Case details

Court
Supreme Court of Queensland

Judge
Stable J

Issues
Illegality (public policy)

Case
Queensland Judgments

Overview

This case dealt with the issue of illegality on the ground of public policy.

The plaintiff (male) commenced living with the defendant (female) who was married and subsequently, at the defendant's request, transferred property into her name on condition that if she returned to her husband the ownership would be transferred back to the plaintiff.

The defendant returned to live with her husband and refused to transfer the property back to the plaintiff.

Was the agreement illegal as being immoral (infringing on the sanctity of marriage)?

Facts

This case dealt with the issue of illegality on the ground of public policy.

The plaintiff (male) commenced living with the defendant (female) who was married and subsequently, at the defendant's request, transferred property into her name on condition that if she returned to her husband the ownership would be transferred back to the plaintiff.

The defendant returned to live with her husband and refused to transfer the property back to the plaintiff.

Trial Judge (Justice Stable)

The contract was not immoral. It was not to bring designed to bring about an extra-marital affair, which already existed at the time of contract. It was to provide for what happened when/if that state of affairs ended.

[page 100] The picture which clearly emerges is that of a ruthless, cunning woman who came to realise that in the plaintiff she had found a man who would literally be as clay in the hands of a potter. They were not by any means evenly matched, and the situation became even more one-sided when her allegedly estranged husband came to the party. …Parker and his wife do not appear to have lost contact with each other in their alleged estrangement, and their contact became more evident after the transfer of the house … they were on such terms by Christmas that she had financed him in the purchase of an expensive entertainment unit. Then came the process of getting rid of the plaintiff, with her apologetic explanation that she was sorry she had to do it, but she had to have a place for her husband. One hardly needs her cynical rider that the plaintiff was not the first man to be taken for everything he had and probably would not be the last. Apparently, emboldened by her success and believing the plaintiff to be so soft-hearted, good-natured, simple-minded and trusting that he would not hit back, she had no hesitation in virtually telling him that he had been the victim of a scheme to which Delilah herself would have given an approving nod.

…

[page 101] … the case smells of a scheme to get the plaintiff's home. … The evidence does indicate that the defendant was associating with the husband who had told her the plaintiff wanted her at his house, and that they collaborated with each other to get him out of the house after the transfer was signed. However, the main argument revolved around the matter of immoral consideration …

… The original agreement was not one to bring about a state of extramarital cohabitation, for that state existed already. And the agreement provided for the return of his property to the plaintiff when and if the defendant returned to the state of lawful cohabitation. It was said by Pollock C.B. in the leading and classic case of Pearce v. Brooks (1866) L.R. 1 Exhc. 213, at p. 217, that no distinction can be made between an illegal and an immoral purpose. And in Alexander v. Rayson [1936] 1 K.B. 169, Romer L.J., at p. 182, said that it is settled law that an agreement to do an act that is illegal or immoral or contrary to public policy is unlawful and therefore void. The effect of the agreement in the present case was not to bring about an immoral association, but to provide for what was to happen upon its ending. …

[page 102] … in any event, are the actions of people today to be judged in the light of the standards of last century? As counsel for the plaintiff said, cases discussing what was then by community standards sexual immorality appear to have been decided in the days when for the sake of decency the legs of tables wore drapes, and women (if they simply had to do it) never referred to men's legs as such, but called them their “understandings”. (See per W.N. Stable J. in his summing up in R. v. Martin Seeker Warburg Ltd. [1954] 2 All E.R. 683 at p. 686 B.C. What I am asked literally to apply is the common law which still says that an immoral contract will not be enforced. But I am asked also to apply the standards of the days when the living common law was first laid down. I am not, in my view, to be taken as changing the law if I do not accept that immoral today means precisely what it did in the days of Pearce v. Brooks (supra): I am, I believe, entitled to look at the word under modern social standards. …

[page 103] … what is obscene like what is indecent [page 104] must be judged according to the current standards of the community. Surely, what is immoral must be judged by the current standards of morality of the community. What was apparently regarded with pious horror when the cases were decided would, I observe, today hardly draw a raised eyebrow or a gentle “tut-tut”. It is notorious that there are many people living as husband and wife without benefit of clergy—so much so that in this century Parliament has recognised the fact and extended social service benefits to what in the relevant legislation, are called “dependent females”. Children born of such unions are included with those born of regular unions under the provisions of our Testator's Family Maintenance Acts—when formerly bastards had no rights. One cannot help noticing the newspaper discussions which have taken place as to whether it is right for mothers to see that their teenage daughters are provided with “the Pill”—not because having illicit intercourse is wrong, but because pregnancy is unwanted. Such an attitude is, perhaps, not surprising when it is recalled that in Queensland the illegitimacy rate is just over ten percent of all births. George Bernard Shaw's Eliza Doolittle (circa 1912) thought the suggestion that she have a bath in private with her clothes off was indecent, so she hung a towel over the bathroom mirror. One wonders what she would have thought and said to a suggestion that she wear in public one of today's minuscule and socially accepted bikinis, held miraculously in place apparently with the aid of providence, and, possibly, glue.

The point I have, perhaps too laboriously, been trying to make is that notoriously the social judgements of today upon matters of “immorality” are as different from those of last century as is the bikini from a bustle. So, on this aspect, I hold that if the agreement between the parties was based on an immoral consideration (which I have doubted as a matter of interpretation) then the immorality was not such according to modern standards as to deprive the plaintiff of the right to enforce it.

[emphasis added]

His Honour also considered whether the parties could be considered in pari delicto in the event the contract was determined to be illegal:

[page 104] But there is another angle which was rather lost sight of in the engaging argument on immorality. On the undisputed facts the parties were not on even terms. I have referred to the plaintiff as I saw him. To this description I should add that he is evidently one of those unfortunate people who is over-anxious to please and who hate saying “No.” He was caught by a cunning and ruthless woman who on his acceptable evidence—not challenged, not contradicted—said that she had to do what she did so that she would have a place for her husband, and that he was not the first man [page 105] taken for everything he had. This can only mean that the plaintiff had been, in his ignorance of what he was up against, subjected to a scheme designed to fleece him of his property. I find it hard on the facts as I see them to regard the plaintiff as being, if the contract was illegal, equally at fault with the defendant. …

On the facts I do not hold the plaintiff as being in pari delicto with the defendant, assuming the agreement to have been illegal. … where the parties to an illegal contract, or one against public policy, are not in pari delicto, and public policy is considered as advanced by allowing either, or at least the more excusable of the two to sue for relief against the transaction, relief is given to him. …

[page 107] … if the plaintiff's hands are by the standards of today a little soiled the defendant's hands are by comparison filthy. It surely cannot be in accord with the public interests or public policy that she should retain property which she obtained through a deceitful course of conduct designed to get a home for her husband. On the view which I take of the facts and for the reasons which I have expressed I consider there must be judgment for the plaintiff.

[emphasis added]

Commentary

EK Teh, 'Case note: Extra-marital cohabitation not immoral' (1973) 4(2) University of Tasmania Law Review 201-206