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[1971] HCA 39
High Court of Australia
1971-07-01
Gibbs JJ
Original judgment source is linked above.
High Court of Australia Barwick C.J. McTiernan, Menzies, Windeyer, Owen, Walsh and Gibbs JJ. Felton v Mulligan [1971] HCA 39
ORDER Application for conditional leave to appeal refused. Order that the Commonwealth pay half of the costs of the applicant and of the respondent of this application and of the application under s. 40 of the Judiciary Act.
The applicant seeks leave to appeal to Her Majesty in Council from a decretal order of the Supreme Court of New South Wales dismissing a suit in Equity brought by her against the executor and executrix of her deceased husband's estate. She sought a declaration that she is entitled to be paid by the executor and executrix certain sums of money as set out in a deed entered into between the applicant and her husband. These sums of money constituted permanent maintenance agreed to be paid by the husband at a time when matrimonial proceedings under the Matrimonial Causes Act 1959 Cth were pending in the Supreme Court of New South Wales. By the deed the deceased covenanted for himself his heirs, executors and administrators to pay such sums of money during the lifetime of the applicant.
The defence to the applicant's claim was an assertion that the relevant covenant of the deed was void as being against public policy because it was said that it attempted to "oust" the jurisdiction of the Court.
The application for special leave was made to the Supreme Court (Court of Appeal Division) but was removed into this Court under s. 40 of the Judiciary Act 1901-1964 Cth upon the motion of the Attorney-General of the Commonwealth. The question for the decision of this Court is whether the decretal order dismissing the applicant's suit was made by the Supreme Court in the exercise of a jurisdiction invested in the Supreme Court by s. 39 (2) of the Judiciary Act. If it was, no appeal may be brought therefrom to Her Majesty in Council; see s. 39 (2) (a).
I have had the advantage of reading the reasons for judgment prepared in this matter by my brother Walsh. The full facts and circumstances of the case are there set out and I have no need to repeat or supplement any of them. My brother expresses his conclusion that this Court upon the removal into it under s. 40 of this application for leave to appeal has jurisdiction to entertain and to grant or to refuse the application. This is the consequence of a combination of the Constitution, the Judiciary Act and the Order in Council providing for appeals to Her Majesty in Council from judgments of the Supreme Court of New South Wales. I fully agree with this conclusion and with the reasons given by my brother Walsh for it.
The applicant's claim to a declaration might be said to be a claim with respect to the maintenance of a party to proceedings for a decree of dissolution of marriage. The matrimonial proceedings to which I earlier referred were of that kind. The Matrimonial Causes Act seems to have intended that the maintenance of a party to the matrimonial proceedings so far as the same is the subject of proceedings in a court should be the subject of a matrimonial cause within s. 8. See definition of Fmatrimonial cause in s. 5 (1) (c). Had I not other reasons for thinking that the decretal order in this case was made in the exercise of a jurisdiction invested in the Supreme Court by the Judiciary Act, I should further explore the possibility that the instant proceedings constituted a matrimonial cause as defined by the Act. However, I am prepared to consider this matter on the footing that the applicant's suit was not such a matrimonial cause, either because it did not seek relief founded upon the order for maintenance made by the Supreme Court in the suit for divorce, or because the suit for a declaration of entitlement to the payment of maintenance is not relevantly a proceeding with respect to the maintenance of a party to a completed proceeding for a decree of divorce.
The statement of claim did not seek a declaration that the deed between the parties had been validly sanctioned by the Supreme Court pursuant to s. 87 (1) (k). Thus, it cannot, in my opinion, in that respect be said itself to raise a matter arising under a law made by the Parliament: Constitution s. 76 (ii.).
On the footing of these views, the initiating process in the suit did not involve the exercise of any jurisdiction invested in the Supreme Court by s. 39 (2) of the Judiciary Act. One other matter with which I find it unnecessary to concern myself at present is the question whether the covenants of the deed merged in the order for maintenance made by the Supreme Court. The suit has proceeded on the footing that they did not.
But the jurisdiction invested in the Supreme Court by the Judiciary Act may be attracted by the defence raised to the applicant's claim for relief. If it is, the jurisdiction which is exercised by the Supreme Court throughout the case will be federal, that is to say, part of the jurisdiction invested in the Supreme Court by the Judiciary Act, unless perhaps there is some completely disparate claim constituting in substance a separate proceeding. In this connexion, I agree with my brother Walsh's analysis of the case law and with his view of the opinions expressed in the decided cases to which he refers. I further agree with the view that if federal jurisdiction is attracted at any stage of the proceedings, there is no room for the exercise of a State jurisdiction which apart from any operation of the Judiciary Act the State court would have had. In my opinion, s. 109 of the Constitution, working with the Judiciary Act, ensures that there is no State jurisdiction capable of concurrent exercise with the federal jurisdiction invested in the State court. I agree with my brother Walsh's opinion in relation to this matter and with his reasons for entertaining it.
The critical question in the case is whether the defence did involve the exercise of federal jurisdiction by the Supreme Court. It would do so if the matter before the Supreme Court became or involved by reason of the defence raised to the applicant's claim, either wholly or partly a matter arising under a law made by the Parliament, in this case the Matrimonial Causes Act: see Constitution s. 76 (ii.) and Judiciary Act s. 39 (2). Further the matter arising under a law of the Parliament will have arisen if the suit could have been disposed of by deciding the matter, whether or not the suit was so disposed of: cf. Nelungaloo Pty Ltd v The Commonwealth [1] ; The Commonwealth v Bank of New South Wales [2] . It is of course not enough that a law made by the Parliament must be construed in the course of the decision of the case. There must be a matter arising under a law of the Parliament. The contrast between the language of s. 76 (i.) and 76 (ii.) is relevant in this connexion. The point at which interpretation of the federal statute, prima facie an apparently incidental consideration, may give rise to a matter arising under the statute is not readily expressed in universally valid terms. But the distinction between the two situations must be maintained.
As I have said, the defence to the applicant's suit was that the covenant on which the applicant founded its claim to a declaration was void or perhaps, more accurately, unenforceable for want of any valid promise of the applicant to support it. The only express promise of the applicant in the deed was to consent to an order on the terms of the deed. The deed contained no express provision that the applicant should accept the covenants of the deed in lieu of her rights under the Matrimonial Causes Act. Indeed the deed provided for the making of an order under the Act. There was no express provision by the applicant not to seek a variation of the order which the deed contemplated. But it was said that the deed contained by implication a promise by the applicant not to seek such a variation, that is to say, not to invoke the court's power under the Matrimonial Causes Act to make such an order. See s. 87 (1) (f). That implied promise was said to be an attempt to "oust" the jurisdiction of the court to vary its order and therefore void "as being against public policy". As the promise of the applicant thus implied was said to form part of the consideration for the covenant on which the applicant sued and, as in any case, the implied promise could not be severed out of the deed, the promise to pay the sums of money by way of permanent maintenance was therefore unenforceable. So ran the argument. The primary judge accepted it. He found the suggested implied promise to have been made by the applicant. He did so largely under the compulsion, as he thought, of a decision of this Court. See Brooks v Burns Philp Trustee Co. Ltd. [1] .
The propriety of his Honour's acceptance of the respondent's submission is not presently before us: consequently, I withhold any comment upon his decision and upon the relevance or acceptability of this Court's decision in relation to the alleged implied covenant by the applicant. I approach the question to be decided by this Court on the assumption that upon its true construction the deed contained an implied promise by the applicant not to seek a variation of the order which according to the deed the Court would make with her consent in the matrimonial proceeding.
The Supreme Court in fact sanctioned the deed and purported to do so pursuant to s. 87 (1) (k) of the Matrimonial Causes Act. The first step in making out the defence that the applicant's implied promise was void, must therefore have been that the order in fact made in the matrimonial proceeding sanctioning the deed was invalid and ineffective. For in my opinion, it cannot be said that the covenants of a deed satisfying the terms of s. 87 (1) (k) and sanctioned by the Court are void as offending public policy.
The implied promise not to sue to vary the order for maintenance contemplated by the deed might well be said to be in substance an agreement to accept the benefits of the deed in lieu of any right to seek an order varying that order for maintenance. But it does not seem to have been so treated in the Supreme Court. The primary judge held that the order sanctioning the deed was ineffective though apparently on the concession of the applicant's counsel. That he did so decide on the parties' concession or under the compulsion of authority is of no consequence for present purposes. He had necessarily to decide the matter; and he did. Again, I withhold any comment on the propriety of the concession or of the decision that the implied promise not to seek a variation of the order did not satisfy the terms of s. 87 (1) (k).
But, in my opinion, that step in the defence clearly involved a matter arising under the Matrimonial Causes Act and in entertaining and deciding it the Supreme Court, in my opinion, was exercising its invested jurisdiction. That step in the defence was, as I have said, a step indispensable to the success of the defence.
But, the matter need not end there. In my opinion, it is appropriate to examine what is further involved in the defence said to be founded on considerations of public policy. Those considerations are not themselves the foundation of a cause of action. They involve principles developed by the common law on which courts have acted sometimes in determining matters of statutory construction and sometimes in deciding the meaning and the validity of agreements or of parts of agreements. Historically they were developed when the jurisdiction of the courts with respect to which they were applied was derived from the royal prerogative and the common law.
In relation to such courts the matter of the validity of an agreement said to be an attempt to prevent the exercise of a court's jurisdiction arose under the common law. But we are not here concerned with a court of that kind or with a right to invoke its aid derived from the common law. Here the jurisdiction of the court which it is said was sought to be "ousted" is wholly derived from the Acts of the Parliament - the Matrimonal Causes Act and the Judiciary Act. In Australia the exclusive source of jurisdiction to order the payment of maintenance to a divorced wife and the exclusive source of such a wife's right to such an order is that Act. It is, in my opinion, nothing to the point that there is a history of the provision of alimony or maintenance which precedes and may in a sense have prompted the statutory provisions now obtaining. The right to an order for permanent maintenance, whether as an initial or as a varying order is in Australia essentially and exclusively derived from the Matrimonial Causes Act. The question which the defence raises is whether a party to a matrimonial proceeding may validly agree not to seek the court's aid to obtain maintenance by the other party to such proceedings.
It is not the law, as I understand it, that a person who has a right under a statute to seek the aid of a court cannot in any case agree not to exercise that right: cf. Admiralty Commissioners v Valverda (Owners) [1] per Lord Wright. But it is true that some statutory rights may not be so foregone. Whether or not the right in question is a right which may not be validly bargained away must depend on the subject matter to which it relates and the terms of the statute from which it is derived. The construction of the statute will be influenced by the principles as to public policy which have been developed by the courts. No doubt it may readily be decided that a statute creating a right to an order of a court for maintenance, upon its proper construction does not intend to allow the right it creates to be foregone. But whether the wife in such a case can validly agree not to enforce the right the statute gives her must be answered by a consideration of the statute itself. Here, as I have said, the right of a party to a matrimonial cause to an order for maintenance is given by the Matrimonial Causes Act. To assert that the agreement of a party to a matrimonial cause not to seek an order is against public policy is in reality and in substance to assert that the agreement offends the statute which is in truth the relevant expression of public policy. Such an assertion in my opinion does not merely involve the construction of the statute: it necessarily involves, in my opinion, a matter arising under the statute. The assertion is that the statute according to its proper construction, avoids the agreement.
However in this case the statute is not silent on the question. In its enactment, the Parliament has concerned itself with the public policy relating to the capacity of a person entitled to seek an order for maintenance, including a varying order, to agree to forego that right. It has expressed itself in s. 87 (1) (k) quite clearly. By implication it has said that without the sanction of a court under that provision the right to such an order may not be foregone. Thus, the defence in this case necessarily involved, in my opinion, the assertion that the implied promise offended the provisions of the Matrimonial Causes Act. Indeed it could be said that there was in reality only one point in the defence, namely that the deed had not been sanctioned by the court. But however expressed, the defence in my opinion necessarily involved a matter arising under a law made by the Parliament.
In my opinion the application for conditional leave to appeal to Her Majesty in Council should be refused on the ground that s. 39 (2) precludes any appeal from the Supreme Court to Her Majesty in Council in this matter.
In this case an application before the Court of Appeal of New South Wales for leave to appeal to Her Majesty in Council has been removed into this Court upon the application of the Attorney-General of the Commonwealth pursuant to s. 40 of the Judiciary Act 1903-1970 Cth.
The relevant history of the case begins with a deed made between Herta Lucy Felton ("the plaintiff") and her then husband, Hans Peter Oser, and dated 21st June 1961. The plaintiff had at that time commenced proceedings for dissolution of marriage against her husband. By this deed the plaintiff's husband covenanted to pay certain moneys and to do certain acts upon a decree nisi for dissolution of the marriage being pronounced. By the fourth covenant of the deed the plaintiff's husband agreed for himself, his heirs, executors and administrators during the lifetime of the plaintiff to pay weekly sums to the plaintiff by way of permanent maintenance. A decree nisi was pronounced on 25th October 1961 and made absolute on 26th January 1962. The learned judge who heard the petition purported to make an order sanctioning the deed pursuant to s. 87 (1) (k) of the Matrimonial Causes Act 1959-1966 Cth.
The plaintiff's husband died on 27th April 1967. The executors of his estate refused to make any payments in respect of weekly sums of maintenance to the plaintiff. The plaintiff sought a declaration from the Supreme Court of New South Wales (designated "in Equity" in the originating summons taken out by the plaintiff) that she was entitled to be paid out of the estate the weekly sums of maintenance specified by the deed.
The learned judge of the Supreme Court of New South Wales who heard the matter found that the agreement was not one which might be sanctioned under s. 87 (1) (k) of the Act and that consequently the plaintiff was relegated to the express provisions of the deed. The learned judge held, however, that the plaintiff's covenant to consent to an order in the terms of the deed amounted to a promise not to seek more than the agreed sums and was therefore an attempt to bind the Court to make such an order and no other. He further held that this attempt to oust the jurisdiction of the Court rendered the deed void as being against public policy.
The question for decision before this Court is whether s. 39 (2) (a) of the Judiciary Act 1903-1970 Cth deprives the plaintiff of the right that she would otherwise have to seek leave from the Court of Appeal of New South Wales to appeal from the decision of the learned judge of the Supreme Court of New South Wales to Her Majesty in Council. The material part of s. 39 (2) reads as follows:
The several Courts of the States shall within the limits of their several jurisdictions, whether such limits are as to locality, subject-matter, or otherwise, be invested with federal jurisdiction, in all matters in which the High Court has original jurisdiction or in which original jurisdiction can be conferred upon it, except as provided in the last two preceding sections, and subject to the following conditions and restrictions: -
(a) A decision of a Court of a State, whether in original or in appellate jurisdiction, shall not be subject to appeal to Her Majesty in Council, whether by special leave or otherwise.
Section 23 (2) (a) of the Matrimonial Causes Act provides that: Subject to the succeeding provisions of this section, the Supreme Court of each State is invested with federal jurisdiction, and jurisdiction is conferred on the Supreme Court of each Territory to which this Act applies, to hear and determine -
Section 23 (3) is also relevant and states that: The jurisdiction with which the Supreme Court of a State is invested by this section is subject to the conditions and restrictions specified in sub-section (2) of section thirty-nine of the Judiciary Act 1903-1959 so far as they are applicable.
If, therefore, the proceedings before the learned judge of the Supreme Court of New South Wales were in truth a "matrimonial cause" within the meaning of s. 23 (2) of the Matrimonial Causes Act that Court was invested with federal jurisdiction with respect to those proceedings and by virtue of s. 23 (3) the restriction set out in s. 39 (2) (a) of the Judiciary Act is applicable to that jurisdiction. Section 5 (1) of the Matrimonial Causes Act defines "matrimonial cause" as, inter alia:
(b) proceedings for a declaration of the validity of the dissolution or annulment of a marriage by decree or otherwise or of a decree of judicial separation, or for a declaration of the continued operation of a decree of judicial separation, or for an order discharging a decree of judicial separation;
(c) proceedings with respect to the maintenance of a party to the proceedings, settlements, damages in respect of adultery, the custody or guardianship of infant children of the marriage or the maintenance, welfare, advancement or education of children of the marriage, being proceedings in relation to concurrent, pending or completed proceedings of a kind referred to in either of the last two preceding paragraphs, including proceedings of such a kind pending at, or completed before, the commencement of this Act
The material words for the purposes of this case seem to me to be: "(c) proceedings with respect to the maintenance of a party to the proceedings being proceedings in relation to completed proceedings of a kind referred to in either of the last two preceding paragraphs " In the present case there were completed proceedings for dissolution of marriage which are proceedings referred to in one of the two preceding paragraphs (par. (a)). In my opinion the deed in relation to which the proceedings were taken indicates that the proceedings were "proceedings with respect to the maintenance of a party to the proceedings" within the meaning of s. 5 (1) (c). The deed was expressed to be made between Hans Peter Oser as "Respondent" and Herta Lucy Oser as "Petitioner". It read thus in its preamble:
Whereas the said Petitioner in the Matrimonial Causes Jurisdiction of the Supreme Court of New South Wales has instituted a suit No. 3840 of 1960 for dissolution of her marriage with the Respondent on the ground of desertion for three years and upwards and whereas the Respondent has not filed any defence to the said suit and whereas on the pronouncement of the said suit of a decree for dissolution of her marriage the Petitioner will become entitled to an order against the Respondent for the payment to her of periodical and other sums by way of permanent alimony and maintenance and for such further payments as are hereinafter mentioned. The covenant on which the plaintiff relied stated: That the Respondent his heirs executors and administrators during the lifetime of the Petitioner will pay to the Petitioner at 16 Alan Street, Cammeray or at such other address as she may from time to time in writing require him as and by way of permanent maintenance free of exchange and all other charges a weekly sum of money which shall be calculated
In my judgment, the proceedings before the Supreme Court of New South Wales fall within the term "matrimonial cause" as defined by s. 5 (1) (c) of the Matrimonial Causes Act. The result is that s. 23 (3) of that Act makes the restriction embodied in s. 39 (2) (a) of the Judiciary Act applicable in this case. In my opinion, the application for leave to appeal from the judgment of the Supreme Court of New South Wales to Her Majesty in Council is not competent.
Hans Peter Oser and Herta Lucy Felton, as she now is, were married in 1938. This marriage was dissolved by a decree of the Supreme Court of New South Wales in its matrimonial causes jurisdiction in 1962. On the 21st June 1961, after the institution of divorce proceedings but before the making of the decree nisi, the parties entered into a deed whereby the husband covenanted to pay to the wife upon decree nisi certain moneys. In particular, by par. 4, he covenanted that he, his heirs, executors and administrators would pay to the wife during her life a weekly sum of maintenance based upon an initial figure of £35 0s. 0d. per week but varying with changes in the basic wage. It was provided that upon the decree nisi the husband would consent to an order in the terms of par. 4 and further would "consent to an order that the covenant contained in paragraph 4 hereof shall be security for the payment of the moneys therein referred to". As part of the decree nisi it was ordered "that the deed between the parties dated the 25th day of October 1961 be sanctioned and approved pursuant to s. 87 (1) (k) of the Matrimonial Causes Act 1961 ". A further order was made in the terms of cl. 4 of the deed. No order was made to the effect that the covenant should be security for the payment of the moneys.
Hans Peter Oser died on 27th April 1967 and from that date weekly payments under par. 4 of the deed ceased.
The wife, now Herta Lucy Felton, sued the executor and executrix of the will of the deceased husband seeking a declaration that she is entitled to payments of the weekly sums of maintenance in accordance with par. 4 of the deed.
The suit was heard by Helsham J., Judge in Equity, who refused the declaration sought and dismissed the suit [1] . No question as to the source of his Honour's jurisdiction arose at the hearing.
Prima facie in hearing and determining the suit the learned Judge in Equity was doing no more than exercising the jurisdiction given to him by the laws of the State of New South Wales.
The unsuccessful wife applied to the Court of Appeal of the Supreme Court of New South Wales for leave to appeal to Her Majesty in Council against the order dismissing her suit. This application was made under the Privy Council Appeal Rules 1909. It is that application that is now before this Court by virtue of an order made by this Court under the Commonwealth Judiciary Act, s. 40.
To those unversed in the intricacies of the laws governing the jurisdiction of this Court it could seem surprising that this Court should be hearing an application which, under the foregoing Rules, was properly made to the Supreme Court of New South Wales. The explanation is that, upon the hearing of the application to the Court of Appeal, the question arose whether s. 39 (2) (a) of the Judiciary Act precluded the proposed appeal. It did if the Judge in Equity was, as the respondents contend, exercising federal jurisdiction. Section 39 (2) of the Judiciary Act invests the Supreme Court with jurisdiction to hear matters falling within s. 76 (ii.) of the Constitution, viz. matters "arising under any laws made by the Parliament", but it does so on condition that every decision of the Court shall not be subject to appeal to Her Majesty in Council, whether by special leave or otherwise: s. 39 (2) (a) Judiciary Act 1903-1968. If, therefore, Helsham J. was exercising federal jurisdiction, no appeal to Her Majesty in Council lies under the Rules. To decide the contention of the respondent required the construction of s. 76 (ii.) of the Constitution. Accordingly, the application to the Court of Appeal was a cause involving the interpretation of the Constitution within s. 40 of the Judiciary Act. That section therefore applied and upon the application of the Attorney-General of the Commonwealth the cause - i.e. the application for leave to appeal - was removed to this Court. It is now for this Court to determine that cause.
The principal question for decision is whether the learned Judge in Equity, in hearing and determining the suit, was deciding a matter arising under a law made by the Parliament. If this question be answered "No" that is an end to the matter and the application for leave to appeal should be granted as of course.
It is the contention of the respondents, supported by the Attorney-General of the Commonwealth, that the matter decided by the learned Judge in Equity did arise under the Matrimonial Causes Act of the Commonwealth.
It is to be observed from s. 76 (i.) and (ii.) of the Constitution that there is a difference between a matter arising under a law and a matter involving the interpretation of a law. A matter may involve the interpretation of a law without arising under that law. Thus, for instance, if, upon a claim for damages for negligence at common law, it became necessary to interpret some statutory provision imposing some duty upon the defendant, the litigation would involve the interpretation of the statutory provision but would not arise under it. A matter arises under a law when it is necessary in litigation to determine whether that law confers a right or affords a defence which is an issue in the litigation. A matter arises under a law of the Parliament when in a proceeding it is necessary that there should be a decision upon a claim made by one of the parties to the litigation which is based upon that law. It is to be observed that there is a difference between a "proceeding" arising under a law and a "matter" arising under a law. A "proceeding" arises under a law only when it is authorized by that law; see Collins v Charles Marshall Pty Ltd [1] . A "matter" need not be a "proceeding"; it may be part of a proceeding, e.g. a defence that the law authorizing the proceeding is unconstitutional. So it is that a matter may arise under a law made by the Parliament in a proceeding which does not arise under that law.
The suit before the learned Judge in Equity was upon the deed. It did not arise under the Act nor did it involve any matter arising under the Act. The defendant impugned the validity of the deed on the ground that it was void, not as being in conflict with the Act but as being against public policy: Brooks v Burns Philp Trustee Co. Ltd. [1] . Prima facie, therefore, no matter arose under the Commonwealth Matrimonial Causes Act 1959-1966. It was argued, however, that the defence was itself based upon that Act because the public policy invalidating attempts to oust jurisdiction of the courts itself stems, in some way, from it. I am disposed to think that the defence which was raised has a more ancient source than the Matrimonial Causes Act, but even if the conception of public policy adumbrated in Brooks v Burns Philp Trustee Co. Ltd. [1] had some relationship to the Act - and it is not insignificant that none of the judgments of the majority who there decided that the deed was void as against public policy referred to the Act - I would not be prepared to hold that, by reason of that circumstance, the defence that the deed was void as against public policy arose under the Matrimonial Causes Act. The defence arose under the common law and, even assuming some connexion between the Act and the defence, such connexion as existed was not of the character to make the defence one arising under the Act in the sense already stated.
A State Court must recognize the laws of the Commonwealth and be guided by them in exercising its State jurisdiction. 1. (1921) 29 C.L.R. 243, at p. 252.
In my opinion the learned Judge in Equity in hearing and determining the suit was not exercising federal jurisdiction. I found my conclusion on the simple ground that the matter which his Honour was determining did not arise under the Matrimonial Causes Act.
Before leaving the case I should advert to the narrower ground for concluding that in the suit before Helsham J. a matter arose under the Matrimonial Causes Act. It is that the suit being upon a deed which the Judge in Divorce had purported to sanction and approve pursuant to s. 87 (1) (k) of the Matrimonial Causes Act, there was therefore in the suit a matter arising under that Act. I do not think that this is correct. When a proceeding does not arise under a law made by Parliament whether or not there is a matter arising under the Constitution or a law of Parliament will often depend upon the course which proceedings take. Thus a defendant prosecuted, let me say, for an offence of selling goods without a licence, could, if he so desired, rely upon s. 92 of the Constitution. Were he to do so, even with no prospects of success, there would be a matter arising under the Constitution; if he were not to do so there would be no such matter. Again, by a pleading, a defendant might rely upon a section of the Bankruptcy Act; were he to do so there would be a matter arising under a law of Parliament, but if he chose not to do so there would be no such matter. Here there was no reliance by either party upon the purported sanctioning of the deed; it was conceded, rightly or wrongly, that the deed was not one that could be sanctioned under s. 87 so that there was no matter at issue depending upon that section. How then can it be said that in the proceeding there was a matter arising under the section? In my opinion, in the suit before Helsham J. there was no matter arising under the Matrimonial Causes Act on this technical, narrower ground.
Having reached this conclusion it is not necessary to consider other matters which were argued, such as what would be the situation if the duty of the court to decide the suit was to be performed under two jurisdictions, both federal and State: cf. Lorenzo v Carey [1] . Here, as I have said, the duty was to be performed as a matter of State jurisdiction only.
The facts that lie behind the question that is before us are set out in the judgment of my brother Walsh, which I have had the great advantage of reading. I need not repeat them. I merely add that further details may be found in the judgment of the Supreme Court of New South Wales, given in an earlier episode of this litigation, reported as Felton (formerly Oser) v Oser [2] . The terms of the deed in question are fully set out in that report. My brother Walsh has dealt with the way by which the present matter now comes to this Court. I agree in his conclusion that it is properly before us. I do not doubt that we are bound to consider it simply as a question of whether the Supreme Court of New South Wales can make an order authorizing an appeal to the Privy Council from the judgment that Helsham J. gave in the equity jurisdiction of that Court [1a] . I shall in this judgment refer to Mrs. Felton, who seeks leave to appeal to the Privy Council, as the applicant, to the executor and executrix of H. P. Oser, deceased, as respondents, and to H. P. Oser as the former husband of the applicant.
The central question in the case is whether or not the decision that Helsham J. gave on an originating summons in the equity jurisdiction of the Supreme Court of New South Wales was given in a matter arising under a law made by the Commonwealth Parliament, within the meaning of that phrase in s. 76 (ii.) of the Constitution. If it was, then his Honour was exercising a federal jurisdiction with which the Supreme Court was invested by s. 39 (2) of the Judiciary Act, a law made by virtue of s. 77 (iii.) of the Constitution. In that event, s. 39 (2) of the Judiciary Act 1903-1968 would prevent an appeal to the Privy Council.
Helsham J. did not expressly base his decision on any Act of the Commonwealth Parliament. He held that the covenants of the deed in question before him were not enforceable by the applicant against the estate of her former husband, the covenantor. Following the decision of this Court in Brooks v Burns Philp Trustee Co. Ltd. [1] , by which he was bound, his Honour held that the deed was void as against public policy, because he read it as purporting by implication to oust the jurisdiction of the Divorce Court with respect to orders for maintenance.
There is no doubt a common law principle expressed by the aphorism that an agreement to oust the jurisdiction of the courts - or, as it was put in the earlier cases, to oust the courts of their jurisdiction - is unlawful and void as being contrary to public policy: that, said Pollock C.B. in Horton v Sayer [2] , was "the rule which has been acted on for above a century". The earliest enunciations of it were, so far as I have noticed, in Kill v Hollister [3] ; Wellington v Mackintosh [4] ; and Thompson v Charnock [5] . These were all cases upon agreements to refer disputes to arbitration, a disputable topic until the law was settled in Scott v Avery [6] . But the grandiloquent phrases of the eighteenth century condemning ousting of the jurisdiction of courts cannot be accepted in this second half of the twentieth century as pronouncement of a universal rule. It is simply not correct to say that all agreements foregoing a right to have the adjudication of a court are void or unenforceable. Claims for redress for breach of contract or for a remedy for tortious damage can be settled out of court; and actions and suits of many kinds can be compromised by agreement, after they have been commenced, provided that each of the parties is sui juris. As Latham C.J. said in Lieberman v Morris [1] :
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.
First I should explain how I understand the critical phrase in s. 76 of the Constitution, "any matter arising under any laws made by the Parliament". It is derived from Art. III, s. 2 of the Constitution of the United States. There the words are, " all cases, in law and equity, arising under this Constitution, the laws of the United States, and treaties made, or which shall be made, under their authority". The course of decisions in the United States on that provision has not run altogether smoothly. It may be that a case would not now be there held to arise under a law of the United States unless a right under such a law was claimed by the plaintiff, as distinct from raised as a defence: see Gully, State Tax Collector for Mississippi v First National Bank in Meridian [1] . However that may be now, it was not always so. At an early date John Marshall C.J. said, in Cohens v Virginia [2] , speaking of a contention there advanced:
If it be to maintain that a case arising under the constitution, or a law, must be one in which a party comes into court to demand something conferred on him by the constitution or a law, we think the construction too narrow. A case in law or equity consists of the right of the one party, as well as of the other, and may truly be said to arise under the constitution or a law of the United States, whenever its correct decision depends on the construction of either. If the last few words are read as meaning that a question of the construction as distinct from the operation of federal law must be involved, they do not for us describe an essential of a matter arising under a law of the Parliament. It is enough to say - and I quote Latham C.J. in R. v Commonwealth Court of Conciliation and Arbitration; Ex parte Barrett [3] - 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. 1. (1936) 299 U.S. 109, at pp. 112-113 [81 Law. Ed. 70, at p. 72]. 2. (1821) 6 Wheat. 264, at p. 379 [5 Law. Ed. 257, at p. 285]. 3. (1945) 70 C.L.R. 141, at p. 154.
Story took the same view as did Marshall, that a matter could arise under a law whether the law was put forward in support of a claim or as a defence to a claim. In his Commentaries on the Constitution (par. 1641) he wrote:
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].
In my view a matter does not arise for adjudication under a law made by the Commonwealth Parliament unless a statute is relied upon as giving a right claimed or as the direct source of a defence asserted. It is not easy to formulate with precision criteria which will suffice in every case. I shall confine myself to the facts of this case. It is of course indisputable since the decision of the House of Lords in Hyman v Hyman [1] that a woman cannot by contract with her husband waive, renounce or barter away her right to seek from the court an order for maintenance as an incident of a decree dissolving her marriage. But the reason for this is in the nature of the right, not in an express provision of the Matrimonial Causes Act. The statute creates the right. It is the common law that makes it inalienable. This consequence is removed if the Divorce Court sanctions the agreement of the parties. The Court's authority to do this is a statutory power to displace in a particular case a common law rule. This does not mean that the rule thus displaced was the creature of statute.
The jurisdiction of the Divorce Court to make orders for maintenance when dissolving a marriage is historically distinct from the power to make orders for permanent alimony on a decree for judicial separation; for the latter, although now governed by statute, is derived from ancient practice in the ecclesiastical courts: see Lush on Husband and Wife, 4th ed., p. 454. But that does not make any difference here. The inability of a wife to forego her right to seek an order for maintenance accords with early concepts in the law, commonly stated as that a man has a duty to support his wife. This expression reflects the common law rule making a husband liable upon contracts made by his wife for her necessaries. This liability was not abrogated by the husband making his wife an allowance if it was not adequate, even if she had acquiesced in it: Hodgkinson v Fletcher [2] . The whole doctrine of the husband's obligation has been sometimes seen as a by-product of the Act for the Relief of the Poor, 1601 (43 Eliz. I, c. 2). That Act did not expressly include wives among the relatives for whose support a man was chargeable. But it seems to have been thought to throw a wife's maintenance upon the parish was against the policy of the law: see the reference in the article "Criminal Omissions" by Mr. Glazebrook, Law Quarterly Review 76, pp. 395-396. This is significant because the whole basis of the public policy which precludes a woman from contractually releasing her husband from his obligation to maintain her has been constantly said to be to prevent putting on the public a burden that a husband should bear: see National Assistance Board v Parkes [3] .
In the result I do not regard the invalidity of a wife's promise not to seek maintenance when her marriage is dissolved as a consequence of the provisions of the Matrimonial Causes Act. I am not able to see s. 87 (1) (k) of the Act as, by implication, the source of the rule that an agreement that is not sanctioned is unenforceable. Rather, I think that rule arises from the common law. I appreciate that another view is open and that others take it and are able to see statutory provisions in the foreground. It is I suppose partly a conceptual partly a terminological problem to determine in a case like this whether or not a proposition of law arises under a particular statute or by the combined impact of statutory provisions and common law principle.
However, it is important to remember that the question in this case was not whether a wife's covenant not to sue for maintenance contravened the Matrimonial Causes Act. The decision from which the applicant seeks leave to appeal was a stage further removed from that Act. The question for the trial judge was whether the former husband's estate is now bound by his covenant in the applicant's favour, not whether a covenant by her, supposedly implied, was binding upon her during his lifetime. Were his representatives bound to perform his covenant and pay her what he had, for himself and his executors and administrators, promised her? That they are exonerated is said to follow from a rule said to be established by Bennett v Bennett [1] following Gaisberg v Storr [2] and Combe v Combe [3] . I expressed my view of those cases in what I wrote in Mrs. Brooks's case [4] . Whether I was right or wrong is for present purposes immaterial. Support can be found in the judgments in Bennett v Bennett [1] for the proposition that the deed as a whole should be treated as void. Nevertheless, as I see it, the question of the continued operation of the former husband's covenants is not a matter arising under the Matrimonial Causes Act. It arises I think as a question of common law doctrine concerning dependent covenants and the invalidity of a promise given as consideration for a promise that is void.
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.
I have so far left aside the troublesome question that arises when a State court exercises federal jurisdiction with which it has been invested and in the same case exercises jurisdiction that belonged to it as a State court over the same subject matter. I now turn to it. It creates an abstract almost ontological problem. I do not think it necessary that I examine all the cases and all the textbook comments on this vexed subject. Mine may be an ingenuous view, but to me it seems that the law that a court must apply and administer, in the exercise of whatever jurisdiction pertains to it, may be derived from different sources, but that it is still, so far as any particular case is concerned, a single though composite body of law. It is the law of the land, governing the parties in their relation to a case in hand. The law of the land for us - I use the term in its colloquial modern sense, not as the mediaeval lex terrae - is made up of inherited common law principles and equitable doctrine, Imperial statutes, Commonwealth statutes and State statutes and delegated legislation of various kinds. The topic has lent itself to metaphors, although physical metaphors can be misleading when applied to concepts. In Eric Anderson's Case [1] , I spoke of an "overlapping" of federal and State jurisdictions. In the present case counsel in the course of argument described them as "interwoven". At other times they have been said to exist "side by side". All this is reminiscent of the statement in Ashburner on Equity that the result of the "fusion" of law and equity by the Judicature Act is that "the two streams of jurisdiction, though they run in the same channel, run side by side and do not mingle their waters". In Lorenzo v Carey [2] , the Court saw an analogy between the coexistence in the one court of federal and State jurisdictions and the position of the courts "which have administered law and equity in distinct proceedings before the same tribunal".
I do not find easy their Honours' statement in that case that,
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.
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.
I have come to this conclusion with some regrets as I feel that the decision in Brooks v Burns Philp Trustee Co. Ltd. [2] subordinated principle to dogma. Only if the reasoning of the majority in that case were fully endorsed by the Privy Council could I unquestioningly accept it. And I can share in regret that the role of the Privy Council should be diminished. It has aided the sense of community among peoples for whom the common law of England is not an imposition but an inheritance. Many Australians - moved by sentiments of generations of British subjects and by the "ties light as air", of which Edmund Burke had spoken long ago - have seen the jurisdiction of the Privy Council as a formal link with the land that is the seat of the Sovereign and the home of our law. But the question is simply one of law. The command of the Commonwealth Parliament is given in the fullness of its powers. When the Constitution was enacted it was foreseen by the Imperial Parliament that a time could come when the High Court of Australia would be the final court of appeal in Australian cases. In matters arising under laws made by the national Parliament that time has come. We must not diminish the consequences of this, but accept the given task.
Section 39 (2) (a) of the Judiciary Act 1903-1969 provides that
The several Courts of the States shall be invested with federal jurisdiction, in all matters in which the High Court has original jurisdiction or in which original jurisdiction can be conferred upon it subject to the following conditions and restrictions: -
(a) A decision of a Court of a State, whether in original or in appellate jurisdiction, shall not be subject to appeal to Her Majesty in Council, whether by special leave or otherwise.
Under s. 76 (ii.) of the Constitution, laws may be made by the Parliament conferring original jurisdiction upon the High Court in any matter arising under a law made by the Parliament. In the result, therefore, the courts of the States are invested with federal jurisdiction to hear and determine any such matter.
The question before us is whether s. 39 (2) (a) of the Judiciary Act debars Mrs. Felton from obtaining leave to appeal to Her Majesty in Council against an order made by Helsham J. sitting in the equitable jurisdiction of the Supreme Court by which an originating summons brought at the suit of Mrs. Felton was dismissed [1] . If his Honour was exercising federal jurisdiction, no appeal to the Privy Council lies. If he was not, then s. 39 (2) (a) of the Judiciary Act has no application to the case.
The issue which Helsham J. had to decide was whether the covenant which the plaintiff sought to enforce was enforceable against the defendant executors, their defence being that the covenant was unenforceable because opposed to public policy. At first sight this does not appear to involve a decision as to a "matter" arising under a law of the Commonwealth. It was said, however, that in determining the rights of the parties under the deed it was necessary for the learned judge to have regard to the provisions of the Commonwealth Matrimonial Causes Act and that a "matter" had arisen under that Act since, as I understand it, it was said that an examination of the provisions of the Matrimonial Causes Act was necessary in order to decide whether or not the covenant was enforceable under the general law. Nevertheless, I do not think that the decision that the originating summons be dismissed was a decision given in the exercise of federal jurisdiction. Helsham J. was, in my opinion, exercising a jurisdiction conferred upon him by the law of New South Wales although in the course of exercising it he may have been called upon to interpret a law made by the Commonwealth Parliament which bound all State courts. The plaintiff's claim did not arise under or owe its existence to the Matrimonial Causes Act any more than did the defendants' answer to that claim. I agree, with respect, with what Latham C.J. said in R. v Commonwealth Court of Conciliation and Arbitration; Ex parte Barrett [1] . Referring to s. 76 (ii.) of the Constitution, his Honour said:
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 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. Accordingly I am of opinion that the plaintiff's application should be granted. 1. (1945) 70 C.L.R., at p. 154. Walsh J.
A suit, instituted by originating summons by the present applicant against the present respondents was heard by Helsham J. in the Supreme Court of New South Wales. The suit was dismissed [2] . A notice of motion was filed in the Court of Appeal Division of the Supreme Court seeking an order granting leave to appeal to Her Majesty in Council from the judgment and decretal order of Helsham J. The applicant claimed that the judgment was a final judgment of the Supreme Court involving a matter in dispute of the value of £Stg. 500 or upwards, within the meaning of r. 2 (a) of the Privy Council Appeal Rules contained in an Order of Council of 2nd April 1909. That claim has not been disputed. The case is one, therefore, in which the applicant would be entitled, subject to the question presently to be mentioned, to obtain as of right an order of the Supreme Court granting leave to appeal. But the respondents contended that s. 39 (2) (a) of the Judiciary Act applied to the case, with the result that the decision of Helsham J. was not subject to appeal to the Privy Council. This contention does not depend upon the new form in which par. (a) of s. 39 (2) was enacted by the Judiciary Act 1968 Cth. In particular, it does not depend upon the words "whether by special leave or otherwise" thereby inserted in that paragraph. We are concerned with an appeal which the applicant claims to have as of right. It was held long ago that such an appeal was validly precluded by s. 39 (2) (a) (in its earlier form) in any case in which the decision of the Supreme Court was given in the exercise by that Court of federal jurisdiction: see The Commonwealth v Limerick Steamship Co. Ltd. [1] . In the same case it was held that an order granting leave to appeal, pursuant to the Order in Council of 2nd April 1909, was an order of the Supreme Court from which an appeal lay to this Court under s. 73 of the Constitution.
Upon application made by the Attorney-General of the Commonwealth pursuant to s. 40 of the Judiciary Act, this Court made an order that the application for leave to appeal be removed into this Court. It was considered to be a cause "arising under the Constitution or involving its interpretation", within the meaning of s. 40. The applicability or otherwise of s. 39 (2) (a) was considered to depend upon the question whether Helsham J. had exercised jurisdiction in a matter arising under any laws made by the Parliament and therefore had exercised federal jurisdiction, with which the Supreme Court had been invested by s. 39 (2), in a matter in which original jurisdiction can be conferred upon this Court. It was considered that this question was one involving the interpretation of s. 76 (ii.) of the Constitution. I agree, with respect, with the view upon which I understand this Court to have acted when the order under s. 40 was made that although what had to be decided was a question as to the interpretation and operation of s. 39 (2) of the Judiciary Act, that was a question which involved the interpretation of s. 76 (ii.) of the Constitution.
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] :
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.
The respondents are the executor and executrix of the will of Hans Peter Oser. He was formerly the husband of the applicant. Their marriage was dissolved by a decree of the Supreme Court of New South Wales. The decree nisi was made on 25th October 1961 and it was made absolute on 26th January 1962. The suit was instituted before the commencement of the Matrimonial Causes Act 1959-1966 Cth (the Act), but was continued under that Act: see s. 111. Before the decree nisi was made the parties entered into a deed which provided (by par. 4) that the husband his heirs executors and administrators would pay to the wife during her lifetime as and by way of permanent maintenance a weekly sum calculated in the manner therein specified. Other clauses in the deed provided for other benefits to the wife in money or property. There was a provision (par. 7) that upon the pronouncement of the decree nisi the husband would consent to an order in terms of the preceding paragraphs of the deed and would consent to an order that the covenant contained in par. 4 should be security for the payment of the moneys therein referred to. There was a covenant by the wife that she would submit the deed to the Court for its sanction on the hearing of the suit and would consent to an order being made in terms of par. 7. When the decree nisi was made it included an order that the deed "be sanctioned and approved pursuant to section 87 (1) (k) of the Matrimonial Causes Act 1961 " (sic). It included an order for payments by way of permanent maintenance, which followed the terms of cl. 4 of the deed. It did not include an order that the covenant in par. 4 should be security for the payment of any money.
The husband died in 1967. The applicant married in 1962 a man named Felton who died in 1966. An application made in 1965 by Hans Peter Oser for a variation of the maintenance order was dismissed. In 1968 the applicant applied to the Supreme Court in its matrimonial causes jurisdiction for an order rectifying the order made in 1961 by adding to it an order that the covenant to pay maintenance should be security for the payments to which it referred. Such an order was made [1] but it was set aside upon an appeal to the Court of Appeal Division of the Supreme Court: see Felton (formerly Oser) v Oser [2] .
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.
But it has been contended for the respondents that, assuming that the only claim was a claim under the deed, the Court exercised federal jurisdiction in hearing and deciding the suit, because the decision upon the issues that were involved in it was a decision upon a matter arising under a law of the Commonwealth. The applicant's claim was not founded upon a law of the Commonwealth. It was a claim under the general law, based upon a covenant. But according to the submissions for the respondents, the defence which was raised to the claim and the contentions by which the applicant sought or could have sought to meet that defence were such that the "matter" was one which arose under a law of the Commonwealth and attracted federal jurisdiction. These submissions raise for consideration two questions: (1) is it necessary, in order that s. 39 (2) may operate to invest a State Court with federal jurisdiction in a matter arising under laws made by the Parliament, that the claim which is instituted in the Court should be one which is founded upon a Commonwealth law or does the provision operate also where an issue subsequently raised in the proceedings is such that an adjudication upon the case requires or may require that a decision be given upon a federal question? (2) Were the proceedings before the Supreme Court and the issues raised by them such that the exercise of federal jurisdiction was involved in an adjudication upon them?
As to the first question, I am of opinion that the applicability of s. 39 (2) cannot be determined once and for all as soon as the proceedings are instituted and the claim made by them is formulated. The "federal" questions may arise at a later stage. In Miller v Haweis [1] the Court said:
A question of federal jurisdiction may be raised upon the face of a plaintiff's claim, as in Baxter v Commissioners of Taxation (N.S.W.) [2] , or may be raised for the first time in the defence, but as soon as the question is raised, if the jurisdiction of the State Court has been taken away, it must stay its hand. As was pointed out in Starin v New York [3] by Chief Justice Waite: - "The character of a case is determined by the questions involved: Osborne v Bank of the United States [4] . If from the questions it appears that some title, right, privilege, or immunity, on which the recovery depends, will be defeated by one construction of the Constitution or a law of the United States, or sustained by the opposite construction, the case will be one arising under the Constitution or laws of the United States, within the meaning of that term as used in the Act of 1875; otherwise not." In some of its aspects the judgment in that case would not now be accepted but, in my opinion, the passage quoted provides a correct guide to the manner in which it may be determined whether or not a question of federal jurisdiction has arisen. The Court there repeated what had been said in Baxter v Commissioners of Taxation (N.S.W.) [1] . 1. (1907) 5 C.L.R. 89, at p. 93. 2. (1907) 4 C.L.R. 1087, at p. 1136. 3. (1885) 115 U.S. 248, at p. 257 [29 Law. Ed. 388, at p. 390]. 4. (1824) 9 Wheat. 738, at p. 824 [6 Law. Ed. 204, at p. 224]. 5. (1907) 4 C.L.R., at p. 1136.
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] .
I pass to the second question stated above. Some further facts need to be stated. The respondents set up in an answer to the applicant's claim the defence that the covenant upon which she relied was void because it formed part of an agreement to oust or to fetter the jurisdiction of the Court to fix by its order a proper sum to be paid by way of maintenance. It was said that in the deed there was an express or implied promise by the applicant not to seek from the Court any more than the agreed amounts. Thus by the agreement of the parties the discretion of the Court to fix a proper amount was excluded and this was against public policy. These submissions were upheld by Helsham J. and it was upon this ground that he dismissed the suit. His Honour considered that the matter was governed by the decision of this Court in Brooks v Burns Philp Trustee Co. Ltd. [3] . His Honour said that the agreement was not one to which s. 87 (1) (k) of the Act applied and that this was conceded: see Shaw v Shaw [4] and, in this Court, [5] . Therefore the sanction which the judge gave to the deed at the hearing of the matrimonial suit did not make it binding by force of s. 87 (1) (k). His Honour held also that the fact that the deed had been sanctioned by the Court had no effect on the operation of the rule of public policy on which the respondents relied. It could have no saving effect upon the agreement if, without that sanction, it would have been void as against public policy. In reaching that conclusion his Honour based himself upon statements in Brooks v Burns Philp Trustee Co. Ltd. [3] to the effect that the approval which had in fact been given by the Court to the deed there being considered could not render the covenant valid and his Honour relied also upon the reasons for judgment in Shaw v Shaw [4] .
Those being the matters which were raised for the consideration and decision of the learned judge, the respondents contend and the applicant denies that in considering and deciding them he exercised federal jurisdiction. The applicant argues that the rule of public policy here invoked is a rule of the general law. It is a judge-made rule, not based upon a particular statute which the Court has to apply in exercising the jurisdiction in relation to which the parties have sought to oust or to fetter the discretion of the Court, but based upon a general principle that the courts will not recognize contracts which have that purpose. The argument gains force in this case from the circumstance that in arriving at his decision Helsham J. felt himself bound by the decision of this Court in Brooks v Burns Philp Trustee Co. Ltd. [1] , which was a case in which the divorce proceedings were not under the Act but under the Matrimonial Causes Act, 1899-1941 NSW. Furthermore, in that case the reasons given for holding that the covenant of the plaintiff was unenforceable and that therefore the defendants' covenant, being interdependent with the plaintiff's covenant, was also unenforceable, did not refer to the provisions of the Act but were expressed in terms indicating the acceptance of a general principle rendering void an agreement which purports to oust or to nullify the jurisdiction of the Court to award alimony. Kitto J. said [2] :
As Hyman v Hyman [3] and Bennett v Bennett [4] demonstrate, the Divorce Court would refuse to treat such a covenant as binding, and any other court would refuse on the ground of public policy to enforce it. Taylor J. said [5] : Prima facie, at least, such a covenant purported to oust the jurisdiction of the Court to make an order or orders with respect to alimony in the cause then pending and is therefore, unenforceable; it is against public policy to permit such a covenant to operate Owen J. said [6] : There is no doubt that an agreement which purports to oust the jurisdiction of the courts is void as being against public policy It may be said, therefore, that what the raising of the question of public policy required the Court to do in this case was to construe the deed so as to determine whether it was or included an agreement of the kind which the Court would not enforce on the ground of public policy and that, even if it became necessary to look at the Act to see whether it contained any provisions which would displace the relevant rule of public policy, that would not mean that there was an exercise of federal jurisdiction. 1. (1969) 121 C.L.R. 432. 2. (1969) 121 C.L.R., at p. 438. 3. [1929] A.C. 601. 4. [1952] 1 K.B. 249. 5. (1969) 121 C.L.R., at p. 440. 6. (1969) 121 C.L.R., at p. 479.
In my opinion, the question whether the Court had before it a matter arising under a Commonwealth law cannot be decided simply by reference to the course which the reasoning of the learned judge followed, along the paths which he considered to be indicated by previous decisions. It is not our task in this application to decide whether his decision was right or wrong or to consider whether the decision of the majority of this Court in Brooks v Burns Philp Trustee Co. Ltd. [1] was correct. But it is necessary to consider, and I proceed now to consider, what were the questions involved in an adjudication upon the opposing contentions by which it was affirmed and denied that the covenant was void.
In the first place, I think that the adjudication involved the making of decisions as to the effects, if any (whether of a positive or of a negative kind), which s. 87 (1) (k) had upon the validity of the covenant. There was a question whether the agreement of the parties had been sanctioned under the power conferred by that provision. There was a question whether, even if the sanction had not been in accordance with that provision, the fact that the Court had given its approval to the agreement would save it from offending against public policy. There was a question whether the presence of s. 87 (1) (k) in the Act was an indication that no effect of any kind could be given to an agreement between the parties or to the sanctioning of any agreement, other than an agreement falling within the description contained in that provision. These questions were considered by Helsham J. They were involved in his decision. It is not material for present purposes that they appeared to him to have been answered clearly by authorities which he was bound to follow.
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] .
Accordingly, by the answer which the respondents made to the applicant's claim, they must be taken to have asserted that the right given by the Act to obtain an order for maintenance was a right which, upon a consideration of the scope and policy of the Act, was seen to be a right which could not be restricted by the private agreement of the parties and that the deed on which the applicant relied did attempt to restrict that right in a manner which the statute did not permit. The applicant denied those assertions. In dealing with them it was necessary to decide not only what was the effect of the deed and what were the promises, express or implied, made by the applicant as a party to it, but also to decide whether any covenant express or implied found in the agreement amounted to an abrogation or curtailment of the right to invoke the jurisdiction of the court which was contrary to the policy and the intention of the Act. The defence raised by the respondents could not succeed unless an affirmative answer was given to that question. Likewise the applicant's claim could not succeed unless it received a negative answer.
In these circumstances I am of opinion that the hearing and determination of the suit involved the making of a decision upon a matter "arising under" a law of the Parliament of the Commonwealth, namely, the Act. It was the basis of the respondent's defence. The immunity or protection which was claimed against the liability, otherwise clearly imposed by the deed, depended upon the operation of the Act to make the covenant void. In my opinion that is sufficient to lead to the conclusion that the court had before it a "matter" which arose under the Act. This is so, in my opinion, even if the questions discussed above relating specifically to s. 87 (1) (k) would not involve, if they alone had to be considered, any exercise of federal jurisdiction.
A comparison between the terms of s. 76 (i.) and those of s. 76 (ii.) of the Constitution indicates that a distinction is to be drawn between a matter "arising under" a law of the Parliament and a matter which involves the interpretation of such a law. The fact that the interpretation of a law is involved does not necessarily mean that there is a matter arising under the law. But, in my opinion, there is a matter arising under the law if the source of the right claimed by the plaintiff or applicant or the source of a defence which asserts that the defendant or respondent is immune from the liability or obligation alleged against him is a law of the Parliament. I think that that view of what constitutes a matter arising under a law of the Parliament is in conformity with the statements made in R. v Commonwealth Court of Conciliation and Arbitration; Ex parte Barrett [1] by Latham C.J. and by McTiernan J. [1] . There Latham C.J. said: "If a right claimed is conferred by or under a federal statute, the claim arises under the statute" [2] . Likewise, in my opinion, if the answer made to a claim is that the defendant is free from the obligation asserted against him and that this freedom is conferred by an Act of the Parliament, the defence arises under that Act and the result is that there is before the Court a "matter" which arises under that Act. It may be urged that the statement which I have just made is inconsistent with the following observations in Collins v Charles Marshall Pty Ltd [3] . Their Honours said:
Clearly enough a matter or a proceeding may involve the interpretation of the Act or of an order or of an award, although the proceeding does not arise under the Act. This very case is an example and it may be said that almost always it will be so where the Act order or award is relevant only to some matter of defence to a proceeding based on some cause of action or ground which is prima facie independent of the Act order or award. It is the second sentence of the passage quoted that provides a ground of objection to the conclusion which I have stated. But I think that the objection should not prevail. The statement contained in that sentence was not essential to the decision, and the case then before the Court was very different from this case. Furthermore, in my respectful opinion, the statement quoted restricts unduly, in so far as it relates to a matter of defence based directly upon an Act of the Parliament, the scope of the matters which may be held to arise under an Act. Even if the statement be accepted, it does not assert that in no case may a matter "arise under" an Act by reason of the raising of a defence to which that Act is relevant. 1. (1945) 70 C.L.R. 141. 2. (1945) 70 C.L.R., at p. 173. 3. (1945) 70 C.L.R., at p. 154. 4. (1955) 92 C.L.R., at p. 540.
In my opinion in this case what was set up by the respondents, as an answer by which liability was denied, did not merely involve the interpretation of the Act but was a matter "arising under" it. Notwithstanding that judicial statements have been made which would indicate that the foundation of such a defence as was here raised is a principle of the common law, I am of opinion that its foundation was the Act.
In Miller v Haweis [4] , to which I have already referred, it appears to have been assumed without discussion that the only ground upon which it could be suggested that the Court of Petty Sessions was exercising federal jurisdiction was that it had before it a matter arising under the Constitution or involving its interpretation. No consideration was given to the question whether the circumstance that the Court had to consider the operation of the Commonwealth Electoral Act 1902 meant that it had to decide a matter arising under a law of the Parliament. The case should not be regarded, in my opinion, an an authority against the conclusion which I have stated above.
In the judgments in Anderson v Eric Anderson Radio & T.V. Pty Ltd [1] , some of the reasoning suggests a narrower view than that which I have taken of the circumstances in which it may be said that a matter "arises under" a law of the Parliament. But my examination of the judgments has led me to think that I am not precluded from adopting the conclusions which I have stated, either by the decision in that case or by any relevant statements of principle made by a majority of the Court.
I am of opinion that I do not need to consider, in this case, a problem which may sometimes arise as to the effect of s. 39 (2) (a), if it appears that two or more matters have been involved in the decision of a case, of which one is a "federal" matter and one or more are "non-federal". I do not think that in the present case there were two or more matters which could be regarded as severable from one another. There was no question concerning the construction or the operation of the deed which could be properly considered separately from the claim by the respondents that the relevant covenant was void. There were no severable "non-federal" questions in respect of which it might be suggested that leave to appeal could be given by the Supreme Court on terms that they alone should be considered in the appeal, even if it be assumed that that is a course which could be taken in some cases by the Supreme Court. In relation to appeals where inter se questions are involved the availability of an appeal upon some questions to the exclusion of others has been considered in several cases by this Court and by the Privy Council. I shall not refer to these, except to express my respectful assent to the observation in Nelungaloo Pty Ltd v The Commonwealth [2] that,
nothing is so apt to promote confusion and difficulty as an attempt to dissect out of an entire legal question one of the component issues it involves and to submit it for decision in artificial isolation. In the present case I think that the decision was really given upon one entire legal question. 1. (1952) 85 C.L.R. 545, at p. 571.
I have concluded that there was before Helsham J. a matter in relation to which the Supreme Court was invested by s. 39 (2) with federal jurisdiction. It is necessary to consider whether this was nevertheless a matter in which the Supreme Court could exercise a jurisdiction which may be called its "State jurisdiction" and which belonged to it independently of the grant of federal jurisdiction and had not been taken from it. If that separate jurisdiction continued, a further question must be decided, namely, whether the applicant was and is entitled to assert that in this case it was its State jurisdiction that the Court exercised.
For the applicant reliance was placed upon Lorenzo v Carey [1] , in which the following statement appears:
A State court must recognize the laws of the Commonwealth and be guided by them in exercising its State jurisdiction, and precisely the same duty or a diverse duty may fall upon it by virtue of a grant of federal jurisdiction under s. 77 (iii.). But even if the duty to be performed under the two jurisdictions be identical, the two jurisdictions are not identical: they are not one but several. 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. [2] This assertion of the coexistence upon the same subject matter of two separate jurisdictions has not been definitely rejected but it has been questioned. The matter was discussed by Dixon J. in Ffrost v Stevenson [3] , and by Latham C.J. in Minister of State for the Army v Parbury Henty & Co. Pty Ltd [4] . It was suggested that where federal jurisdiction is validly conferred, s. 109 of the Constitution makes inoperative a State law conferring jurisdiction over the same matter, at least where there are different provisions, producing different consequences, as to the right to appeal or otherwise. 1. (1921) 29 C.L.R. 243. 2. (1921) 29 C.L.R., at p. 252. 3. (1937) 58 C.L.R., at p. 573. 4. (1945) 70 C.L.R., at pp. 482-483.
Section 39 (1) of the Judiciary Act took away the jurisdiction of the State courts in matters in which this Court had jurisdiction. It did so by making the jurisdiction of this Court exclusive (except as provided in the section) of that of the State courts. No provision of the Act was expressed to take away the jurisdiction of the State courts in those matters in which this Court did not have original jurisdiction but in which original jurisdiction might be conferred upon it. By s. 39 (2) the courts of the States were invested with federal jurisdiction in both classes of matter.
In my opinion the solution adopted in Lorenzo v Carey [1] of the problem created by those provisions should be rejected. If the court had a double jurisdiction, there would be no acceptable way of determining in a particular case what jurisdiction it had exercised and thereby determining what were the consequences as to the right of a party to appeal. It is not satisfactory to hold that this determination may depend upon an election made by a litigant. There is no reason why a right of election should reside in one of the litigants to the exclusion of another and it is impossible to suppose that it resides in both.
In my opinion the problem must be resolved by treating the Commonwealth law as paramount and as excluding, in relation to the matters to which that law applies, the operation of the laws under which the State jurisdiction of the court would be exercised. The equitable jurisdiction of the Supreme Court of New South Wales in this case depended upon Imperial legislation (including the statute 9 Geo. IV c. 83, s. 11) and legislation of the State of New South Wales (including the Equity Act, 1901-1968): see Parker's Practice in Equity (N.S.W.), 2nd ed., pp. 4-6. The supremacy of the laws of the Commonwealth over the legislation of the State of New South Wales is established by covering cl. 5 and s. 109 of the Constitution. In so far as it may be necessary to assert their supremacy over any Imperial legislation from which the Court derived a power to adjudicate, authority for doing so is to be found in The Commonwealth v Limerick Steamship Co. Ltd. [2] .
Doubts have been expressed by Professor Cowen and by Professor Sawer as to the availability of s. 109 to meet the problem under discussion: see Cowen's Federal Jurisdiction in Australia, p. 195; and Sawer, in Essays on the Australian Constitution, edited by Else-Mitchell, 2nd ed., p. 86. Those writers have suggested that s. 39 does not disclose an intention "to cover the field", but, on the contrary, indicates that the intention was not to override, in all the matters to which s. 39 (2) refers, the jurisdiction which already belonged to the State courts. But in spite of difficulties created by the manner in which s. 39 has been framed, my conclusion is that the laws under which the State courts would exercise their "belonging" jurisdiction are made inoperative by s. 39. If sub-s. (2) thereof had simply invested the State courts with federal jurisdiction without adding the conditions and restrictions to which the investing was expressed to be subject, there would be perhaps no conflict with any laws under which the State courts already had jurisdiction. But when the conditions which have been attached to the grant of federal jurisdiction are considered, I think it should be held that Parliament intended that in the federal matters to which the section relates the only jurisdiction to be exercised by the State courts was to be federal jurisdiction, the exercise of which would be subject to the specified conditions.
It has been said by learned counsel for the applicant that in a considerable number of cases, of which he gave several instances, leave to appeal to the Privy Council has been granted by the Supreme Court in respect to decisions which, if the contention of the respondents is right, must have been decisions to which s. 39 (2) (a) applied because they were decisions upon matters arising under laws of the Commonwealth Parliament. I think that this is so, but in those cases the question now under consideration was not raised and they cannot be treated as authorities against the conclusion which I have reached.
It follows from the foregoing reasons that an appeal lay to this Court from the decision of Helsham J. Unlike the order of the Court of Appeal in the earlier proceedings in Felton (formerly Oser) v Oser [1] his order was not an order to which s. 93 of the Act applied so as to preclude an appeal to this Court except by special leave. Although, upon the view that I have taken, the Equity Court decided a "matter" which "arose under" the Act, the proceedings were not a "matrimonial cause" as defined therein. Accordingly, the order was not an order given or made under the Act, within the meaning of s. 93.
The main question to be decided on this application is whether the judgment and order of Helsham J. from which leave to appeal to Her Majesty in Council is now sought were made in the exercise of federal jurisdiction, with the result that they are not subject to appeal to Her Majesty in Council - see s. 39 (2) (a) of the Judiciary Act 1903-1969 Cth. The judgment and order were made in a suit in equity instituted by an originating summons by which the applicant sought a declaration that she is entitled to be paid by the respondents as executor and executrix respectively of the estate of Hans Peter Oser, deceased, the sums of money in accordance with the fourth covenant contained in a deed dated 21st June 1961, made between Hans Peter Oser and the applicant. That covenant provided, "That the respondent" (Oser) "his heirs executors and administrators during the lifetime of the petitioner" (the applicant) "will pay to the petitioner as and by way of permanent maintenance a weekly sum of money which shall be calculated" in the manner thereinafter specified. Helsham J. held that the applicant was not entitled to the declaration claimed and dismissed the suit [1] . It is now submitted on behalf of the respondents that his decision was given in the course of the exercise of federal jurisdiction because it was a decision on a matter "arising under any laws made by the Parliament" within s. 76 (ii.) of the Constitution and, therefore, a matter "in which original jurisdiction can be conferred upon" the High Court within s. 39 (2) of the Judiciary Act.
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.
Before Helsham J. it was submitted on behalf of the respondent that the fourth covenant in the deed was unenforceable. The argument was that the deed on its proper construction bound the applicant to seek no greater provision by way of maintenance than that made by the deed itself and in so doing purported to oust pro tanto the jurisdiction of the Court and offended against public policy and that for this reason not only the promise to seek no further provision, but also the fourth covenant, was unenforceable. Helsham J. regarded himself as bound by the decision of this Court in Brooks v Burns Philp Trustee Co. Ltd. [1] to accept this submission [2] . It is not our function in dealing with this application to consider whether his decision was correct. What we are called upon to consider is whether Helsham J. decided a matter arising under a law of the Commonwealth, and in doing so was exercising federal jurisdiction.
On behalf of the respondents it is said that a matter arose under a law of the Commonwealth because the question whether the deed was contrary to public policy depended on the effect of the Matrimonial Causes Act. Moreover, it is said that a further matter arose under a law of the Commonwealth, namely, whether the fact that the Court purported to sanction the deed under s. 87 (1) (k) of the Act saved it from invalidity. In fact it was conceded before Helsham J. that the agreement embodied in the deed did not fall within s. 87 (1) (k) and that there was no power to sanction it under that section - see Shaw v Shaw [3] - but Helsham J. nevertheless found it necessary to consider whether the purported sanction had any effect on the validity of the deed.
The words "arising under" in pars. (i.) and (ii.) of s. 76 of the Constitution have been the subject of judicial consideration. In R. v Commonwealth Court of Conciliation and Arbitration; Ex parte Barrett [4] Latham C.J., after setting out the words of s. 76 (i.) and (ii.) said:
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.
Clearly enough the proceedings instituted by the originating summons did not arise under any law made by the Parliament. The applicant sought to enforce a right which owed its existence to the fact that a deed had been executed by the parties, and neither the existence of the right nor its enforcement depended upon any provision of the Matrimonial Causes Act. However, it is suggested that a matter arose under that Act when the respondents submitted that the applicant's claim must fail on the ground that the deed was contrary to public policy. In Baxter v Commissioners of Taxation (N.S.W.) [1] and Miller v Haweis [2] it was said that a question of federal jurisdiction may be raised upon the face of a plaintiff's claim or it may be raised for the first time in the defence. Similarly in Pioneer Express Pty Ltd v Hotchkiss [3] , Dixon C.J. said that a jurisdiction, originally State, became federal because some of the defences raised to a prosecution for a breach of State law were founded upon immunities which according to the defendant's claim arose under the Constitution. On the other hand, in Collins v Charles Marshall Pty Ltd [4] , the Court said:
Clearly enough a matter or proceeding may involve the interpretation of the Act although the proceeding does not arise under the Act. This very case is an example and it may be said that almost always it will be so where the Act is relevant only to some matter of defence to a proceeding based on some cause of action or ground which is prima facie independent of the Act However, the Court there did not say that a matter arising under an Act may never be raised by way of defence. I am prepared to assume (although, on the view that I take, I need not decide) that a matter arising under a law made by the Parliament may be raised, by a formal defence or by an oral submission made on behalf of a defendant, in the course of a proceeding which does not itself arise under a law of the Parliament. It is unnecessary to discuss the difficulties to which this view might in some circumstances give rise. 1. (1907) 4 C.L.R., at p. 1136. 2. (1907) 5 C.L.R., at p. 93. 3. (1958) 101 C.L.R. 536, at pp. 543-544. 4. (1955) 92 C.L.R., at p. 540.
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.
I hold therefore that the decision of Helsham J. was not given in the course of exercising federal jurisdiction and that there is, therefore, no reason to deny the applicant her ordinary right to appeal to Her Majesty in Council.
The application for leave to appeal was removed into this Court from the Supreme Court under s. 49 of the Judiciary Act because the application involved the interpretation of the Constitution - in particular of s. 76 (ii.) No doubt the whole cause has been removed and this Court has authority to determine it completely. However, this Court is not, in my opinion, bound to determine a cause removed under s. 40 but may in its discretion remit it to the Court in which it originated. The view seems to have been taken that the power of this Court to remit a cause removed under s. 40 is not limited to that conferred by s. 42 of the Judiciary Act (see Lambert v Weichelt [1] and O'Neill v O'Connell [2] ) and I find it impossible to regard s. 42 as defining exclusively the circumstances in which a cause so removed may be remitted. In the present case once the view is taken that s. 39 (2) of the Judiciary Act does not prevent an appeal to Her Majesty in Council every consideration of convenience seems to me to favour remitting the cause to the Supreme Court.
I would remit the application to the Supreme Court of New South Wales.
Felton
Mulligan