Walker v Walker
[1937] HCA 44(Judgment by: Dixon J)
Walker
vWalker
Judges:
Latham CJ
Rich J
Starke J
Dixon JEvatt J
McTiernan J
Legislative References:
Deserted Wives and Children Act 1901-1931 NSW - s 4; s 21
Judgment date: 20 August 1937
Judgment by:
Dixon J
I agree. In Wharam v. Routledge [ [4] ] Lord Ellenborough said:-"You cannot ask for a book of the opposite party, and be determined upon the inspection of it, whether you will use it or not. If you call for it, you make it evidence for the other side, if they think fit to use it."
In Calvert v. Flower [ [5] ] before Lord Denman C.J. a book was called for by the defendant's counsel, Mr . Fitzroy Kelly. The report goes on as follows:-"The book was produced, and Kelly turned over several pages of it, so as to look at the contents of them. Lord Denman C.J.: I ought now to say, that if Mr. Kelly looks at the book he will be bound to put it in as his evidence. Kelly: Certainly, I am fully aware that I must do so. Lord Denman C.J.: I have mentioned this because it has been supposed by some, that an opposite counsel may look at papers or books called for under a notice to produce, and then not use them."
The important part of the rule which Lord Denman states is that the party calling for a document and inspecting it must, if required, put it in as part of his case; it is evidence tendered by him. When it is in evidence as part of the proof adduced by him, its probative value must be dealt with as a matter of fact. If the matters which are contained in the document are completely irrelevant to the issues then, of course, they must be thrown out of consideration. But if it contains statements of fact in relation to relevant matters, then it becomes a medium of proof to which such weight may be attached as circumstances warrant. Whether in the end it tells in favour of the party who insisted that it should be put in or in favour of the party calling for it will, of course, depend on the facts of the case, but the purpose of the rule is to enable the party producing the document to have it put in evidence so that he may rely upon it.
In the present case it appears to me that the magistrate was entitled to take into account the contents of this letter. So taking them into account, supported as they were by other evidence, he was justified in fixing the sum which he did. It would not be right for this court, as a third tribunal of fact, to review his determination on such a matter.
I agree that it was open to the magistrate to find that the appellant left his wife without means of support in New South Wales so as to be liable under sec. 4 of the Deserted Wives and Children Act 1901-1931. The authority of Renton v. Renton [ [6] ] is probably a sufficient answer to the contention that his breach of duty arose outside the jurisdiction. Indeed the expression "leave without support" implies that the condition of the wife is to be regarded. When it is once settled that it is the omission of the husband to supply her with means of support and not his physical departure that is meant by "leave," it appears to follow that the locality where through his omission she is without means must be considered. In the present case the husband did leave his wife in New South Wales physically. Having left her physically, he omitted to supply her with what was considered to be an amount sufficient for her support.
In my opinion the appeal should be dismissed.