Ridley v Whipp [1916] HCA 76

Ridley v Whipp [1916] HCA 76 - HCA 1916 case summary — Zoe

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Supreme Court of a common law writ of prohibition. In other words, an enactment designed to preserve innocent and helpless infant life, and having the dominant purpose of making timel provision before the birth of the infant in order to have protection ready for it when born, was never intended to let the child be born and perish while lawyers wrangled in various Courts over the delicate niceties of prohibition and conditions precedent to jurisdiction. I cannot attribute to the Parliament of New South Wales any inten- tion to make its own dominant purpose ineffective by subordinating - the child's life to such considerations. In this case the mother lodged her complaint on 20th August 1915, and the case was fixed - for 17th September. Two days before it was to be heard the 4 defendant, without venturing to deny the truth of what the mother s swore, interposed by an order nisi for prohibition on technical - grounds, and now in December 1916, nearly sixteen months after- wards, she is still struggling and in vain, to get the complaint even heard. 1 cannot believe that this was the sort of Tantalus remedy " which the New South Wales Legislature provided for the relief of d a distressed woman who was about to become a mother, and was - seeking to make the man who neglected to recognize his natural = duty provide in time for the life of his offspring. Nor can I believe a that the New South Wales Parliament intended that, for a slip of this kind, the whole proceeding was to be a nullity so that the defen- dant could with impunity go into the witness-box if he chose and deliberately swear to what he knew was false, and afterwards escape the penalty of perjury or the ground that the whole proceeding was without jurisdiction. If all these things are possible under the New South Wales law, and they must be if the defect here shown to exist makes the whole proceeding a nullity, then the Statute which is called the "Infant Protection Act" might easily be more appropri- ately named. That does not mean the man is left without protection against a designing woman. The man is amply protected by the Act itself, without resort to the cumbersome, costly and dilatory process of prohibition. The first line of protection he has is that the magistrate will always look carefully to see that so far as he ; can ascertain there is some corroboration. The next line of pro-

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plainant when the application for the summons was made. The very point was therefore necessarily presented. Every one of the Judges in that case held that the magistrates had jurisdiction to proceed on the "summons " even if there had been no statement on oath at all. Some went so far as to say there was jurisdiction to hear the "complaint " even if there had been no summons. But cer- tainly they held there was jurisdiction to " hear the summons." There is another case of R. v. Fletcher (1), a bastardy case decided by Mathew and Day JJ. under the Act of 1872, which came into force a year after Fletcher's Case already quoted. Sec. 3 was the same as the earlier Act. Sec. 4 said that " after the birth of such bastard child, on the appearance of the person so summoned, or on proof that the swmmons was duly served on such person," &c., the Court could hear the case. Consequently, no question can arise as to dispensing with a summons under that Act. A summons is indispensable as a statutory condition of jurisdiction. There it was contended that a certain omission constituted a want of condition of jurisdiction, and that the order nevertheless made on the hearing was a nullity. That was even a stronger case than the present, because the summons was issued not by "such justice" as the Act required, but by another justice without any deposition being made before him - the only deposition being made before a previous justice who issued a summons which proved abortive. Mathew J. (with whom Day J. concurred) said (2), referring to R. v. Hughes (3), that the Court held the irregularity "was merely an irregularity in the issuing of process." Resting on that case, the learned Judge said : - ' It is plain, therefore, that in this case the justices had jurisdiction to hear and dispose of the matter as to the paternity of the child. 1 quite agree that up to the point of hearing the case the non-compliance with the directions of the Statute as to the issuing of the summons was matter of sub- stance, and might have been taken advantage of at the right time. That merely means that if the defendant had chosen he need not have appeared at all, or, if appearing, might have taken his stand

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Protection Act 1904. The summons has been served on the appel- - lant, who, instead of appearing in obedience to it, has applied for a writ of prohibition on the ground that, when making such complaint, the respondent Whipp did not comply with the provisions of the section by producing evidence on oath, either oral or on affidavit, in corroboration in some material particular of the allegation as to the paternity of the infant. Two questions arise for consideration ; (1) whether the respondent Whipp did in fact comply with the provisions of the section, and (2) whether, if she did not comply - with them, the appellant is entitled to a writ of prohibition. At the time the complaint was made the respondent herself gave 4 evidence, and evidence was also given on her behalf by one John - William Handley, and their testimony is relied on as satisfying the requirement that the complainant shall when making a complaint - produce evidence on oath either oral or on affidavit in corroboration in some material particular of the allegation as to the paternity of _ the infant. In our opinion a woman making a complaint under sec. 4 must produce the independent evidence of some other person, - and cannot by her oath afford the corroboration required by the - \ section. We agree with what has been said by the Chief Justice as to the circumstances in which proof of opportunity for inter- course may amount to corroboration as to paternity, and we think with him that there is no such corroboration here. Handley's evidence corroborates part of the respondent's evidence and is consistent with the whole of it, but does not corroborate the allega- tion as to the paternity of the infant because it does not of itself show or tend to show the truth of such allegation (R. v. Basker- ville (1) ).. The next question is whether in these circumstances the appel- lant is entitled to a writ of prohibition. We think that compliance with the provisions of sec. 4 is necessary, and that the magistrate

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Judgment (115 paragraphs)