Purcell v Purcell [1959] HCA 44

High Court of Australia Dixon C.J. Kitto, Taylor, Menzies and Windeyer JJ. Purcell v Purcell [1959] HCA 44

ORDER Appeal allowed. The respondent (petitioner in the suit) to pay the appellant her costs of the appeal. Order of the Full Court of the Supreme Court discharged. In lieu thereof order that the appeal of the petitioner to that court be dismissed with costs. Restore the decree of the Supreme Court in its matrimonial causes jurisdiction dated 26th February 1957 by which the petition was dismissed and the petitioner ordered to pay the costs of the respondent.

Cur. adv. vult.

Sept. 7 Dixon C.J.

This appeal arises from a husband's suit in the Supreme Court of New South Wales for dissolution of marriage. The suit was dismissed by Nield J. but on appeal to the Full Court of the Supreme Court a new trial of the issues was ordered. From the order for a new trial the wife now appeals, by leave, to this Court. The marriage took place on 30th December 1946. There are no children. The petition by the husband was filed on 24th February 1955. It alleged that between October 1951 and October 1953 the respondent wife and the co-respondent had committed adultery together. But it also averred that the petitioner had condoned the adultery which however, so the petitioner alleged, had been revived by the subsequent matrimonial misconduct of the respondent wife. The wife's answer contained a denial of the adultery alleged as well as a denial of matrimonial misconduct amounting to a revival of the adultery as a ground of dissolution. Nield J. found that the adultery had been committed but that there had not been matrimonial misconduct on the part of the wife sufficient to revive it after condonation as a ground of divorce. The ground of the order for a new trial was that evidence material to the issue of subsequent misconduct had been erroneously excluded. The evidence excluded consisted of questions asked and answers sought to such questions during the cross-examination of the respondent. That form of cross-examination was disallowed as violating s. 79 of the Matrimonial Causes Act 1899-1954 which so far as material is as follows: "No witness in any proceeding under this Act whether a party to the suit or not shall be liable to be asked or bound to answer any question tending to show that he has been guilty of adultery unless he has already given evidence in the same proceeding in disproof of his alleged adultery".