M v. C

FCMC 8147/2014

[2022] HKFC 193

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

MATRIMONIAL CAUSES NO 8147 OF 2014

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Before:  Deputy District Judge R So in Chambers (Paper disposal)

Date of Judgment:  20 September 2022

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J U D G M E N T

(LEAVE TO APPEAL OUT OF TIME)

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1.The Respondent took out an application by way of Summons on 26 May 2022 (“Summons”) for leave to appeal against the judgement dated 4 December 2020 for variation of maintenance (“Said Judgment”). An affirmation in support was filed on the same date (“Affirmation”), including the exhibit attached thereto and the Draft Ground of Appeal. The Respondent had also filed an affirmation proving service on the Petitioner on 30 May 2022.

2.On 23 August 2022, judgment for the Summons was handed down. Upon my own initiation, the judgment dated 23 August 2022 was set aside and my rulings for the Summons are now set out in this judgment (details referred to paragraphs 15 to 19 hereinbelow).

Background

3.The Respondent and the Petitioner are former husband and wife. They were married in 1996 and divorced in 2014. Two children were born in the wedlock in 2003 and 2009 respectively.

4.By consent, the Court granted an order on 26 August 2014 in relation to children matters and ancillary relief matters between the parties, including orders for monthly maintenance for the Petitioner and the children (“2014 Order”). Detailed background of the case had been set out in paragraphs 3 to 32, 42 and 45 of the Said Judgment.

5.On 28 March 2018, the Respondent issued an application to vary downwards the maintenance payable to the Petitioner and the children.

6.On 22 June 2018, the Petitioner issued an application to vary upwards the maintenance payable to her and the children.

7.On 7 December 2018, the Petitioner applied to attach the Respondent’s salary with the payment of the maintenance.

8.The 3 applications were heard in a 5-day trial. By the Said Judgment dated 4 December 2020, all 3 applications were dismissed.

9.Application for leave to appeal out of time against the Said Judgment was taken out by the Respondent on 14 May 2021, which was dismissed in the judgement dated 29 October 2021.

10.The Respondent subsequently renewed his application for leave to appeal before the Court of Appeal in the case CAMP 512/2021, which was dismissed by the Court of Appeal in the judgment dated 2 March 2022.

11.The Respondent had been acting in person before. The Notice to Act was subsequently filed by the Respondent’s present solicitors, who took out the Summons.

The legal principles

12.The legal principles governing applications for leave to appeal from the District Court is provided in section 63A(2) of the District Court Ordinance, Cap. 336:-

“Leave to appeal shall not be granted unless the judge, the master or the Court of Appeal hearing the application for leave is satisfied that –

(a) the appeal has a reasonable prospect of success; or

(b) there is some other reason in the interests of justice why the appeal should be heard.”

13.The court has a discretion to grant leave to appeal out of time. The factors for consideration are :-

(a)  The length of delay;

(b)  The reason(s) for delay;

(c)  Prospect of success of the intended appeal application;

(d)  Whether the grant of leave to appeal out of time would cause prejudice to the opposite party.

(See: LSW v LMYM, HCMP 1085/2006; 黃 對 潘 HCMP 2749/2014)

Discussion

14.By the Summons, the Respondent applied for :-

“1. Leave be granted to the Respondent to appeal against the Judgment (Variation of Maintenance) of Deputy District Judge R. So given on 4^th December 2020, or a part thereof, out of time, on the ground(s) as set out in the attached Draft Ground of Appeal;

2. Further or in the alternative, leave be granted to amend the said Judgment to manifest the original intention of the court when giving the said Judgment, or under implied liberty to apply, or otherwise;”

15.As I cannot see the basis of the present application, requisitions were raised on 1 June 2022, requiring the Respondent to lodge submissions to (i) clarify why the present application should not be outright dismissed, as the Respondent is taking out the same application for leave to appeal against the same Said Judgment twice; and (ii) clarify the legal basis and authorities relied on, if any, to apply for leave to “amend the Said Judgment” to manifest the original intention of the court.

16.I also indicated that after consideration of the submissions to be lodged by the Respondent, I may give further directions for the Petitioner to lodge written submissions in response, if necessary.

17.The Respondent’s solicitors applied for time extension to 11 July 2022 to lodge submissions, which was granted by Deputy District Judge June Cheung. However, I had been informed that no such submissions had been lodged despite time had been extended. I therefore proceeded to consideration of the application and judgment was handed down on 23 August 2022.

18.I was only informed subsequently that submissions from the Respondent, together with list of authorities (“Submissions”), had been lodged on 11 July 2022 and had been misplaced. Therefore, on my own initiation, I set aside the judgment handed down on 23 August 2022 and parties were informed accordingly.

19.After consideration of the Submissions, together with all the relevant documents for the present application, the judgment for the Summons is now handed down.

20.In the Respondent’s Submissions, regarding paragraph 2 of the Summons, Mr. Young, Counsel for the Respondent, confirmed that the Respondent no longer seeks leave to amend the Judgment.

21.Regarding paragraph 1 of the Summons, Mr. Young submitted that they relied on s.63 and 63A of the District Court Ordinance, and also Order 58, rule 2(4), (5), (6) and (10) of the Rules of the District Court for the present application.

22.These are all provisions governing leave to appeal out of time, but I do not see how relying on these provisions can assist the Respondent taking out the same application for leave to appeal against the same Said Judgment twice.

23.Mr. Young’s Submissions relies on (a) the Respondent now seeking “to argue a new ground of appeal in respect of a particular issue arising out of the Judgment”; (b) that new ground of appeal “has yet to be considered for purposes of leave to appeal either in this Court or the CA”; and (c) it is not an abuse of process to allow the Respondent “to apply for leave to appeal on the basis of the new ground of appeal”.

24.The new ground of appeal can be ascertained in the Draft Ground of Appeal, which states that :-

“The Judge erred in failing to consider if the Respondent’s current total periodic payment amount exceeded the net reasonable financial needs of the Petitioner and children (taking into account Petitioner’s ability and likelihood of obtaining full-time employment), and whether this fact carried substantial weight in her discretionary decision whether to vary the payment amount” (“New Ground of Appeal”)

25.In the Submissions, Mr. Young acknowledged that “there is a rule that a party may not be able to litigate matters which have, or could have, been decided in earlier proceedings”, but he explained that “a party ought not lightly to be deprived of the right to have serious matters litigated”. He submitted that the present application is not an abuse of process as the Respondent was not legally represented or assisted in his trial or when he previously applied for leave to appeal before Judge and CA. He further submitted that the present application “seeks only to have the court consider a single additional ground of appeal stated in narrow and specific terms as set out”.

26.I cannot agree with Mr. Young’s submissions for the following reasons :-

(a)  The present application for leave to appeal against the Said Judgment is the same as the previous application for leave to appeal taken out. It is clearly a re-litigation, with the same application taken out twice.

(b)  Relying on a ground not raised before (ie. the New Ground of Appeal) would not change the fact that the same application for leave to appeal had been taken out twice.

(c)  The New Ground of Appeal could have been raised in the previous applications for leave to appeal. Not being legally represented is no excuse of not having raised a particular ground of appeal in the previous application to justify taking out the same application the second time.

(d)  While considering fairness and justice to the parties, I should not lose sight of the aim of the principle of res judicata to achieve finality in litigation so that a party shall not be twice vexed with the same matter. It is noted that application for leave to appeal out of time against the Said Judgment was taken out by the Respondent on 14 May 2021, which was dismissed on 29 October 2021. The Respondent subsequently renewed his application for leave to appeal before the Court of Appeal, which was dismissed on 2 March 2022. There should be finality in litigation and the present application is not justified.

27.After careful consideration, I am of the view that there is no legal basis at all for the Respondent to have the second bite of the cherry to take out the same application for leave to appeal against the same Said Judgment. The application should be outright dismissed, without the need to consider the prospect of success or the factors for consideration for leave to appeal out of time.

28.Even if I have to consider the prospect of success and the factors for consideration for leave to appeal out of time, I am not convinced that leave to appeal out of time should be granted, for the following reasons :-

(a)  The Respondent had not provided cogent reasons justifying the length of delay and the reasons for delay. The exhibit annexed to the Affirmation, being a letter from Dr. Wong dated 16 February 2022 (“Letter”), showed, inter alia, the condition the Respondent suffered from, the date of surgery being 15 February 2022 and the advice from the doctor. Considering the explanation made in the Affirmation and the entirety of the content of the Letter, I am not satisfied that the length of delay and the reasons for delay is justified.

(b)  In view of the Draft Ground of Appeal, which the Respondent referred to as the New Ground of Appeal, I am not convinced of the prospect of success. The change of circumstances of the parties since the 2014 Order had been considered in the Said Judgment.

(c)  Before reaching my ruling in the Said Judgment, I have considered all the evidence and submissions made by parties, including but not limited to the reasonable financial needs of the Petitioner and the children (taking into account her ability and likelihood of obtaining full-time employment) and the ability to pay of the Respondent, including his financial resources. I refer to paragraphs 147 to 166 of the Said Judgment, which I do not repeat here. I am of the view that the intended appeal has no reasonable prospect of success.

(d)  Further, I am of the view that there are no other reasons in the interests of justice why leave to appeal should be granted.

29.With the reasons aforesaid, the application by way of Summons must be dismissed with costs. Further, I fail to see why this application does not amount to an abuse of process.

Costs

30.Generally speaking, for an application which amounts to an abuse of process, costs on an indemnity basis is not unjustified. However, having considered (a) the underlying principles in Order 1A of the Rules of the District Court; (b) the Petitioner had not been ordered to make submissions; (c) the background of the case; (d) not to incur further costs by way of inviting further submissions on the issue of costs in oral hearing and/or paper disposal, I am of the view that it is appropriate that costs of this application be disposed of by way of summary assessment with a broad brush approach on a nisi basis. I assess that costs of this application be in the sum of HK$2,000.

31.It is ordered that the application by way of Summons be dismissed, with costs of the application be paid by the Respondent to the Petitioner forthwith, summarily assessed at HK$2,000. This is a costs order nisi, which shall be made absolute within 14 days from the date hereof.

The Petitioner acts in person

Mr. Simon N M Young instructed by Ching & Co. for the Respondent