Walker v Walker
[1937] HCA 44(Judgment by: Evatt J)
Walker
vWalker
Judges:
Latham CJ
Rich J
Starke J
Dixon J
Evatt JMcTiernan J
Legislative References:
Deserted Wives and Children Act 1901-1931 NSW - s 4; s 21
Judgment date: 20 August 1937
Judgment by:
Evatt J
I agree that the appeal should be dismissed. I should add a word or two upon the question whether the magistrate was entitled to consider or place any reliance upon the document purporting to be a letter, dated August 5th, 1936, to the wife's father, from a solicitor carrying on his practice at Wau, New Guinea. I agree with the observations of the Chief Justice and my brother Dixon that it is erroneous to hold that, in the circumstances, the magistrate was not entitled to rely upon the document in question. The point is important in general practice. Clearly the document was not admissible in evidence. But, so soon as counsel for the husband called for it, and it was produced, counsel for the wife became entitled to have the document read as part of the evidence in the case. He exercised this right.
Street J. referred to the ruling of Park J. in Wilson v. Bowie [ [7] ], but held that the particular document to which I have referred was not "material" because "material means material evidence on a relevant point and this was not evidence at all." In the case cited by his Honour , Park J. said: "If the plaintiff's counsel called for a paper, and looked at it, they must read it in evidence, if it is at all material to the case; but if it does not bear on the case, he need not read it."
Why was not this document "material" to the case? In my opinion it was most "material," although, but for its being called for, it was "inadmissible." The document purported to narrate the solicitor's personal inquiry into the affairs of the husband, and reported that the husband was working in the district as accountant to a named mining company and was in receipt of a salary ranging between £700 and £750 per annum. A most relevant and material portion of the magistrate's inquiry concerned the husband's means. Therefore the document was "material." Whether such a document has "probative value" is dependent on the circumstances and of these the tribunal of fact must take account. I deny the proposition that, merely because the document was "hearsay" and therefore inadmissible, it is necessarily deprived of probative value. It may have considerable probative value, and I think that, here, the magistrate attached importance to the document. Why should he not? The document might have been a forgery, or the solicitor in question might not have been telling the truth in his report, or the substance of his report might have been wrong. All these are possibilities, but they are all very highly improbable, and, in the ordinary affairs of life, no one would hesitate to come to the conclusion that the report as to the husband's income was probably accurate, especially as no evidence whatever to the contrary effect was called on the husband's behalf.
In my opinion the magistrate was well entitled to attach weight to the document, and I have no doubt he did attach weight to it.