Saras Gopi Aka Saraswathi Gopalakrishnan v. Bina Deegan Aka Bina Cunningham Aka Bina Gopi

HCA 3075/2015

[2023] HKCFI 2666

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

ACTION NO 3075 OF 2015

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BETWEEN

(By Original Action)

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BETWEEN

(By Counterclaim)

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DECISION

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1.I dismiss the discovery application taken out by Subi[1] for two reasons.

2.First, I find that the summons is an abuse of the court’s process. Since from the beginning when it was taken out up to now, there is clearly no intention on the part of Subi to genuinely pursue and argue the application.

3.Secondly, in any event, there are no merits in the substantive application itself.

4.In respect of my finding that there is an abuse of the court’s process, I refer to the following matters.

5.The application was taken out in December 2022 whereas the original request for documents was made in September 2021. I accept the submission of Bina[2] that it is an attempt on the part of Subi to retaliate against Bina as a result of her own discovery application which was decided in May 2021[3].

6.I have been informed that on three occasions before that May 2021 hearing, in his timetabling questionnaires, Subi had confirmed that he had no discovery application to make. Yet after the order against him was made in May 2021, he came up with a request for documents in September. However, he did not take out a formal application until five months later, that is December 2022. There is no explanation why there was such a long delay between his original request and the formal application.

7.And when one looks at his supporting affirmation, he in fact said that the summons was taken out as it would otherwise be “inequitable for [Bina] to request such extensive discovery without having to provide her own discovery on similar and related issues”. That is the reason that he has put forward himself to support his discovery application. Plainly, this is not a good reason.

8.In any event, in his supporting affirmation, he has failed to address the requisite elements for a specific discovery application. He has failed to address the existence, relevance, possession, and necessity of the documents sought or his reasons for discovery sought. I refer to paras 25 and 26 of his 5^th affirmation. He has given no idea as to why he says that these documents sought were in existence, in possession of Bina, are relevant or necessary. Para 26 of the affirmation is incomprehensible.

9.So when one takes into account the timing of the discovery application and the quality of the evidence which Subi adduces to support the application, there is clear ground to say that the application was not taken out genuinely to seek discovery but as retaliation against Bina’s own discovery application.

10.Moving on with time, I have earlier today found that the late filing of the stay application and the application for interim stay is an abuse of the court’s process and the purpose of those two applications are to derail the hearing of, among other things, the discovery summons today.

11.Subi’s solicitor has not lodged any written skeleton submissions. And that is in violation of the requirement of the Practice Directions. Subi is the applicant in this application. The fact that he has failed to lodge a skeleton argument to support his application is very telling.

12.On the whole, when one looks at the chronology of events from around the time when the court made the order in favour of Bina in May 2021 up to today, I think I can safely conclude that the discovery application had been taken out not because Subi genuinely wanted to pursue the discovery application but it is a retaliatory step in view of Bina’s own discovery application.

13.In any event, there is no merit in the substantive application. And I would dismiss the discovery application for that reason also.

14.The evidence in support of the discovery application is lacking and the documents sought for are wide ranging and oppressive.

15.Mr Justin Ho, who appears for Bina, has lodged detailed written submissions, and there is really no meaningful opposition on the part of Mr Hart to argue otherwise. I would accept Mr Ho’s submissions in full. As a result, I come to the conclusion that there is no merit in the substantive application taken out by Subi.

(Submissions on costs)

16.This is my order on costs. Bina do have costs of the discovery application, including all reserved costs, to be taxed on an indemnity basis if not agreed.

Mr Justin Ho, instructed by MinterEllison LLP, for the plaintiff (by counterclaim)

Mr Andrew Hart, of Hart Giles, for the 2^nd defendant (by counterclaim)