John Louis Rishad Zinkin v. Wong Jennie

CACV 250/1999

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO. 250 OF 1999

(ON APPEAL FROM FCMC 904/1999)

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Coram : Hon. Rogers, J.A., Yeung & Hartmann, J.J. in Court

Date of hearing : 2 November 1999

Date of judgment : 2 November 1999

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J U D G M E N T

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Rogers, J.A. :

1. This appeal is unopposed. It comes to us in rather unusual circumstances but in circumstances where, perhaps, it would be surprising if the events might not have happened before. The petitioner's petition for divorce came on for hearing on the 10th June this year when the decree nisi was made. The wording of the order was that the marriage had broken down irretrievably and it was decreed that the said marriage be dissolved unless sufficient cause be shown to the Court within 6 weeks from the making of this decree why such decree should not be made absolute.

2. Two days before the hearing of the petition, on the 8th June, the respondent wife had made application for ancillary relief.

3. In those circumstances, that would have brought into play Rule 65 of the Matrimonial Causes Rules which reads :-

"(1) Subject to paragraph (3), an application by a spouse to make absolute a decree nisi pronounced in his favour may be made by lodging with the registrar a notice in Form 5.

(2) On the lodging of such a notice, the registrar shall search the court minutes and if he is satisfied -

(a) that no appeal against the decree and no application for re-hearing of the cause or for rescission of the decree is pending;

(b) that no order has been made by the Court of Appeal extending the time for appealing against the decree or by a judge extending the time for making an application for re-hearing of the cause or, if any such order has been made, that the time so extended has expired;

(c) that no application for such an order as is mentioned in sub-paragraph (b) is pending;

(d) that no intervention under rule 61 or 62 is pending;

(e) that the judge has made an order under section 18(1) of the Matrimonial Proceedings and Property Ordinance (Cap. 192);

(g) that the provisions of section 17A of the Ordinance do not apply or have been complied with,

the registrar shall make the decree absolute:

Provided that if the notice is lodged more than 12 months after the decree nisi, the registrar may require the applicant to file an affidavit accounting for the delay and may make such order on the application as he thinks fit or refer the application to a judge."

4. Thus, it is clear that no order absolute should have been made until the application for ancillary relief had been disposed of.

5. On the 22nd July, the petitioner applied for the decree absolute to be made and on the 24th July, that was apparently granted. The order for the decree absolute was made by the registrar and there was a certificate which was issued again two days later, on the 28th July, by the Chief District Judge which stated that :

"it is hereby certified that the said decree was on the 24th day of July 1999 made final and absolute and that the said marriage was thereby dissolved."

6. When the respondent wife's advisers became aware that this had happened, they immediately applied ex parte but on notice before the judge who had made the decree nisi. The application to set aside the decree absolute was heard on the 5th August . The judge below, however, felt that he did not have jurisdiction to hear the matter.

7. On this appeal, the order that we are asked to make is to allow this appeal and set aside the Judge's order on the basis that he did have jurisdiction and remit the matter to the Judge with a direction that the application to set aside the decree absolute should be heard, if possible, at the same time as the application for ancillary relief.

8. Having heard argument by counsel, it seems clear to me that the Court below did have jurisdiction to hear the application to set aside the decree absolute. The crucial order was, of course, the decree nisi which had been made on the 10th June. The decree nisi provided that the marriage should be dissolved unless there was a good reason within 6 weeks as to why the decree should not be made absolute. The registrar in performing the function which he was asked to do on the 24th July was performing a purely administrative function. There are occasions under Rule 65 where he may be called upon to exercise some form of discretion, if the proviso comes into play, but the proviso was not relevant on this occasion. All the registrar had to do and was empowered to do was to check the court files and to satisfy himself that none of the provisions of sub-section (2) of Rule 65 were applicable.

9. In those circumstances, the registrar was acting under the direction, so to speak, of the court as the Judge's deputy. The Judge clearly had power to review the decree absolute which had been made in those circumstances on an ex parte application.

10. I leave for consideration on another occasion as to whether on an application ex parte to make a decree absolute, it behoves the party making that application ex parte, as in any other ex parte application, to bring to the Court's attention all relevant matters. I incline to the view that just as in any other ex parte application, a party making an ex parte application must so bring to the Court's attention all relevant matters. Although, of course, under the rules it is the registrar's duty to search the Court file and to satisfy himself of the matters, it is also the duty of a litigant making an ex parte application to draw the Court's attention to relevant matters even though they should be obvious to the person to whom the application is made.

11. In my view, the Court below therefore did have jurisdiction to entertain the matter and looking at the intent of Rule 65, it seems to me that the justice will be best served if the matter is remitted to the District Court Judge, with the power to consider the circumstances of the case. It emerges from the papers that the husband has now re-married. So, of course, if the decree absolute were now set aside, it would have serious implications not only for the parties to this case but for third parties who may well be innocent in the matter and to whom the rescission of a decree absolute may have serious and traumatic consequences. This no doubt would be a further factor which would have to be borne in mind on the hearing of the application and it would therefore be undesirable in the circumstances of this case for this Court to exercise its discretion in the matter and it would be far better, in my view, that the matter be remitted to the Judge below to consider the matter afresh.

Yeung, J. :

12. Speaking by myself, I think the situation may be different if the decision of the registrar was a judicial decision made under the proviso to Rule 65(2) of the Matrimonial Clauses Rules. But the decision in issue is purely an administrative one and if the decision was mistakenly made due to inadvertence, a judge must have jurisdiction to rectify the mistake.

13. I agree with the judgment of Rogers J.A. and the order he purposes and I have nothing else to add.

Hartmann, J. :

14. I concur with my brethren's judgments.

Representation:

Miss Mairead Rattigan instructed by M/s. Oldham, Li & Nie for Petitioner

Mr. David Pilbrow instructed by M/s. Stevenson Wong & Lai for Respondent