Walker v Walker

[1937] HCA 44

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(Judgment by: Latham CJ)

Walker
vWalker

Court:

Judges:
Latham CJRich J
Starke J
Dixon J
Evatt J
McTiernan J

Legislative References:
Deserted Wives and Children Act 1901-1931 NSW - s 4; s 21

Hearing date:
Judgment date: 20 August 1937

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Judgment by:
Latham CJ

This is an appeal from an order of the Full Court of the Supreme Court of New South Wales setting aside a rule absolute and discharging a rule nisi for prohibition against a magistrate's order for maintenance of appellant's wife and children. In order to succeed upon these proceedings, which are by way of statutory prohibition, it is necessary for the appellant to show that the order of the magistrate cannot be supported upon the evidence. In my opinion, there is evidence upon which the order can be supported. In the first place the order was attacked because, it was said, the wife had not been left without means of support and a question was raised as to the reasonableness of the amount ordered. A case cited in argument was Munday v. Gill [ ^[1] ] dealing with the procedure by way of statutory prohibition. A consideration of the judgments in that case shows that, as the jurisdiction of the magistrate to make the maintenance order cannot be challenged, the appellant in this case must show that "the evidence does not in reason support the decision." In my opinion, although it is true that the magistrate might have come to another conclusion, it is impossible to say that the evidence does not in reason support his decision. Whether the wife has means of support was a question of fact for the magistrate and his conclusion cannot be set aside unless it was beyond reason. The order cannot be said to be beyond reason.

It was next complained that inadmissible evidence was considered by the magistrate in the process whereby he reached that conclusion. That evidence consisted of a letter written between persons who are not parties to the proceedings. It was mentioned in evidence as the ground of the belief of the wife as to her husband's means. Counsel for the husband called for the letter and the letter was put in evidence. The law on this matter can be found in Taylor on Evidence, 12th ed. (1931), vol. 2, pars. 1817, 1818. I think there is no doubt that as counsel called for the letter it was rightly admitted as evidence. Once the letter was in, it was for the magistrate to give such weight to it as he might think proper, subject to the limitation that he must not act beyond reason, but he was entitled to attach some importance to the letter as some evidence of the husband's means.

It was further contended that, if there were a leaving without means of support, it took place in New Guinea, where the husband lived, and not at Wollongong, where it was alleged to have taken place. The arguments relied upon to support this proposition are, in my opinion, met by the decision in Renton v. Renton [ ^[2] ] where the facts are very similar and where it was held that, the husband, being in one State, and the wife being in another State with her husband's consent, and the husband omitting to support his wife, he had left her without means of support in the State in which she was.