McConville v Bayley [1914] HCA 14; (1914) 17 CLR 509 (23 March 1914)

HIGH COURT OF AUSTRALIA

McConville Co-respondent, Appellant; and Bayley Petitioner, Respondent.

H C of A

On appeal from the Supreme Court of Victoria.

23 March 1914

Griffith C.J., Isaacs and Gavan Duffy JJ.

McArthur K.C. (with him L. Woolf), for the appellant.

Dethridge and Lowe, for the respondent,

Griffith C.J.

This is an appeal brought as of right by the co-respondent in a divorce suit in which a decree nisi for a divorce was pronounced, the only order made against the co-respondent being that he should pay the costs of the petitioner. He claims to be entitled to appeal to this Court under sec. 35 of the Judiciary Act, which provides that "The appellate jurisdiction of the High Court with respect to judgments of the Supreme Court of a State, ... shall extend to the following judgments whether given or pronounced in the exercise of federal jurisdiction or otherwise and to no others, namely: (a) Every judgment, whether final or interlocutory, which ...3(1910) 1 K.B., 149. affects the status of any person under the laws relating to aliens, marriage, divorce, bankruptcy, or insolvency."

The only part of the judgment by which the appellant is aggrieved is that which orders him to pay costs, and that is the only point upon which he is entitled to appeal. It is impossible to say that so far as he is concerned the judgment is one which affects the status of any person.

But we allowed Mr. McArthur to treat the matter as an application for special leave to appeal, which, of course, we might grant. But when special leave to appeal is asked from an order for costs, it will not be granted unless it is shown that the Court from which the appeal is sought to be brought has gone wrong on some question of law of general importance. The only matters of law which Mr. McArthur was able to suggest are that the learned Chief Justice received inadmissible evidence tending to show that the appellant had committed adultery with the respondent to the suit, and that certain evidence given by the respondent on that subject was uncorroborated.

The evidence given by the respondent was given under sec. 109 of the Marriage Act 1890, which provides that "The Court may if it think fit order the attendance of the petitioner or respondent, and may examine him or her or permit him or her to be examined or cross-examined on oath on the hearing of any petition; but no such petitioner shall be bound to answer any question tending to show that he or she has been guilty of adultery."

The learned Chief Justice directed the respondent to be called, and asked her a number of questions. The petitioner charged adultery committed with the co-respondent in the years 1910 and 1912—in 1910 at Avenel, and in 1912 at Maffra. With regard to the adultery alleged to have been committed at Maffra, the circumstances were such as to render it highly improbable that adultery then occurred for the first time. But, if adulterous relations had existed between the parties in 1910, quite a different complexion was put upon the evidence as to the acts which took place in 1912. Mr. McArthur objects that such evidence is inadmissible. It appears to me, however, to be admissible on principles necessarily adopted every day in dealing with divorce cases. The case of R. v. Ball[2], mentioned by my brother Isaacs, is the latest and clearest exposition of the rule applied in such cases. When it is a question of innocence or guilt as to the relations between a man and a woman who are not married, the whole history of the relationship is necessarily involved. You cannot say that the relationship between a man and a woman in 1910 is irrelevant to the question of their relationship in 1912. Therefore that point of law fails. I may say that the Victorian law as to the examination of a respondent appears to be different from the law of the other States.

As to the other point, that there was no corroboration of the respondent's evidence, there are two answers. First, that there is no rule of law that the evidence of parties to a divorce suit must necessarily be corroborated. The Court as a matter of prudence will not act upon uncorroborated evidence unless it is manifestly true, as it may be. But there is no such rule of law. The second answer is that, as a matter of fact, the evidence of the respondent was abundantly corroborated. So that there is no foundation for the argument, even if the point of law were a good one. There is therefore no ground for granting special leave, and, as an appeal does not lie as of right, the whole appeal fails.

Isaacs J.

I agree.

Gavan Duffy J.

I agree; but I do not wish to be taken as determining that, where under sec. 109 of the Marriage Act 1890 the Court chooses to call a witness, the Court is limited to asking such questions as may be put by a party in examination in chief.

Appeal dismissed with costs.

Solicitor, for the appellant, S. J. H. Stephen for K. T. Stephen, Maffra.

Solicitors, for the respondent,Madden & Butler.

[1] (1910) 1 K.B., 149.

[2] (1911) A.C., 47.