LEGAL LAKDMAKKS, 1956-1857
CONSTITUTIONAL LA\\'
l'nifovnz Tax Scheme.
The system of a single income tax levied and collected
exclusively by the Commonwealth has been in operation in Australia since 1943. Originally introduced as a wal--time Ineasure,
it was given the constitutional imprimatur of t h t ~High Colirt in
.South A ustrnliu v. Tizr C o ~ ~ ~ m o ~ ~ z on
~ ~ ge ir ~o l~t~/ znltwllic11
k
\vere not
confined to thc defence pokver, and in 194ri aftrr t!it' ce.;sation of
hostilities tile scheme was re-enacted as a pcrlnanrnt mca.;ure.
The means by which the system is opcrate:l is ;I Cornrnor11vc~~t1ti1
legislative scheme involving a Grants -4ct unilcr -. !)ti of the
Constitution, by whicli the Con~nionwealt!~
1calie5 ,i~it~i~;il
grants
to the States designcd to compt3nsate them for tllr, lo-- of rc3vcnncx
from income taxes of their own, and Taxation .-let. i~nljo-ii~g
income
t a s at a rate high enougli to protluct. fundx for ti~i,p:irl~o>cL
a> ~ ~ 4 1
as for the ordinarv purposes of tlle C o n n ~ ~ c ~ ~ ~ w t1-11c
~ a l tSt,it(:.:
l~.
are induced to submit to this scheme by a cc,i~tlitiollattacl~istlt ~ )
their grants, and inserted in the (;rants =\c-t,tl!:rt tl~e!- nus st :lot
levy any income tax themselves. Since the C'oit~inorl\l-tdtl~
!:r,l:it.y
make up more than half of the an~lualre\-enucts i ) f the States, titi,
condition is a powerful inducement to the Ststtlh to sta\- out of tlits
income tax field. I t is reinforced by a pro\.i>ion In tl~cs Inconlc,
Tax Assessment Act (s. 221) giving the Com~nonuc.altlltax priority
over any State income tax in bankruptcy and tllc liquidation oi
companies, and making it an offence for any taupa!.c,r to pa)- any
State income tax before he has paid all his Com~non~vealth
tas
for the year.
Another attempt has been made by the Str~tcxyof Victoria ant1
New South Wales to have the scheme invalitlatctl: 17ic!orii/ 71. The
Commo~~zo~ealth,~
the attack being concentratecl on tlltb contlition
attached to the Con~monwealthgrants and on 5 . 221 of t l ~ :;\ssessnlent .4ct.
All seven judges held that the condition requirii~gti](* Stat(..;
to refrain from imposing income tax lay within tlie power of tli~x
Commonwealth Parliament under s. 96 to make grant5 "on such
terms and conditions as it thinks fit." Apart from the plain and
unqualified language of s. 96, it was held that the course of judicial
decisions in V7ictovia v. The Commo?zwealtlz (1936)3 ant1 Deputy
1. (1943) 65 C.L.R. 373.
3 . [1957] A.L.R. 761, 31 A.L.J . 369.
3. 38 C.L.R. 399.
Legal Landmarks, 1956-1957
Com~~zissioner
of Taxation (AT.S.W.)z!. W. R. Moran Ply. L t ~ i . , ~
which upheld the attachment of conditions to grants binding tllr
States to use the money for particular specified purposes, even
purposes outside the powers of the Commonwealth, or to hand
the money over to a particular class of persons, or to contribute
additional State funds for the specified purposes-reinforced, of
course, by thc decision in the First Unqorm Tan. Case-led inevitably
to tlic, conclusion that the Tax Keimbursement Act was valid.
The plaintiffs naturally relied strongly on the principle of
hlrlbournc. Corporation a. T h e Comm~nwealth,~
that the Common\vealth cannot attempt to fetter or control the exercise by a State
powers. Hut the Court pointed out, as it
of it:; conitit~~tional
dicl in thc Fivst Uniform Tux Case, that s. 96 does not authorise
an>- coircii'c, law: whatever conditions may be attached to a
Colllrnonwc~altl~
grant, thc State remains leg all^^ free to avoid them
.
!
b not accq)ting the grant; and this was true of the Tax Reimburscmcnt &Act.
Thcrc \\.as, llowever, no such unanimity among the judges
al3ont s . 221 of tllc. Aiscssment Act. So far as the section provide.
for priorit). of Conimon\z,ealth income tax over any State income
tax in tlir. clistribution of the estate of a bankrupt taxpayer or in
tllc. licluitlatio~iof a company, all wcre agreed that it was valid.
H u t tlic prc)vision slibjecting all taxpayers to penalties if they fail
to pay the Commonwealth t a s before any State income tax was
llclcl b>. a majority of four (Dison C.J., McTiernan, Kitto, and
1-aylor JJ.) to three (Ll'illiams, U7ebb, and Fullagar JJ.) to be
in\xlid.
The minority took the l-ie~vthat this provision, like the rest
of s. 221, dealt with a matter incidental to the taxation power in
s. 51 (ii) of the Constitution. Dixon C.J., XIcTiernan, and Kitto
J J . , however, rcgardeci the parts of s. 211 dealing with bankruptcy
and liquidation as valid only under the bankruptcy power in s. 51
( x i Tiicy refused to accept the view of the minority that the
other proviqiun was calculated to make the Commonwealth tax
eficctive and secure: to them its sole purpose was to make it more
difficult for the States to impose an income tax. McTiernan J.
\vah content simply to characterise the provision as a law with
respect to State income tax. Dixon C.J. (with whom Kitto J.
agreed) said the provision was an "attempt to advance or extend
the substanti\-e power actually granted to the Commonu~ealthuntil
it reaches into the exercise of the constitutional powers of the
Statess'-an appeal to thc fcderal principle of the ~lfelboz~rnr
188
The L7nivei sity of Queenslaftd L ~ Z ZJ Io' u ~ ~ ~ a l
Corporation Case, though the Chief Justice did not e~presslyreicr
to that case in this part of his judgment.
Taylor J. evidently regarded the bankruptcy ant1 liquidation
parts of s. 221 as incidental to the taxation power, being designed
to rnake the Comn~onwealthtax effective in situations where it
was clearly likely to be in jeopardy. But like the other majorit\judges he denied that the other provision could contribute in any
way to the effectiveness or security of the Commonwealth tax ant1
therefore went beyond the limits of the taxation power.
The result is that the uniform tax scheme, and the consequent
dependence of the States on Commonwealth bounty, seems likely
to remain a permanent feature of Australian government. The
invalidity of the portion of s. 221 will surely not induce any State
to assert its independence. As Dixon C.J. said, "Whether such a
declaration [that s. 221 (i) (a) is invalid] is of practical importance
in relation to the system of uniform taxation is a matter about
which I may be permitted to remain sceptical. . . ."
Freedonz of I n t ~ r s t a t eTrade, Ccmmerce, atid I ~ ~ f r r c o ~ ~ Infrrstczfc
r\~e:
7'vunsport.
The litigious battle between the interstatc roatl hauliers ant1
the State Governments which had reached a climax in the two
Hughes and V a l e Cases6 continued throughout the past year.
The most important case on thc relatio~ishiplic.t\veen inter-Statc
transport and s. 92 was Armstrong o. T.icto~ici (.fro. 2).' .I 17t.w
scheme for compelling the interstate hauliers to contribute to tlit.
maintenance of the roads, devised by the I'ictorian (;ovcrnmeiit to
meet the requirements of the Seco~lriHugizes clrld I-rllc Crr.5~.\\.as
upheld by a narrow majority of the High ('ourt (Ijison C.J..
hlcTicrnan, Williams, and Fullagar J J . ; Webb. Kitto, and Tajrlor
JJ. dissenting), and ROW provides the model for ilic other Statcs.
C'nder this scheme owners of commercial veliiclts of more than
four tons load capacity must pay one-third of a penny per ton
per mile travelled on the roads of the State. No distinction is
drawn between interstate and intrastate journeys. The charge
is stated in the legislation to be by way of compensation for wear
and tear of the roads, and all moneys received are paid into ;r
special fund to be applied only t o the maintenance of public highways. The tonnage on which the charge is levied is calculated by
adding the tare weight of the vehicle to forty per cent. of its loat1
capacity. The owner is obliged to keep records of journeys and
to submit periodical returns with the amounts owing under the Act.
ti. Hughes G. Vale Pty. Ltd. u. New South W a l e s (So. I ) L1955j X.C. 241
(1954) 93 C.L.R. 1; Hughes G. ValePt?i. L t d . V . .YEWSouilz Wales (.Vo. 2
(3955) 93 C.L..H. 127; discussed in 2 U.Q.L.J. 369-73.
7. 119571 A.L.R. 889.
Legal L a n d m a r k s , 1966-1957
189
The statement of Dixon C. J . , McTiernan, and Webb JJ. in
the Second Hughes and V a l e Case (at pp. 175-6) was virtually taken
as the test to be applied (though not necessarily exclusively):
". . . if a charge is imposed as a real attempt to fix a reasonable
recompense or compensation for the use of the highway and for a
contribution to the wear and tear which the vehicle may be expected
to make it will be sustained as consistent with the freedom s. 92
confers upon transportation as a form of inter-State commerce.
Rut if the charge is imposed on the inter-State operation itself
then it must be made to appear that it is such an attempt. That
it is so must be evident from its nature and character. P r i m a
facie it will present that appearance if it is based on the nature
and extent of the use made of the roads (as for example if it is a
mileage or ton-mileage charge or the like); if the proceeds arc
devoted to the repair, upkeep, maintenance and depreciation of
relevant highways, if inter-State transportation bears no greater
burden than the. internal transport of the State and if the collection
of the exactio~l inl-olvcs no substantial interference with the
journey."
The majority held that the Victorian charge passed this test
with the aid of e\.idence submitted in the first instance before
.
the various figures were determined and
Taylor J . to s h o ~ how
the relationship betv.ecn the total amount expected to be received
and the total cost of road maintenance in Victoria. There were
some unsatisfactory features of this evidence, which led Taylor J.
to the conclusion that the State had failed to show that the charge
n a s "reasol;nble", even if he was to accept--a5 lle did not-the
majority's trst as a correct one. Tlle majority, however, took the
\,ieiv that complete icatlieinatical or statistical accuracy was not
r:ecessary, so long as it appeared-as it did to tliem-that
there
was "a real attempt to fix a reasonable recompense or compensation" for wear and tear. William> J . went so far as to say that
the onus was on the hauliers to she\\- that the charge was unreasonable in amount.
Dixon C.J. (with whom PrlcTicrilan J . entirely agreed) took the
occasion to consider again a t length the juristic basis of the State's
right to impose a charge on interstate transport consistently with
s. 92, in order to rebut the view of Kitto j. and Taylor j. expressed
in the Secutld H z g h e s and I'nle Case and adhered to by them in
this case that s. 92 does not permit any such charge. "The true
point", said the Chief Justice, "must lie in the recognition of the
completely interdependent relation between modern transport and
modern roads, not only as a matter of engineering but also as a
matter of finance. The success of transport by road depends upon
the state of the roads and the state of the roads depends upon
100
The C'niversity qf Queenslum.i Lust, Jourllul
the expenditure upon them, espenditure in reparation, for the
most part, of the wear and tear upon them caused by the
transport". He assimilated the roads as facilities for interstate
trade, commerce, and intercourse to other facilities such as airfields, air routes, harbours, wharvvs, etc., for the upkeep of which
Go1,ernments could validly impose charges on those who use them,
not merely because they are the property of the State, but because
of "the relation to interstate trade which their nature and purpose
give them. The reason why public authority must maintain them
is in order that the commerce may use them, and so for the commerce to bear or contribute to the cost of their upkeep can involve
no detraction from the freedom of coinmercial intercourse between
States".
His Honour's reasoning would appear to warrant a conclusion
that interstate users of such facilities may constitutionally be
required to contribute to the cost of their construction or improvement as well as of their maintenance. But that is not his view.
He expressly stated that s. 92 does not allow tile (,saction from
interstate traders of any contribution to~vardsthe capital expenditure on roads, though, inconsistently it swms, in speaking of a
hypothetical toll road constructed between Sydney and Rlelbourne,
he said that a valid charge could include a contribution towards
the annual interest payable on the capital outlay. From the
economic standpoint the distinction drawn by the Chief Justice
between capital costs and maintenance costs may be difficult to
draw, especially if one considers the sort of work which is usually
called "improvement".
The new road charge scheme as endorsed by the High C,ourt
offers the States some hope of replenishing their road construction
and maintenance funds, but no doubt it presents them with great
administrative (and political) difficulties. Without an elaborate
policing system the scheme is wide open to evasion. An application t o the Privy Council for leave to appeal against the High
Court's decision was refused.
Among a number of decisions favouring interstate hauliers
should be noted that in Naracoorte Transport Co. zr. Butlev.* One
consequence of the decisions in the Hughes and Vale Cases relieving
interstate hauliers from the burdens of State transport licensing and
tax systems was a rapid rise in the population and commercial
activity of many border towns, such as Naracoorte, in South Australia just over the Victorian border, as transport concerns found
it convenient to set up offices and depots in them with a view
to maximising the interstate character of their operations. The
8. (1956) 95 C.L.K. 455.
Legal L a n d m a r k s , 1956-1957
191
Victorian transport authorities and the magistrate who heard the
charge in the case mentioned, where wool shorn and baled on
Victorian stations was carried in an unlicensed vehicle from
Naracoorte to Geelong (Victoria), were not impressed by the plea
of the defendant transport company that the carrying operation
was interstate and therefore entitled t o the protection of s. 92.
The wool had been collected and taken to the defendant company's
depot a t Naracoorte by another firm, one of whose members,
significantly, was on the defendant company's board of directors.
The High Court held, however, that "whatever reasons or motives
any of the consignors may have had for sending their wool by the
appellant's service from Naracoorte rather than by some other
servicr following a inore direct route to Geelong", the particular
operation in respect of which the charge was laid wds clearly one
of interstate trade and was therefore protected b~ s. 92.
This case may be regarded as the converse of H Z C ~ ~
ZJ. P S
T n s m a r ~ i a , Qwherc. it was held that a carrier engaged to convey
from a nortliern Tasmanian port to Hobart goods imported by
Hobart nlcrcharlts from Victoria was )tot engaged in interstate
trade, althougli the goods lie was carrying clearly were still in the
course of intcrstatc trade. This latter case was distinguished in
Iiussell v. Waltev.<.1° also concerned with the operation of the
Tasmanian transport legislation on the carriage of goods, imported
irorn Victoria, from a Tasmanian port to the importer's depot in
another town. In this case the goods were picked up a t the port
;inti carried on a ~ ~ h i c lowned
e
and operated by the importer
i
z This was held sufficient to distinguish Hughes' Case and
to make the journey part of the interstate transit, which was not
concluded until the goods reached their ultimate destination. "The
n where inter-State transit begins and ends,"
question of ~ i ~ h eand
said the Court, "is a question to 11e decided not upon the terms
of a contract but as a matter of practical reality depending on
the facts of each particular case."
Freedom of I ~ t t e v s t a tT~r a d e , Commerce a n d I~ztevcourse: Marketzng.
The High Court has in many cases been a t pains to emphasise
that it is only acts of interstate trade, commerce, or intercourse
which are entitled to the freedom from governmental restriction
given by s. 92. So where control legislation operates on acts or
facts which fall outside the scope of interstate trade, commerce,
and intercourse the Court has tended to say that s. 92 has no
application, even though in an eco~tomic or business sense the
control may have consequential adverse effects on interstate trade.
9. (1955) 93C.L.R. 113. See2U.Q.L.J. 379.
lo. (1967) 96 C.L.R. 177.
This was the situation, for example, in relation to control of
~l
of the price of Tasmanian potatoes
margarine p r o d ~ c t i o n , control
sold ex wharf in Sydney,l* control of the distribution of prepared
meat imported from another State,13 control of the commission
charged by Sydney agents on the sale of apples sent from
Tasmania.14 The Court has taken the view that "the first sale
of a commodity after importation usually is a separate distinct
and subsequent transaction" not forming part of interstate trade.
In Wragg's Case12 Dixon C. J. drew a distinction between a trader's
"legal" capacity to import and his "economic" capacity, saq-ing
that s. 92 was relevant only to the former.
In Fish Board v . Paradiso15 a Queensland marketing authority
sought to take advantage of this line of reasoning to justify the
application of a legislative prohibition, subject to penalties, of the
sale of fish unless it is first brought to and sold a t an estab1islit~:l
fish market in the district, to the sale over the counter by a retailer
of fish bought by him from and delivered to him direct by a
company established and operating in New South Wales. The
retailer was penalised, so the argument ran, in respect of sales in
Queensland made after the interstate transaction had come to an
end: s. 92 therefore had no application.
The argument, however, did not commend itself to the High
Court. Although in a sense-one might say a "legal" sense, rcfvrring to Dixon C.J1s distinction referred to above-the statutory
provision left the retailer free to import fish from Kew South Il'alcs
and did not absolutely require him to deliver it to the IZoard. Ilc
could not deal with it except by delivering it to the Hoard. Tilt.
provision thus gave him no "pvactical option", and was as
"immediate and direct" a restriction on his freedom to trade i n k state and hence as much an infringement of s. !)? as if it hat1
directly required all fish coming into Queenslantl to 1 ~ delivereil
.
to the Board for sale.
The judgments make no reference to any o f the cases referrrd
to above, nor indeed to any case except Cam 6 Son) Pty. Lfd. 71.
The Chzef Secretary of New South Wales.16 Rut tlie decision must
be regarded as an illustration of the qualification to the principle
of those cases expressed in Kellaway's Case17 in these terms: to
say that sales of imported fruit are part of the domest~ctrade of
11. Grannall v. .~Iawickuille ,Wavgavine P t y . Ltd. (1!)55) $13 C.I..IC. 5 5 ; discussed in 2 U.Q.L.J. 376.
12. bL'vngg v. S e w Soitfh H'ales (lG53) 88 C.L.K. 853.
13. M'illiarns v. .llctvopolifan & E x p o r t dbattoivs (1953) 89 C.L.I<, 66.
14. Gra?znall c . C . Gro. Kellrcwaj8 G. Sons P t y . L t d . ( I 955) $13 C I..1I. 3!j;
discussed in 2 1T.Q.L.J . 355.
15 (1956) 95 C.L.R. 443.
16. (1951) 84 C.L.K. 452.
17. Kote 14 above.
Legal Landmavks, 1956-1957
193
the State "does not mean that legislation, if so framed as to impede
or prejudice the sale of the fruit might not impair the grower's
or consignor's [for the purpose of Paradise's Case we may add the
importer'sj freedom to engage in or conduct interstate commerce."
The case thus falls into the same category as three older cases,
F o x v . Robbins,ls the C.O.R. Case,lg and the Vacztum Oil Case,Zo
in all of which legislation imposing burdens on intrastate sales
after importation of the commodity was held invalid as constituting
a direct burden on the interstate trade.
Freedom
(if Il~tevstate Trade,
Commerce atid Intercourse: L o t t e r i ~ s .
Tli:. cluestion of what is involved in tlie concept of interstate
tractr, commerce, and intercourst. was also raised in the difficult
case of ;Tlrll~sell71. B e ~ k . ~ The
l
High Court held that a legislative
proliibition agaii~st tlie acceptance of money in respect of the
purcllasc of a ticket in a lottery (except one licensed by the
appropriate authorit!.). being part of a general State law- prohibiting the conduct of lotteries, mras valid even in its application to
thC 1>urc11axof tickets in lotteries lawfully conducted in other
States. 'l'liis co~iclusionhad been reached by the High Court in
t\\ o case, dccidctl in 1939: R. v. Connare, e x p. W a w n Z 2and R. 21.
ilIavtin, ex fi. ~ T ' U Z L - ~ I , ~but
~
the question was again fully considered
1 3 ~ . the Court owing to the unsatisfactory nature of the reasoning
in some of the judgments in those cases in the light of later developmcants in >. !)? cloctrine.
.l.Ic?'iernari J . wah content to rest his decision on the simple
1)ruposition that the conduct of lotteries and all attendant acts of
payment, communication, transmission of money and tickets, etc.,
is not trade, commerce, or intercourse a t all, but merely gambling:
s. 0 2 therefore has no application. Taylor J. drew upon the long
history of British and Australian legislation against lotteries and
gaming to reach the same conclusion.
The other judges, however, did not take this view. Williams J.
fell back on the distinction which had been drawn in Wragg v.
,Veze' Sozlth M ' a l e ~ 2 and
~
the other similar cases referred to in the
discussion of Fish Board v. Paradiso above, between "activities
which are characteristically part of interstate trade, commerce, and
intercourse and activities in close juxtaposition thereto but not
close enough to have the magic wand of s. 92 waved over them."
He held that the act of accepting money in Sydney for transmission
to Hobart for a ticket in a Tasmanian lottery was not a link in
104
The University of Queensland Law Jourrtal
the interstate chain protected by s. 9.2, and although, as he recognised, the prohibition of such an act might have the "economic"
effect of restricting interstate intercourse, this was, in accordance
with the principle of Wragg's Case, irrelevant. This very narrow
idea of the nature of the transaction was rejected by Kitto J.,
who alone of all the judges held the provision to be a direct infringement of freedom of interstate intercourse and so invalid.
For the purposes of precedent the leading judgment is that
of Dixon C. J. and Webb J. Their reasoning was supported by
Fullagar J. and, it seems, by Williams J. (at p. 578). Dixon C.J.
and Webb J. did not find it necessary to decide whether the act
of accepting money for the purchase of a ticket in a foreign lottery
was itself part of interstate trade, commerce, and intercourse or
not. Their reasons for holding the law valid were applicable in
either case, as is clear from their dictum that "if the Federal
Parliament were to enact that none of the means of communcation
or of paying money between States was to be employed for, or in
furtherance of the conduct of, a lottery, then an attack upon tile
enactment upon the ground that it infringed s. 92 migllt bc espected
to fail". The test applied by their Honours is one wliich has often
been advanced by Dixon C.J., but has probably been tlecisive only
in one other case: Hospital Provident Fwtd f'ty. Ltd. v . T7ictoria.25
It has been put thus by the Chief J u s t i ~ e even
: ~ ~ wherc thew is
"an act or transaction which falls within tlle conceptio~~
of trade,
commerce, or intercourse among the State:; and n restriction or
burden operating upon that act or transaction", there is 110 infringement of s. 92 if "the restriction or burden is imposed in virtue uf
or in reference to none of the essential qualities which are connoted
by the description 'trade, commerce, and intercourse among the
States.' "
This is a difficult concept to grasp. As applied to the situat~on
in Mansell v. Beck, it led Dixon C.J. and Webb J. to the conclusion
that even though the act of accepting money for the purchase of a
foreign lottery ticket might be part of interstate intercourse, it
was not for that reason or by virtue of any interstate or commercial
character of the act that it was prohibited-it was prohibited simply
because of and by reference to its aleatory character as part of a
general law against lotteries. As Fullagar J. pointed out, it would
be otherwise if the law discriminated against lotteries conducted in
other States, because then the interstate character of the transaction
would be a criterion of the application of the law. But in the
case of a law which does not discriminate between interstate and
25. (1953) 87 C.L.R. 1.
26. As Dixon J. in 0. Gil+in Ltd. v . Com~nissionevfor Road Traf&sport 6Tramways (1935) 52 C.L.R. 189 at 206.
Legal Landmarks, 1956-1967
195
intrastate transactions, if the prohibition of acts which are, or are
part of, interstate transactions can surmount the barrier of s. 92
simply because the ban can be said to operate in respect of the
gambling character of the acts, one may wonder whether a
nationalisation law like the Banking Act 1947, held invalid in the
Ba~zks
ought not also to pass the barrier because it may
be said to prohibit acts because of or by reference to their private
capitalist character, not any quality which essentially belongs t o
interstate commerce. Of course it all depends on what things one
regards as being "of their own nature" part of interstate trade,
commerce, and intercourse, to use a phrase used by Dixon C.J.
and Webb J. in Mansell 21. Beck.
PRIVATE INTERNATIONAL LAW
Recognition of "Foreign" Dioorces.
In Travers v. Holleyl the Court of Appeal in England followed
a principle that they would recognize a foreign divorce based on
jurisdictional facts which would, had they existed in England, have
justified an English Court in assuming jurisdiction. Accordingly
it recognized as valid a New South Wales divorce decree obtained
by a deserted wife whose domicil by New South Wales statute was
deemed not to have been changed by reason of her husband having
(as was the case) obtained a domicil outside New South Wales.
There was similar, though not precisely identical, legislation
in England, viz. s. 14 of the Matrimonial Causes Act 1937, which
provided that where a petitioning wife had been deserted and
where the husband was immediately before the desertion domiciled
in England and Wales the Court should have jurisdiction notwithstanding that the husband had changed his domicil since the
desertion.
In Fenton v. Fentor12 the Victorian Full Court refused t o act
in a reciprocal spirit. Here the English Court had, pursuant to
the abovementioned section of the Englinh Act, granted a decree
of divorce to a wife domiciled in England at time of desertion,
though the husband at the time of decree had acquired a Victorian
domicil. The question was whether the Victorian Court would
27
Commonwealth v. Untzk uf,fNew Soutll H.ales rlS50' 4 C 235, 79 C.L.R 497
-
.
* M.A.
(Oxon.). LL.B. (1V.A.) ; Chief Lecturer in Law in the University
of Queenslantl; contributing author of Essays on the Australian Constitutzon.