Dashwood v Maslin [1909] HCA 62

Dashwood v Maslin [1909] HCA 62 - HCA 1909 case summary — Zoe

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in support of the application, to which I will afterwards refer in H.C. or A. more detail, alleged that the appellant had ground for suspecting 1s collusion between the parties. The Court refused the motion with pDasuwoop costs. Masur. The South Australian Matrimonial Cuuses Act 1867 provides Pena (secs. 36 and 37) that if the Crown Proctor suspects that any Rs party has been acting in collusion he may, under the direction of the Attorney-General and by leave of the Court, intervene, and the Rules of Court contained in the Schedule of the Act prescribe the procedure consequent upon intervention. These sections are a verbal transcript of sec. 7 of the English Statute 23 & 24 Vict. c. 144, under which it was always held that leave to inter- yene was given to the Crown Proctor on his application almost, as of course. Palmer v. Palmer (1), Hamilton v. Hamilton (2), Gladstone v. Gladstone (3). But in South Australia there is not, as in England, a permanent Crown Proctor. Section 28 of the Act provides that the Court may, if it thinks fit, appoint a prac- titioner of the Court to act as Crown Proctor in any suit. The respondent for whom Sir J. Downer appeared contended that the discretionary power thus conferred is not a judicial power, but an administrative power to enable the Court to appoint an officer of its own under its own direction. I cannot accept this view. I think the power is a judicial power, the exercise of which can be reviewed on appeal. And, since it is a power the exercise of which is a necessary preliminary to an application to be made under the direction of the Attorney-General for leave to inter- yene, I think that it is a power the exercise of which is obligatory upon a case being made for intervention, I think, further, that the English practice as to granting leave to intervene (the formal necessity of which is now under the Rules of 1877 dispensed with) ought to be followed, and that an application for the appointment of a Crown Proctor at the instance and under the responsibility of the Attorney-General ought equally to be treated as almost of course. It was contended by Sir J. Downer that a suspicion cannot be entertained for the purposes of the Act until a Crown Proctor

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The Court has, however, a judicial discretion to refuse the application if it appears that there is no ground for intervention, I will now consider the case from this point of view. The applica- tion was made at the instance of the Attorney-General, and the Court was so informed. The case made by the affidavits before the Court was, shortly, as follows: - In a previous suit between the same parties instituted in 1907 the appellant had obtained leave to intervene after trial, and after all the issues had been found in favour of the petitioner, and thereupon he abandoned the suit. On 17th May 1909 the respondent J. F. Maslin executed a deed by which he covenanted that he would, within fourteen days after the time limited for appealing against the decree absolute for dissolution should have expired, if no appeal should have been presented against such decree absolute, or, if presented, should have been dismissed, deposit with a bank securi- ties for the due payment of £500 per annum to his wife. The negotiations which resulted in this deed took place in the evening of the first day of the trial, before the petitioner's case was closed and while he was still in the witness box. It was represented to the respondent in the suit that the amount offered (£500 per annum) was more than the Court would allow for alimony after decree,and she thereupon instructed her solicitor not to make any further defence to the suit. He obeyed, and no witnesses were called for her. It appeared from the Judge's notes that the petitioner had in the box admitted his adultery, but had alleged condona- tion, which, according to the law of South Australia (peculiar I think to that State), is a sufficient answer to the countercharge. But it is obviously important to show that the condonation relied on is subsequent to the cessation of the adulterous intercourse, the termination of which becomes very material. 'There was on the petitioner's own evidence strong ground for suspicion (to say the least) that the intercourse had been resumed after the con- donation alleged. The appellant deposed in his affidavit that he had reason to believe that the respondent wife was induced not to defend the suit by reason of an offer made to her by the peti-

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H.C. or A. further defended. It does not at present appear, however, to a) what extent, if any, the proposed provision or its liberality - Dasnwoon induced the wife to agree to abandon her defence. J As to what constitutes collusion I quote a passage from the judgment of Sir Francis Jewne P. in the case of Churchward y, Churchward (1): - "It must always be remembered that, on grounds of public policy, second, perhaps, to none in importance, the marriage status cannot, however much the parties to it may otherwise desire, be altered, except on the fulfilment of certain conditions prescribed by law, conditions which relate to the conduct not only of the person against whom, but of the person by whom, relief is sought. Hence, it arises that in matrimonial proceedings, this Court has imposed on it, by the previous practice, and by the provisions of the Act of 1857, the peculiar duty of ascertaining for itself, so far as it can, whether in any case there exist bars, absolute or discretionary, to the petitioner's claim. I am not, therefore, prepared to say that the reason underlying what I think is the effect of the decision in the House of Lords, and of the Acts of 1857 and 1860, may not be that, when the parties to a suit are acting in complete concert, the Court is deprived of the security for eliciting the whole truth, afforded by the contest of opposing interests, and is rendered - unable to pronounce a decree of dissolution of marriage with sufficient confidence in its justice. If this be so, the expression in sec. 7 of the Act of 1860, 'collusion for obtaining a divorce contrary to the justice of the case,' may be understood to indicate that, by such an agreement, justice is imperilled, but not to require that it must be affirmatively shown that, having regard only to the matrimonial conduct of the parties, justice will not be, or has not been, done. No doubt the protection to the Court, afforded by the mutual watchfulness of hostile parties, often does not exist, because the petitioner and the respondent may, inde- pendently of each other, be of the same mind. Against results of that unanimity no legislation can guard. But it may well be worth while to prevent the parties to a suit from binding them- selves by an agreement which, if there be anything to hide, renders it obligatory on both of them to keep the veil drawn.

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The Act provides two processes for safeguarding the pub interests in the making of decrees for dissolution of marri The first process may be set in motion without the order of 1] Court. After a deeree nisi for dissolution has been granted person may show cause to the Court against the decree bei made absolute on the ground of collusion or the suppression material facts. The other process, and it is with that only tha we are concerned here, begins with the appointment by the Cou of the Crown Proctor. When appointed he becomes the auth ized representative of the public interests, and the repositary information bearing on the issue of collusion ; the duty is impo on him of examining information, making inquiries, and forming an opinion as to existence or non-existence of collusion. If suspects that the parties are acting in collusion he may under the direction of the Attorney-General apply to the Court for leave to intervene. If that leave is granted he becomes a party to the suit, and may then as a party raise the issue of collusion which thereafter may be tried and determined during the trial or at later stage. But it must be tried in Court as any other issue the case is tried, in the presence of all the parties, and by ordinary methods of trial which ensure the sifting and testing evidence. It is only at that stage of the proceedings that issue of collusion is ripe for determination and can be det mined in such a way as to bind the parties. In exercising i discretion to grant or refuse an application for appointment of Crown Proctor the Court may well require to be satisfied that there are circumstances pointing to collusion and calling for inquiry, circumstances affording reason for belief that on further investigation they may furnish to a Crown Proctor grounds for obtaining leave to intervene, that is to say, grounds sufficiently substantial to render probable a direction from the Attorney General to apply for leave to intervene and to justify the Cro' Proctor himself in reasonably entertaining a suspicion of co lusion. The Court may, of course, act on much lighter grounds the matter may come before it at the earliest stages of im

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tending to show that the Crown Solicitor's suspicions of collusi were entirely without foundation. The Court thereupon appli itself in effect, though not in form, to the determination of the issue of collusion or no collusion just as it would do on the tri: of the suit. With information and belief on the one side, even though founded to some extent on admitted facts, and positive categorical denial by witnesses of unimpeached credit on the other, the Court as might be expected came to the conclusion not - only that there was no collusion between the parties, but that - nothing was proved upon which a suspicion of collusion could reasonably be founded. In so taking on itself the determination of the question whether or not collusion existed, the Court inmy opinion exercised its discretion in a wrong direction. Itis not at that stage nor by that method that the issue of collusion directed by the Act to be determined. If on the application for appointment of Crown Proctor it were necessary to establish the existence of collusion, the whole purpose of sec. 28 would be defeated. Its object is merely to constitute an authority for making investigations essential before the existence of collusion - can be definitely ascertained, and for preparing the evidence - necessary to establish its existence at the trial. No doubt the - Court is entitled to investigate facts upon which the applicant relies and to weigh the inferences he seeks to draw. It may find - the alleged facts non-existent or the inferences improbable and_ unreasonable. In such a case a Court would be justified in refusing to act upon such evidence and such inferences, no matter how strongly the Crown Solicitor might state his suspicions. - But where, as in this case, facts are admitted from which primd facie a fair inference may be drawn of the existence of grounds which would reasonably justify suspicion of collusion, the Court is not in my opinion entitled to enter upon the inquiry whether - those facts have been so satisfactorily explained that the proper inference to be drawn is that the parties have not been guilty of - collusion. The time to deal with the defence of the parties on a that charge is at the trial of the issue of collusion in the suit, - when the whole case on the part of the public is before the - Divoree Court, and the tests of oral examination and cross- 7 examination can be applied to the witnesses. Under the cir- -

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do the further act of appointing the Crown Proctor. The appoint ment may by the same section be made at any other period of th suit, The section also provides in its concluding words that the Court may require the parties, or either of them, to find security for the payment of costs to be incurred by the Crown Proctor, - That is again clear judicial action. It is true sec. 29 requires the Court to satisfy itself as to certain matters, but that does not - identify the Crown Proctor with the Court any more than the King's Proctor in England is identified with the tribunal there. That objection consequently fails. Then it was contended that the appointment, however regarded, was to be made by the Court ex mero motu, and not upon the 4 application of the Attorney-General. 'There are no words so declaring. The words used to deseribe the person appointed are significant. He is to act as Crown Proctor, and to be Crown Proctor in and for that suit. The legislature, primd facie, intended him to act for the Crown - that is to represent the Crown or the general community, _ That is completely borne out by secs. 36 and 37. Section 36 declares that at any time during the progress of the cause, or before the decree is made absolute, any person may give notice to the Crown Proctor, who is only to take such steps as the Attorney-General deems necessary or expedient. Section 37 says that should the Crown Proctor suspect collu- sion for the purpose of obtaining a divorce contrary to the justice of the case, he, under the direction of the Attorney-General, and by leave of the Court, may intervene. Rules 67 and 68 regard him as a suitor, and not as an executive officer of the Court. If, therefore, an appointment is made, it is plain that the Crown Proctor is moved or stayed by the Attorney-General in the first instance. If the Crown Proctor receives information which leads him to consider that some fact material to the case exists not - amounting to collusion, he may intervene on the direction of the Attorney-General; but if it be collusion for the purpose of obtain- ing a divorce contrary to the justice of the case, the leave of the Court must also be obtained. That leave is almost a matter of course when the Attorney-General gives such a direction: Hud-

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Judgment (108 paragraphs)

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