Ryan v Ryan [1914] HCA 64; (1914) 18 CLR 601 (2 November 1914)

HIGH COURT OF AUSTRALIA

Thomas Ryan Respondent, Appellant; and Henrietta Ryan Petitioner, Respondent.

H C of A

On appeal from the Supreme Court of Western Australia.

2 November 1914

Barton, Gavan Duffy, and Rich JJ.

Pilkington K.C. and Penny, for the appellant.

Villeneuve-Smith K.C. and W. Dwyer, for the respondent.

Pilkington K.C., in reply.

The judgment of the Court was read by Barton J.

Nov. 2

Barton, Gavan Duffy, and Rich JJ.

In view of the course which commends itself to the Court in this matter, it is not desirable to discuss the merits of the case beyond the point of mere necessity.

We do not think that either the dismissal or the allowance of the appeal would conduce to the ends of justice. Counsel for the wife, whose petition against the husband instituted these proceedings, has asked us either to dismiss the appeal or to grant a new trial, and as we have a discretion in the matter we think the latter is the order that we ought to make.

The grounds which were put forward in the Full Court for such an order as alternative to the wife's appeal (which, however, was there granted) have been again urged before us. The grounds are not such as would impel the grant of a new trial in a Court of common law. But the provisions of the Appellate Jurisdiction Act 1911 (No. 4 of 1912) give the matter a different complexion. The 3rd section of that Act gives the Supreme Court "in the exercise of its appellate jurisdiction" a discretion to grant a new trial in any matrimonial cause in which there has been a trial with or without a jury. Sec. 4 makes an exception, prohibiting the reviewing or setting aside of a finding of fact by a jury in such a case, except in accordance with the Supreme Court rules relating to the findings of juries in civil cases. But the finding here was by the learned trial Judge. Sec. 5 gives the Full Court a discretion in exercising its appellate jurisdiction, to affirm, reverse or modify the judgment, decree or order appealed from, and to give such judgment or make such decree or order as ought to have been given or made in the first instance. The Judiciary Act 1903, sec. 37, gives this Court in its appeal jurisdiction the like power to give such judgment as ought to have been given in the first instance.

After considering the authorities cited at the Bar and the arguments upon them on both sides, we think that the Statute warrants such an exercise of discretion as we now propose to make, and there will therefore be a new trial. That is the order which we think should have been made by the Full Court.

We fully realize, as Mr. Pilkington pointed out to us, the danger of opening the door to the admission of evidence to supply deficiencies in the proof of the case by an unsuccessful litigant. But it appears to us that it may be against the interests of justice to refuse to allow the new evidence of Stocker and the evidence of Daniel Connor and R. A. Magg to be offered and tested in a second trial, which of course will be conducted under all proper safeguards. We should mention, too, that an important part of the evidence mentioned in the affidavits filed in the Supreme Court upon the appellate proceedings is contained in a sworn statement truly or falsely made by the witness Stocker two days after the occurrences from which the petitioner seeks to have adultery inferred. That portion of the proposed evidence does not seem to be subject to the danger pointed out by Mr. Pilkington, if the statement on oath was really given at the time alleged.

The order of the learned trial Judge and that appealed from, except so far as the latter relates to costs, are set aside, and a new trial must be had.

Order of trial Judge and order appealed from set aside save so far as the order appealed from relates to costs. New trial to be had.

Solicitors, for appellant, Penny & Hill.

Solicitor, for respondent, Walter Dwyer.