Taylor v Taylor

Taylor v Taylor - [1979] HCA 38 - HCA 1979 case summary — Zoe

[20]

If this principle be not observed, the person affected is entitled, ex debito justitiae, to have any determination which affects him set aside; and a court which finds that it has been led to purport to determine a matter in which there has been a failure to observe the principle has inherent jurisdiction to set its determination aside In such a case there has been no valid trial at all. The setting aside of the invalid determination lays the ghost of the simulacrum of a trial, and leaves the field open for a real trial He added [10] , that "in the absence of clear words, a statute should not be treated as depriving a court of the inherent jurisdiction possessed by every court to ensure that trials before it are conducted in accordance with the principles of natural justice". He held [11] , that the Federal Court of Bankruptcy was a superior court, and that a decision of a superior court cannot be treated as a nullity, but is, at worst, voidable, i.e., valid unless and until it is set aside. He criticized the judgment of Lord Greene M.R. in Craig v. Kanssen [12] , although he agreed with the conclusion reached in that case, where the court, exercising its inherent jurisdiction, set aside an order made against a party who should have been served, but who was not served, with process. However, Lord Greene M.R. referred to such an order as a nullity; Rich J. said (20) that this was true enough in the case of an inferior court, but misleading since the order in question was made by a superior court - "in the case of a superior court the distinction is between irregularities so fundamental as to create an unconditional right, ex debito justitiae, to have the judgment set aside, and non-fundamental irregularities as to which the court has a discretion". McTiernan J. was of a similar opinion to Rich J. [13] . Williams J., who dissented for reasons which do not concern us, also said [14] that a court has an inherent power to set aside an order which has been made against a person without that person having notice of the application. It is unnecessary to consider whether the criticism voiced by Rich J. of the language of Lord Greene M.R. in Craig v. Kanssen is justified. It is clear that the majority of the Court in Cameron v. Cole accepted that a court, whether superior or inferior, has inherent power to set aside an order made against a person who did not have a reasonable opportunity to appear and present his case. It seems immaterial in the present case whether the Family Court is regarded as a superior court or an inferior court. It is declared by s. 21 (2) of the Family Law Act to be a superior court of record, but it is of course a superior court of limited jurisdiction. In that respect it occupies a similar position to the Federal Court of Bankruptcy considered in Cameron v. Cole. No provision of the Family Law Act deprives the Family Court of this inherent power, except, perhaps in relation to a decree of dissolution of marriage (see ss. 55-59) - a question which I need not consider in the present case. 1. (1944) 68 C.L.R. 571. 2. (1944) 68 C.L.R., at pp. 583-586. 3. (1944) 68 C.L.R., at p. 586. 4. (1944) 68 C.L.R., at p. 589. 5. (1944) 68 C.L.R., at p. 589. 6. (1944) 68 C.L.R., at pp. 590-591. 7. [1943] K.B. 256, at p. 262. 8. (1944) 68 C.L.R., at pp. 598-600. 9. (1944) 68 C.L.R., at p. 607.

[22]

In the Full Court of the Family Court Demack J. said that in his opinion further litigation to redress the wrong which the appellant had suffered should have been directed at his solicitors rather than at the other party to the marriage, lest the assets of the parties should be "squandered on endless litigation which is undertaken not for the benefit of the parties but to correct professional error". With respect it is not right to say that the litigation is not undertaken for the benefit of the parties; the application to set aside the order was clearly for the benefit of the appellant. However, with all respect, Demack J. fell into an error similar to that which led Fry J. to refuse to set aside a judgment in Burgoine v. Taylor [15] . In that case a defendant was not represented at the trial of an action because his solicitor was ignorant of the fact that the action had been transferred from one judge of the Chancery Division to another, and had therefore only watched the list before the former judge. Fry J. said [16] that the defendant would have a remedy against his solicitor for negligence, and he refused to set the judgment aside. The Court of Appeal had no difficulty in reversing his decision; indeed Jessel M.R. expressed surprise that the application to set aside the judgment had been opposed [17] . The application there was made under the specific provisions of a rule of court, and the decision thus throws no light on the question of power, but it supports the conclusion, which I should in any case have reached, that it is no answer to a party who asks the court to set aside an order made against him in his absence at a hearing of which he had no notice to tell him that he has a remedy against his solicitor. In such a case, assuming that there is a real question to be tried, justice requires that the order, having been made in breach of a fundamental principle of natural justice, should be set aside, and that the matter should be reconsidered on its merits.

[60]

On 5th August 1975, Woodward J. in the Family Law Division of the Supreme Court of New South Wales granted a decree nisi on Mrs. Taylor's petition under the Matrimonial Causes Act 1959 Cth, as amended, for dissolution of the marriage on the ground of her husband's cruelty and ordered the transfer of the matrimonial home to her by way of an order for settlement of property under s. 86 of that Act. Mr. Taylor's solicitor neglected to file any answer to the petition and did not inform Mr. Taylor of the hearing; as a result, the proceedings were heard in Mr. Taylor's absence and without any representation for him. Mr. Taylor became aware of the decree and order soon afterwards. He made no application concerning either until 31st March 1976 when he filed an application under the Family Law Act 1975 (which came into operation on 6th January 1976) in the Family Court of Australia (not "The Family Law Court of Australia" as the application described it) for an order to vary Woodward J.'s order by providing that the home be sold and the net proceeds of the sale be divided between Mrs. Taylor and himself. Notice of this application was served on Mrs. Taylor prior to 4th May 1976 and notice of hearing was served on her sometime prior to 1st July 1976. The application was heard by Hogan J. in the Family Court of Australia on 2nd July 1976. Mrs. Taylor was not represented. Her solicitor did not file any document in opposition and her solicitor and counsel thought the hearing was to be in the Family Law Division of the Supreme Court which she attended. Her legal representatives ascertained that the matter was not listed for that day in that Division and did nothing. Hogan J. made the order in accordance with Mr. Taylor's application, apparently thinking, as did Mr. Taylor's representatives, that the Supreme Court's order could be varied by the Family Court of Australia as the Supreme Court would have varied it (but for the Family Law Act) under s. 87 (1) (j) (i) of the Matrimonial Causes Act (see Zafiropoulos v. Zafiropoulos [25] ). The Family Law Act, however, did not contain a provision to the same effect. Mrs. Taylor learned of the order and appealed to the Full Court of the Family Court of Australia which allowed the appeal, holding that Hogan J. had no power to make the order.

[66]

Section 89 of the Matrimonial Causes Act provided that "the court shall not make an order under this Part in favour of the petitioner where the petition for principal relief has been dismissed". Mr. Taylor contends that the evidence on which the decree nisi was based was false and, therefore, the order for property settlement was obtained on false evidence. This should be rejected. Section 79A should not be interpreted to allow the integrity of a decree to be underminded by allowing the evidence on which it was based to be subjected to review under s. 79. "Where the court is satisfied that the order was obtained by false evidence" means that the court is satisfied that the order would not have been obtained but for the false evidence. This permits review of the evidence on which an order was obtained, but does not permit inquiry into whether a decree nisi for dissolution was obtained by the giving of false evidence. A claim that evidence on which an order was based was false is permissible under s. 79A even if this also was evidence on which a decree nisi was based, but it is not permissible to come within s. 79A by showing that a decree nisi was obtained by false evidence. Such a collateral inquiry into the foundation of a decree for dissolution is inconsistent with the provisions designed to protect the integrity of a decree for dissolution. A decree nisi may be appealed (s. 55) or rescinded on the ground of miscarriage of justice (s. 58) but there is no appeal from a decree absolute (s. 93). Mr. Taylor's argument that he is not impugning the decree nisi is unacceptable. The contention that the order was obtained by false evidence because the decree nisi was obtained by false evidence directly involves the proposition that the decree nisi should not have been granted. The decree nisi is merged in the decree absolute. Even if a decree for dissolution were liable to direct attack, a collateral attack such as this would not be permissible (see Hinton Demolitions Pty. Ltd. v. Lower [No. 2] [26] ). Even more, such an attack cannot be made indirectly when the decree cannot be attacked directly. The order cannot be sustained under s. 79A.

At a glance

Court

Decision date

Before

Source

Judgment (78 paragraphs)

Parties