Moses v Moses [1920] HCA 22; (1920) 27 CLR 490 (14 April 1920)

HIGH COURT OF AUSTRALIA

Amy Margaret Seymour Moses Petitioner, Appellant; and Herbert Charles Moses Respondent, Respondent.

H C of A

On appeal from the Supreme Court of New South Wales.

14 April 1920

Knox C.J., Isaacs, Gavan Duffy, Rich and Starke JJ.

Ralston K.C. (with him A. W. Ralston), for the appellant.

C.J. Knox read the following judgment:—

Knox C.J.

Two questions were raised on this appeal, one depending on the construction of sec. 16 (b) of the Matrimonial Causes Act 1899 and the other whether the decision of Gordon J. was contrary to the evidence. With regard to the former, I agree with Gordon J. in thinking that in order that a wife may succeed in a claim for a decree for dissolution of marriage on the ground that her husband has been a habitual drunkard and has habitually been guilty of cruelty towards her, it is necessary for her to prove habitual drunkenness and cruelty on his part during three years and upwards. On the construction of sec. 16 (b) it is clear that the expression "has during three years and upwards" qualifies not only the words "been a habitual drunkard" but also the words "habitually been guilty of cruelty towards her."

The ground that the decision of Gordon J. was contrary to the evidence was based on the contention that the evidence of the appellant if accepted established a case of habitual cruelty for three years and upwards. It was argued that Gordon J. had accepted the appellant as a witness of truth, and consequently should have found that habitual cruelty for three years and upwards had been proved. With the consent of counsel for the appellant (the respondent not having appeared on the appeal) I saw Gordon J., who informed me that, having regard to the manner in which the appellant gave her evidence and to the absence of corroboration on matters on which it might have been expected that corroboration could have been obtained, he felt that he was not justified in acting on the uncorroborated evidence of the appellant with regard to alleged acts of cruelty before the year 1912. It was suggested that Gordon J. might have regarded the acts of the respondent which were deposed to by the appellant as insufficient to establish a case of cruelty, even if her evidence were taken as literally correct, but I am satisfied, after discussing the matter with him, that this contention is unfounded. Under the circumstances I do not think it is open to this Court to review the decision arrived at by Gordon J. after hearing the evidence and observing the demeanour of the witnesses.

Isaacs J.

In view of the communication made by Gordon J. to the Chief Justice, I think that no other conclusion can be arrived at. I agree with what has been said by the Chief Justice.

Gavan Duffy J.

I agree with what has been said by the Chief Justice.

Rich J.

I agree.

Starke J.

I agree.

Ralston K.C. Where in a divorce matter a wife who has no means appeals, she is entitled to her costs of the appeal even if she is unsuccessful, if her eolicitor has acted bonâ fide in the matter. The only exception is where the wife has been found guilty of adultery. Unless the solicitor has acted so unreasonably as to be guilty of misconduct, the wife is entitled to her costs of the appeal. The reason is that the matter is one of public importance, being a question of status, and it is in the public interest that the wife should be able to defend herself, if she is a respondent, or to place her case properly before the Court, if she is the moving party (Otway v. Otway[1]; Robertson v. Robertson[2]; Sheppard v. Sheppard[3]).

[Knox C.J. Otway v. Otway was an appeal by the husband.]

That makes no difference.

[Rich J. In Earnshaw v. Earnshaw[4], where a wife was given her costs of a successful appeal by her husband, it was stated by the Court that the decision had no application to an unsuccessful appeal by a wife, and in Halsbury's Laws of England, vol. xvi., p. 604, that case is stated to lay down the practice.

[Knox C.J. The practice in this Court and in the Court of New South Wales is to the contrary (Fremlin v. Fremlin[5]; Hawksworth v. Hawksworth[6]).]

Fremlin v. Fremlin, on the whole, supports the appellant's view. In Te Kloot v. Te Kloot[7] a wife who unsuccessfully appealed was allowed her costs.

[Starke J. I do not think that there is a rigid rule. The general rule is that as to the hearing the wife gets her costs, but that she does not get her costs of an unsuccessful appeal unless she shows special circumstances.]

Knox C.J.

I think that the costs of this appeal, as in every other case, with certain exceptions which are immaterial here, are in the discretion of the Court, and that in this particular case no order ought to be made as to costs.

Isaacs, Gavan Duffy, Rich and Starke JJ.

concurred.

Appeal dismissed.

Solicitors for the appellant, Windeyer, Fawl, Williams & Osborne

[1] 13 P.D., 141.

[2] 6 P.D., 119, at pp. 122, 124.

[3] (1905) P., 185, at p. 190.

[4] (1896) P., 160, at p. 164.

[5] [1913] HCA 25; 16 C.L.R., 212, at p. 242.

[6] 19 N.S.W.L.R. (Div.), 1.

[7] 15 N.S.W.L.R. (Div.), 1.