ON APPEAL FROM THE SUPREME COURT OF Appeal from Judge without jury - -Appeal on question of fact.
Although on an appeal from a Judge of first instance sitting without a jury, it is the duty of the Court of Appeal to reconsider the evidence and give its judgment according to its own opinion, yet where the evidence has been given
viva voce, and there has been a conflict of evidence, the Court of Appeal will not reverse the decision of the Judge on questions of fact depending upon the credibility of witnesses, unless it sees clearly that the decision was wrong.
Per Griffith C.J. A Court of Appeal is more reluctant to reverse a decision of a Judge of first instance which is against the party on whom the burden of proof lies than where the contrary is the case.
A decision of the Full Court, reversing a decision of the Judge in Divorce, dismissing a petition for dissolution of marriage on the ground of adultery, was reversed by the High Court on the ground that, the Judge having refused to accept the evidence of the main witnesses called by the petitioner to prove the adultery, there was nothing in the evidence to justify the Court in holding that the Judge was wrong in so doing or in declining to find on the rest of the evidence that adultery had been committed.
Decision of the Supreme Court: (Dearman v. Dearman and Pettitt, (1908) 8 S.R. (N.S.W.), 457), reversed, and judgment of Simpson J. restored.
APPEAL from a decision of the Full Court of New South Wales, reversing a decision of Simpson J. in the Supreme Court, Matri- monial Causes Jurisdiction.
The appellant, Daisy Gertrude Dearman, was respondent in a suit by Melbourne Nathan Dearman, respondent in this appeal, for dissolution of marriage on the ground of adultery with Walter Pettitt, who was joined as co-respondent. At the hearing before Simpson J. the Judge in Divorce, sitting without a jury, a great many witnesses were called on both sides. The evidence for the petitioner was mainly directed towards proving adultery on two distinct occasions, viz. 23rd and 30th July, and two witnesses, Nathan Dearman, father of the petitioner, and a witness named Campbell, were called for that purpose. The former gave evidence which, if believed, established that adultery had been committed by the respondent and co-respondent on the first of those dates, and produced a note-book containing what purported to be full notes of what he saw and heard, and certain entries in this book were put in evidence on behalf of the petitioner. Campbell's evidence did not support Nathan Dear- man in essential particulars. The respondent and co-respondent in their evidence contradicted these witnesses as to the most important details, and denied the adultery. The learned Judge stated that he was unable to accept the evidence of Dearman as
[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.
[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.
[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.
Consideration
[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.
[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.
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AGLC
Dearman v Dearman [1908] HCA 84
Case
[1908] HCA 84
Decision Date
CaseChat Overview and Summary
This case concerned an appeal to the High Court of Australia from a decision of the Full Court of New South Wales. The original proceedings were a suit for dissolution of marriage brought by the husband (respondent in the High Court appeal) against his wife (appellant in the High Court appeal) on the grounds of adultery with a co-respondent. The trial judge, Simpson J., dismissed the petition, finding that he was not satisfied on the evidence that adultery had been committed. The Full Court of New South Wales reversed this decision, finding the inference of adultery to be irresistible.
The primary legal issue before the High Court was the standard of review applicable to an appeal from a judge of first instance who had heard oral evidence, particularly where there was a conflict of evidence. Specifically, the Court had to determine whether the Full Court was justified in reversing the findings of fact made by Simpson J.
The High Court, in allowing the appeal, held that while an appellate court must reconsider the evidence and form its own opinion, it should be reluctant to reverse a judge's findings of fact based on the credibility of witnesses, especially when the judge had the advantage of hearing them give evidence viva voce. The Court emphasised that such a reversal should only occur if the decision below was clearly wrong. In this instance, the primary judge had explicitly stated he was unable to accept the evidence of the main witnesses for the petitioner. The High Court found that there was nothing in the evidence to justify the Full Court in concluding that the trial judge was wrong in his assessment of credibility or in declining to find adultery proven on the remaining evidence. The Court noted that the Full Court's reasoning, particularly the Chief Justice's characterisation of certain circumstances as "irresistible evidence" of adultery, was overly strong and not supported by the evidence when viewed with appropriate caution. The judgment of Simpson J. was restored.