Knight v Knight

The question whether the master is a member of the Supreme Court of South Australia depends on the law of South Australia. If the question were answered in the affirmative further questions might arise. It might then be necessary to consider whether a Supreme Court whose membership was expanded to include persons other than judges would be a court within s. 77 (iii.) of the Constitution, and whether, if so, the Commonwealth Act nevertheless discloses an intention that the federal jurisdiction in matrimonial causes with which the Supreme Courts are invested should only be exercised by judges and, if it does, whether the Constitution permits the Parliament to impose conditions of that kind when effecting an investiture of federal judicial power. These questions were debated but not decided in Kotsis v. Kotsis [1] .

The constitution and organization of the Supreme Court of South Australia are dealt with in the Supreme Court Act, 1935-1969 S.A. ("the Supreme Court Act "). Some amendments to sections material to the present questions were made subsequent to 1st February 1961, the date on which the Commonwealth Act took effect, but this is not of importance. When the Commonwealth Parliament invests a State court with federal jurisdiction, it confers federal judicial power on "a State court as it is or as it may become", or in other words, on the court as it is constituted from time to time (see Kotsis v. Kotsis [2] ), so that the Supreme Court which is now invested with jurisdiction under s. 23 of the Commonwealth Act is the Supreme Court as presently constituted and not the Supreme Court as constituted under the Supreme Court Act in force when s. 23 was passed, if there is a difference.

By s. 6 of the Supreme Court Act the Supreme Court of South Australia as already established is continued in existence and by s. 7 (1) it is provided as follows:

The court shall be constituted of the following judges, that is to say, the Chief Justice and not more than six puisne judges. The Act makes provision for the appointment of acting judges (s. 11) and for the issue of commissions to persons who are not judges (s. 53) and I shall later make further mention of those provisions. Section 82 (1) provides that "The court shall have a master and not more than two deputy masters". The qualifications for appointment to the office of master are different from those necessary for appointment as a judge and the tenure of the offices is different (cf. ss. 8 and 9 and s. 82 (2) (4) (5)). Section 72 (1) provides that rules of court may be made under the Act (inter alia) -

iv For empowering the master to do any such thing and to transact any such business and to exercise any such authority and jurisdiction in respect of the same, including the jurisdiction to refer a bill of costs for taxation, or to refer any other matter to the master, as by virtue of any statute, custom, or rule or practice of court may be done, transacted or exercised by a judge.

This power was exercised by O. 54, r. 20, of the Supreme Court Rules S.A. which empowers the master to "do and transact all such business, and exercise all such authority and jurisdiction in respect of the same, including the jurisdiction to refer a bill of costs for taxation or any other matter as by virtue of any Statute, custom, or Rule or practice of Court may be done, transacted, or exercised by a Judge sitting in Chambers", with certain specified exceptions. Section 72 (1) IV in its original form did not authorize the making of rules to empower the master to exercise any jurisdiction that a judge must exercise in court and although the section was amended in 1963 by deleting the words "sitting in chambers" where they appeared after the word "judge", no corresponding amendment was made to O. 54, r. 20, to expand the jurisdiction of the master. However, the details of the rules made under the authority of s. 72 (1) IV do not seem to me to be of any great importance, since the rules cannot make the master a part of the court if the Act does not do so. It may perhaps be mentioned that one of the matters in respect of which the master may not exercise jurisdiction is an application relating to the custody of infants (O. 54, r. 20 (n)), and that provision is made for references by the master either to a single judge or to the Full Court (O. 54, r. 21) and for appeals, which are by way of rehearing, from a master either to a judge in chambers (O. 54, r. 22) or in certain cases to the Full Court (O. 58, r. 32). Section 83 of the Supreme Court Act provides as follows:

(1) Subject to the rules made under this Act every order or decision made or given by the master in exercise of any power conferred upon him pursuant to this Act shall be as valid and binding on, and be enforceable in the same manner against, all parties concerned as an order or decision made by a judge: Provided that any person affected by any such order or decision of the master may forthwith, or within such time as is prescribed by any rules made under this Act, and subject to any conditions prescribed by those rules, appeal from that order or decision to a judge.

(2) The master, when engaged in the exercise of any jurisdiction conferred upon him by this or any other Act, shall be deemed to have and to exercise the jurisdiction of the court.

This section, before 1963, also contained the words "sitting in Chambers" after the words "judge" (twice occurring) and "master" (where it first appears). Subsection (2) was added in 1963.

The provisions of s. 72 (1) IV and s. 83 (1) of the Supreme Court Act, before their amendment in 1963, were in substance the same as those of s. 1 (1) and s. 4 of the Judges Chambers (Despatch of Business) Act, 1867 Eng., which was passed to regulate the position of the masters of the three superior courts of common law at Westminster, although s. 1 (1) of the English Act contained an exception in respect of matters relating to the liberty of the subject. It is, therefore, not irrelevant to notice that in England the masters of the superior courts of common law, and the masters of the Queen's Bench Division who succeeded them, were never regarded as members of the court, and that on the contrary there are authorities that support the view that an order of such a master is not an order of the court or a judge: Foster v. Edwards [1] ; Bryant v. Reading [2] . The position of masters in Chancery was different, in that they were deputies of the judges, but although their orders were in theory made by the court or a judge, acting through the master, they were not members of the court. The history of the office of master, at common law and in Chancery, is discussed in two interesting articles in the Law Quarterly Review ( 76 L.Q.R. 504 and 77 L.Q.R. 331). There is nothing in that history that supports the conclusion that the master forms part of the Supreme Court of South Australia.

1. (1879) 48 L.J.Q.B. 767. 2. (1886) 17 Q.B.D. 128.

Special provision as to the position of the master in matrimonial causes was made in the Matrimonial Causes Act, 1929-1941 S.A.. Most of the powers conferred by that Act are conferred on "the court", but s. 4 provides that in the Act, unless the context otherwise requires, or some other meaning is clearly intended, " "court" includes a single judge or the Master when exercising, in accordance with the rules, the jurisdiction of the court". One section in which this special meaning is excluded is s. 16, which refers both to the court and the master and obviously draws a distinction between them. By s. 39 (3), the Rules of Court, 1913, were amended by inserting therein O. 68 as set out in the Second Sch. to the Act. When the Rules of Court, 1913, were repealed by the present Supreme Court Rules, the rules in the Second Sch. to the Matrimonial Causes Act were preserved in force (see Parts I and III of the Fourth Sch. to the Rules of Court). Rule 28 of those rules provides that:

Unless the Act, these rules or the Master or judge in a particular case otherwise directs all applications and proceedings other than the hearing of the action or appeal shall be made to the Master in chambers, and unless otherwise directed evidence on applications in chambers shall be on affidavit. Rule 30 provides that there shall be an appeal to a judge in chambers from any decision made by the master and that the master may refer any application to a judge in chambers or to the Full Court. The appeal from the master is by way of rehearing (rule 31). When hearing applications in chambers, the master has all the powers as to contempt, production of documents and attendance of witnesses which a judge hearing the action would have "and all other powers of a judge in chambers" (r. 32). Other rules give the master power to dispense with compliance with the rules, extend time and regulate procedure (see rr. 91 and 92). Rule 86, rather curiously, provides that, in addition to all other powers exercisable by him, a judge in chambers or at the hearing may exercise all the powers given by the rules to the master.

It appears from these statutes that under the law of South Australia the master is an official of the Supreme Court who is empowered to perform judicial functions of considerable importance. He had jurisdiction in matrimonial causes arising under State law to deal with applications for interlocutory relief, including applications for orders for maintenance pending suit. He is empowered to make decisions which are judicial in character and which have the same effect as those made by a judge. In short, he is an officer of the court who exercises judicial powers of the kind which a judge of the court may exercise. This, however, does not mean that he is a member or a part of the court itself. A comparison between ss. 7 and 82 of the Supreme Court Act seems to me to establish that the master is not a member of the court. The court consists of the Chief Justice and the puisne judges, but is to have a master; in other words the master is part of the establishment of the court but not part of the court itself. Those who argue in support of the contrary view naturally place special reliance upon s. 83 (2) of the Supreme Court Act and on the definition of court in s. 4 of the Matrimonial Causes Act, 1929-1941 S.A.. By the former of those provisions the master is deemed to have and to exercise the jurisdiction of the court. Although as Griffith C.J. said in Muller v. Dalgety & Co. Ltd. [1] , the word "deemed" is commonly used "for the purpose of creating a "statutory fiction" that is, for the purpose of extending the meaning of some term to a subject matter which it does not properly designate", it is not always used in that way and does not necessarily import artificiality or fiction: see Hunter Douglas Australia Pty. Ltd. v. Perma Blinds [2] and St. Aubyn v. Attorney-General [3] . However, even if it is an indisputable fact that the master has and exercises the jurisdiction of the Supreme Court, it does not follow that he is the court or part of it. If, on the other hand, s. 83 (2) brings about an artificial result, it does not assist in determining the present question, because, as Menzies J. said in Kotsis v. Kotsis [4] , "a State cannot extend the investment of federal jurisdiction by deeming somebody, not the court so invested, to be exercising the jurisdiction of the court which has been invested with federal judicial power". The provisions of s. 83 (2) are similar to those of the section of the New South Wales Act which in Kotsis v. Kotsis [1] was held not to assist the conclusion that the deputy registrar was part of the Supreme Court of New South Wales (see at pp. 66, 68, 72, 73 and 75). Similarly, the fact that for the purposes of the Matrimonial Causes Act, 1929-1941 S.A. the word "court" is given an extended meaning, so as to include a master, does not mean that the master was part of the Supreme Court.

1. (1909) 9 C.L.R. 693, at p. 696. 2. (1970) 122 C.L.R. 49, at pp. 65-67. 3. [1952] A.C. 15, at p. 53. 4. (1970) 122 C.L.R., at p. 87. 5. (1970) 122 C.L.R. 69.

In Thomas v. Thomas [2] the Full Court of the Supreme Court of South Australia considered the question to which I have been devoting my attention. Bray C.J. [3] was of the opinion that s. 83 (2) left it in no doubt that "the masters are part of the structure, constitution and organization of the court", and that in any case the same result followed from the State legislation in force on 1st February 1961. Mitchell J. [4] said that the master is not himself a member of the court, but that he is part of the structure of the court. The conclusion of the Full Court that the master was invested with federal jurisdiction under the Commonwealth Act cannot be maintained since Kotsis v. Kotsis [1] , which establishes that when the Parliament in the exercise of its constitutional power invests a State court with federal jurisdiction, the mantle of investiture falls only on the court, and not on officials who form part of its structure or organization but who are not members of the court itself. However the judgment of Mitchell J. supports the view that I have formed that the master is not a member of the Supreme Court of South Australia and there is nothing in the other judgments in Thomas v. Thomas [2] that would support the contrary view.

1. (1969) 16 F.L.R. 113; [1969] S.A.S.R. 177. 2. (1969) 16 F.L.R., at p. 118; [1969] S.A.S.R., at p. 182. 3. (1969) 16 F.L.R., at p. 134; [1969] S.A.S.R., at p. 196. 4. (1970) 122 C.L.R. 69. 5. (1969) 16 F.L.R. 113; [1969] S.A.S.R. 177.

Since the master of the Supreme Court of South Australia is not a member of that court, I am bound by Kotsis v. Kotsis [1] to hold that he is not invested with federal jurisdiction in matrimonial causes by s. 23 of the Commonwealth Act.

It was submitted that if the master is not invested by s. 23 of the Commonwealth Act with jurisdiction to hear and determine matrimonial causes, the same must be held in relation to acting judges and commissioners appointed under the Supreme Court Act. Although it is strictly unnecessary to deal with this contention, in view of the arguments submitted it seems desirable to add that this conclusion does not necessarily follow. By s. 11 (1) of the Supreme Court Act an acting judge is appointed "to act in the stead" of the judge who is absent or unable to discharge his duties and it seems clearly right to imply that for all purposes the acting judge occupies the position of the judge in whose stead he is appointed, and, like that judge, is a member of the Supreme Court. Even if the acting judge continues in office after the judge in whose stead he was appointed has died, resigned or returned to his duties, as may be the case under s. 11 (3) and (4), it seems to me that he must be treated as retaining the judicial status which he acquired on his appointment. No difficulty thus arises in relation to the exercise of federal jurisdiction by acting judges of the Supreme Court of South Australia. The position of commissioners is regulated by s. 53 of the Supreme Court Act, which empowers the Governor to issue a commission directing any judge to hold circuit sessions of the court but provides that it shall be lawful for the Governor upon the recommendation of the judges of the court to issue the commission to a practitioner of the court of at least seven years' standing and that every practitioner so assigned shall, for the purposes of the commission, have all the power, authority and jurisdiction of a judge of the court. Section 53 (4) provides that every commissioner, when engaged in the exercise of any jurisdiction assigned to him by the commission, shall be deemed to have, and to exercise, the jurisdiction of the Supreme Court of South Australia and any sessions held under the commission shall be sessions of the said court. The position of commissioners is not as clear as that of acting judges, and since the question whether commissioners are invested with federal jurisdiction under the Commonwealth Act may fall for decision on another occasion I do not think it right to express any opinion on it here beyond saying that it is not necessarily determined by the present decision.

For the reasons I have given, I am of the opinion that the master of the Supreme Court of South Australia has no jurisdiction to hear and determine the application in question. It will be apparent, from the reasons that I gave in Kotsis v. Kotsis [1] , that I reach this conclusion with regret.