McPherson v McPherson
| Jurisdiction | UK Non-devolved |
| Judgment Date | 1935 |
| Date | 1935 |
| Year | 1935 |
| Court | Privy Council |
Canada (Alberta) - Divorce - Irregularity in Procedure - Trial not in Open Court - Decrees Nisi and Absolute - Voidable not void - Expiry of time for appeal - Subsequent remarriage of petitioner - Decrees unassailable -
At the trial of a divorce action, which took place during the luncheon interval in the Judges' law library in the Court House at Edmonton, Alberta — not one of the regular Courts in the Court House — neither the judge nor counsel were robed. The judge was attended by the assistant-clerk of the Court and by an official shorthand writer, and before taking his seat he announced that he was sitting in open court. The only other persons present throughout the proceedings were the petitioner and his two witnesses, the action being undefended.
Access to the Judges' law library was through a double swing door in the wall of a public corridor. One wing of that door was always fixed, the other, although swinging close, was usually unfastened. On the fixed wing was a brass plate with the word “Private” in black letters. The double swing door opened on to an inner corridor in which, opposite, was a door of the Judges' library. The opening wing of the swing door was unfastened during the trial, and the inner door of the library was kept open throughout. At the conclusion of the proceedings a decree nisi was pronounced, which was subsequently made absolute.
In an action by the respondent in the divorce suit, brought after the expiry of the time for appealing against the decree absolute, and after the petitioner had remarried, seeking to have the decrees nisi and absolute rescinded and set aside on the ground (inter alia) that the trial of the divorce action in the Judges' law library had not been a trial in open court according to law, and that the resultant decrees nisi and absolute were null and void:—
Held, first, that even although the actual exclusion of the public resulted only from the word “Private” on the outer door, the judge on the occasion of the divorce trial, albeit unconsciously, was denying his Court to the public in breach of their right to be present.
Held, secondly, that the resulting decrees nisi and absolute were voidable only and not void.
Principle in Dimes v. Proprietors of the Grand Junction Canal (
Inasmuch, however, as the time for appealing against the decree absolute had expired before the present action to rescind the decrees was instituted, and a new status had been acquired by the petitioner remarrying and becoming, as was his present wife, entitled to the protection afforded by s. 57 of the Divorce and Matrimonial Causes Act, 1857, the decree absolute, although originally voidable, had become unassailable.
APPEAL (No. 25 of 1934), by special leave, from a judgment of the Appellate Division of the Supreme Court of Alberta (February 21, 1933), affirming the judgment of Ewing J. in the Supreme Court of Alberta (December 20, 1932), dismissing a preliminary issue in the action in which the present appellant, Cora Lillian McPherson, claimed to have the decrees nisi and absolute which had been obtained against her by her husband, Oran Leo McPherson, who at that time was Minister of Public Works for the Province of Alberta, rescinded and set aside.
The appellant and O. L. McPherson were married in the United States of America in 1908. Their subsequent matrimonial domicil was in Alberta. On March 17, 1931, O. L. McPherson instituted proceedings for divorce, alleging adultery by the appellant with one Leroy Mattern. The case was undefended. The trial took place on April 22, 1931, in the Judges' law library in the Court House at Edmonton before Tweedie J. A decree nisi was pronounced, which was made absolute on July 28, 1931. In July, 1932, O. L. McPherson married the wife of Leroy Mattern, the co-respondent in the divorce proceedings, she having herself divorced her husband.
On October 11, 1932, the present action was brought by the appellant to have the decrees nisi and absolute set aside on a number of grounds, and for an order for restitution of conjugal rights. After the institution of that action the appellant heard that the trial of the divorce action had been, as she alleged, a secret one. She thereupon amended her statement of claim and claimed that the whole divorce proceedings were void. The issue as to the alleged secret trial raised by the amended allegation was directed to be tried as a separate issue.
The facts appear from the judgment of the Judicial Committee.
The Supreme Court of Alberta (Ewing J.) held that the divorce trial had in fact been held in open court.
An appeal to the Appellate Division of the Supreme Court of Alberta (Harvey C.J.A., Clarke, Mitchell, Lunney, and McGillivray JJ.A.) was unanimously dismissed. The appeal is reported at [
1935. July 18, 19, 22 and 23. Wilfrid Greene K.C., Horace Douglas and R. O. Wilberforce for the appellant. The questiOn for determination is one of the very greatest importance from the point of view of the proper administration of justice.
Facts will be established to show that the trial of the divorce action was heard in secret. If a judge withdraws himself from the proper public court appointed for the hearing of trials, and deliberately sits in a place where the public will not find him, is he acting as a judge at all, or, as Lord Haldane said in Scott v. ScottF1, does he demit his capacity as a judge and cease to be a judge? The obligation to sit in public in open court is so fundamental in our conception that the matter is but rarely dealt with in the books. Where it has been dealt with it has been pronounced to be not a mere rule of procedure, the departure from which is irregularity, but to be fundamental in our constitution. It has been said by the very highest authority that, whereas in an ordinary civil action a judge by consent of the parties may hear a case in private, in which case he ceases to be a judge and becomes a mere arbitrator operating under a consensus, it is not open to a judge to adjudicate in matters affecting status as an arbitrator, and he cannot therefore sit in private in a matter of that kind. The two main contentions against the appellant were, first, that when matters of divorce are being dealt with the decree absolute is a thing which cannot be gone behind. That proposition is contested fundamentally by the appellant, because the decree absolute, if it is based on an invalid decree nisi, is itself a nullity. The other main contention against the appellant was that the matter was a mere irregularity in procedure, giving a right, perhaps, on appeal, to an order for a new trial, and was not one of those things so radical as to vitiate the entire proceedings, leaving it for any other Court to ignore the judgment. If a Court has pronounced a decree or order which is void, the person against whom it is pronounced may disregard it, and it is the duty of every other Court to disregard it; it is a nullity, and it is competent for the person affected by it to take proceedings to have it so declared. That is what is being done here.
The issue is, What is the effect of the secret trial? There was one reason, and one only, why the judge held the trial in the Judges' library; it was to avoid publicity for a public man. The judge had no authority or jurisdiction to do what he did. He declared “I am sitting in open court,” but no member of the public could have had any suspicion whatever that justice was being administered there. To make it an open court there would have to be something even more than the removing of the word “Private” from the door to the public corridor, there would have to be a specific notice to the public indicating where they would find the action being heard. It was more than a hearing in camera, because in that case there would be a notice displayed, “In Camera.” This was a case attended by no trace of publicity. There is a general absence of authority on this question because it is so fundamental a matter. It is accepted that but for specific powers there cannot be a hearing in private at all. The finding of fact in this case is one which cannot possibly stand.
With regard to the legal position in Alberta in respect of divorce, the present Province of Alberta was formed out of the old North-West Territories by a Dominion Act, the
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