Purcell v Purcell [1959] HCA 44

Purcell v Purcell [1959] HCA 44

The wife did not give evidence in disproof of her alleged adultery merely by denying or qualifying some evidentiary matters relied on by the husband; she avoided the issue of adultery and did not deny the main confessions or give evidence tending to show that adultery had not occurred. She therefore retained the protection of s. 79, and the proposed cross-examination tending to show adultery was not admissible. The Full Court's order for a new trial based on erroneous exclusion of that evidence could not stand.

Jurisdiction
Australia
Procedural Posture
Husband's Suit for Dissolution of Marriage / Appeal by Leave to the High Court From an Order of the Full Court of the Supreme Court of New South Wales Ordering a New Trial
Outcome
Appeal allowed; order of the Full Court of the Supreme Court discharged; decree of Nield J. dismissing the petition restored.
Legal Topics
['dissolution of Marriage' 'adultery' 'condonation and Revival' 'cross Examination' 'protection Against Questions Tending to Show Adultery' 'matrimonial Causes Act 1899 1954 S. 79']
['matrimonial Causes' 'family Law' 'evidence'] ['dissolution of Marriage' 'adultery' 'condonation and Revival' 'cross Examination' 'protection Against Questions Tending to Show Adultery' 'matrimonial Causes Act 1899 1954 S. 79']

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Procedural Posture

Husband's Suit for Dissolution of Marriage / Appeal by Leave to the High Court From an Order of the Full Court of the Supreme Court of New South Wales Ordering a New Trial

Legal Issues

  1. 1 ['Whether the wife had given evidence in disproof of her alleged adultery within the meaning of s. 79 of the Matrimonial Causes Act 1899-1954.' 'Whether s. 79 prohibited the proposed cross-examination of the wife by questions tending to show that she had been guilty of adultery.' 'Whether the Full Court was right to order a new trial on the basis that material evidence had been erroneously excluded.']

Ratio Decidendi

The wife did not give evidence in disproof of her alleged adultery merely by denying or qualifying some evidentiary matters relied on by the husband; she avoided the issue of adultery and did not deny the main confessions or give evidence tending to show that adultery had not occurred. She therefore retained the protection of s. 79, and the proposed cross-examination tending to show adultery was not admissible. The Full Court's order for a new trial based on erroneous exclusion of that evidence could not stand.

Court Disposition

Appeal allowed; order of the Full Court of the Supreme Court discharged; decree of Nield J. dismissing the petition restored.

Orders

  • ['Appeal allowed.' 'The respondent (petitioner in the suit) to pay the appellant her costs of the appeal.' 'Order of the Full Court of the Supreme Court discharged.' 'In lieu thereof order that the appeal of the petitioner to that court be dismissed with costs.' 'Restore the decree of the Supreme Court in its...