Maria Luisa Xavier v. Jerry Francis Xavier

CACV000051/1976

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Coram: Briggs, C.J. and Pickering, J.A.

Date of Judgment: 17th November, 1976.

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JUDGMENT

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Pickering, J.A.:

1. Following an undefended petition for divorce in the Victoria District Court, the marriage between the parties was dissolved in January, 1974. In February of that year there was an order for the respondent to pay to the petitioner $2,000 a month for her maintenance and that of two children of the marriage. That order not having been complied with regularly, on the 9th December, 1975, a judgment summons was issued in the Victoria District Court in respect of arrears of $18,000; the summons was issued under Rules 87 and 88 of the Matrimonial Causes Rules. Various adjournments ensued but on the 1st June, 1976, Collier, D.J. dismissed the summons with costs holding that he had no jurisdiction and that the proceeding should have been taken in the High Court. The learned judge considered that Rules 87 and 88 did not extend or apply to the District Court and that in so far as they purported so to do they were ultra vires the rule-making powers conferred by section 64 of the Matrimonial Causes Ordinance (Cap.179) and/or section 32 of the Matrimonial Proceedings and Property Ordinance (Cap.192); the judge further considered that the power of a District Judge to commit a party to prison for contempt is limited by section 20 of the District Court Ordinance (Cap.336) to contempt committed in the face of the court.

2. We think this interpretation too restricted for whilst section 54(1)(d) of the Matrimonial Causes Act empowers the Chief Justice to make rules providing for the enforcement in the Supreme Court of orders made under that Ordinance in the District Court, the District Court has its own in-built jurisdiction which arises in two ways first, although section 2 of the Matrimonial Causes Ordinance defines "court" without any qualification as meaning the Supreme Court, section 10A(2) provides that:

"(2) In respect of matrimonial causes in which the District Court has jurisdiction under this section, the provisions of this Ordinance shall be construed as if "court" inclues the District Court."

thus including the District Court in the definition of "court" for certain purposes. The powers conferred upon the District Court by section 10B include powers exercisable under the Matrimonial Proceedings and Property Ordinance and indeed it was those powers which were exercised when the maintenance order in this case was made. Moreover section 10A(2) in providing that those provision of the ordinance shall be construed as if "court" include the District Court, necessarily embraces the Matrimonial Causes Rules because in the Interpretation and General Clauses Ordinance the word "Ordinance" is defined to include any subsidiary legislation made thereunder. It follows that the District Court has jurisdiction under Rules 87 and 88.

3. Quite apart from that however the jurisdiction of the District Court is, we consider, beyond doubt when section 48(1) of the District Court Ordinance is compared with section 74(1) of the 1959 County Courts Act in England. The two are virtually identical and the latter provision fell for consideration in the case of Jennison v. Baker⁽¹⁾ where, a county court judge having made an order attachment against the defendant committing her to prison for court by reason of her disobedience to an interlocutory order made against her in that court, the Court of Appeal held that section 74(1) of the 1959 County Courts Act was adequate to give the County Court jurisdiction so to do.

4. Section 48(1) of the District Court Ordinance reads:

"48. (1) The Court, as regards any cause for the time being within its jurisdiction, shall in any proceedings before it -

as ought to be granted or given, in the like case by the Supreme Court and in as full and ample a manner."

and, as I have said, it is in all material respects identical with section 74 of the County Courts Act, 1959. In Jennison v. Baker⁽¹⁾ Salmon, L.J. said:

"We have to decide whether the learned county court judge had jurisdiction to commit the defendant to prison for the serious contempt of court of which he found her to be guilty in flagrantly defying an order which he had made. This question depends on the true construction of s.74 of the County Courts Act 1959, which, insofar as it is material, provides:

5. In the course of his judgment, Salmon L.J. further referred to the case of Martin v. Bannister⁽²⁾ where the question was whether the county court had jurisdiction to commit a defendant to prison for breach of an injunction which the county court had granted. That question was unhesitatingly answered in the affirmative and it turned upon the true construction of section 89 of the Supreme Court Judicature Act, 1873 which was in much the same terms as section 74 of the County Courts Act of 1959. In that earlier case Bramwell L.J. said:

"          'As to attachment, it is only necessary to shew that an injunction may be granted, to prove that an attachment may also be granted. It is said an attachment is not part of the remedy given by the Court, but a punishment inflicted for disobedience to an injunction, but that is not really so; it is part of the remedy, which consists of an injunction and consequent attachment. The remedy is, in fact, an injunction enforceable by attachment.'"

6. Having quoted that extract from Bramwell L.J. 's judgment, Salmon L.J. in Jennison v. Baker⁽¹⁾ continued:

7. In Jennison v. Baker⁽¹⁾ the attachment was sought in respect of disobedience to an injunction whereas in this case it is sought in respect of failure to make the financial provision for the petitioner and her children which was ordered by the Court. In other respects, the cases are identical and, since we entirely agree with the reasoning in Jennison v. Baker⁽¹⁾ it follows that the appeal must be allowed, the order of the District judge of 1st June, 1976 set aside and the summons remitted to the judge to be heard. The appellant is entitled to the costs of this appeal and to the costs of the summons in the court below which are to be taxed under the Legal Aid Regulations.

Representation:

Downey (Hampton, Winter & Glynn) for appellant

Respondent in person.

(1) (1972) 1 All E.R. 997

(2) (1879) 4 Q.B.D. 212 49 ...(illegible)