Walker v Walker [1937] HCA 44; (1937) 57 CLR 630 (20 August 1937)

HIGH COURT OF AUSTRALIA

Walker Applicant, Appellant; and Walker and Another Respondents, Respondents.

H C of A

On appeal from the Supreme Court of New South Wales.

20 August 1937

Latham C.J., Rich, Starke, Dixon, Evatt and McTiernan JJ.

Wallace (with him Macfarlan), for the appellant.

Spender K.C. and Curlewis, for the respondent wife,

The following judgments were delivered:—

Latham C.J.

This is an appeal from an order of the Full Court of the Supreme Court of New South Wales setting aside a rule absolute and discharging a rule nisi for prohibition against a magistrate's order for maintenance of appellant's wife and children. In order to succeed upon these proceedings, which are by way of statutory prohibition, it is necessary for the appellant to show that the order of the magistrate cannot be supported upon the evidence. In my opinion, there is evidence upon which the order can be supported. In the first place the order was attacked because, it was said, the wife had not been left without means of support and a question was raised as to the reasonableness of the amount ordered. A case cited in argument was Munday v. Gill[1] dealing with the procedure by way of statutory prohibition. A consideration of the judgments in that case shows that, as the jurisdiction of the magistrate to make the maintenance order cannot be challenged, the appellant in this case must show that "the evidence does not in reason support the decision." In my opinion, although it is true that the magistrate might have come to another conclusion, it is impossible to say that the evidence does not in reason support his decision. Whether the wife has means of support was a question of fact for the magistrate and his conclusion cannot be set aside unless it was beyond reason. The order cannot be said to be beyond reason.

It was next complained that inadmissible evidence was considered by the magistrate in the process whereby he reached that conclusion. That evidence consisted of a letter written between persons who are not parties to the proceedings. It was mentioned in evidence as the ground of the belief of the wife as to her husband's means. Counsel for the husband called for the letter and the letter was put in evidence. The law on this matter can be found in Taylor on Evidence, 12th ed. (1931), vol. 2, pars. 1817, 1818. I think there is no doubt that as counsel called for the letter it was rightly admitted as evidence. Once the letter was in, it was for the magistrate to give such weight to it as he might think proper, subject to the limitation that he must not act beyond reason, but he was entitled to attach some importance to the letter as some evidence of the husband's means.

It was further contended that, if there were a leaving without means of support, it took place in New Guinea, where the husband lived, and not at Wollongong, where it was alleged to have taken place. The arguments relied upon to support this proposition are, in my opinion, met by the decision in Renton v. Renton[2] where the facts are very similar and where it was held that, the husband, being in one State, and the wife being in another State with her husband's consent, and the husband omitting to support his wife, he had left her without means of support in the State in which she was.

Rich J.

This case, so far as the jurisdiction point is concerned, is concluded by Renton v. Renton[3], decided on similar facts. If the circumstances justify it an application to vary, suspend or discharge the order can be made under sec. 21 of the Deserted Wives and Children Act 1901-1931 N.S.W..

Starke J.

I agree that the appeal should be dismissed, but I do not agree that the letter which has been referred to was admissible in evidence of the husband's means. It is, of course, an old rule that if a party calls for a document in the course of the trial he is bound to put it in if so required, but it does not follow that every statement in such a document, hearsay and otherwise, is evidence. It is for the court to consider the matter in each case, and in this particular case all that happened was that the letter was put in to confirm the wife's statement that her knowledge of her husband's means was based on hearsay and nothing else. I should not have thought that the letter could in these circumstances be used affirmatively, or that it had any probative value whatever. However, I think there was other evidence which was given of the husband's position in life and positions that he had occupied which were sufficient to support the decision of the magistrate.

Dixon J.

I agree. In Wharam v. Routledge[4] Lord Ellenborough said:—"You cannot ask for a book of the opposite party, and be determined upon the inspection of it, whether you will use it or not. If you call for it, you make it evidence for the other side, if they think fit to use it."

In Calvert v. Flower[5] before Lord Denman C.J. a book was called for by the defendant's counsel, Mr. Fitzroy Kelly. The report goes on as follows:—"The book was produced, and Kelly turned over several pages of it, so as to look at the contents of them. Lord Denman C.J.: I ought now to say, that if Mr. Kelly looks at the book he will be bound to put it in as his evidence. Kelly: Certainly, I am fully aware that I must do so. Lord Denman C.J.: I have mentioned this because it has been supposed by some, that an opposite counsel may look at papers or books called for under a notice to produce, and then not use them."

The important part of the rule which Lord Denman states is that the party calling for a document and inspecting it must, if required, put it in as part of his case; it is evidence tendered by him. When it is in evidence as part of the proof adduced by him, its probative value must be dealt with as a matter of fact. If the matters which are contained in the document are completely irrelevant to the issues then, of course, they must be thrown out of consideration. But if it contains statements of fact in relation to relevant matters, then it becomes a medium of proof to which such weight may be attached as circumstances warrant. Whether in the end it tells in favour of the party who insisted that it should be put in or in favour of the party calling for it will, of course, depend on the facts of the case, but the purpose of the rule is to enable the party producing the document to have it put in evidence so that he may rely upon it.

In the present case it appears to me that the magistrate was entitled to take into account the contents of this letter. So taking them into account, supported as they were by other evidence, he was justified in fixing the sum which he did. It would not be right for this court, as a third tribunal of fact, to review his determination on such a matter.

I agree that it was open to the magistrate to find that the appellant left his wife without means of support in New South Wales so as to be liable under sec. 4 of the Deserted Wives and Children Act 1901-1931. The authority of Renton v. Renton[6] is probably a sufficient answer to the contention that his breach of duty arose outside the jurisdiction. Indeed the expression "leave without support" implies that the condition of the wife is to be regarded. When it is once settled that it is the omission of the husband to supply her with means of support and not his physical departure that is meant by "leave," it appears to follow that the locality where through his omission she is without means must be considered. In the present case the husband did leave his wife in New South Wales physically. Having left her physically, he omitted to supply her with what was considered to be an amount sufficient for her support.

In my opinion the appeal should be dismissed.

Evatt J.

I agree that the appeal should be dismissed. I should add a word or two upon the question whether the magistrate was entitled to consider or place any reliance upon the document purporting to be a letter, dated August 5th, 1936, to the wife's father, from a solicitor carrying on his practice at Wau, New Guinea. I agree with the observations of the Chief Justice and my brother Dixon that it is erroneous to hold that, in the circumstances, the magistrate was not entitled to rely upon the document in question. The point is important in general practice. Clearly the document was not admissible in evidence. But, so soon as counsel for the husband called for it, and it was produced, counsel for the wife became entitled to have the document read as part of the evidence in the case. He exercised this right.

Street J. referred to the ruling of Park J. in Wilson v. Bowie[7], but held that the particular document to which I have referred was not "material" because "material means material evidence on a relevant point and this was not evidence at all." In the case cited by his Honour, Park J. said: "If the plaintiff's counsel called for a paper, and looked at it, they must read it in evidence, if it is at all material to the case; but if it does not bear on the case, he need not read it."

Why was not this document "material" to the case? In my opinion it was most "material," although, but for its being called for, it was "inadmissible." The document purported to narrate the solicitor's personal inquiry into the affairs of the husband, and reported that the husband was working in the district as accountant to a named mining company and was in receipt of a salary ranging between £700 and £750 per annum. A most relevant and material portion of the magistrate's inquiry concerned the husband's means. Therefore the document was "material." Whether such a document has "probative value" is dependent on the circumstances and of these the tribunal of fact must take account. I deny the proposition that, merely because the document was "hearsay" and therefore inadmissible, it is necessarily deprived of probative value. It may have considerable probative value, and I think that, here, the magistrate attached importance to the document. Why should he not? The document might have been a forgery, or the solicitor in question might not have been telling the truth in his report, or the substance of his report might have been wrong. All these are possibilities, but they are all very highly improbable, and, in the ordinary affairs of life, no one would hesitate to come to the conclusion that the report as to the husband's income was probably accurate, especially as no evidence whatever to the contrary effect was called on the husband's behalf.

In my opinion the magistrate was well entitled to attach weight to the document, and I have no doubt he did attach weight to it.

McTiernan J.

I agree with the judgment of the Chief Justice and concur in the additional observations of my brothers Dixon and Evatt.

Appeal dismissed with costs.

Solicitors for the appellant, Baker & Baker.

Solicitors for the respondent wife, Boyce & Boyce.

[1] [1930] HCA 20; (1930) 44 C.L.R. 38.

[2] [1918] HCA 57; (1918) 25 C.L.R. 291.

[3] (1918) 25 C.L.R., at p. 299.

[4] (1805) 5 Esp. 235; 170 E.R. 797.

[5] (1836) 7 C. & P. 386; [1836] EngR 433; 173 E.R. 172.

[6] [1918] HCA 57; (1918) 25 C.L.R. 291.

[7] (1823) 1 C. & P. 8, at p. 10; [1823] EngR 790; 171 E.R. 1079, at p. 1080.