MASON V. MASON.

Press, Volume LVIII, Issue 17409, 21 March 1922, Page 4

MASON V. MASON.

I MOTION FOR DECREE ABSOLUTE THE NEW BEOUIiATIONS. The now celebrated divorce case of Mason v. Mason was again before the Supreme Court yesterday, when Mr F. D. Sargent, on behalf of Andrew James Mason, the petitioner, moved, before his Honour Mr Justice Sim, for an order to have the decree nisi mad© absolute.

The case was first heard before Mr Justice Herdman last August, when the petitioner, a, telegraph linesman, sought a divorce under Section 4 of the Divorce and Matrimonial Causes Act* 1920, which permits of a petition being 'brought by either party if a separation order, granted by a Magistrate, has been in force for three years or more. Such an order, against tho petitioner, Mason, had been granted. Mr Justice Herdman, using his discretionary powers, disallowed the petition, holding that the separation had been brought about by the wrongdoing of the petitioner. The case was then taken to the Court of Appeal, which held that respondent had been as much responsible for the separation as petitioner, and directed that a decree nisi should be granted by the Supreme Court,* and such a decree was accordingly granted by Mr Justice Adams in October. _, When Mr Sargent, who with Mr W. J. Cracroft Wilson, appeared for the petitioner, moved for » decree absolute yesterday Mr T. W. Rowe, for Mrs Mason, asked for an adjournment, on the grounds that the notice he had received of tho motion had, under the circumstances, been unreasonably short. Mr Rowe said that the amending legislation passed last month had brought about a state of affairs for which no machinery was provided. It provided that in such,cases, the decree | nisi should not be made absolute un- i less due notice of tho motion bad been given to respondent's counsel, and that if the motion were opposed, the Court might, if it were shown that the separation had been due to the wrongdoing of the petitioner, refuse an order to make, the decree absolute. The effect of the clause was really to grant a" rehearing. The new that twenty-oi0& days' notice of intention to inove should be given to respondent's counsel, and that jespondent's counsel should give ten clear days' notice of intention to Oppose the motion, stating the grounds for such opposition. The rules also provided that the parties should attend at the Court/ on the down for the bearing Of the motion, so that the Court could make a further fixture for-the taking of oral evidence. Mr" Rowe said that it those rules were right,-it. was clear that the present case, whifeh wfia ft most important one, and was the only, one that had gone before the Court of Appealj should be put s airly before the Court, and the matter decided once and for all. , A His Honour: Was the matter not very fully investigated before the Supreme Court? Was not all the evidence taken? Mr Rowe; It might be,necessary to bring more evidence, your Honour. His Honour: Do you intend to ask a Judge of the Supreme Court to take a different view from the Courts of Appeal? Mr Rowe: Yes, sir. His Honour: You are going to ask a Judge to over-ride the Court of Ap* peal, and say that the Court of Appeal was wrongP „• Mr Rowe said that that construction could hardly be put upon the position,. Tho Court of Appeal had decided the case chiefly on law. The Act of:-last month.was to the effect, that the Judge hearing such a case should take into folk discretion the fact that the wrongdoing had been on/the part-of the # petitioner,, and that took away the chief basis or the decision' of lhe> Court of Appeal; Mr Rqiwe proceeded , that he 'understood the motion in tfhe 1 present case had been set down for hearing that day because another case set dojtn for $» same time had been settled. In such circumstances, it was usual to apply to counsel oh both sides to see if the fixture suited their convenience, but the first he had beard of the. fixture waff when (he had received notice of the motion Inst Wednesday. His Honour: What I want to know is this: The Court of Appeal expressed a view as to the merits of thfe date,, After carefully considering all the evidence that came before Mr Justice Herdman. Do you propose to ask a Judge of tho Supreme Court to take a- different view from* the Ooiirt of Appeal ? Would yw? kindly indicate what positib4 you take up regarding that P J>o ytfU J prtipose" W say that tlhe Court of Appeal, was wrong, and that the separation was duo to the wrongful act of the petitioner? Mr Rowe: Yes, air. | His Honour: And do you ask the, Judge to hear all the evidence that came ' before the Court previously ? | Mr Rowe: Yes, eir. ' * i His Honour: Very well. It is clear,' Mr Sargent, that under the new lules, Mr Rowe is entitled to his adjournment. I He lias not had the prescribed length' of notice. •"■•;'

Mr Sargent said tlhat he had filed his motion before the new rules .came into ] being. He did nbt.strehUbusly oppose the aidiournmeui, «J long sis ii was riot a lengthy one. There Would, not be a ! Judge in Chrißtchurch for some time after a few days, and it Was quite pos- : sible that the legislation might be ! changed again in. June. In justice to■] his client, the affair should be settled finally as soon as possible. It might, perhaps, be possible for Ihis Hori&ur to' take the case before he left Christchurch; His Honour said that ho could hoifc do that, as respondent had to; givs petitioner ten days' notice .of the grounds of opposition. Mr Sargent said that all the* relevant evidence bad previously been taken, and had %een considered by the Court of Appeal.. His Honour: It is quite obvious tttjttt if Mr Rowe cannot throw eoinb new 1 : light on the matter,he ia only wasting time. If he cannafcf and proposes to 4&k a Judge to say that the Court of Ap? peal is .wrong—well, it is quite" absurd to ask any Jrtdgo to do anything of the sort. Still, he lias the under the Act to ventilate the matter afresh, and he has 'Ms right to the adjournment. Mr Rowe: It is' not only my right, your Honour. I consider it kmy duty. His, Honour: 1 doh'F know about; your duty, Mr Rowe. Hia Honour accordingly granted the adjournment, and said that the parties had better arrange with Mr Justice* Adams for the actual date. "Unless some further light is thrown oh the case," his Honour reiterated, "it seems to me that this is amply wasting time. I ain not going to Ihear. the' case now, but I can ekpre* an opufion. T,o ask a Judge to sav that the Court of Appeal is wrong "is merely absurd."