to say that this matter arises under a law made by the Parliament. The contention that the covenant is unenforceable rests on the principles of the general law, although in applying those principles it does become necessary to consider whether the Matrimonial Causes Act confers a right of a particular kind. The nature of the right conferred by the Act does not constitute the subject matter for determination but is only a subordinate question involved in the decision of a different matter. The Act does not give rise to the defence that the fourth covenant is unenforceable, and the procedure used to establish the defence owes nothing to the Act. For these reasons, although the case is by no means free from difficulty, I have reached the conclusion that Helsham J. was not called on to decide a matter arising under a law made by the Parliament. I should add that I regard it as clear that the fact that it was necessary to consider the effect of s. 87 (1) (k) did not mean that the matter arose under the Act.

At a glance

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Decision date

Before

Source

Judgment (142 paragraphs)

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