NEW SOUTH WALES. Evidence-Corroboration-Pre-maternity order-Opportunity of intercourse-Sum. H
mons, jurisdiction to issue-Condition precedent-Prohibition-Infant Pro- tection Act 1904 (N.S.W.) (No. 27 of 1904), secs. 4, 5.
By sec. 4 of the Infant Protection Act 1904 (N.S.W.) it is provided that Where any single woman is with child by any man who has made no adequate provision for the payment of preliminary expenses of and incidental to and immediately succeeding the birth of the infant, or the expenses of the future maintenance of the infant, she, or with her consent the chief officer or any other reputable person on her behalf, may make complaint in writing on oath to any magistrate that she is with child by the said man, and that he has made no adequate provision for the payment of the expenses aforesaid; and shall when making such complaint produce evidence on oath, either oral or on affidavit, in corroboration in some material particular of the allegation as to the paternity of the infant. The magistrate may thereupon summon the man to appear before the Court to answer such complaint or, if the circumstances seem to require it, may issue a warrant for his apprehension."
Held, (1) that the corroborative evidence required by that section is evidence given by some person other than the person whose statement is to be cor- roborated: and (2) that where reliance is placed upon evidence of opportunity of intercourse as corroboration, that evidence must be supplemented by evi- dence of circumstances which lead to the inference that it was probable that advantage would be taken of the opportunity.
Ex parte Nicholls, 14 S.R. (N.S.W.), 210, overruled.
Held also, by Griffith C.J. and Barton, Gavan Duffy and Rich JJ. (Isaacs J. dissenting), that the production of the evidence prescribed by sec. 4 of the Infant Protection Act 1904 is a condition precedent to the jurisdiction to issue a summons or warrant under that section and, consequently, that, a sum- mons having been issued without the production of such evidence, prohibition was the appropriate remedy.
Decision of the Supreme Court of New South Wales: Ex parte Ridley, 16 S.R. (N.S.W.), 258, reversed.
APPEAL from the Supreme Court of New South Wales.
On the complaint of May Maud Whipp, a single woman, a summons under sec. 4 of the Infant Protection Act 1904 (N.S.W.) was issued against Rupert Ridley by two justices of the peace. On being served with the summons Ridley obtained an order nisi for a pro- hibition directed to the complainant and the two justices to restrain them from further proceeding on or in respect of the summons, on the ground (inter alia) that, inasmuch as when making the complaint the complainant did not produce evidence either oral or on affidavit in corroboration in some material particular of the allegation as to the paternity of the infant referred to in the complaint, the justices had no jurisdiction to issue…
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.
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Ridley v Whipp [1916] HCA 76
Case
[1916] HCA 76
Decision Date
CaseChat Overview and Summary
The case of *Ridley v Whipp* involved an appeal to the High Court of Australia from the Supreme Court of New South Wales. The appellant, Ridley, sought to prohibit further proceedings on a summons issued against him under the *Infant Protection Act 1904* (N.S.W.). The summons was based on a complaint made by the respondent, Whipp, a single woman alleging she was with child by Ridley and that he had made no adequate provision for expenses. Ridley contended that the justices who issued the summons lacked jurisdiction because the complainant had not produced the required corroborative evidence on oath at the time of making the complaint.
The High Court was required to determine two principal legal issues. Firstly, what constitutes sufficient corroborative evidence under section 4 of the *Infant Protection Act 1904*, particularly when reliance is placed on evidence of opportunity for intercourse. Secondly, whether the production of such corroborative evidence is a condition precedent to the jurisdiction of the justices to issue a summons or warrant under the Act, and if not, what remedy is available to a party against whom a summons has been issued without such evidence.
A majority of the High Court, comprising Griffith C.J., Barton, Gavan Duffy, and Rich JJ., held that the corroborative evidence required by section 4 must be given by a person other than the complainant whose statement is to be corroborated. Furthermore, evidence of opportunity for intercourse, without additional circumstances suggesting the probability of its occurrence, is insufficient corroboration. The Court also held that the production of this corroborative evidence is a condition precedent to the jurisdiction of the justices to issue a summons or warrant. Consequently, a summons issued without the requisite corroboration is a nullity, and prohibition is the appropriate remedy to restrain further proceedings. Isaacs J. dissented on the issue of prohibition, arguing that the summons defect was not necessarily a jurisdictional one that could not be waived, and that prohibition was an inappropriate and overly burdensome remedy in this context, potentially undermining the Act's purpose of providing timely protection for infants.
The High Court allowed the appeal, reversing the decision of the Supreme Court of New South Wales. The order of the Supreme Court was discharged, except for the costs awarded to the respondent Whipp. The appellant was ordered to pay the respondent Whipp's costs of the High Court appeal.