Registrar v Stokes [1965] PGSC 35; [1965-66] PNGLR 293 (5 July 1966)

Papua New Guinea Law Reports - 1965-66

[1965-66] PNGLR 293 - The Registrar v Stokes

[1965-66] PNGLR 293

PAPUA NEW GUINEA

[SUPREME COURT OF JUSTICE]

THE REGISTRAR

V.

STROKES

Port Moresby

Frost J

15 October 1965

3 March 1966

5 July 1966

HUSBAND AND WIFE - Maintenance - Failure to pay arrears - Queensland order - Enforceable in Papua and New Guinea - Writ of Attachment - Discretion to grant leave to issue - Maintenance Order (Facilities for Enforcement) Ordinance 1959, ss. 4, 5 (1), 6 (1) (2) (3), r. 11 (1) (3) - Rules of Supreme Court (Queensland Adopted), Ord. 47, r. 6a - Rules of Court 1960, r. 3 - Matrimonial Causes Ordinance 1941 (Papua), s. 39 (2) - Matrimonial Causes Ordinance 1963, ss. 5, 7 (1), 9 (1), 91 (1), 92, 93, 94, 95, 96 - Ordinances Interpretation Ordinance 1949-1965, s. 51.

An order was made against the respondent in the Supreme Court of Queensland on the 5th August, 1954, providing inter alia that he pay his then wife the sum of £6 per week by way of permanent maintenance. Subsequently, the respondent fell into arrears even though he was for the most part in receipt of a substantial income. On the 7th June, 1965, the respondent’s former wife obtained in the Supreme Court of Queensland an order under the Reciprocal Enforcement of Judgment Act 1927 of Queensland that the respondent pay to her the arrears of maintenance, and that the Registrar of the court forward a certified copy of the order to the appropriate authorities for registration in the Supreme Court of Papua and New Guinea. On the 15th July, 1965, the judgment and order were duly registered pursuant to the provisions of the Maintenance Order (Facilities for Enforcement) Ordinance 1959. On a motion for an order directing the respondent to show cause why there should not be issued against him a writ of attachment for failure to pay arrears of permanent maintenance under a judgment of the Supreme Court of Queensland,

Held:

N1>(1)      Order 47, r. 6A of the Rules of the Supreme Court (Queensland Adopted), which enables an order for alimony, etc., to be enforced by attachment, does not apply, as the Queensland Rules have no application in Papua to the matrimonial causes jurisdiction.

N1>(2)      The provisions of the repealed Matrimonial Causes Ordinance 1941 of Papua are not available for the enforcement of the Queensland order as registered because it only has force and effect as if made by the Supreme Court of the Territory from the date of its registration and this order was registered in this jurisdiction after the commencement of the Matrimonial Causes Ordinance 1963.

N1>(3)      The provision for the enforcement of this order must be found in the Matrimonial Causes Ordinance 1963, and s. 91 (1) of that Ordinance when read with s. 6 (3) of the Maintenance Orders (Facilities for Enforcement) Ordinance 1959 provides the necessary jurisdiction.

N1>(4)      Section 91 of the Matrimonial Causes Ordinance 1963 confers a discretion upon the court to refuse an application for the issue of the writ of attachment, and in the exercise of this discretion the court may refuse leave to issue the writ if satisfied that the respondent has had insufficient means or ability to satisfy the order.

N1>(5)      The respondent in this case had had the means and ability to comply with the order and leave should be given for the writ to issue for the arrears due save that it should lie in the office of the Registrar and not be executed so long as the respondent pay the sum due by instalments of $5 per week in addition to his normal weekly payments of £6 per week.

Cases referred to:

Ingram v. Ingram, [1927] VicLawRp 39; [1927] V.L.R. 335; Webb v. Webb and Scott (1903), 19 W.N. (N.S.W.), 303; Smith v. Smith and Lane (1932), 50 W.N. (N.S.W.) 8; Reid v. Reid and Collins (1952), 70 W.N. (N.S.W.) 36; Ward v. Williams [1955] HCA 4; (1955), 92 C.L.R. 496; Bowden v. Bowden [1960] HCA 12; (1960), 103 C.L.R. 610; Johnson’s Tyne Foundry Pty. Ltd. v. Maffra Corporation [1948] HCA 46; (1948), 77 C.L.R. 544.

The Registrar appeared to enforce the order.

Counsel:

White, for the respondent.

Cur. adv. vult.

5 July 1966

FROST J:  This is the hearing of a motion for an order directing Ronald McLean Stokes to show cause why there should not be issued against him a writ of attachment for the failure to pay arrears of permanent maintenance under a judgment of the Supreme Court of Queensland in favour of his former wife, Jean Cadogan Stokes.

The original judgment, made on 5th August, 1954, provided that Mr. Stokes (whom I shall call the respondent) should pay to his then wife the sum of £6 per week by way of permanent maintenance, and that the respondent should transfer his interest in the matrimonial home to her. This order was ancillary to proceedings for divorce brought by his wife, in which she obtained a decree nisi.

Subsequently, the respondent fell into arrears, and on the 7th June, 1965, Mrs. Stokes obtained in the Supreme Court of Queensland an order under the Reciprocal Enforcement of Judgment Act 1927 of Queensland that the respondent pay to her the arrears of maintenance as at 11th May, 1965, amounting to £996, and that the registrar of the court forward a certified copy of the order to the appropriate authorities for registration in this court.

On the 15th July, 1965, the judgment and order were duly registered in this court pursuant to the provisions of the Maintenance Order (Facilities for Enforcement) Ordinance 1959. That Ordinance provides that when the Administrator in Council is satisfied that a State has made reciprocal arrangements, substantially similar in effect to the provisions of the Ordinance, for the enforcement within that State of maintenance orders made by the court within the Territory, he may, by notice in the Gazette, declare that State to be a reciprocating State for the purposes of this Ordinance, s. 5 (1). The State of Queensland was, by notice in the Gazette dated 21st July, 1960, declared to be a reciprocating State for the whole of the Territory of Papua and New Guinea for the purposes of the Ordinance.

The relevant provisions of the Territory Ordinance are as follows:

N2>“6(1)   Where:

(a)      a maintenance order has, whether before or after the commencement of this Ordinance, been made against a person by a court in a reciprocating State; and

(b)      a certified copy of the order has been transmitted by the proper authority in that reciprocating State to the Administrator,

the Administrator shall send the certified copy of the order to the officer in charge of records of the appropriate court.

N2>(2)      On receipt of the copy, the officer shall register the order in a book kept for that purpose.

N2>(3)      From the date of the registration of the order:

(a)      the order has the same force and effect;

(b)      subject to the provisions of this Ordinance, all proceedings may be taken on the order; and

(c)      the appropriate court in which the order is registered shall have power to enforce the order, as if the order had been originally obtained in the court in which it was registered.”

Thus from the 15th July, 1965, the order of the Queensland Supreme Court (which, being an order for the periodical payment of a sum of money towards the maintenance of the wife, was a maintenance order as defined in s. 4 of the Ordinance) had the same force and effect, and the Supreme Court of the Territory had the power to enforce it, as if the order had been originally obtained in the Supreme Court of the Territory.

Upon the application of the Registrar of this court (who is the clerk of the court in relation to the Supreme Court, reg. 2 (1)), this court, on the 15th October, 1965, pursuant to the Maintenance Orders (Facilities for Enforcement) Regulations 1960, reg. 11 (1), directed that all payments under the Queensland order should be made to the Registrar. The Registrar was thus empowered to take in his own name the like proceedings for the enforcement of the order as if the order were a maintenance order made by this court: reg. 11 (3).

The Registrar then gave the present notice of motion, returnable on the 15th March, 1966, and on that day I ordered the respondent to show cause why a writ of attachment should not issue against him.

When the motion came on for hearing on 20th March, 1965, the motion was supported by the Registrar and Mr. White appeared as counsel for the respondent.

The Registrar submitted that the motion was a proceeding within the meaning of the Ordinance, which would have been open if the order were a maintenance order made by this court. He relied on the provisions of Ord. 47, r. 6a, of the Rules of the Supreme Court (Queensland adopted), in their application to the Territory of New Guinea, which enables an order for alimony, etc., to be enforced by attachment. But these provisions do not apply in Papua, as the Queensland Rules have no application in Papua to the matrimonial causes jurisdiction (Rules of Court 1960, r. 3). He also relied on the provisions of the Matrimonial Causes Ordinance 1963, ss. 7 (1) and 97 (1) to which I shall refer later.

Mr. White did not argue that a writ of attachment could not be issued under either the Matrimonial Causes Ordinance 1941 of Papua, or the 1963 Ordinance, which repealed the 1941 Ordinance, but he submitted that I should not grant leave for its issue unless I were satisfied that over the period when the arrears accumulated, the respondent had had the means and ability to pay the moneys due under the order.

Prior to the 8th July, 1965, when the Matrimonial Causes Ordinance 1963 came into force, the only power in Papua to issue a writ of attachment for arrears of maintenance was to be found in the Matrimonial Causes Ordinance 1941, of Papua, s. 39 (2), which provides that the court may enforce by attachment any order made by it for payment of costs or of any sum due in respect of alimony or maintenance of children. Prior to its repeal this provision would plainly have availed the Registrar.

It is now necessary to turn to the Matrimonial Causes Ordinance 1963 (which generally is in the form of the Commonwealth Matrimonial Causes Act, 1959), which came into force on the 8th July, 1965, and was thus in force at the date of the registration on the 15th July, 1965, of the Queensland order. Section 3 repealed the Matrimonial Causes Ordinance 1941, of Papua. Section 7 (1) provides as follows:

N2>“7(1)   Subject to the next succeeding sub-section, where, before or after the commencement of this Ordinance, a matrimonial cause has been instituted, then, whether or not that matrimonial cause has been completed, proceedings for any relief or order of a kind that could be sought under this Ordinance in proceedings in relation to that matrimonial cause shall not be instituted after the commencement of this Ordinance except under this Ordinance.”

“Matrimonial cause” is defined in s. 5 of the Ordinance to include, inter alia - proceedings with respect to the maintenance of a party (para. c), and any other proceedings (including proceedings with respect to the enforcement of a decree) in relation to current, pending or completed proceedings of that kind (para. d). The definition of “decree” includes “order”: s. 5.

The other relevant sections are s. 91 (1) and s. 96, which are as follows:

N2>“91(1) Subject to the Rules, the Court may enforce by attachment or by sequestration an order made by it under this Ordinance for payment of maintenance or costs, or in respect of the custody of or access to children.”

N2>“96.    A decree made in the Territory in a matrimonial cause before the commencement of this Ordinance may be enforced:

(a)      in the manner in which it could be enforced if this Ordinance had not been passed; or

(b)      subject to the Rules, in the manner in which a like decree made by the Court under this Ordinance may be enforced.”

Now for the purposes of the enforcement of decrees or orders, proceedings with respect to which constitute a matrimonial cause (para. d), the provisions of s. 7 (1) must be read subject to s. 96, which would enable existing orders made before the commencement of the Ordinance to be enforced, inter alia, under the provisions of the repealed Matrimonial Causes Ordinance 1941 of Papua. But having regard to the provisions of the Maintenance Orders (Facilities for Enforcement) Ordinance, 1959, the Queensland order has force and effect as if made by the Supreme Court of the Territory, only from registration, viz., 15th July, 1965, which was after the commencement of the Ordinance, so that s. 96 cannot assist the Registrar.

Thus the provisions of the repealed Matrimonial Causes Ordinance 1941 of Papua are not available for the enforcement of the Queensland order as registered. The provision for the enforcement of the duly registered Queensland order must be found in the 1963 Ordinance.

The provision in that Ordinance enabling the issue of a writ of attachment is s. 91 (1) (supra), and a difficulty is immediately apparent as the court’s power is restricted to enforcing by attachment “an Order made by it under this Ordinance for payment of maintenance”, etc. Indeed, all the provisions for the enforcement of decrees contained in Part X of the Ordinance are restricted to decrees or orders made under the Ordinance (see ss. 92, 93, 94 and 95).

But after the commencement of the Matrimonial Causes Ordinance 1963 a maintenance order could only “have been obtained in the Supreme Court of the Territory” under that Ordinance: s. 7 (1). It follows that reading s. 6 (3) of the Maintenance Orders (Facilities for Enforcement) Ordinance 1959 with s. 91 (1) of the 1963 Ordinance, this court has jurisdiction to enforce the present order by attachment.

The next issue is whether s. 91 of the Ordinance (which is s. 102 in the Commonwealth Act) confers a discretion upon the court to refuse an application for the issue of the writ of attachment, and further whether I should refuse leave to issue the writ, if I am not satisfied that the respondent has had insufficient means or ability to satisfy the order.

It is useful to look at the position prior to the coming into effect of the Commonwealth Matrimonial Causes Act, 1959. In certain States of the Commonwealth there were statutory enactments providing, in effect, that orders for alimony or maintenance were not enforceable by imprisonment if the respondent could satisfy the court that he had not had the means and ability to comply with the order, etc., e.g. Maintenance and Alimony Relief Act (Qld.), Maintenance and Alimony (Imprisonment) Act (Vic.), both of which were enacted in 1935.

In Victoria prior to 1935, it had been held by Cussen J. in Ingram v. Ingram[cclxxii]¹ (as the headnote sets out):

“Whatever may be the case with reference to decrees in equity and in other jurisdictions, yet with regard to common law orders and orders in connection with matrimonial causes, there is nothing in Victorian legislation abolishing the right or power to issue writs of attachment as a process of execution, and not only as a process for contempt.”

The learned judge’s reasoning was that the common law remedy of the writ of attachment, which was regarded as a process of execution rather than as a process of attachment for contempt, still existed in Victoria, and was made available for the enforcement of decrees and orders under the Marriage Act 1915 of Victoria and further, by reason of the provisions thereof, the provisions of the Imprisonment of Fraudulent Debtors Act did not apply to the issue of the writ. He accordingly held that want of means was no answer to an application for an order for a writ of attachment for non-payment of costs made against an unsuccessful petitioner in a divorce suit. No doubt the enactment of the 1935 Statute in Victoria was influenced by this decision.

In New South Wales, however, there was specific provision for the issue of writs of attachment under the Matrimonial Causes Act 1899, which is in similar terms to the present legislation and is as follows:

“Section 90 (1). The Court may enforce by attachment any order made by it for payments of costs or of any sum in respect of alimony or the maintenance of children.”

In New South Wales it was held that this section conferred a discretion on the court to refuse an application for the issue of a writ: Webb v. Webb and Scott[cclxxiii]²; Smith v. Smith and Lane[cclxxiv]³; Reid v. Reid and Collins[cclxxv]⁴ (all cases of failure to pay costs). The practice was to require the party seeking to attach another party under that section to prove that the party is in contempt, “that is to say, he has the means, or at least some resources and can but will not pay”: Reid v. Reid[cclxxvi]⁵. Something in the nature of wilful disobedience had to be shown. Thus the writ was refused where the respondent had suffered a serious accident and was without resources: Webb v. Webb and Scott[cclxxvii]⁶.

Now the power to issue a writ of attachment was historically a process either of execution or contempt: Ingram v. Ingram[cclxxviii]⁷, and there is nothing in the Matrimonial Causes Ordinance 1963, s. 91, to indicate whether either process is the historical basis of the power conferred. Thus I do not consider that Ingram v. Ingram[cclxxix]⁸ is of assistance in the construction of s. 91 (1).

The real question, it seems to me, is whether the word “may” in s. 91 imports a discretion. Probably the basis of the New South Wales decisions (supra) under the Matrimonial Causes Act 1899, s. 90 (1), is the provision contained in the New South Wales Interpretation Act 1897, s. 23, which is in the following terms:

“Wherever in an Act power is conferred on any officer or person by the word ‘may’, such word shall mean that the power may be exercised, or not, at discretion.”

See Ward v. Williams[cclxxx]⁹; Bowden v. Bowden[cclxxxi]¹⁰. A fuller provision, which was originally in force in New South Wales (22 Vict. No. 12, s. 8), is to be found in the Ordinances Interpretation Ordinance 1949-1965, s. 51, of the Territory of Papua, as follows:

“Where in any ordinance of the Territory of Papua a power is conferred on an officer or person by the word ‘may’ or the words ‘it shall be lawful’ or the words ‘shall or may be lawful’ applied to the exercise of that power, that word or those words shall be taken to import that the power may be exercised or not at discretion; . . .”

The section lays down a rule of construction which like other rules of construction will give way to clear indications of the contrary intention: Ward v. Williams[cclxxxii]¹¹. It is true that s. 9 (1) of the 1963 Ordinance confers a judicial power, and proceedings thereunder are for the enforcement of a private right, both of which indicate that “may” in such a context carries a mandatory meaning, but as against these considerations, the conditions are not defined upon which a person seeking the issue of the writ is entitled to the exercise of the power, which is a consideration pointing the other way. See Ward v. Williams[cclxxxiii]¹², Johnson’s Tyne Foundry Pty. Ltd. v. Maffra Corporation[cclxxxiv]¹³. In my opinion the latter consideration, taken with the drastic nature of imprisonment as a means of enforcement, within the greatly varying circumstances under which maintenance costs and custody orders may not have been complied with, show that the word ‘may’ imports a discretion. The rule of construction contained in the Ordinances Interpretation Ordinance, s. 51, is applicable, there being nothing in the context to show a contrary intention.

Thus the language of the section is apt to confer a discretion. In the case of orders for the payment of money, so to construe it would be consonant with “the general view that there should not be imprisonment for default in payment of money unless there is something like wilful default”: Ingram v. Ingram[cclxxxv]¹⁴. There is further support for this view in the long-established practice in New South Wales under a statutory provision in similar terms. “The discretion, of course, is not at large and must be regarded as circumscribed by the scope and objects of the Act and the requirements of the public interest”: Bowden v. Bowden[cclxxxvi]¹⁵. So far as the enforcement of orders for maintenance is concerned, a proper consideration would be whether it has been shown that the party sought to be attached has had the means and ability to comply with the order.

If I am so satisfied then I propose to follow the New South Wales practice to order the writ to issue, but to lie in the office of the Registrar and not to be executed as long as such person pays in accordance with directions given by the court, e.g. the whole or portion of the sum originally ordered, or by stated instalments thereof: MacKenzie’s Divorce Practice (N.S.W.), 6th ed., p. 275.

[His Honour then considered the evidence in detail, found that it had been shown that the respondent had had the means and ability to comply with the order and continued:]

I propose to give leave for the writ to issue in the sum of $1,864, which is the sum owing on the 14th June, 1966. However, I am prepared to allow the respondent to pay the balance of this sum by instalments of $5 per week, which I consider is within his means to pay. Accordingly, I direct that the writ should lie in the office of the Registrar and be not executed as long as the respondent pays the sum due as follows: viz., by a payment of $616, a sum immediately available to the respondent, on or before the 22nd July, 1966, and weekly instalments of $5.00, the first such payment of $5.00 to be made this day week. Of course, the respondent is bound to continue his weekly payments of £6 per week as they fall due, in addition to the payments now ordered. The respondent must also pay the taxed costs of these proceedings.

Ordered accordingly.

Solicitors for the respondent: Norman White & Reitano.

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R>

[cclxxii][1927] V.L.R. 335.

[cclxxiii](1903) 19 W.N. (N.S.W.) 303.

[cclxxiv](1932) 50 W.N. (N.S.W.) 8.

[cclxxv](1952) 70 W.N. (N.S.W.) 36.

[cclxxvi] (1952) 70 W.N. (N.S.W.) 36, at p. 37.

[cclxxvii](1903) 19 W.N. (N.S.W.) 303.

[cclxxviii][1927] V.L.R. 335.

[cclxxix][1927] V.L.R. 335.

[cclxxx](1955) 92 C.L.R. 496.

[cclxxxi][1960] HCA 12; (1960) 103 C.L.R. 610, at p. 614.

[cclxxxii][1955] HCA 4; (1955) 92 C.L.R. 496, at p. 506.

[cclxxxiii](1955) 92 C.L.R. 496.

[cclxxxiv](1948) 77 C.L.R. 544.

[cclxxxv][1927] VicLawRp 39; [1927] V.L.R. 335, per Cussen, J., at p. 342.

[cclxxxvi][1960] HCA 12; (1960) 103 C.L.R. 610, per Taylor J., at p. 625.