Brennan v Brennan

This is an appeal by the wife from a decree nisi made on 9th October 1952 by Clancy J. sitting as the Supreme Court of New South Wales in its matrimonial causes jurisdiction on the petition of the husband for the dissolution of their marriage on the ground of her adultery with the co-respondent Baker. The decree was made in a consolidated suit originally commenced by the wife who petitioned for a dissolution of the marriage on the ground that her husband had without just cause or excuse wilfully deserted her and without any just cause or excuse left her continuously so deserted during three years and upwards. This petition was filed on 27th October 1948. To this petition the husband filed an answer on 28th January 1949, denying the desertion and petitioning for a decree for restitution of conjugal rights on the ground that his wife had since 9th October 1946 withdrawn from cohabitation with him and had since refused to render to him conjugal rights. On 22nd November 1950 the husband filed a supplemental answer petitioning for the dissolution of the marriage on the ground that succeeded before his Honour, final particulars of the misconduct being that the adultery occurred about a quarter to twelve on the night of Friday, 17th November 1950. The suit first came on for hearing in February 1952 before Edwards J. The whole of the oral evidence had been taken when his Honour unfortunately died. The further hearing of the suit came on before Clancy J. in October 1952. At that time the wife was seriously ill and for this reason and to save expense his Honour was requested by all parties not to hear the oral evidence de novo but to have the transcript of the evidence already taken before Edwards J. tendered as an exhibit, and have it read in open court or read it himself as he preferred and dispose of the suit on this basis. His Honour decided to allow the transcript to be tendered by consent and then to read it, reserving the right to recall any of the witnesses whom he wished to question. In the end his Honour had two of the witnesses recalled, a widow Mrs. S. J. Goodwin who gave evidence for the husband on the issue of adultery and the co-respondent Baker, and asked them a number of questions. His Honour then heard the addresses of counsel and dismissed the wife's petition and the husband's petition for restitution of conjugal rights and granted the husband the decree nisi already mentioned.

When the appeal first came on for hearing before us counsel for the appellant rightly called our attention to certain authorities and to ss. 28 and 77 of the Matrimonial Causes Act 1899-1951 N.S.W., to which we shall refer, and raised the question whether there had been a proper hearing before Clancy J. and, if there had not, whether the decree nisi he had pronounced was void or voidable and if void whether if it was followed by a decree absolute the decree absolute would be void also and the marriage would not be dissolved. Section 77 of the Act requires that, subject to certain immaterial exceptions, the witnesses in all proceedings before the court where their attendance can be had shall be sworn and examined orally in open court. It was suggested that there might have been a breach of this section because Clancy J. had read the transcript of the evidence given before Edwards J. in his private chambers instead of having it read in open court. The section gives effect to what has always been a fundamental conception of a trial in English law, quite apart from statute, that every court of law is open to every subject of the Crown: Scott v. Scott [1] . A trial that is not conducted in open court, apart from some exceptional circumstances, is not a proper trial at all. But a judgment or order of a superior court having authority to determine its own jurisdiction, however fundamentally impeachable it may be, is not void but voidable and is valid and effective unless and until it is set aside. In a superior court the question is not whether the judgment or order is void or voidable but whether the flaw complained of is a mere irregularity which leaves the court with a discretion whether to set aside the judgment or order or not or is a fundamental miscarriage which prevents the trial being a real trial at all so that the person prejudiced is entitled ex debito justitiae to have the judgment or order set aside. A judgment or order effected by a fundamental miscarriage is often referred to as a nullity, but if it is a judgment or order of a superior court that does not mean that it is void but only that it can be disregarded by the person against whom it operates in the sense that if the person in whose favour it has been made seeks to enforce it the former is entitled, as we have said, to have it set aside ex debito justitiae: Ex parte Williams [2] ; Cameron v. Cole [3] . A decree absolute for divorce is a judgment in rem. It affects the status of the parties. Since the decree is at most voidable and not void subsequent events may make it unassailable. Apart from s. 28 of the Matrimonial Causes Act the remarriage of one of the parties would have this effect: McPherson v. McPherson [4] ; Marsh v. Marsh [5] . Section 28 provides that the respective parties to a suit for dissolution of marriage may marry again as if the marriage had been dissolved by death where but not before - (a) the time limited for appealing against a decree absolute has expired and no appeal has been presented; or, (b) any such appeal is dismissed; or, (c) in the result of any appeal the marriage is declared to be dissolved. In view of the very explicit terms of this section it is, in our opinion, beyond doubt that when the conditions of the section have been fulfilled a decree absolute for divorce, however irregularly it may have been obtained, is valid and effective to dissolve the marriage and cannot be set aside. We were referred to certain English authorities that would seem to conflict with our opinion: Woolfenden v. Woolfenden [1] ; Everitt v. Everitt [2] ; Wiseman v. Wiseman [3] . The most important of these authorities is Wiseman v. Wiseman [3] as this is a decision of the Court of Appeal and it is the practice of this Court, though not bound by decisions of the Court of Appeal, to follow them where possible so as to achieve uniformity of law with the English courts: Waghorn v. Waghorn [4] ; Piro v. W. Foster & Co. Ltd. [5] . In Wiseman v. Wiseman [3] the husband had been granted first a decree nisi and then a decree absolute after an order for substituted service of the petition on the wife had been made and she had not appeared. The husband then remarried and a child was born of the second marriage. The Court of Appeal in the exercise of its discretion gave the wife leave to appeal under s. 31 (e) of the Supreme Court of Judicature (Consolidation) Act 1925, held that the order for substituted service had been improperly obtained and set aside the decree absolute and ordered a new trial. The Court of Appeal thought that the remarriage was not an absolute bar to granting leave to appeal but was only a matter to be taken into serious consideration in exercising its discretion. Two of their Lordships Somervell L.J. and Hodgson L.J. distinguished McPherson v. McPherson [6] as a case in which the Privy Council in the exercise of its discretion had refused to set aside the decree absolute after the remarriage of one of the parties. Denning L.J. said that if the Privy Council thought the effect of the remarriage was a complete bar to setting aside the decree absolute he could not agree with them. We do not read the decision of the Privy Council as a decision not to set aside the decree absolute in the exercise of their discretion. In that case Lord Blanesburgh, delivering the judgment of the Privy Council, after stating that their Lordships were dealing with a decree pronounced after a serious trial free from every other defect in procedure and one entered and remaining on the court files as regular in every respect said: "To say that such a decree is void would seem to be out of the question. If the law were so to treat it, the remedy would be far worse than the disease it was designed to cure" [1] . He said that any intervention "had to be made before time for appeal had expired, or before the rights of third parties had intervened the order absolute cannot be touched after the time for appeal therefrom has passed, and a new status has been acquired, or in this case, after the respondent, having remarried, is entitled, as is also his wife, to the protection afforded by s. 57 of The Matrimonial Causes Act, 1857 (Imp. (20 & 21 Vict. c. 85) (s. 28 of the New South Wales Act)) the order absolute, although originally voidable, having become unassailable by the time the appellant's claim was made" [2] . With respect, no other view could be taken of the express provisions of these sections. We are of opinion that s. 28 applies to every decree absolute of the Supreme Court of New South Wales in its matrimonial causes jurisdiction however irregularly it may have been obtained. After the conditions of the section have been satisfied the decree, however fundamentally impeachable it may theretofore have been, becomes unassailable.

1. (1913) A.C. 417. 2. (1934) 51 C.L.R. 545, at p. 550. 3. (1944) 68 C.L.R. 571, at pp. 585, 590-591, 598, 604, 605. 4. (1936) A.C. 177. 5. (1945) A.C. 271. 6. (1948) P. 27. 7. (1948) 2 All E.R. 545. 8. (1953) P. 79. 9. (1953) P. 79. 10. (1942) 65 C.L.R. 289. 11. (1943) 68 C.L.R. 313. 12. (1953) P. 79. 13. (1936) A.C. 177. 14. (1936) A.C., at p. 204. 15. (1936) A.C., at p. 205.

But the present proceedings were not in breach of s. 77. The oral evidence was taken before Edwards J. in open court and the subsequent proceedings before Clancy J. were also held in open court. It was not a breach of the section that he chose to read the evidence that had already been taken in open court in private chambers. It was necessary that he should read this evidence to familiarize himself with it and it was immaterial where he read it. Everything that he did pursuant to the request of all parties to continue the hearing from the stage it had already reached before Edwards J. was done in open court. The further evidence that was taken, the addresses of counsel and the making of the decree all took place there. The real objection to the further proceedings before Clancy J. was that, in a case which raised important issues of fact, as to which conflicting evidence had been given before Edwards J., his Honour decided to proceed from the stage the hearing had reached before Edwards J. and not to hear the whole suit de novo. There are cases in which such a course has been pursued: Coleshill v. Manchester Corporation [3] ; In re Application of British Reinforced Concrete Engineering Co. Ltd. [4] ; Bolton v. Bolton [5] . In all these cases the Court on appeal criticized the course that had been followed but accepted what had been done and did not order a new trial. There are, we think, in most cases grave objections to such a course and the objection becomes graver when there is, as in the present case, a serious conflict of evidence. But the parties were all represented by counsel or solicitors and they all requested his Honour to take the course he did. It was open to any of the parties to apply to his Honour for leave to recall any of the witnesses for examination if they thought fit, but they all elected not to do so and the two witnesses who were further examined were recalled at his Honour's request. "If a litigant has himself induced, acquiesced in or waived the irregularity he cannot afterwards complain of it": Marsh v. Marsh [1] . In these circumstances it appears to us that we should, if we can, consistently with the public interests which are involved in divorce proceedings, dispose of the appeal on the materials before us. To order a new trial at this stage would involve a great deal more expense than would have been incurred if the hearing before his Honour had proceeded de novo. After much consideration we have decided to proceed on the materials before us.

1. (1928) 1 K.B. 776. 2. (1929) 45 T.L.R. 186. 3. (1949) 2 All E.R. 908. 4. ((1945) A.C., at p. 285.

[Their Honours then considered the evidence in respects that do not call for report, and reached the conclusion that the appeal should be allowed.]