["Divorce Interrogatories", The Argus (Melbourne), Thursday 23 November 1911, page 9]
Divorce Interrogatories.
Liability of Parties.
An interesting point in divorce law affecting the liability of respondent and co-respondent to answer interrogatories was the subject of a judgment in the State Full Court yesterday. The suit was that of Davis v. Davis, Hattrick co-respondent, and the matter which was referred to the Full Court by Mr. Justice Cussen was heard before Mr. Justice Hodges, Mr. Justice Hood and Mr. Justice Cussen. The petitioner in the suit is seeking a divorce from his wife on the ground of misconduct, and respondent and co-respondent had declined to answer questions put to them, on the ground that their answers might tend to incriminate them. A motion for attachment was then made against them, and the question that went to the Full Court was whether the replies they had given were sufficient, or whether they were bound to give full answers.
Mr. Duffy, K.C., Mr. L. S. Woolf, and Mr. Arthur (instructed by Mr. J. Woolf) appeared in support of the petitioner, and Mr. McFarlan (instructed by Messrs. Blake and Riggall for the respondent and co-respondent.
Mr. Duffy contended that as the English ecclesiastical laws, which made misconduct punishable, did not apply here as they did in England, the parties here were bound to answer the interrogatories.
Mr. McFarlan claimed that parties could not be compelled to risk incriminating themselves on the issues before the Court by answering questions.
Mr. Justice Hodges said the rules of procedure governing the Supreme Court applied with regard to interrogatories and discovery in divorce so far as they did not conflict with the rights of parties. No person was compelled to confess or to admit adultery in an affidavit. That, in the opinion of the Court, was a recognition of the English practice that a respondent and co-respondent could not be required to answer interrogatories which were directed to that purpose. In this case neither of these parties had put in an answer on the suit, and if they had they would not under the rules be required to verify those answers by affidavit. And it would be strange, that being the case, if they could be compelled to give and answer on issues through interrogatories.
Mr. Justice Hood said he concurred in the decision with reluctance, because he could see no principle which would justify the Court in excusing a person who had committed a matrimonial offence from being compelled to tell the truth respecting it. To answer that it would tend to incriminate was palpably absurd. There was no possibility of any incrimination in these answers. The English practice still existed, and had been recognised here by the rules, and there was no indication that the Legislature desired to depart from it. If a respondent or co-respondent went into the witness box they could be cross-examined as to misconduct. As long as they kept out there appeared to be no machinery to compel them to make admissions. Personally, he would like to see the rule altered.
Mr. Justice Cussen, in concurring, said it would be a curious result if it were held that at the beginning of a suit a defendant could not be compelled to answer on oath as to adultery, and then by some express question to compel an answer to be made.
Mr. Justice Hodges said: "Speaking personally with respect to what Mr. Justice Hood has said, I should think it undesirable to alter the rule and place a co-respondent in a position possibly of having to commit perjury or place on permanent record in an affidavit that he had committed misconduct."
The summons was dismissed.
