[1973] PNGLR 299

PAPUA NEW GUINEA
[SUPREME COURT OF JUSTICE]

DOBSON

V

DOBSON

Port Moresby
Clarkson J

3 August 1973
13 August 1973

MATRIMONIAL CAUSES - Dissolution of marriage - Rescission of decree nisi - Miscarriage of justice - Matrimonial Causes Ordinance s. 68[cccxxxiv]1.

On 3rd January, 1973, a petitioner wife filed a petition for dissolution of marriage on the ground of desertion seeking therein ancillary relief, including settlement of property situated in Western Australia. On 17th January, 1973, notice of the petition was served on the respondent husband in Western Australia where he resided. On 2nd March, 1973, the respondent’s solicitor in Western Australia wrote to the petitioner’s solicitor in Rabaul informing him that the respondent wished to file an answer “in substance admitting desertion and opposing the claim to a settlement of property”. On 13th March, 1973, the petitioner’s solicitor certified that the suit was ready for trial and requested that it be set down for trial and on the same day notice of trial was given for the April sittings in Rabaul. On 15th March, 1973, the Public Solicitor’s Office in Rabaul informed the petitioner’s solicitor by telephone that it was granting legal assistance to the respondent. On 23rd March, 1973, and again on 3rd May, 1973, the respondent’s solicitors in Western Australia wrote to the petitioner’s solicitor informing him that an answer had been prepared and sent for filing and requesting that contact be made with the Public Solicitor in Rabaul if the answer had not been received. On 9th May, 1973, the hearing of the petition was adjourned to 10th May when there being no appearance by the respondent the hearing proceeded and was adjourned to 11th May when, after the petitioner had been recalled and further evidence heard, a decree nisi was pronounced and orders made for ancillary relief but no declaration made pursuant to s. 64 of the Matrimonial Causes Ordinance. On 29th May, 1973, the respondent made an application pursuant to s. 68 of the Matrimonial Causes Ordinance for rescission of the decree.

Held

In the circumstances there had been a miscarriage of justice in the sense in which that term is used in s. 68 of the Matrimonial Causes Ordinance, and the decree including all ancillary orders ought to be rescinded.

Wilson v. Wilson (1967), 10 F.L.R. 203, at pp. 217-8 referred to.

Application

This was an application pursuant to s. 68 of the Matrimonial Causes Ordinance to rescind a decree nisi for dissolution of marriage on the ground of desertion and orders for ancillary relief therein, made in favour of a petitioner wife in the Supreme Court at Rabaul on 11th May, 1973. Further facts appear in his Honour’s reasons for judgment.

Counsel
M. Campbell, for the applicant (respondent—husband).
R. Wood, for the respondent (petitioner—wife).

Cur. adv. vult.

13 August 1973

CLARKSON J: On 11th May, 1973, at Rabaul I pronounced a decree nisi for the dissolution of the marriage between the petitioner and the respondent. This is an application by the respondent to rescind that decree nisi pursuant to s. 68 of the Matrimonial Causes Ordinance.

The petition was filed on 3rd January, 1973. It sought a dissolution of the marriage on the ground of the respondent’s desertion. Notice of the petition was served on the respondent in Western Australia where he resides on 17th January, 1973. No answer was filed and on 13th March, 1973, the petitioner’s solicitor certified that the suit was ready for trial and requested that it be set down for trial. On the same day the registrar gave his certificate and notice of trial was given for the April sittings of this Court in Rabaul.

The suit came before me on the afternoon of 9th May and was adjourned to the morning of 10th May. Mr. Lefevre who acted as both solicitor and counsel appeared for the petitioner; there was no appearance by the respondent and the hearing of the suit proceeded. At the conclusion of the petitioner’s case I adjourned the hearing until 11th May.

On the resumption I drew Mr. Lefevre’s attention to a number of matters relating both to the main and ancillary relief claimed which were causing me some difficulty. I gave leave for the petitioner to be recalled and having heard further evidence from her I pronounced the decree nisi and made orders for ancillary relief but declined to declare myself satisfied that proper arrangements had been made for the welfare, advancement and education of the child of the marriage to whom s. 64 of the Ordinance applies. There is of course no transcript of the proceedings at Rabaul, the only records apart from any notes counsel may have taken being the notes I made.

This application for rescission was made on 29th May, 1973, supported by affidavits of Mr. Guilfoyle, Mr. Baulch the acting Public Solicitor at Rabaul, and Miss Campbell a solicitor of the Public Solicitor’s Office in Port Moresby. An affidavit by Mr. Lefevre has been filed on behalf of the petitioner. There is no affidavit by either the petitioner or the respondent.

I was not asked to supply a copy of my notes for use on this application. Having discussed this aspect with counsel at the hearing I decided the proper course was for me to deal with the application by reference only—with one exception—to such material as appears on the court file including the affidavits filed for use on this application. Portions of these affidavits were objected to by counsel for the petitioner and two portions I ruled should not be admitted as evidence, namely, par. 8 of Miss Campbell’s affidavit and the last sentence of par. 12 of Mr. Guilfoyle’s affidavit of 21st May, 1973.

The additional material of which I take account and which I mentioned to counsel was the statement by the petitioner that the principal sum secured by mortgage on the property at Manjimup, Western Australia, a settlement of which in her favour the petitioner sought, was repayable at the end of July 1973. For this reason I was urged that any relief granted in respect of the Manjimup property should be granted expeditiously. This information is necessary to show the relevance of Mr. Guilfoyle’s affidavit of 15th June, 1973, which discloses that the repayment date is 25th July, 1974.

It will be seen, on the information available to the Court at the time of the hearing of the petition, that the respondent had been served with notice of a petition for dissolution of marriage on the ground of his desertion which claimed that joint property of substantial value should be vested in the petitioner solely and that the respondent had taken no step to contest any claim made in the petition. In fact, as is now disclosed, the position was quite different.

The respondent had been served with notice of the petition on 17th January. By 26th February he had applied for and been granted legal aid under the Legal Assistance Scheme in Western Australia and had been assigned to Mr. Guilfoyle, a legal practitioner in Western Australia. On 2nd March Mr. Guilfoyle wrote to Mr. Lefevre informing him that the respondent wished to file an answer “in substance admitting desertion and opposing the claim to a settlement of property”. He asked for consent to the filing of an answer out of time. To this Mr. Lefevre replied on 6th March stating that the suit would be set down for hearing as an undefended one, that some compromise regarding the property might be possible and if not no objection would be raised to an answer being filed although the matter had been set down for hearing.

On 15th March Miss Campbell rang Mr. Lefevre and informed him that the Public Solicitor was granting legal assistance to the respondent and on 23rd March Mr. Guilfoyle wrote to Mr. Lefevre informing him that an answer had been prepared and legal representation arranged. On 5th April Mr. Lefevre wrote without prejudice to Mr. Guilfoyle regarding a possible compromise of the claim for a settlement of the Manjimup property and on 3rd May Mr. Guilfoyle wrote to Mr. Lefevre informing him the answer had been sent for filing and requesting Mr. Lefevre to communicate with the Public Solicitor if the answer had not already been received. Mr. Lefevre does not deny that he received this letter although he does not say when he received it. It is reasonable to assume that he received it less than a week before the suit came on for hearing. A letter written by Mr. Guilfoyle on the same day to the Public Solicitor in Port Moresby was received on 7th May.

On 14th May, three days after the decree nisi had been granted Mr. Baulch of the Public Solicitor’s Office in Rabaul spoke to Mr. Lefevre. Mr. Baulch’s recollection of the conversation is not challenged by Mr. Lefevre. What was said is open to the construction that Mr. Lefevre was indicating he did not know an answer had been sent for filing although in all the circumstances I do not think it necessary to decide whether this inference should be drawn or not. What does appear however is that Mr. Lefevre said he had not received any recent communication from the respondent’s solicitor. In fact he had quite recently received Mr. Guilfoyle’s letter of 3rd May to which I have already referred and which expressly requested him to communicate with the Public Solicitor if he had not received the answer.

At the present hearing a copy of the proposed answer was by agreement between counsel made available to me. Although the respondent admits the desertion alleged he denies the allegations of drunkenness made by the petitioner and alleges conduct of the petitioner which if substantiated would at least be relevant to the exercise of the court’s discretion in her favour. Further, the facts alleged by the respondent in respect to the Manjimup property if established would make it unlikely that a settlement in terms of that sought by the petitioner would be justified. Because of the order I propose in these proceedings it is undesirable I should say anything more on these aspects.

Section 68 of the Ordinance reads:

“68.    Where a decree nisi has been made but has not become absolute, the Court may, on the application of a party to the proceedings, if it is satisfied that there has been a miscarriage of justice by reason of fraud, perjury, suppression of evidence or any other circumstance, rescind the decree and, if it thinks fit, order that the proceedings be reheard.”

It was not alleged here that there was fraud or perjury nor, I think, can it be said that there was any suppression of evidence. There were however other circumstances which constituted something akin to it. The Court was left with the impression that the respondent had chosen not to contest a petition which, inter alia, claimed a settlement on the petitioner of jointly-owned property of substantial value when in fact the petitioner’s adviser who represented her in court knew that the respondent had sought legal assistance promptly on service of the notice of petition and that an answer had prior to the hearing been sent to Papua New Guinea for filing which opposed the settlement claimed.

I can accept that Mr. Lefevre has had many instances in which respondents have threatened to file answers but have not done so, but I cannot accept that in the circumstances I have just described this one could be fairly described as typical of such cases. Something said on an application under the equivalent Australian provision is not inappropriate here:

“It is not to the point that upon an investigation of the whole of the facts presented by both sides the court might ultimately hold that the petitioner was still entitled to a decree nisi ... There is no divorce by consent or by default. It has been pointed out time and again that matrimonial matters are not purely private litigation. A duty lies upon every petitioner to make full disclosure and to deal with the court with the utmost good faith ...” 

(per Asprey J.A., Wilson v. Wilson[cccxxxv]2).

In my view there was here a miscarriage of justice in the sense in which that term is used in s. 68. The decree nisi pronounced on 11th May, 1973, including all ancillary orders is rescinded. Liberty is granted to the respondent to file an answer within 21 days of the date of this order.

Solicitor for the respondent: W. A. Lalor, Public Solicitor.
Solicitors for the petitioner: Phillip G. Lefevre & Co.

[cccxxxiv]Infra p. 303.
[cccxxxv](1967) 10 FLR. 203, at pp. 217-218.