Riebe v Riebe

Riebe v Riebe - [1957] HCA 66 - HCA 1957 case summary — Zoe

This is an appeal from an order of the Full Court of the Supreme Court of Western Australia reversing a judgment of Jackson J. which dismissed an action for dissolution of marriage. Before the Full Court of the Supreme Court an objection was taken that under the law of Western Australia no appeal lies from a judgment dismissing an action for dissolution of marriage. The law of Western Australia relating to divorce and matrimonial causes is now embodied in the Matrimonial Causes and Personal Status Code 1948 (No. 73 of 1948). The long title of this statute is "An Act to amend and codify the law relating to matrimonial causes and to declarations of personal status and for other purposes incidental thereto". Part V of that Act is headed "Right of appeal, rehearing and new trial". The Part begins with s. 51 (1). That section provides that every order for dissolution of marriage or nullity of marriage or judicial separation or any other order made in any intervention proceeding or by way of ancillary relief in any action may be appealed against on grounds of fact or law or both by any party bound by the order within three calendar months of the date of the order. The sub-section goes on to enact a proviso that there shall be no appeal from any final dissolution of marriage by any party who failed to appeal against any order nisi on which such order was founded unless such failure be due to such party having had no knowledge that the action had been taken, or, if the fact of the action having been taken did come to his knowledge, he did not have reasonable opportunity of appealing and defending his rights or contesting any fact in issue raised against him. Sub-section (2) of s. 51 deals with procedure and principles affecting the appeal. Section 52 states the power of the Full Court in exercising its appellate jurisdiction. It will be seen that this provision does not extend to orders or judgments refusing relief by way of dissolution or nullity of marriage except in so far as they may be made in intervention proceedings. As the statute is a code it was contended that the provisions relating to appeals which it contained were exhaustive and that it was impossible to look elsewhere to find such a right of appeal. Before the passing of the Matrimonial Causes and Personal Status Code 1948 W.A. the jurisdiction of the Supreme Court in Matrimonial Causes was contained in Pt. VI of the Supreme Court Act 1935 W.A.. That statute was itself an Act to consolidate and amend the law relating to the Supreme Court. Part VI, Div. 5, contained provisions for appeals in matrimonial causes. Section 111, which is the first section of that division, provided that subject to rules of court, and as thereinafter provided, the Full Court should have jurisdiction to hear and determine an appeal from every judgment, decree, and order made by the judge in a matrimonial cause, whether in court or in chambers. Other sections of the division provide for new trials, for the powers of the court to be exercised on appeal, and for the making of rules of court imposing conditions and restrictions in relation thereto. Section 114 provides that no appeal from an order absolute for dissolution or nullity of marriage shall lie in favour of any person who, having had time and opportunity to appeal to the Full Court from the decree nisi on which such order may be founded, shall not have appealed therefrom. As will be seen, that is the precursor of the proviso to s. 51 of the Matrimonial Causes and Personal Status Code 1948 W.A.. It will be observed that s. 111 accorded full right of appeal to either party in a matrimonial cause. That is to say an appeal lay against the grant of relief and an appeal lay against the refusal of relief. Prima facie the repeal of Pt. VI of the Supreme Court Act and its replacement only by s. 51 of the Matrimonial Causes and Personal Status Code 1948 would seem to mean that the right of appeal against the refusal of relief had gone. But to avoid this result reliance has been placed upon other provisions of the Supreme Court Act.

[5]

Section 58 (1) of the Supreme Court Act 1935 W.A. provides that subject as otherwise provided in the Act and to rules of court, the Full Court shall hear and determine certain matters which the section proceeds to specify. The section forms portion of Pt. IV which is headed "Sittings and distribution of business". Included in the list in s. 58 (1) under par. (b) are appeals from a judge whether sitting in court or in chambers. Section 59 (1) provides that in any cause or matter in which a verdict has been found by a jury, or by a judge without a jury, or by referees, or by a judge sitting with assessors, the Full Court may order a new trial or reference, or vary or set aside such verdict, or reduce the damages awarded. Section 60 (1) provides that no appeal shall lie to the Full Court in certain matters which are enumerated in the sub-section. Paragraph (f) of the enumeration includes interlocutory orders or judgments given by a judge and provides that there shall be no such appeal without the leave of the judge or the Full Court. The paragraph then proceeds to except from this limitation a list of matters, one of which is, "(iv) the granting or refusal of a decree nisi in matrimonial cause" (sic). Section 19 of the Supreme Court Act provides that, subject to the provisions of Pt. VI of the Act, the Supreme Court shall have in Western Australia, stated briefly, the same jurisdiction as that conferred on the Court for Divorce and Matrimonial Causes in England under the Matrimonial Causes Act of 1857. The section concludes by providing that the Supreme Court shall have all such jurisdiction in relation to divorce and other matrimonial causes as before the commencement of that Act was vested in or capable of being exercised by the Supreme Court and as enacted in Pt. VI of the Act. Paragraph (e) of sub-s. (1) of s. 16 invested the Supreme Court with all the jurisdictions which were vested in or capable of being exercised by the Supreme Court of Western Australia, and the Court for Divorce and Matrimonial Causes, at the commencement of the Supreme Court Act 1880. By s. 3 of the Matrimonial Causes and Personal Status Code 1948 W.A. the provisions of par. (e) of sub-s. (1) of s. 16, s. 19 and the whole of Pt. VI were repealed, but the provisions of ss. 58, 59 and 60 were left untouched. Also left untouched were the provisions of s. 16 (2). That sub-section provides that there shall be vested in the Supreme Court and the judges thereof all original and appellate jurisdiction which under and by virtue of any statute which came into force in Western Australia after the commencement of the Supreme Court Act 1880, and is not repealed, was immediately before the commencement of this Act vested in or capable of being exercised by the court or a judge thereof, and such other jurisdiction as by and under this Act or any subsequent statute is conferred on or vested in the court and the judges thereof. Under this provision and the provisions of s. 58 (1) (b), assisted by s. 60 (1) (f) (iv), it was argued that notwithstanding the provisions of s. 51 of the Matrimonial Causes and Personal Status Code 1948 W.A. and the repeal by s. 3 of that Act of Pt. VI of the Supreme Court Act as well as of s. 16 (1) (e) and s. 19, a general power of appeal continued to exist which suffices to support the right of appeal to the Full Court from the refusal by Jackson J. of relief in the action. The three judges of the Full Supreme Court accepted this contention.

[6]

In support of the appeal from the judgment of the Full Court reversing that of Jackson J. the objection to the jurisdiction of the Full Court was renewed before us. Before dealing with the argument based upon ss. 58 (1) (b), 59 (1) and 60 (1) (f) (iv) and s. 16 (2) it is desirable briefly to state the history in Western Australia of appeals in matrimonial causes. This necessitates some reference to the history of the general right of appeal. The Supreme Court of Western Australia was established by the Supreme Court Ordinance 1861. At that time it was to be constituted by one judge, namely the Chief Justice: s. 4. By s. 30 the Governor in Executive Council was required from time to time to hold a court to be called the Court of Appeal of Western Australia. That court was to have power, in all such cases as might under an immediately preceding provision be made the subject of appeals to the Privy Council, to receive and hear appeals from final judgments, decrees and orders of a civil nature of the Supreme Court. Section 30 went on to make further incidental provisions in relation to the appeals. This provision, it will be observed, is analogous to that which existed in South Australia, a provision which was to some extent discussed in Miller v. Teale [1] . No jurisdiction in divorce existed until there was passed the Administration of Justice (Divorce and Matrimonial Causes) Ordinance 1863 (27 Vict. No. 19). Section 1 of that Ordinance conferred upon a new court thereby established to be called a Court of Divorce and Matrimonial Causes, the same jurisdiction as that exercisable by the Court of Divorce and Matrimonial Causes in England constituted under 20 & 21 Vict., c. 85. It will be seen that that is the original provision repeated in the Supreme Court Act 1935 W.A. by s. 19, a section which was repealed, as has been already stated, by the Matrimonial Causes and Personal Status Code 1948. By s. 3 of the Ordinance the Chief Justice of Western Australia was made the judge of the court. By s. 61 of the Ordinance either party dissatisfied with the decision of the court on any petition for the dissolution of marriage or any petition for nullity of marriage might, within three months after the pronouncement thereof, appeal to the Court of Appeal of Western Australia established under the provisions of the Supreme Court Ordinance 1861 (scil. by s. 30). By the Supreme Court Act 1880 (44 Vict. No. 10) the Supreme Court and the Court of Divorce and Matrimonial Causes were united in the Supreme Court (s. 3). The Supreme Court was to possess the jurisdiction of both courts (s. 5). There was to be one judge of the Supreme Court but other judges might thereafter be appointed by the Queen. Section 15 provided that all business of the said court which according to the law or practice then existing would have been proper to be transacted or disposed of by the Chief Justice sitting in banco should continue to be so transacted, subject to any rules of court, until the number of judges of the said court should be increased, and thereafter such business should be transacted or disposed of by any two or more judges of the said court; and the Chief Justice or the judges of the Supreme Court so sitting in banco should be designated as "the full Court". It may be remarked that the Supreme Court Act 1880 contained the provisions of the Judicature Act 1873 of the United Kingdom. Then followed the Supreme Court Act 1886, the purpose of which appeared from the preamble which recited that by the Supreme Court Act 1880 due provision had not been made for the purpose of facilitating appeals in bankruptcy and other matters to the Full Court. The Act provided that the Full Court as constituted by the Supreme Court Act 1880 should be a court of appeal and should have jurisdiction and power to hear and determine appeals from any judgment or order of the Supreme Court or of any judges or judge thereof, subject to the provisions of the said Act and to such rules and orders of the court now in force for regulating the terms and conditions on which appeals should be allowed or as might from time to time be made in accordance with the provisions of the said Act. It will be noticed that under this provision the appellate jurisdiction of the Full Court is described as relating to "any judgment or order of the Supreme Court or of any judge or judges thereof". These words do not, according to their legal meaning, include a decree in divorce. This was referred to by Sir Robert McMillan J. in Anderson v. Anderson [1] . His Honour said: "I can find no words in any of the local Acts which enable this Court to sit as a Court of Appeal in divorce matters excepting in s. 61 of the Divorce Act, 1863 " [2] . It is not very material, but it should be pointed out that the exception is not quite accurately stated by his Honour. For s. 61 did not confer appellate jurisdiction on the Supreme Court but only on the Court of Appeal of Western Australia consisting of the Governor in Council. The same point was developed in Thompson v. Thompson [3] , a decision of the Full Court. Sir Robert McMillan J., who gave the judgment of the court said: "There is no reference to be found to decrees, and we should have to say that in the absence of the proper word for the result of a divorce petition the Legislature still intended to bring divorce cases in under these general words, "all other matters". I think that the Legislature had no such intention. In all probability this point was overlooked" [4] . As a consequence of these decisions the Appellate Jurisdiction Act 1911 (No. 4 of 1912) was passed. By s. 2 of this Act it was provided that the Full Court shall, subject to this Act and rules of court, have jurisdiction to hear and determine an appeal from every judgment, decree, and order, final or interlocutory, hereafter, or within three months before the commencement of this Act, given or made by a judge in a matrimonial cause, whether in court or in chambers. The succeeding sections of the Act provided for the granting of new trials, setting aside of verdicts of juries and the powers which the Full Court may exercise in its appellate jurisdiction. The Court of Appeal of Western Australia consisting of the Governor in Council was abolished. Section 7 repealed s. 30 of the Supreme Court Ordinance 1861 and s. 61 of the Act of 27 Vict. (No. 19). It will be seen that this Act is the origin of Pt. VI, Div. 5 of the Supreme Court Act 1935. But a consideration of its history makes it clear enough that jurisdiction depended upon s. 111 of the Supreme Court Act. In the enactment of s. 58 (1) (b) of the Supreme Court Act it seems reasonably clear that no more was intended than to provide for the distribution of business, as the heading of the Part in which the section stands seems to show. It seems clear too that the exception contained in s. 60 (1) (f) (iv) was intended to take into account the existence of the jurisdiction given by s. 111 and to make it clear that orders nisi were not to be treated as interlocutory so that leave to appeal would be necessary. It can go no further. Section 59 (1) may be put aside. For in terms it relates only to verdicts found by a jury or by a judge sitting without a jury and does not extend to decrees. It is true that in the Supreme Court Act 1935 there is no difficulty, where the word "judgment" occurs, in giving it a meaning which includes "decree"; for s. 4 defines "judgment" to include "decree". But the difficulty is deeper than that. It is that neither s. 58 nor s. 60 is concerned with conferring jurisdiction in matrimonial causes. That was done by Div. 5 of Pt. VI. Sub-section (2) of s. 16 seems to have been introduced into the Supreme Court Act 1935 by analogy from the Supreme Court of Judicature (Consolidation) Act 1925 Imp., s. 18 (2) (b) and (c). It is not easily construed but it would seem that the words "is not repealed" mean "is not repealed by this Act or by some previous Act". If that is its meaning it has no relevance, for all the provisions on which Div. 5 of Pt. VI is founded were repealed by the Supreme Court Act. In short it would appear that in drafting s. 51 of the Matrimonial Causes and Personal Status Code 1948, appeal was limited, whether advisedly or not, to decrees granting relief. To disregard the repeal of Div. 5 of Pt. VI and find in the provisions of ss. 16 (2), 58 (1) (b), 59 (1) and 60 (1) (f) (iv) a general right of appeal is to give these provisions a new construction which they did not bear in the Act as passed and to disregard the special nature of the code.

[11]

The material events may be taken to begin about the end of August 1955. It would seem that until the events to be mentioned, the plaintiff, whose occupation is given as civil servant, maintained in one or another suburb of Perth a family dwelling where they all lived. In August 1955 after a quarrel about some not very important matter, the defendant threatened that she would leave her husband. Needless to say there had been difficulties between them. In the discussion that followed she said she did not want to depend on her husband for her keep and she wanted to take some one as a boarder who would pay her rent and give her some independence. Her brother was mentioned and then she suggested that the co-defendant Wilson might come. He was described as an "old" or "elderly" man. He had boarded with her mother but they had last seen him earlier in the year. He had left Perth in July to visit the eastern States. While there he had written letters to both of them. The plaintiff had seen the letters and they contained nothing to take exception to. Apparently they knew that Wilson was returning from his visit. The upshot was that the defendant wrote asking Wilson if he would agree to such an arrangement and on 9th September 1955 he arrived in Perth to live with them. He slept in the same room as the defendant's eldest son. According to the plaintiff's case the defendant displayed too much interest in Wilson. She went to meet Wilson on his arrival although it was in the small hours of the morning. She made much of him, embraced him, reclined on his bed, and behaved familiarly. In evidence the defendant and Wilson met these incidents with denials or innocent explanations. The plaintiff however remonstrated with them and told Wilson to go. On the following day, 14th October 1955, he left. On the same day the defendant betook herself and her children, except her eldest boy, to a neighbour and refused to return. Wilson seems to have proposed a little earlier to both of them that he should start a business (he was a french polisher) and that the defendant should keep house for him and answer the telephone when it was installed. She says that she now asked Wilson if the offer still stood and that she accepted it. He took a house (which later he left for another) and there the defendant established herself and her four children.

[13]

To this she wrote a long reply dealing at length with each point in his letter. She denied hurrying for a divorce but in effect said that as the marriage had not worked it should be dissolved. She said that only at his insistence had she accepted maintenance for the children and because they needed clothing when she had left, and so on. As to the party to move for a divorce, she wrote in effect that her husband and his mother had given her such a bad character that she would have little to lose. Accordingly she was prepared to adopt the course of spreading the whole issue for public viewing. She had offered, she wrote, "to keep the dirt on myself by letting you do it undefended by myself". That apparently she would no longer agree to do. The letter goes on to blame him for the separation and trace the causes. He replied on 12th January 1956 saying in substance that he knew reconciliation was impossible and he would try for a divorce as soon as he could. He would reduce the maintenance to £10 a week. Matters apparently went on thus until June 1956. On 20th June the defendant wrote the plaintiff a long letter telling him that she had seen a magistrate about the children and their maintenance and that he had advised her to issue a summons seeking custody and maintenance which she had done. The letter then goes over their mutual relations. Moved apparently by the issue of this summons, the plaintiff engaged a private inquiry agent who proceeded to watch the house. On the night of 9th July 1956 the agent with the plaintiff entered the house shortly after half-past eleven. There was of course a scene and at the trial contradictory evidence was given of what was said and done. Jackson J. was quite satisfied that adultery did not take place on that night. After stating that he accepted without hesitation the evidence of certain witnesses supporting the conclusion including that of Wilson, Jackson J. said - "Some of the wife's actions on that occasion were equivocal and I am inclined to believe that at that stage she was prepared to allow the co-defendant to be implicated, contrary to the truth, in order that she might be divorced from her husband. I think it true that she later repented and decided to contest the allegations against her and the co-defendant."

[15]

It is not easy to reduce to a brief statement in a categorical list the grounds which induced the majority of the judges of the Full Court to hold that this conclusion was wrong and that the plaintiff had established his case. Fully to appreciate then it is necessary to read the reasons given by Wolff S.P.J. Here they must be briefly noted. First and foremost of course were the general circumstances in which Wilson left the plaintiff's house and then set up with the defendant as his housekeeper. Added to that was the fact that Wilson did not pay her wages, did not actually obtain a telephone or leave his employment to set up an independent business and according to his own account slept and lived in conditions which appeared to involve some discomfort and inconvenience. Then some of the incidents of the night of 9th July 1956 to which certain of the witnesses deposed were relied upon as arousing suspicion. To this was added the course of events before the defendant left her husband and the plaintiff's account of what he saw and what was said as compared with the defendant's version. In the same way a point was made of the evidence of the two or three acts of familiarity and that evidence was compared with the explanations given. Again the plaintiff's evidence of statements the defendant made to him when she sent for him in December are compared with her version. She did not of course come as a woman of unblemished character and the significance of her past was not overlooked. Then on the co-defendant's own showing he exhibited solicitude about the defendant at the time when she broke with her husband. "All these circumstances", Wolff S.P.J. said, "combined with his extremely solicitous attitude in the unfortunate differences between the plaintiff and the defendant - so far, that is, as the defendant was concerned - clearly point, in my opinion, to the conclusion that there was an adulterous relationship, between him and the defendant. I refuse to believe that he was putting up with the inconvenience which the evidence of the two defendants would suggest. In my opinion he had taken the plaintiff's place."

At a glance

Court

Decision date

Before

Source

Judgment (20 paragraphs)

Parties