Brennan v Brennan [1953] HCA 28

4 be Maid 02 5. Ws (eR HEE

AP? 32. F eh, 4 $6 89 C.L.R.] OF AUSTRALIA. 129

[HIGH COURT OF AUSTRALIA.]

BRENNAN ; 5 4 : PETITIONER,

% i : APPELLANT ; AND

BRENNAN j 3 ; RESPONDENT,

: REsPoNDENT.

ON APPEAL FROM THE SUPREME COURT OF NEW SOUTH WALES.

Matrimonial Causes—Dissolution of marriage—Petitions by wife and hushand— yy (. op A,

Hearing of petitions—Oral evidence completed—Death of presiding judge— 1953. Evidence read by another judge in private chambers, not in court—Two witnesses Se recalled and questioned by that judge in court—Husband's petition granted— SYDNEY.

Wife's petition dismissed—Proceedings—Regularity—Decree absolute for April 20,21; divorce—Statutory provisions—Compliance—Decree—Ability to set aside— Matrimonial Causes Act 1899-1951 (N.S.W.) (No. 14 of 1899—No. 43 of 1951), ss. 28, 77.

ADELAIDE,

Section 77 of the Matrimonial Causes Act 1899-1951 (N.S.W.) requires ALOT, that, subject to certain immaterial exceptions, the witnesses in all proceedings ie a before the court where their attendance can be had shall be sworn and examined

orally in open court.

In a consolidated suit in which the wife petitioned for a dissolution of marriage on the ground of her husband's desertion, and the husband, denying the desertion, petitioned for a decree for restitution of conjugal rights, and, later, for a dissolution of the marriage on the ground of his wife's misconduct, the whole of the oral evidence had been taken when the trial judge died. At the further hearing of the suit the transcript of the evidence was, by consent of the parties, read by the second judge and he having read the transcript in his private chambers, recalled two of the witnesses and asked them a number of questions. After hearing counsels' addresses the judge granted the husband a decree nisi for dissolution of the marriage on the ground of his wife's adultery and dismissed the other petitions. On appeal by the wife to the High Court,