1931. —) Sypney, Nov. 17; Dee. 3. Gavan Duffy C.J., Starke, Dixon, Evatt and McTiernan JI. HIGH COURT [HIGH COURT BROWN . INTERVENER, WALTERS RESPONDENT, In rE WALTERS v. WALTERS. ON APPEAL FROM THE SUPREME COURT OF QUEENSLAND. before the Court—Leave to intervene—Application by father of res After period limited in decree nisi—Period within which application made—Competency of applicant and application—Adultery " during 7*—Rules of the Supreme Court (Q.), Order XII.,rr. 18-20*; Order X pena Held, (1) that the expression " by reason of material facts not having | brought before the Court" in sec. includes facts, not otherwise brought to the Court's knowledge, which occurred after decree nisi, and are decree absolute (Hulse v. Hulse, (1 Howarth, (1884) 9 P.D, 218, referred to) ; * The Matrimonial Causes Act 1875 (Q.) provides, by sec. 7, that " Every decree for a divorce shall in the first instance be a decree nisi not to be made absolute till after the expiration of such time not being less than three months from the pronouncing thereof as the Court shall by general or special order from time to time direct and during that OF AUSTRALIA.1 . APPLICANT AND APPE: AND by petitioner after decree nisi alleged—Material facts not having been bro 7 of the Matrimonial Causes Act 1875 material to be known upon the motion 871) L.R. 2 P. & D, 259, and Howarth riod any person shall be at lib Sah ced as the Court shall b general or special order in that from time to time direct to show why such decree should not absolute by reason of the same been obtained by collusion or by of material facts not hay brought before the Court. LR.) 164 E.R. 1381, followed) ; (1883) 8 P.D, 188, followed). onder of Henchman J. restored. e Court of Queensland. so shown the Court shall 'case by making the decree or by reversing the decree nisi juiring further inquiry or other- 'as justice may require. 'At any a the progress of the cause b decree is made absolute 'person may give information to the of any matter to the due decision of the who may thereupon take such as he hoped deem necessary or Rules of the Supreme Court 10 (Q.), by Order XI, provide as ws:—"18. When the Attomey- desires to intervene in a action, he must enter an nee. 19. Any other person de- to intervene in a matrimonial must make 'tion, on OF AUSTRALIA. (3) that any person not a party to the suit may show cause upon the ground that material facts have occurred since the decree nisi was pronounced, and he is not limited to giving information of such facts to the Attorney-General ; (4) that a person is not disqualified from intervening by reason only of close relationship to one of the parties, and because he is acting in the interests and forwarding the wishes of such party. 'The proviso to sec, 26 of the Matrimonial Causes Jurisdiction Act 1864 provides that upon any petition for dissolution of marriage the Court shall not be bound to pronounce a decree declaring the marriage dissolved if it finds that the petitioner has "during the marriage been guilty of adultery." Held, that adultery by the petitioner after decree nisi and before decree absolute is adultery "during the marriage" within the meaning of sec. 26 of the Matrimonial Causes Jurisdiction Act 1864, and therefore affords a disore- tionary bar (Hulse v. Hulse, (1871) LR. 2 P. & D, 259, and Elis v, Ellis, Decision of the Supreme Court of Queensland (Full Court) reversed, and CATION for special leave to appeal and AppraL from the y a writ of summons issued out of the Supreme Court of Queens- affidavit, to the Court or a Judge for leave to do so. 20. A party so inter- vening shall enter an appearance pur- suant to the leave, and shall join in the proceedings in the action at the stage in which they then are, unless the Court or a Judge otherwise orders." Order XLIIL., rule 2, provides that " When the Attomey-General or any other person desires to show cause against the making absolute of a judgment nisi for dissolution of marriage, he must enter an appearance in the action, and must within eight days after appearance file his defence, which, in the case of the Attomey-General, need not be verified, setting forth the grounds upon which he desires to show cause; and on the same day shall cause a copy thereof to be served on the party in whose favour the judgment has been pronounced." (2) that the words "during that period " in sec. 7 of the Matrimonial Causea H.C. oF A. Act 1875 mean the period between the making of the decree nisi and the making of it absolute, arid that cause may be shown at any time until the decree absolute is made notwithstanding the expiration of the time limited by a special or general order of the Court (Bowen v. Bowen, (1864) 3 Sw. & Tr. 530; 1931. —_ Brown t WALTERS. H.C. or A. 1931. panes Brown v. 'Watrers. HIGH COURT action for dissolution of marriage against his wife, Eva An nie Walters, on the ground of her alleged adultery with the co-defendant _ named therein. The action came on to be heard on 21st April 1931 _ before EZ. A. Douglas C.J. and a jury, and, the issues having been proved, a decree nisi was pronounced by his Honor on 24th April 1931 that the marriage should, upon motion to be made to the Court | in that behalf, be dissolved unless cause to the contrary be shown to the Court within three months from the date of the service of the decree nisi on the Attorney-General for the State of Queensland. Service of the decree nisi on the Attorney-General was effected on 15th May 1931. On 17th August 1931 the plaintiff husband moved, by counsel, before Henchman J. to have the decree nisi made absolute. The motion was opposed by the defendant wife, who by counsel moved for leave to intervene to show cause against the decree nisi being made absolute on the ground of adultery alleged to have been committed by the plaintiff on 27th June 1931. In order to permit — of the filing of affidavits in support of the allegation, the matter was adjourned until 21st August, on which date the motion by the wife _ was not further proceeded with, but an application for leave to intervene, founded on the same allegation, was made on motion by her father, Charles Dale Brown. Three deponents, being respectively the wife, her brother and a private inquiry agent, whose affidavits had been filed in support of the application, were in agreement as to the main features surrounding the adultery alleged, but they were not in complete agreement as regards some features. The particulars as furnished in the affidavits had, prior to both applica- tions, been brought under the notice of the Attorney-General, who had subsequently informed the defendant that he did not intend to intervene. In an affidavit filed by him, Brown stated that he was : not making the application to intervene as the agent of his daughter but of his own will and volition, and with the desire of protecting — his daughter's rights and interests, he having been informed that it was not competent for his daughter to intervene. He further stated that the costs and expenses of the private inquiry agent, whom he engaged early in June 1931, and also the costs of the present proceed ings were being borne by himself. Henchman J. made an 0 OF AUSTRALIA. ta decree absolute. On 24th August Brown entered an appear- in the action. The Full Court of the Supreme Court allowed an appeal by Walters the order of Henchman J., and dismissed the intervener, from the action; liberty being reserved to Walters to renew motion for a decree absolute subject to Brown being granted adjournment, if requested, to enable him to appeal to the High r members of the Court agreed) it was stated by his Honor that a jury might find on the evidence now pro- discretionary bar" contemplated in sec. 26 of the Matrimonial Jurisdiction Act 1864 (Q.) " been established ; (2) should the cretion of the Court, under the circumstances, be exercised in of the plaintiff, I am not prepared to say, that on the davits there is no evidence to be submitted to a jury on the issue of the plaintiff's alleged adultery, but I think that a Judge properly directing himself to the exigencies of proof on such a charge, bearing mind the place and position, discounting the evident exaggera- making allowance for obvious bias, and appreciating the discrepancies between the statements of the three witnesses, find himself wholly unable to accept a finding of adultery on uch evidence. This would appear to be the view of the Attorney- € and his advisers, and I quite agree to it. On this ground, hen, I think the appeal should be allowed and the intervener should dismissed from the suit." e to appeal to the High Court. her material facts appear in the judgment hereunder. "y, for the applicant. The applicant is entitled, under sec. 7 the Queensland Matrimonial Causes Act 1875, to intervene in to bring before the Court certain matters which are alleged to occurred after the decree nisi. Under sec. 7 the Court may y any person, that is, any member of the public who is not a Brown leave to intervene, and adjourned sinediethe motion H. ©. or A. 1931. eal Browy © Watters. 294 HIGH COURT H.C. or A. party to the suit, to intervene on the ground of " material facts no 1931 having been brought before the Court." The words "mate Brows facts" include matters which arose subsequent to the decree n W. sigtid and they may be brought before the Court at any time during tl marriage. Such a right has been availed of by the Queen's Pro as a member of the public, on numerous occasions (Lawtour y. He Majesty's Proctor (1) and Hulse v. Hulse (2)). The words " having been brought before the Court" in sec. 7 have the meaning as the words " not being before the Court " which ap Matrimonial Causes Jurisdiction Act 1864 the marriage continue until the decree absolute. That section also imposes upon Court the duty of inquiring into all the counter-charges, and to invoke the discharge of such duty it is sufficient on an applicati for leave to intervene to show a prima facie case only. The fin of adultery on intervention is not a matter for the Judge but is on for the jury; and in this respect Kretzschmar v. Kretzschmar (3) Narracott v. Narracott (4) were wrongly followed by the Full as different circumstances were present in those cases. As to #] nature and extent of the evidence which should be before the Judg on an application for leave to intervene, see Howarth v. Howarth (5)). In granting leave to intervene the discretion of the tria Judge was not wrongly exercised, and therefore it should not be disturbed. [He was stopped.] s Hart, for the respondent. The application for leave to inter was not made within the time prescribed by sec. 7 of the Matrimon Jauses Act 1875; therefore it was not competent for the Court to deal with the application. [Drxon J. referred to Bowen v. Bowen (6).] The words " material facts not having been brought before Court" in see. 7 mean that a private person, such as the applic (1) (1864) 10 H.L.C. 685; 11 ER. (4) (1864) 3 Sw. & Tr, 408; 164 1193, 1333. (2) (1871) LR. 2 P. & D, 259, (5) (1884) 9 P.D, 218, at p. 226. (3) (1859) 28 LJ. (P. & M.) 128. (6) (1864) 3Sw, & Tr, 530; 164 ER. R.J OF AUSTRALIA. i upon which the application for leave to intervene is have been investigated by the Attorney-General as provided e. 7, and he has declined to intervene. To secure the aid of the matter must rest on some question of law; but here ts on a question of fact only. The intervener is the alter ego wife ; therefore the Court will not grant him leave to intervene. circumstances it would appear that he is not an independent but is acting in collusion with his daughter, the respondent suit (Howarth v. Howarth (1)). Neither sec. 7 nor the Rules provide for leave to make applications for intervention, but latter a right to enter appearance is given. att J. referred to Supreme Court Rules (Q.), Order XLIIL., fter decree nisi a member of the public has no right to intervene way: the sole right is confined to the Attorney-General, who with the duty of intervention. ey, in reply. Under rule 19 of Order XII. of the Supreme Rules any person other than the Attorney-General must get e to intervene in a matrimonial action. Gavan Durry ©.J. We think that special leave to appeal should ited; and, the parties being ready, the appeal may now be ded with. ey, for the appellant. As to the suggestion that the appellant the alter ego of the wife, the affidavits show that she was his This question was discussed in Howarth v. Howarth (1). he words " during that period " in sec. 7 mean the period between ing of the decree nisi and the pronouncing of it absolute Flower (2), Rogers v. Rogers (3), Hyman v. Hyman (4) our v. Her Majesty's Proctor (5)). Rules 18 and 19 of t XII. are reconcilable with rule 2 of Order XLII. 9 PD. 218. (4) (1904) P. 403, at p. 406. P. 290, (5) (1864) 10 H.L.C. 685; 11 ER. 161, at p. 168. 1193. 'is not a case for the granting of special leave to appeal. The 1. ©. or A. 1931. ed Brown Watters. Nov. 17. H.C. or A, 1931. Brown cs WALTERS. Dec. 3. HIGH COURT Hart, for the respondent. On the evidence before him the Ji was wrong in granting leave to intervene. The application w made within the time prescribed by the Act. [Drxon J. referred to Crowder v. Crowder (1). . (Evarr J. referred to Crown Solicitor (N.S.W.) v. Stubbs (2).] The words "material facts not having been brought before t Court" mean facts which existed prior to the decree nisi. decree nisi the proper course is for the would-be intervener to inf the Attorney-General of the facts in his possession (Howarth Howarth (3)). The intervention referred to in rules 18 and } of Order XII. of the Swpreme Court Rules is an intervention un sec. 22 of the Matrimonial Causes Jurisdiction Act 1864, on tw special grounds. Rule 2 of Order XLIII. applies to sec. 7 of Matrimonial Causes Act 1875. pe Fahey referred to Attorney-General of Queensland v. Hollay (4). z 4 Cur. adv. vult. Tue Court delivered the following written judgment :— On 24th April 1931 the Supreme Court of Queensland pronou ne a decree or judgment nisi at the suit of the respondent to this aj for the dissolution of a marriage solemnized between him and th appellant's daughter. The Court ordered and adjudged that marriage should, upon motion to be made to the Court in that bel half be dissolved unless cause to the contrary be shown unto the Cou within three months from the date of the service of the judg upon the Attorney-General for the State of Queensland. than three months after service of the decree or judgment 1 upon the Attorney-General, namely, on 17th August 1931, it moved absolute before Henchman J. But upon the hearing motion an application was made for leave to show cause, fi the wife, and then, when it was found that cause could not bes by the wife, by her father, the appellant. The application w founded upon the allegation that the respondent had, since (1) (1924) V.L.R. 28; 45 A.L.T. 86. (3) (1884) 9 P.D., at p. 224. (2) (1929) 42 C.L.R. 312. (4) (1912) 15 C.L.R. 46, LR] OF AUSTRALIA. e nisi, namely, on 27th June 1931, committed adultery. The on of the appellant was granted by Henchman J. on 21st gust 1931, and on 24th August the appellant entered an appear- in the suit. But the husband appealed to the Full Court of ensland against the order giving leave to show cause, and the Court reversed it. The Court considered that the evidence in ossession of the applicant to prove the adultery lacked cogency and was disfigured by some discrepancies, and that the father was g in the interests of his daughter, whose place he took when it discovered that she was not a competent intervenant. Upon e grounds the order of Henchman J. was discharged. An appeal to this Court is now brought against the order of the Full Court. The matter turns upon sec. 7 of the Queensland Matrimonial Act 1875, which is founded upon sec. 7 of 23 & 24 Vict. c. Before these provisions were enacted a decree pronounced for dissolution of a marriage was final in the first instance. Sec. 26 'the Matrimonial Causes Jurisdiction Act 1864, which was founded pon sec, 31 of 20 & 21 Vict. c. 85, provided that in case the Court d be satisfied on the evidence that the case of the petitioner had n proved and should not find connivance, condonation or collusion, en the Court should pronounce a decree declaring such marriage to be dissolved ; provided always that the Court should not be ound to pronounce such a decree if it should find that the petitioner d during the marriage been guilty of adultery, or of other conduct iting any of the familiar discretionary bars. e first paragraph of sec. 7 of the Matrimonial Causes Act 1875 follows; '' Every decree for a divorce shall in the first instance decree nisi not to be made absolute till after the expiration of time not being less than three months from the pronouncing of as the Court shall by general or special order from time to direct and during that period any person shall be at liberty in manner as the Court shall by general or special order in that from time to time direct to show cause why such decree should ibe made absolute by reason of the same having been obtained by sion or by2° reason of material facts not having been brought the Cor H.C. or A. 1931. Ww Brown Waters. Gavan Dufly Cd. Starke J. Dixon J! Evatt J. 'McTiernan J. H.C. oF A. 1931. Ww Brown WaALrers. Gavan Duffy CJ. Starke J. Dixon J. Eyatt J. 'MeTiernan J. HIGH COURT [193 The circumstances of this case raise several questions as to the operation of this provision, which, however, are more or less the subject of authority :— (1) For the purposes of the proviso to sec. 26 of the Act of 1864, adultery after decree nisi and before decree absolute is adultery during the marriage, and therefore affords a discretionary bar (Hulse v. Hulse (1); Ellis v. Ellis (2) ). (2) Cause may be shown against the decree absolute consisting of material facts occurring after the decree nisi not otherwise "brought before the Court.'' The expression "' by reason of material facts not having been brought before the Court,"' in our opinion, has the same meaning as the expression in the British section "by reason of material facts not brought before the Court." We think — it should receive the construction placed upon it by Lord Penza in Hulse v. Hulse (3), an interpretation which Cotton and Lindley LJJ., but not Baggallay L.J., in Howarth v. Howarth (4), were a disposed to adopt. (Cf. Rogers v. Rogers (5).) This interpretation includes facts, not otherwise brought to the Court's knowledge, which have occurred after decree nisi, and are material to be known | upon the motion for decree absolute. i (3) In the course of the judgment which Macrossan J. delivered on behalf of the Full Court in this case he said :—" Again, a con- sideration of sec. 7 would lead, I think, to the conclusion that a stranger to the suit who desires to take part therein on the ground of material facts which have occurred after the judgment nisi limited to giving information thereof to the Attorney-General and that the Legislature has entrusted to that officer the exclusive right and responsibility in such a case to protect the process of the Court from abuse. Baggallay L.J., in Howarth v. Howarth (6), express ; that view when he said ' Now I interpret the words " not brought before the Court" as meaning not brought before the Court at before the time when the decree nisi is made.' Cotton L.J. held the opposite view. In view of these divergent opinions and of the sta of the authorities (cf. Hulse v. Hulse (1); Lautour v. Her Majesty's (1) (1871) LR. 2 P, & D, 259, and 224, (2) (1883) 8 P.D. 188. (5) (1804) P., at pp. 167-168, per (3) (1871) LB. 2P. & D., at p. 261. Jeune P. x ¥ (4) (1884) 9 P.D., at pp. 226, 230 (6) (1884) 9 P.D., at p. 224. OF AUSTRALIA. (1)), it would seem very desirable to have an authoritative nf u mt on the section. For the purpose of this appeal it is not necessary for this Court to come to a final decision." In z opinion a stranger to the suit may show cause upon the sound that material facts have occurred since the decree or judg- ent nisi was pronounced, and he is not limited to giving informa- tion of such facts to the Attorney-General. _ (4) Cause may be shown after the decree or judgment nisi at any e until the decree or judgment absolute is pronounced, notwith- ing the expiration of such time from the pronouncing of the er which the decree may be made absolute. The expression "during that period " in the first paragraph of sec. 7 of the Queens- land Matrimonial Causes Act 1875 must, in our opinion, receive the same construction as that placed upon it in sec. 7 of the British in Bowen v. Bowen (2). (See Crown Solicitor (N.S.W.) v. Stubbs }), and Howarth v. Howarth (4), and Poole v. Poole (5), and Clements Clements (6), and Bruell v. Bruell (7).) The words '' during that eriod " mean the period between the making of the decree nisi the pronouncing of it absolute. }) No general discretion appears to be given to the Court by the "any person shall be at liberty in such manner as the Court ll by general or special order in that behalf from time to time to show cause." Upon application for a special order, it may, as Howarth's Case and purpose of the applicant, and possibly the sufficiency of s. What may amount to a general order directing the in which cause may be shown has been made in Queensland pursuant to sec. 7. It is Order XLIII., rule 2, of the Rules of the me Court, It is not clear that Order XII., rule 19, qualifies he operation of Order XLIII., rule 2. Order XII., rules 18, 19 and (1) (1864) 10 H.L.C. 685; 11 E.R. Baggallay L.J. (5) (1896) 12 T.L.R. 509. (1864) 3 Sw. & Tr. 530; 164 E.R. we (1864) 8 Sw. & Tr. 394; 164 E.R. . if 9) 42 C.L.R., at p. 318, (7) (1922) 39 N.S.W.W.N. 170. 9 PD, at p. 223, per (8) (1884) 9 P.D. 218, H.C. or A. 1931. Brown WALTERS. a nety Starke 3. Dixon J. Evatt J. McTiernan J. 300 HIGH COURT {193 H.C. or A. 20, appear to be directed rather to sec. 2 of the Matrimonial Cause eb Jurisdiction Act 1864. Possibly the application for a special orde Brown Was unnecessary; and an appearance might have been en Watrers, pursuant to Order XLIII., rule 2. But this rule was brought to Gavan Duty the attention of Henchman J. on the hearing of the application, an starke. he nevertheless thought it proper to make an order granting liberty Beat 3 z, to show cause. Hi When the Full Court reversed his order, it intended to decide that the applicant ought not to be admitted to show cause. Indeed, by its order, the appellant, who in the meantime had entered an appear ance, was expressly dismissed from the suit. We are unable agree with the view of the Full Court. There is no reason to th that the father is a mere shadow of the daughter, and the fact th he is acting in her interests and forwarding her wishes does not disqualify him. In considering the veracity of the evidence of adultery and the probable result of the intervention at any 1 upon the facts and circumstances of this case, the Court went bey: the discretion allowed to it upon an application for a " spec order " under sec. 7. Henchman J. intended to decide that the applicant ought to be admitted to show cause, and we agree with him in the conclusion that the applicant is entitled to show cause. Whether a special order was strictly necessary or not, it may have been convenient in_ the circumstances to make an affirmative order to that effect rather than to allow the applicant to depend upon an appearance. : We think that the order of the Full Court should be discharg and that of Henchman J. restored. The appeal should be allowed. Appeal allowed. Discharge order of the Full Court. Restore order of Henchman Costs of appeal to this Court and to Supreme Court to be costs in the cause. a Solicitor for the applicant and appellant, J.J. O'Connor, Brisbane by McDonell & Moffitt. Solicitors for the respondent, Leonard Power & Power, Brisban by Gill, Oxlade & Clegg.