Piggott v Piggott - [1938] HCA 62

RESPONDENT, PIGGOTT

ON APPEAL FROM THE SUPREME COURT OF Evidence - Divorce - Adultery - Condonation - Birth of child - Admissibility of

evidence by husband of mon-intercourse-Legitimacy of child-Rule in Russell SYDNEY,

Held, by Latham C.J. and Starke J. (Dixon and McTiernan JJ contra), Aug. 18, 19,

that the rule in Russell v. Russell, (1924) A.C. 687, does not apply to render inadmissible evidence of non-intercourse given by a husband to support a denial of a defence of condonation in proceedings for dissolution of marriage although that evidence may show that a child born to the wife is illegitimate.

The court being equally divided, the decision of the Supreme Court of Tas- mania (Crisp C.J.) was affirmed.

APPEAL from the Supreme Court of Tasmania.

A petition was filed on 25th June 1937, in the Supreme Court of Tasmania, by Russell George Jacob Piggott for the dissolution of his marriage with Dorothy Joyce Piggott on the ground that on divers occasions between 12th and 24th April 1937, at Burwood, a suburb of Sydney, New South Wales, she committed adultery with Gordon Whitebrook of Sydney.

The wife filed an answer to the petition in which she admitted that on 23rd April 1937 she committed adultery with Whitebrook

61 CLR 379

but otherwise denied the allegation of adultery. She also alleged that the petitioner condoned the act of adultery and, further, that he had been guilty of wilful neglect and misconduct towards her which had conduced to the adultery.

The petitioner in his reply joined issue upon the allegation of adultery except in SO far as it was admitted, and he denied the condonation and, also, the wilful neglect and misconduct alleged.

The parties were married on 23rd March 1935, and were both domiciled in Tasmania.

The wife gave particulars of the condonation relied upon by her. In these particulars it was alleged that intercourse took place between the husband and wife at specified places in and around Hobart, Tasmania, on the following dates in 1937, namely, June 11th, 12th, 13th, 15th, 16th, 19th, 20th, 21st and 22nd. At the hearing of the petition the wife admitted that, although alleged in the particulars supplied by her, intercourse did not take place on 19th June.

The hearing of the petition was commenced on 10th May 1938. On 1st March 1938 a child was born to the wife. The birth of the child was premature by between two and four weeks. The medical evidence was that the child was conceived in the latter part of June 1937, and it excluded any reasonable possibility of the child being the result of the adultery with the co-respondent in April 1937. Objection was taken on behalf of the wife to the husband giving evidence denying the acts of intercourse alleged. The objection was overruled by the trial judge, Crisp C.J., on the ground that the rule in Russell v. Russell 1 has not been extended to a case where the issue is condonation. The…

Grounds of appeal

[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.

Continue reading Piggott v Piggott

Details

AGLC: Piggott v Piggott [1938] HCA 62
Case: [1938] HCA 62
Decision Date: 6 December 1938

CaseChat Overview and Summary

The appeal concerned a petition for the dissolution of marriage filed by Russell George Jacob Piggott against his wife, Dorothy Joyce Piggott. The wife admitted to committing adultery with a co-respondent in April 1937 but denied other allegations of adultery. She raised defences of condonation and wilful neglect and misconduct conducing to the adultery. The Supreme Court of Tasmania granted a decree nisi, and the wife appealed to the High Court of Australia.

The central legal issue before the High Court was whether the rule established in *Russell v. Russell* [1924] AC 687, which generally prohibits a husband or wife from giving evidence of non-intercourse to prove the illegitimacy of a child born during the marriage, applied to exclude the husband's evidence denying intercourse with his wife on specific dates in June 1937. This evidence was tendered to rebut the wife's defence of condonation, and its exclusion would have led to the inference of intercourse, thereby establishing condonation due to the birth of a child conceived around that time.

A majority of the High Court, comprising Latham C.J. and Starke J., held that the rule in *Russell v. Russell* did not apply to render inadmissible the husband's evidence of non-intercourse in this context. Their reasoning was that the primary purpose of the husband's evidence was to disprove condonation by denying marital intercourse, not to prove the illegitimacy of the child. While the evidence of non-intercourse might incidentally suggest the child's illegitimacy, this was not the direct object or necessary consequence of the evidence in relation to the issue of condonation. The court distinguished the present case from *Russell v. Russell*, where the legitimacy of the child was essential to proving the adultery alleged. The court noted that Lord Dunedin's reasoning in *Russell v. Russell* supported the admissibility of such evidence when it related to issues like condonation and was not primarily aimed at bastardising a child.

As the High Court was equally divided on the appeal, the decision of the Supreme Court of Tasmania was affirmed. Therefore, the decree nisi for dissolution of the marriage was upheld.

Orders