Brown v Walters [1931] HCA 45; (1931) 46 CLR 290 (3 December 1931)

HIGH COURT OF AUSTRALIA

Brown Intervener, Applicant and Appellant; and Walters Respondent , Respondent;

In re Walters v Walters.

H C of A

On appeal from the Supreme Court of Queensland.

3 December 1931

Gavan Duffy C.J. , Starke, Dixon, Evatt and McTiernan JJ.

Fahey, for the applicant.

Hart, for the respondent.

Fahey, in reply.

Fahey, for the appellant.

Hart, for the respondent.

Fahey

The Court delivered the following written judgment:—

Dec. 3

Gavan Duffy C.J.,

Starke, Dixon, Evatt and McTiernan JJ .

On 24th April 1931 the Supreme Court of Queensland pronounced a decree or judgment nisi at the suit of the respondent to this appeal for the dissolution of a marriage solemnized between him and the appellant's daughter. The Court ordered and adjudged that the marriage should, upon motion to be made to the Court in that behalf, be dissolved unless cause to the contrary be shown unto the Court within three months from the date of the service of the judgment upon the Attorney-General for the State of Queensland. More than three months after service of the decree or judgment nisi upon the Attorney-General, namely, on 17th August 1931, it was moved absolute before Henchman J. But upon the hearing of the motion an application was made for leave to show cause, first by the wife, and then, when it was found that cause could not be shown by the wife, by her father, the appellant. The application was founded upon the allegation that the respondent had, since the decree nisi, namely, on 27th June 1931, committed adultery. The application of the appellant was granted by Henchman J. on 21st August 1931, and on 24th August the appellant entered an appearance in the suit. But the husband appealed to the Full Court of Queensland against the order giving leave to show cause, and the Full Court reversed it. The Court considered that the evidence in possession of the applicant to prove the adultery lacked cogency and was disfigured by some discrepancies, and that the father was acting in the interests of his daughter, whose place he took when it was discovered that she was not a competent intervenant. Upon these grounds the order of Henchman J. was discharged. An appeal to this Court is now brought against the order of the Full Court.

The matter turns upon sec. 7 of the Queensland Matrimonial Causes Act 1875, which is founded upon sec. 7 of 23 & 24 Vict. c. 144. Before these provisions were enacted a decree pronounced for the dissolution of a marriage was final in the first instance. Sec. 26 of the Matrimonial Causes Jurisdiction Act 1864, which was founded upon sec. 31 of 20 & 21 Vict. c. 85, provided that in case the Court should be satisfied on the evidence that the case of the petitioner had been proved and should not find connivance, condonation or collusion, then the Court should pronounce a decree declaring such marriage to be dissolved; provided always that the Court should not be bound to pronounce such a decree if it should find that the petitioner had during the marriage been guilty of adultery, or of other conduct constituting any of the familiar discretionary bars.

The first paragraph of sec. 7 of the Matrimonial Causes Act 1875 is as follows: "Every decree for a divorce shall in the first instance be a decree nisi not to be made absolute till after the expiration of such time not being less than three months from the pronouncing thereof as the Court shall by general or special order from time to time direct and during that period any person shall be at liberty in such manner as the Court shall by general or special order in that behalf from time to time direct to show cause why such decree should not be made absolute by reason of the same having been obtained by collusion or by reason of material facts not having been brought before the Court."

The circumstances of this case raise several questions as to the operation of this provision, which, however, are more or less the subject of authority:—

(1)

For the purposes of the proviso to sec. 26 of the Act of 1864, adultery after decree nisi and before decree absolute is adultery during the marriage, and therefore affords a discretionary bar (Hulse v Hulse[1]; Ellis v Ellis[2]).

(2)

Cause may be shown against the decree absolute consisting of material facts occurring after the decree nisi not otherwise "brought before the Court." The expression "by reason of material facts not having been brought before the Court," in our opinion, has the same meaning as the expression in the British section "by reason of material facts not brought before the Court." We think it should receive the construction placed upon it by Lord Penzance in Hulse v Hulse[3], an interpretation which Cotton and Lindley L.JJ., but not Baggallay L.J., in Howarth v Howarth[4], were also disposed to adopt. (Cf. Rogers v Rogers[5].) This interpretation includes facts, not otherwise brought to the Court's knowledge, which have occurred after decree nisi, and are material to be known upon the motion for decree absolute.

(3)

In the course of the judgment which Macrossan J. delivered on behalf of the Full Court in this case he said:—"Again, a consideration of sec. 7 would lead, I think, to the conclusion that a stranger to the suit who desires to take part therein on the ground of material facts which have occurred after the judgment nisi is limited to giving information thereof to the Attorney-General and that the Legislature has entrusted to that officer the exclusive right and responsibility in such a case to protect the process of the Court from abuse. Baggallay L.J., in Howarth v Howarth6(1884) 9 P.D., at p. 224., expressed that view when he said Now I interpret the words not brought before the Court as meaning not brought before the Court at or before the time when the decree nisi is made. Cotton L.J. held the opposite view. In view of these divergent opinions and of the state of the authorities (cf. Hulse v Hulse1(1871) L.R. 2 P. & D. 259. ; Lautour v Her Majesty's Proctor1(1864) [1864] EngR 302; 10 H.L.C. 685; 11 E.R. 1193.), it would seem very desirable to have an authoritative pronouncement on the section. For the purpose of this appeal it is not necessary for this Court to come to a final decision." In our opinion a stranger to the suit may show cause upon the ground that material facts have occurred since the decree or judgment nisi was pronounced, and he is not limited to giving information of such facts to the Attorney-General.

(4)

Cause may be shown after the decree or judgment nisi at any time until the decree or judgment absolute is pronounced, notwithstanding the expiration of such time from the pronouncing of the decree or judgment nisi as the Court may by general or special order have directed as the period within which cause may be shown, or after which the decree may be made absolute. The expression "during that period" in the first paragraph of sec. 7 of the Queensland Matrimonial Causes Act 1875 must, in our opinion, receive the same construction as that placed upon it in sec. 7 of the British Act in Bowen v Bowen[9]. (See Crown Solicitor (NSW) v Stubbs[10], and Howarth v Howarth[11], and Poole v Poole[12], and Clements v Clements[13], and Bruell v Bruell[14].) The words "during that period" mean the period between the making of the decree nisi and the pronouncing of it absolute.

(5)

No general discretion appears to be given to the Court by the words "any person shall be at liberty in such manner as the Court shall by general or special order in that behalf from time to time direct to show cause."

Upon application for a special order, it may, as Howarth's Case[15] appears to show, enter upon some consideration of the bona fides and purpose of the applicant, and possibly the sufficiency of his grounds. What may amount to a general order directing the manner in which cause may be shown has been made in Queensland pursuant to sec. 7. It is Order XLIII., rule 2, of the Rules of the Supreme Court. It is not clear that Order XII., rule 19, qualifies the operation of Order XLIII., rule 2. Order XII., rules 18, 19 and 20, appear to be directed rather to sec. 2 of the Matrimonial Causes Jurisdiction Act 1864. Possibly the application for a special order was unnecessary; and an appearance might have been entered pursuant to Order XLIII., rule 2. But this rule was brought to the attention of Henchman J. on the hearing of the application, and he nevertheless thought it proper to make an order granting liberty to show cause.

When the Full Court reversed his order, it intended to decide that the applicant ought not to be admitted to show cause. Indeed, by its order, the appellant, who in the meantime had entered an appearance, was expressly dismissed from the suit. We are unable to agree with the view of the Full Court. There is no reason to think that the father is a mere shadow of the daughter, and the fact that he is acting in her interests and forwarding her wishes does not disqualify him. In considering the veracity of the evidence of adultery and the probable result of the intervention at any rate upon the facts and circumstances of this case, the Court went beyond the discretion allowed to it upon an application for a "special order" under sec. 7.

Henchman J. intended to decide that the applicant ought to be admitted to show cause, and we agree with him in the conclusion that the applicant is entitled to show cause. Whether a special order was strictly necessary or not, it may have been convenient in the circumstances to make an affirmative order to that effect rather than to allow the applicant to depend upon an appearance.

We think that the order of the Full Court should be discharged, and that of Henchman J. restored.

The appeal should be allowed.

Appeal allowed. Discharge order of the Full Court. Restore order of Henchman J. Costs of appeal to this Court and to the Supreme Court to be costs in the cause.

Solicitor for the applicant and appellant, J. J. O'Connor, Brisbane, by McDonell & Moffitt.

Solicitors for the respondent, Leonard Power & Power, Brisbane, by Gill, Oxlade & Clegg.

[1] (1871) L.R. 2 P. & D. 259.

[2] (1883) 8 P.D. 188.

[3] (1871) L.R. 2 P. & D., at p. 261.

[4] (1884) 9 P.D., at pp. 226, 230 and 224.

[5] (1894) P., at pp. 167-168, per Jeune P.

[6] (1884) 9 P.D., at p. 224.

[7] (1871) L.R. 2 P. & D. 259.

[8] [1864] EngR 302; (1864) 10 H.L.C. 685; 11 E.R. 1193.

[9] [1863] EngR 1063; (1864) 3 Sw. & Tr. 530; 164 E.R. 1381.

[10] (1929) 42 C.L.R., at p. 318.

[11] (1884) 9 P.D., at p. 223, per Baggallay L.J.

[12] (1896) 12 T.L.R. 509.

[13] [1864] EngR 284; (1864) 3 Sw. & Tr. 394; 164 E.R. 1327.

[14] (1922) 39 N.S.W.W.N. 170.

[15] (1884) 9 P.D. 218.