Brewer v Brewer

Brewer v Brewer - [1953] HCA 19 - HCA 1953 case summary — Zoe

[5]

In support of her application for maintenance, however, the appellant swore an affidavit containing a great many allegations which, if they had been established in the suit for dissolution, might have resulted in its dismissal for the allegations, if believed, would have gone some distance towards establishing that the husband had himself been guilty of adultery and, also, of such wilful neglect or misconduct as had conduced to the wife's adultery. In these circumstances the respondent in this appeal objected on the hearing of the application for maintenance to the admission of this evidence concerning his conduct during the latter years of his married life contending that the appellant was precluded by the findings and decree in the suit from presenting such evidence to the Court. In considering the rival contentions on this point, Dean J., who thought the evidence admissible and whom the Full Court thought was in error on this point, referred to the conflicting decisions in Duchesne v. Duchesne [1] and Geyer v. Geyer [2] . In the former case, Pearce J., in circumstances not dissimilar to those of the present case, held that a husband who had allowed a suit for dissolution of his marriage on the ground of his desertion to proceed as an undefended suit was estopped in maintenance proceedings from "asserting matters inconsistent with the decree", and further that he was "for reasons of public policy, prohibited from asserting matters (of which he knew) which would reasonably have been expected, if proved either to provide an effective answer to the petition or to produce a different result at the trial" [3] . With the first proposition there can be no quarrel but it is not contended in this case that the assertion of those facts which the appellant desired to adduce in evidence were inconsistent with the decree in the suit. But the form of the decree is not the sole measure of what issues were then determined and we have no doubt that the decree was conclusive not only as to those issues expressly pronounced upon but also as to any other issue upon which it was necessary for the Court to adjudicate before making a decree in the form in which it did. Moreover, the decree constituted a judgment in rem and conclusively established the new status of the parties to the suit (Bater v. Bater [1] ). But the proposition that the wife, by failing to attempt to show in the suit that her husband had been guilty of adultery or of neglect or conduct conducing to her own matrimonial offence, was thereby estopped from giving evidence of her husband's conduct during the relevant period for the purpose of endeavouring to secure an order for maintenance appears to us to be misconceived. In reaching his conclusion in the Full Court Gavan Duffy J. referred to Lockyer v. Ferryman [2] and quoted from the speech of Cairns L.C. the following passage: "No man who shews that at the time of his first proceedings he had the whole facts within his knowledge, and who had the power to raise them - who puts upon his record statements which prove that he had the whole of this knowledge in his possession - can be heard, because he does not attempt to prove one part of the case, to say after the lapse of thirty years that he is entitled to commence a new litigation, to raise again a portion of the case which, if it had any foundation, was perfectly well known to him at the time of his first proceedings". But it should be observed that the appellant in that case was held to be estopped because in the second suit he attempted to reopen the very issue previously decided. In that case the appellant sought a declaration that he and a person then deceased and of whom the respondents were the executors had inter-married in Scotland many years before. But in a previous suit instituted some thirty years before the appellant had sought a declaration in the same terms. In this suit he had been unsuccessful, and it is clear that what he sought to establish in the second suit was that the marriage alleged in the first suit had taken place. In dealing with the question on appeal in the second suit Lord Cairns made it clear [3] that in stating the proposition, quoted above, he was not laying down any general rule "as to the extent to which a sentence in a declarator of marriage is binding as against any subsequent attempt that may be made to establish the marriage upon any new or different footing", and that he was content to dispose of the case in the manner indicated by him. But at no time was it suggested by his Lordship that if the issue in the second suit had been of a nature different from that in the first any question of estoppel would or could have arisen or that evidence relevant to the issues in the first suit would not have been admissible. Nor is the view which we have expressed inconsistent with the passage cited by Gavan Duffy J. from Hoysted v. Commissioner of Taxation [1] . To hold that the appellant's affidavit was admissible in the maintenance proceedings does not permit her to reopen "the same subject of litigation in respect of matters which might have been brought forward as part of the subject in contest".

[8]

That the second proposition as stated by Pearce J. must be taken to rest upon considerations other than the conclusiveness of a judicial decree is emphasised by his disagreement with the views expressed in Robinson v. Robinson [4] . In that case Henn Collins J. said: "The view to which I have come is that, although proceedings under s. 190, sub-s. 1, are separate proceedings from those for dissolution, a party ought not to be allowed to refrain from using at the hearing of a suit for divorce information which he had, or which, but for his carelessness, he might have had, and then, when his pocket begins to be affected, propose to prove that information and put the petitioner to the expense of a separate issue". Pearce J. found himself unable to agree that the "prohibition extends to matters of which he (the husband) was ignorant at the time of the trial but which he might have known, "but for his carelessness" " [1] . But in neither case was the rule thought to be absolute. Its application in one case was said to depend upon a failure to assert upon a former occasion matters of which the respondent was aware at the time and in the other upon the respondent's failure to assert matters of which he had actual or constructive knowledge at the relevant time. From these observations, it is clear that the "rule" as propounded, could not have been thought to arise from the conclusiveness of the decree but rather from the conduct of one of the parties in each case. In our view there is no foundation for any such general rule. It is true that Owen J. in Nettheim v. Nettheim (No. 2) [2] took a view somewhat similar to that entertained in Duchesne v. Duchesne [3] , but it is equally true that Bonney J. in Geyer v. Geyer [4] considered this case and refused to follow it. Nor can any real support be found for the rule in any case other than those to which we have referred. Further it is impossible, as counsel for the appellant sought to do, to support the rule as a rule of practice. There is nothing in the authorities upon which such a view could be based whilst if some reliance for it could be placed on Robinson v. Robinson [5] and Duchesne v. Duchesne [3] insuperable difficulty would arise in formulating the rule itself and in applying it in any particular case. Some of the difficulties are readily apparent from the final observations of Pearce J. in the latter case.

[15]

The wife's summons for maintenance was issued on 29th November 1951. The application was made under s. 5 of the Marriage (Divorce) Act 1933-1939 Vict. which provides that, on or after making any decree for dissolution of marriage, whether obtained by or against the husband, the Court may, if it thinks fit, make an order on the husband for payment to the wife during the joint lives of husband and wife of such monthly or weekly sum for her maintenance or support as the Court thinks reasonable. The section contains provisions enabling the Court to discharge, modify or suspend an order made thereunder, and in certain circumstances to increase the amount payable. The application was supported by an affidavit sworn by the wife on 28th November 1951. This affidavit merely deposed to the divorce and to certain events which had taken place, and certain communications which had passed between the parties and their solicitors, since the divorce. It said (par. 3) that "our married life was unhappy", but it did not particularise any cause of unhappiness. On 23rd January 1952, however, the wife made and filed another affidavit. In this affidavit she referred to the statement in par. 3 of the first affidavit, and made, for the first time, very serious allegations against the conduct of the husband during the marriage. These need not be set out in detail. They fall into two classes. She alleged, in the first place, from about 1939 onwards, and especially in and after 1943, a more or less continuous persistence by the husband in drunken habits, and much offensive and disgusting behaviour under the influence of drink. She alleged, in the second place, association by the husband at different times with three women in circumstances which strongly suggest adultery - in one case adultery in the conjugal residence. In the first two cases adultery, if it took place, was clearly condoned. In the case of the third woman the affidavit says that the husband admitted having "had sexual relations with her". This took place in 1948 after the husband had told the wife that he "wished he was in a position to marry again". It was in 1948 that the wife finally left the husband and committed the adultery on which the decree of divorce was founded, but it does not appear whether this was before or after the husband's confession. In his affidavit in support of the petition the husband had said that early in 1948 he had a number of quarrels with his wife "over various domestic matters and about her staying out very late at night with a golfing professional".

[18]

But it would be entirely contrary to principle to hold that she was estopped from raising on her application for maintenance matters which she had refrained from raising on her husband's petition for divorce. The question is not one of res judicata in the true sense but of what is properly called issue-estoppel. The two are often unfortunately confused. The principle of issue-estoppel was stated by Lord Ellenborough in Outram v. Morewood [1] in these terms: - "It is not the recovery, but the matter alleged by the party, and upon which the recovery proceeds, which creates the estoppel the estoppel precludes parties from contending to the contrary of that point, or matter of fact, which having been once distinctly put in issue by them has been, on such issue joined, formally found against them". But there can be no estoppel unless what is put forward is inconsistent with a former finding or decision. In Howlett v. Tarte [2] , Williams J. said: - "If the defendant attempted to put upon the record a plea which was inconsistent with any traversable allegation in the former declaration, there would be an estoppel. But the defence set up here is quite consistent with every allegation in the former action". In the same case Willes J. said: - "Nobody ever heard of a defendant being precluded from setting up a defence in a second action because he did not avail himself of the opportunity of setting it up in the first action" [3] . This passage is quoted both by Lord Maugham L.C. and by Lord Wright in New Brunswick Railway Co. v. British & French Trust Corporation [4] . The Lord Chancellor said that the estoppel extended only to "setting up in a subsequent action a defence which was necessarily and with complete precision decided by the previous judgment" [5] . The whole position was carefully explained by Dixon J. in Blair v. Curran [1] . His Honour said: - "A judicial determination directly involving an issue of fact or law disposes once and for all of the issue, so that it cannot afterwards be raised between the same parties or their privies". But he added: "Nothing but what is legally indispensable to the conclusion is thus finally closed or precluded".

[29]

In Robinson v. Robinson [1] , a wife, who had obtained a decree of divorce on the ground of her husband's adultery, claimed maintenance, and the husband thereupon sought to prove that she had committed adultery during the marriage. He had made no such charge in the divorce suit, which had been undefended. Henn Collins J. thought it clear enough that there was no estoppel, but he rejected the evidence, saying that "a party ought not to be allowed to refrain from using at the hearing of a suit for divorce information which he had, or which, but for his carelessness, he might have had, and then, when his pocket begins to be affected, propose to prove that information and put the petitioner to the expense of a separate issue". In Duchesne v. Duchesne [2] , a wife had, in an undefended suit, obtained a divorce on the ground of desertion. On her subsequent application for maintenance allegations against her conduct during the marriage were made by the husband. Pearce J., being of opinion that the conduct alleged, though relevant to the application for maintenance, "would not reasonably have been expected either to provide an effective answer to the petition or to produce a different result" [3] , admitted the evidence. Having considered the earlier cases, he stated what he regarded as the correct principles in the following terms: "The respondent is estopped in maintenance proceedings from asserting matters inconsistent with the decree. Further he is, for reasons of public policy, prohibited from asserting matters (of which he knew) which would reasonably have been expected, if proved either to provide an effective answer to the petition or to produce a different result at the trial (e.g., mutual decrees instead of a decree to the petitioner alone, or a discretionary decree instead of a decree as of right). I am not satisfied that this further prohibition extends to matters of which he was ignorant at the time of the trial, but which he might have known "but for his carelessness", to quote the words of Henn Collins, J." [4] .

[33]

It is not, I think, correct to say that an issue-estoppel must yield to an express direction in a statute which does no more than say that it is necessary to take into account "conduct of the parties". But it can hardly be doubted that the decision of Bonney J. in Geyer v. Geyer [8] , where an estoppel could not have been successfully raised, was a sound decision. Where there is no estoppel it is difficult to see how "public policy" can be invoked to support the rejection of relevant evidence. Every consideration of public policy seems to tend in favour of its admission. In Hyman v. Hyman [9] , Lord Atkin said: - "The wife's right to future maintenance is a matter of public concern, which she cannot barter away". If she cannot barter it away, it can hardly be maintained that she is precluded from supporting her claim by relevant evidence because she has refrained from tendering that evidence on an earlier occasion, when she was in no way bound to tender it. Moreover, although it is true that the question of public policy, which was discussed in Robinson v. Robinson [10] , and Duchesne v. Duchesne [11] , did not arise in Restall v. Restall [12] , I think, with respect, that Bateson J. was right in Mould v. Mould [1] , in thinking that the reasons given for the decision of the Court of Appeal in Restall v. Restall [2] required, in the absence of an estoppel, the admission of the evidence in question in that case. And the "principle" laid down in Duchesne v. Duchesne [3] is open to other objections. It would allow evidence of comparatively unimportant misconduct, such as was unlikely to have affected the granting of a divorce, while it would exclude evidence of serious misconduct which might have an important bearing on the question of maintenance. Dean J. thought that such a position savoured of absurdity. It would certainly be anomalous. The truth is that the rules of issue-estoppel have been carefully defined by the courts for the very purpose of determining as precisely as possible under what circumstances a party may put forward on a subsequent occasion material not put forward on a prior occasion. Such rules lose their value and their significance when attempts are made on vague grounds to give the effect of an estoppel to circumstances which admittedly create no estoppel. I would add that, in my opinion, it can make no difference whether the duty of the Court to have regard, on a wife's application for maintenance, to the conduct of the parties, arises from express statutory direction or from the general principle laid down in Wood v. Wood [4] .

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