Joan Wong v. Michael Wong
Read the full judgment text of CACV 9/1969 on BabelCite. This Court of Appeal judgment was delivered on 8 December 1969.
1. I have had the advantage of reading the judgment of my brother Huggins, J. in this appeal. I agree with the conclusion reached by him that this appeal should be dismissed. However, in fairness to the appellant (husband) I think it right to make these observations.
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CACV000009/1969 IN THE SUPREME COURT OF HONG KONG APPELLATE JURISDICTION CIVIL APPEAL NO. 9 OF 1969 (On appeal from Divorce Actions No. 55 & 116 of 1968) -----------------
----------------- Coram: Rigby, S.P.J. & Huggins, J. Date of Judgment: 8 December 1969 ----------------- JUDGMENT ----------------- Rigby S.P.J.: 1. I have had the advantage of reading the judgment of my brother Huggins, J. in this appeal. I agree with the conclusion reached by him that this appeal should be dismissed. However, in fairness to the appellant (husband) I think it right to make these observations. 2. No one who has read the sad record of the proceedings in this case can fail to have feelings of considerable sympathy for the appellant in this case. It is manifest that from the very outset of the marriage the petitioner's parents did all they possibly could to disrupt and ruin this marriage. This they did through injured pride because they had not originally approved of their daughter's choice of the appellant for a husband and subsequently because the marriage, despite their objection to their daughter's choice, was celebrated in America without their knowledge or approval. My brother Huggins has already referred to the deeply hurtful and utterly reprehensible manner in which the unfortunate husband was treated by his wife's parents when he came home with the petitioner for a brief holiday in April, 1967. But the crowning insult - if the petitioner's testimony is to be believed - is to be found in a letter written by the petitioner on the 7th August 1967 to a Sister at the convent in Los Angeles where she had previously either studied or resided. In that letter the petitioner went so far as to say that her father had told her that the appellant not only had syphilis but had communicated the disease to her. If it be true that the petitioner's father had said that to the petitioner he must himself have known that there was no truth whatsoever in that vile calumny since one of the humiliating conditions which he himself had imposed upon the appellant when he had come to Hong Kong with the petitioner in April 1967 for their holiday was that he, the appellant, should submit to a thorough medical examination carried out by the petitioner's father, himself a medical practitioner. As to the latter allegation made by the petitioner in that letter, namely, that syphilis had been communicated to her by the appellant, there was, again, no vestige of truth whatsoever in that outrageous allegation. It is only fair to say that the petitioner's father himself did not give evidence so that the allegation that this foul slander was told to her by her father rests solely upon her own testimony. 3. The learned trial judge himself found the petitioner to be an untruthful witness and expressly stated that he would not accept her evidence on any matter except where it was corroborated by independent testimony. 4. It may well be that if the appellant's line of defence to this petition had taken a different course these proceedings would have resulted in an entirely different conclusion and determination. I say that for this reason. In January 1968 the petitioner herself instituted proceedings for divorce in the State of California by the filing of a sworn complaint. Those proceedings were for annulment of marriage on the grounds that the marriage had never been consummated. But the reason for such non-consummation is stated in the petitioner's sworn complaint in these terms:-
It is manifest from the above passage that the primary and effective reason for non-consummation was the continued and persistent resistance by the petitioner herself to any attempt on the part of the appellant to consummate the marriage. There is no suggestion whatsoever in that complaint that the marriage was not consummated by reason of the physical incapacity of the appellant. The petitioner admitted that that sworn complaint was prepared on her instructions and it was sworn to by her on the 22nd January, 1968 in Tai Wan at a time when she was staying there. She endeavoured to explain away the contents of that sworn complaint by saying that she signed it without reading it; an explanation that the learned trial judge expressly disbelieved. That petition was subsequently withdrawn when the present proceedings were instituted in Hong Kong. 5. The learned trial judge's findings in the present case were that at the material time the petitioner was virgo intacta and that the marriage had never been consummated; a finding of fact with which, for the reasons stated by Huggins, J., in his judgment, I agree. But if the appellant in these proceedings had sought to rely upon the contents of the Los Angeles petition and had himself asserted that the marriage had not been consummated, not by reason of his own incapacity but, on the contrary, by reason of the petitioner's own wilful refusal to consummate it, the proceedings might well have terminated in a conclusion consistent with such an assertion. But from beginning to end that has never been his case. His case throughout has been that the marriage was in fact consummated by him on a number of occasions and that full intercourse frequently took place. 6. By paragraph 5 (a) of his Answer to the amended Petition, the appellant stated
When asked by letter dated the 6th January, 1969 what was meant by the latter part of that allegation the appellant, through his solicitors, replied
7. It will be seen that even then there was no suggestion put forward by the appellant that the marriage had not been consummated by reason of the petitioner's own frigidity or wilful refusal to consummate. 8. The issues therefore resolved themselves within the narrow limits as to whether or not the marriage had been consummated and, if not, whether such non-consummation was due to the appellant's own incapacity and, if so, whether such incapacity was incurable. In my judgment, having regard to the course adopted by the appellant from the outset of the proceedings and, in particular his whole line of defence that the marriage had been repeatedly consummated by frequent and full sexual intercourse, there was ample evidence upon which the learned trial judge could properly come to the conclusion that the marriage had never in fact been consummated and, in rejecting the appellant's evidence, to come to the conclusion that the reason for such non-consummation was the incurable impotence of the appellant quoad hanc the petitioner. 9. My brother Huggins has dealt at some length with the finding as to such impotence on the part of the appellant being properly found by the learned trial judge to be incurable. I agree with those conclusions and have nothing further that I would wish to add in support of them. 10. Despite my feelings of sympathy towards the unfortunate appellant I am fully satisfied that this appeal should be dismissed and, as a necessary corollary, that the appeal on the ...(illegibl)-petition for restitution of conjugal rights should also fail. 11. I have come, with some regret, to the same conclusions reached by Huggins, J. that the appellant's appeal against the order made as to costs should also be dismissed. The result must be that the whole of the appellant's appeal must be dismissed. Representation: Bernacchi Q.C. & Asome (P.H. Sin & Co.) for Appellant/Husband. Cheung Q.C., Basto Q.C. & Sakhrani (Brutton & Stewart) for Respondent/Wife. (Separate Judgments delivered) IN THE SUPREME COURT OF HONG KONG APPELLATE JURISDICTION CIVIL APPEAL NO. 9 OF 1969 (On appeal from Divorce Actions Nos. 55 & 166 of 1968) -----------------
Coram: Rigby, S.P.J. and Huggins, J. Date of Judgment: 8 December 1969 ----------------- JUDGMENT ----------------- Huggins, J: 12. In this case a wife petitioned for a decree of nullity of marriage and the husband cross-petitioned for a decree of restitution of conjugal rights. The learned trial judge gave judgment in favour of the wife and the husband now appeals. 13. The wife's case was founded upon an allegation of non-consummation due to the husband's impotence. The parties were married on 31st December 1966 in Los Angeles, whither the wife had gone from Hong Kong to complete her studies. The husband, like the wife, was domiciled in Hong Kong but he had been educated in the United States of America and had subsequently taken employment there. Although both parties were of full age the wife's parents were bitterly opposed to the marriage and I think it is clear that that fact has been at the root of all the difficulties which have arisen. The wife said in evidence that before the marriage the husband tried to rape her and that she eventually married him under duress. The learned judge totally rejected the wife's account of the pre-marital relationship and found that "it was a simple case of two young people falling in love and getting married against the wishes of the parents of the bride". The judge went on to say:
As to the sexual aspect the wife's evidence was that from first to last the husband was unable to obtain an erection and that in consequence intercourse was impossible. The husband, on the other hand, maintained that regular and complete intercourse took place frequently throughout the time they were together and it has never been his case that there was non-consummation due to the frigidity of the wife. Nevertheless there was evidence that shortly after the marriage both parties were medically examined by a Dr. Weisman, who had acted as guardian to the wife before she attained her majority. What the result of those examinations was we do not know: it is one of the unsatisfactory aspects of the case that neither side sought to have his testimony placed before the court. 14. Before dealing with such medical evidence as was before the court it is necessary to refer briefly to the subsequent history of the marriage. The judge found that the wife's parents were deeply hurt by their daughter's disregard of their wishes but that the mother, in an attempt to smooth matters over, arranged for the young couple to fly to Hong Kong for a holiday in April 1967. On their arrival in Hong Kong the husband was treated by the wife's family in a manner which was nothing short of outrageous. The judge found that the couple were met at the airport by a servant with instruotions for them that the wife was to go to her parents' house but that the husband was not to accompany her. They complied with these instructions but the next day the husband presented himself at the parents' house only to be utterly humiliated by his father-in-law. This person required him to answer a long questionnaire and to submit himself to a medical examination, the father-in-law being himself a medical practitioner. The upshot of the interview was that the husband was told to comply upon his return to America with six conditions relating to his relationship with his wife. To use the words of the learned judge, "in effect these were designed to make it appear that the couple were not married, and to guard against the possibility of conception". 15. The judge found that after this interview the father-in-law's attitude eased somewhat and the husband had hopes of an ultimate reconciliation. The couple returned to America and the wife graduated on 10th June. Her mother and younger brother attended the ceremony. As a graduation gift the wife received a round-the-world air-ticket from her father and on 13th June she flew off with her mother and brother, leaving the husband behind. At first the wife wrote to the husband at least once a day and her letters revealed her anxiety that her parents might be trying to break up the marriage. The letters were couched in most affectionate language, which according to her evidence represented her true feeling at the time. When the wife and her mother were in Geneva they were joined by the father. A few days later the wife wrote a letter to a nun, who was described as her spiritual adviser, and reported that the father had made allegations that the husband was suffering from syphilis and had passed it on to her and that "he had been previously married and was still married". It is right to emphasize that the father did not give evidence and that he may not have made any such allegations, but the coincidence of the father's visit and this letter still remain. There was another letter, bearing date 29th June 1967, which the wife said she wrote to her father and was the cause of his going to Geneva. The judge found that this letter was written subsequently and probably for the purposes of court proceedings. In her evidence the wife said that in Geneva she told her parents that the marriage had not been consummated owing to the incapacity of the husband and the judge appears to have believed that, for he says:
All attempts to effect a reconciliation between the parties failed. 16. On 22nd January 1968 the wife swore a complaint with a view to obtaining an annulment of the marriage in the courts of the State of California. The ground upon which the complaint was based was that the wife's consent to the marriage had been induced by force and fraud. It recited as a fact that the marriage had not been consummated but gave as the reason not the incapacity of the husband but the resistance of the wife and "the nervous strain upon the parties". In her evidence the wife said that she signed the complaint without reading it, although she agreed that it was prepared on her instructions. The learned judge expressly disbelieved her evidence that she did not read it before she signed. The suit in the American court was withdrawn before the petition was filed in the wife's present suit. 17. I come now to the medical evidence, which undoubtedly presents serious difficulties to the lay mind in so far as the wife is concerned - so much so that it was questioned whether all the doctors examined the same patient. The husband was found to have the genital organs of a normal man and none of the medical men who examined him could find any reason why he should not be able to consummate the marriage. On 3rd January 1968 the wife was examined by Dr. K.K. Chow, who found her to be virgo intacta. The following day she was examined by Dr. Wylie and he, also, reported that she was virgo intacta. The learned judge accepted their evidence but, as we shall see, is attacked for having done so. He further found that reports prepared by both these witnesses some time later, but dated with the dates of the examinations and bearing a photograph of the wife, were made from notes taken at the time of the examinations. Here it must be mentioned that a suggestion was made in the course of the trial that before the examinations made by Dr. Chow and Dr. Wylie the wife had had a surgical operation to repair or to replace her hymen. This suggestion was not put to Dr. Chow in cross-examination when he was first called and he had to be recalled to deal with it. He said he saw no signs of grafting or suturing and that if an operation had been performed it would have been readily noticeable. Dr. Wylie had never heard of any operation for "patching up" a hymen. 18. Two medical inspectors were appointed by the court and they separately examined the wife on or about 6th August 1968, i.e. some seven months after the examinations by Dr. Chow and Dr. Wylie. The judgment deals with the evidence of the inspectors in this way:
I think the context shows that when he referred to "the examination" the learned judge must have meant the examinations by both doctors. Counsel for the appellant contended that Dr. Rance did not in fact say he saw anything which suggested the wife was not a virgin. His precise answer was that there was nothing in what he found in the vagina to suggest she was not a virgin, but I do not think this was a material misdirection. 19. Major Wickenden, R.A.M.C. was called by the wife. He was asked to assume that the husband was impotent and to say what, in view of the fact that the husband was insisting regular sexual intercourse had taken place, were the chances of successfully treating that impotence. He replied that they were virtually nil. 20. The husband also called two medical experts. Dr. Rankin's evidence was concerned principally with his examination of the husband himself and he added nothing significant about the wife. Dr. Chu was unable to obtain permission from the wife to examine her but the learned judge thought that her refusal was not unreasonable. Dr. Chu was invited to express an opinion based upon the reported findings of the other doctors and he disagreed with parts of the report of Dr. Rance. In particular he thought that the presence of what was described as "a partial ring of hymen" did not make it unlikely that the wife had had regular sexual intercourse. He was referred to a textbook by Dr. Stafford Clark, who was not called as a witness, and the judge states that Dr. Wickenden's opinion "was borne out by" various statements in that book. No point has been taken in the appeal that the textbook was not evidence and could not bear out a witness's evidence. 21. The notice of appeal contained no less than 25 "grounds of appeal" but counsel for the appellant has had to concede that many of them are not grounds of appeal at all. A ground of appeal by its very nature is a ground which, if established, would enable the court to allow the appeal, so that to include as a substantive ground of appeal matters which admittedly would not enable the court to allow the appeal is frivolous and vexatious. The purpose of requiring grounds of appeal to be stated is to define the issue and thus to prevent the copying of documents which will not be needed and to assist both the respondent and the court in preparing for the hearing of the appeal: see Sansom v. Sansom(1). In that case Denning, L.J. said:
On the other hand it is not enough to complain of "misdirection" or "error of law" without specifying what misdirection or error is alleged. Nor is it enough where the trial was by a judge without a jury to complain of "error of fact" or of a verdict "against the weight of the evidence" without specifying the particular finding of fact which is attacked. In the present case we have been left to extract as best we can from the argument of counsel for the appellant the real basis of the appeal. That has not been easy because despite protestations from the court on a number of occasions counsel spent the whole of the three days appointed for the hearing of the appeal doing little more than read the judgment and long extracts from the evidence without any indication of the grounds of appeal to which each passage related. As a result some of the evidence had to be read a second time while much of what was read proved, as I suspected it would, to be totally unnecessary to the decision of this appeal. I am sorry to have to say this, but I think we owe it to the public to take proper steps to prevent abuse of the process of the court in this way and I am clearly of opinion that there has been almost regrettable waste of the court's time. 22. Although it did not take first place in the argument I think it is convenient to deal at the outset with the submission that the learned judge misdirected himself in holding that the standard of proof applicable in a nullity suit was proof on a balance of probabilities. Counsel for the appellant conceded that nowhere in the judgment did the judge say what standard of proof he was applying, but he submits that the evidence was obviously not strong enough to establish some of the material facts beyond all reasonable doubt. In particular he said that as the judge did not "indicate to the contrary" he cannot have accepted without corroboration the wife's evidence that there had been no consummation or that the reason for non-consummation (if there were none) was the husband's impotence; there was no corroboration (neither the medical evidence nor the lies of the husband, as found by the judge, could be corroboration); therefore there was no proof at all of these matters, let alone proof beyond reasonable doubt. That, he contended, was the proper standard of proof in nullity suits and not the standard established for divorce suits by Blyth v. Blyth(2). He relied upon a passage in Rayden on Divorce (10th Ed.) 140 (para. 73) which reads:
Counsel went on to cite Dickinson v. Dickinson(3). That case indicates that the court will not infer incapacity where the real cause of a proved non-consummation is a wilful refusal to consummate, but I find nothing in the case to suggest that Sir Samuel Evans applied the standard of proof for which counsel contends here. On the other hand in C. (otherwise H). v. C.(4) Lord Birkenhead, Lord Chancellor, said at p.400:
It was because there was a strong presumption in favour of innocence that the courts formerly required a higher standard (or what appeared to be a higher standard) in divorce suits. In my view the effect of Blyth v. Blyth(2) was to endorse the decision of the High Court of Australia in Wright v. Wright(5) "that the civil and not the criminal standard of peruasion applies to matrimonial causes, including issues of adultery". That decision was not confined to the narrow limits of condonation and collusion and it therefore disposes completely of this first ground of appeal. 23. The next ground of appeal sought to be argued, that the judge's finding that the person examined by Dr. Chow and Dr. Wylie was the wife was against the weight of evidence, was not mentioned in the Notice of Motion. This argument was, I think, based on the alleged inconsistency between the finding of these two witnesses and those of Dr. Nichols and Dr. Rance. It is enough to say that in my view it is quite impossible to hold that the weight of the evidence was against the finding made by the learned judge. Counsel sought to argue that because the judge did not mention the theory that Dr. Chow and Dr. Wylie may never have seen the wife at all but did expressly mention the possibility of a repair or replacement of the hymen this court was entitled to assume that the judge did not consider it. In my view that does not follow and it is inconceivable that the judge was not fully alive to the theory, especially as he referred expressly to the second reports made by these doctors, reports which bore photographs of the wife. 24. We come now to what was, I think, the ground of appeal most relied upon by counsel, namely that the finding that the marriage had not been consummated was against the weight of the evidence. Once it is accepted that the person examined by Dr. Chow and Dr. Wylie was the wife it is impossible to say that there was no evidence to support a finding of non-consummation. Indeed, there was very cogent evidence of it. It is true that there was also evidence independent of the husband which tended to raise doubts about the truth of the wife's allegation. The wife's letters written after she left on her world tour were in very endearing terms and hardly consistent with there having been no consummation. Moreover, the husband (whose evidence was preferred to that of the wife except on the question whether intercourse had taken place) said that Dr. Weisman recommended the couple to use a lubricant, advice which is more consistent with frigidity on the part of the wife than with impotence on the part of the husband. The wife's failure to make any allegation of non-consummation on several occasions when one would have expected her to make it if it were true is strong ground for suspicion. When her father was (according to the evidence) told about the non-consummation he appears not to have mentioned the possibility of having the marriage annulled. The medical evidence also raises difficulty, especially having regard to the evidence of the husband (not specifically referred to by the learned judge) that when Dr. Weisman examined the wife during the honeymoon he drew blood. I repeat that it is much to be regretted that neither side thought fit to obtain the testimony of Dr. Weisman as to what he found and what he did on that occasion. 25. The crux of the matter lies in the attack made upon the following passage in the judgment:
Counsel argues that the evidence of the inspector does contradict and weaken the evidence of the wife's doctors and, indeed, that the findings in January and those in August can stand together only if one assumes the wife had had an operation to repair or replace her hymen, because there was no evidence of anything which could subsequently have damaged her hymen if it was intact in January. It is the evidence of Dr. Rance which raises the greatest difficulty and I think it is necessary to set out the following passage in full:
Here the doctor appeared to be trying to explain that his findings were an impression rather than an ascertained fact, but having given that explanation he asserts that he succeeded in examining the wife vaginally with two fingers. Finally, in answer to a leading question which unfortunately introduced a new factor (whether there would be great difficulty) he summed up what he had said as being an impression. It would have been helpful if the learned judge had dealt in greater detail with this part of the evidence but it seems to me that the passage which I have cited from his judgment is consistent only with his having found that Dr. Rance's finding was nothing more than an impression and that it was an impression to which little weight should be given because of the lack of co-operation from his patient. Dr. Rance said in examination-in-chief: "I was only able to establish that there was a ring of hymen present. I couldn't establish that as Dr. Nichols says it was absent anteriorly, but it was palpable as a ring of tissue bilaterally and posteriorly." In the light of what he was able to feel, however, he said: ".... it is unlikely that this particular girl had had regular sexual intercourse because of the very small ring of hymen": in his view it was unlikely there would be a ring of hymen after six, or it might even be twelve, acts of intercourse and probably it would disappear with fewer than that. Even if the patient had been co-operative so that the doctor could have been certain her condition was in accordance with his impression this evidence would not have rendered a decision unfavourable to the husband insupportable, because the doctor was unable to say one way or the other whether she was virgo intacta. Dr. Nichols said that he also found the wife unco-operative and examination difficult. Nevertheless he was able to feel a semi-circle of hymen posteriorly. The anterior portion was absent and this allowed him to insert one finger into the vagina very easily but it would not have admitted two. In his view this was consistent with incomplete penetration but not with complete penetration by a normal male penis such as the husband's. Two other experts were shown the reports of Dr. Nichols and Dr. Rance and thought they appeared consistent with there having been regular sexual intercourse, but clearly the impression of the wife's condition which they received from reading those reports might differ considerably from the actual observations of the persons who made the reports. It is, of course, common ground that no intercourse has taken place between the parties since April 1967. Counsel for the wife submits that what is significant is that all four of the principal medical witnesses were emphatic that the wife could not have had regular sexual intercourse and that three of them thought she could not have experienced even one act of intercourse: while the basic issue was whether there was one complete act of intercourse and not whether there was regular intercourse the weight of the medical evidence tended to prove that the husband's story was not true. As I have said, the medical evidence does present difficulties to a layman but I am satisfied not only that it is impossible for this court to hold that the learned judge's finding of non-consummation was against the weight of evidence but that, on the evidence before him, it was almost certainly the right one. 26. The next ground of appeal was that, even assuming non-consummation there was no finding by the judge that such non-consummation was due to the impotence of the husband, any such finding would have been against the weight of the evidence. In truth there was a very clear finding by the learned judge "that the marriage has not been consummated owing to the incurable impotence of the (husband)". He went on to say that the impotence might well be quoad hanc and it is not surprising that he should make this limitation, because there is no medical evidence which suggests that the husband's sexual organs were not entirely normal. Nevertheless the wise swore that he tried to obtain an erection during attempts at intercourse and failed. It is certainly very remarkable that she refrained from making this allegation even when she made her complaint to the United States court and had the husband's case been that there was non-consummation owing to the impotence or wilful refusal of the wife it may well be that the learned judge would have declined to accept the wife's evidence on this point even though the husband admitted himself that his wife was "co-operative". That was not the husband's case. The judge was faced with the fact of non-consummation despite attempts, with the wife's testimony that non-consummation was due to the impotence of the husband and, in the light of the medical evidence, with the husband's lying about the failure to consummate. This was evidence from which the learned judge was entitled to infer impotence on the part of the husband quoad hanc (see C. (otherwise H). v. C.)(4) and it is impossible for us to say that the learned judge was wrong to make the inference. 27. Then it was said either that there was no evidence that any impotence of the husband was incurable or that the finding that it was incurable was against the weight of the evidence - I am not sure which. In my view there was evidence and we cannot hold that the finding was against the weight of the evidence. It was for the wife to prove that the incapacity was incurable and she sought to do that by the evidence of Major Wickenden. This was that if the husband was impotent and had failed to ask for medical help for two years then, having regard to the emotional complications in the case, his chances of being cured were very small indeed even if he were then to seek help. He further stated (and, as the learned judge said, it is a really a matter of common sense) that until a patient admits to himself that he is impotent and does seek help the chances of a cure must always be very small indeed. Although the husband said in evidence that if there were really impotence on his part he would most certainly be willing to seek psychiatric treatment, his attitude was that he had been proved by five doctors to be potent. Counsel for the husband contended that Major Wickenden's evidence was based upon assumptions which have been rejected by the judge. I do not think that is correct. If the husband was impotent then in the light of the medical evidence about himself it is a proper inference that the cause or causes were psychological. It matters not that he has never been examined by a psychiatrist. That fact in no way detracts from Major Wickenden's evidence. It is clear that the learned judge rejected Dr. Chu's apparent statement in examination-in-chief that he disagreed with the suggestion (which was not entirely accurately put to him) that if a man does not admit his failure to consummate then any cure is out of the question. I say the suggestion was not entirely accurately put because the question as it appears in the transcript relates merely to an admission of "this non-consummation", a phrase which may well not have been understood by the witness. That it was not understood would appear from the cross-examination, where is recorded the following passage:
Dr. Chow, also, said it was "very difficult" to cure a patient of impotence which he would not admit. It is true that in his judgment the learned judge referred to the attitude of the wife's parents and said: "the resultant tension may have had an effect on 'the husband's and wife's sexual difficulties", but I cannot agree that that statement alone negatives the finding of incurable impotence: the attitude of the wife's parents was, as we have seen, taken into account by Major Wickenden. There was no evidence on either side that non-consummation was due to nervousness resulting from the attitude of the wife's parents. It is for these reasons that I decided this ground of appeal must fail. 28. One further question was raised upon the medical aspect of the case: it was contended that the learned judge was wrong not to order the appointment of a third medical inspector and we were asked in this court to make such an appointment. I do not doubt that there was power under r.24(2) of the Matrimonial Causes Rules 1968 at the trial to appoint one or two medical inspectors further to examine the wife, but this was a civil proceeding and counsel has not persuaded me that it would have been proper for the judge of his own motion to order a further examination. The correspondence which was put in evidence shows that the possibility of an application for the appointment of another inspector was mooted but that the parties could not agree upon the person to be appointed. If the appellant husband desired to press the matter it was always open to him to do so and he cannot now obtain an advantage from his own default, let alone justly complain that the judge did not of his own motion do what the parties were not willing to ask him to do. 29. The last ground upon which the appellant seeks to have the decree of nullity set aside is that the finding that the petitioner was not guilty of lack of sincerity was against the weight of the evidence. Want of sincerity was not pleaded and it ought to have been, but no point of pleading was taken and, even if it had been, following the course adopted in R.E.L. (otherwise R.) v. E.L.(6) I would have held that the husband ought not to be shut out from raising the argument. Counsel relies heavily upon the fact that after the wife left the husband to go on her world tour she continued to write endearing letters to him and that the allegations made in the complaint filed in the United States court were entirely inconsistent with those made in the present proceedings. On her own evidence by September 1967 at any rate the wife was fully aware that incapacity to consummate was a ground upon which the marriage could be annulled. A petition on that ground was not filed until May 1968. In short counsel submits that whatever the real reason for the wife's deciding to petition for annulment it was not the impotence of the husband which has now been pleaded, and what matters is the sincerity or insincerity of the plea: Nash (otherwise Lister) v. Nash(7). It is a necessary part of this argument that "the plea" in this case is that the husband is impotent, but Langton, J. pointed out at p.65 that mere knowledge is not the acid test of sincerity. While knowledge is, of course, an essential ingredient of the type of estoppel with which we are here concerned the real question is this, in all the circumstances of this particular case would it be unfair and inequitable to grant relief? (see per Willmer, L.J. in Pettit v. Pettit(8)). Here there can be no question of the wife's having, with knowledge of the facts and the law, approbated the marriage which she now seeks to get rid of (see per Lord Selborne in G. v. M.(9)). What in effect is contended is that the wife should be denied the remedy to which she has otherwise been found entitled merely on the ground that she told lies before making the allegation which has now been believed. Counsel for the husband, of course, puts it rather differently and cites another passage from the judgment of Willmer, L.J. in Pettit v. Pettit(8) at p.190:
In the present case, counsel submits, the position taken up by the wife up to the time when she eventually filed her petition in Hong Kong shows that she was not honestly suffering under a sense of injury or grievance. I do not think that necessarily follows. Although it may well be, despite the wife's protestations to the contrary, that the dissatisfaction of the wife's father with the marriage which his daughter had made was an important consideration which led the wife to file her petition, the judge has found that it was not the motivating reason. This means that he found some other motivating reason, although he has not expressed it. Later in his judgment he did, however, accept that the wife wished to be free from a union which was unfruitful and which she was certain would always be unfruitful. The wife said more than once that the reason for filing the petition was the husband's inability to give her children and she also said she saw no future in the marriage. I do not think we can say the judge was wrong to find that she did suffer under a sense of injury or grievance. 30. Before leaving the question of insincerity I ought to mention that counsel for the husband expressed doubt whether the burden of proof on this issue was on the petitioning wife or upon the respondent husband. He said that different views had been adopted upon the point in Pettit v. Pettit(8) and Nash (otherwise Lister) v. Nash(7): in the former case the court said that the petitioner had proved her sincerity, while in the latter Langton, J. appeared to suggest it was for the respondent to establish his defence by proving insincerity. Reading the judgment of Langton, J. as a whole I am by no means sure that the learned judge did there concern himself with the assignment of the onus of proof as distinct from delimiting in a proper perspective the nature and bounds of the issue itself. It seems to me that the question is likely to be of only academic interest because it would be an extraordinary case where the circumstances were such that the court found the equities for and against declaring the marriage null and void to be of equal weight. In such a case I think the maxim omnia praesumuntur pro matrimonio would apply. In the present case there is nothing to show that the learned judge placed the onus of proof upon the husband. On the contrary his reliance upon a passage from the judgment in Nash (otherwise Lister) v. Nash(7) which begins "the petitioner must be sincere" indicates that he looked to the wife to establish her sincerity and the tenor of his judgment is that she had satisfied him. 31. I am of opinion that, on the evidence before him, the learned judge made a right decision and that the decree of nullity must stand. That being so nothing more need be said about the cross-petition. 32. There remains an appeal against the order as to costs. The learned judge ordered the respondent husband to pay the costs of the petition and the cross-petition and directed, as he was required to do, that the respondent's costs be taxed in accordance with regulation 15 of the Legal Aid Regulations. A question having arisen who should pay the expenses of the medical inspectors he ordered that the costs of any examination and the preparation of the report of each inspector be borne jointly and severally by both parties and that the costs of the inspectors' attendance be borne by the respondent. 33. It was submitted to the learned judge that since he had expressed disapproval of the conduct of the wife there was ground for depriving her of costs. In refusing in the exercise of his discretion to depart from the usual rule that costs follow the event the learned judge said:
Before us counsel has argued that her conduct was not ancillary to the main issue and that her wrongful conduct "contributed to the bringing of the petition". The learned judge did not say that the evidence of the wife's conduct was irrelevant to the main issue but merely, in effect, that whatever the wife's conduct may have been that would not alter the fact that the husband was impotent and that by reason of his impotence the marriage had not been consummated. Consequently there was no substance in this complaint. However, counsel sought to argue (although this was not raised by his Notice of Appeal) that even though the wife's conduct was not ancillary it was sufficiently connected with the cause of action to be material when considering costs. He relied upon Jones v. Mckie and Mersey Docks and Harbour Board(10). In that case the Court of Appeal by a majority refused to interfere with an order depriving the Harbour Board of the costs of successfully contesting an action based upon the negligence of a driver of one of their vehicles, it being held that the driver was not acting in the course of his employment. The trial judge took the view that the laxity of the Board's control of its transport had enabled the driver to take their vehicle on a frolic of his own and that it was contrary to the justice of the matter that the Board should then seek costs against someone who suffered as a result of their laxity. With the utmost respect to the judge of the Court of Passage and to the majority of the Court of Appeal it seems to me that the costs in question were far removed from the conduct considered to be reprehensible and I vastly prefer the dissenting judgment of Russell, L.J. I would, however, be reluctant not to follow the decision of the court if it could not be distinguished. I think it can be distinguished. In that case the damage to the plaintiff might never have been suffered if the Harbour Board had exercised strict control over their drivers. In the present case the "damage" to the wife would have been suffered whatever her conduct after the marriage might have been. Counsel further argued that the wife lengthened the proceedings by the lies which she told. That is true but this aspect of the matter was clearly before the learned trial judge and there is not, in my view, sufficient ground for our interfering with the exercise of his discretion. 34. Next it was submitted that the learned judge was wrong when he said "s.19 of the Legal Aid Ordinance of course applies in this case". I have been unable to understand why it is said that this statement was wrong but, more important, I have been unable to understand why we are asked to concern ourselves with a statement (be it right or wrong) which forms no part of the order appealed against. 35. Finally counsel objected to the husband's having to bear the costs of the attendance of the medical inspectors, on the ground that they were court experts, the whole of whose expenses should be shared. Counsel for the wife pointed out that whereas the inspectors were appointed by consent (which might conceivably justify the order that the costs relative thereto be shared, although the judge might have ordered the husband to pay the whole), it was solely at the insistence of the husband that they were required to attend to give oral evidence: consequently it was right that he should pay the costs of their attendance. We are told the matter is of some importance by reason of the fact that the inspectors have rendered accounts claiming substantial sums for their attendances. It is unfortunate that there has been no direction issued out of the Divorce Registry governing the fees of medical inspectors and I think it is desirable that this omission should be remedied. As it is, I think the fees payable are at the discretion of the Registrar. This, however, does not affect the issue we are called upon to decide. Although reference was made to 0.40 of the Rules of the Supreme Court I do not think its provisions assist us as the inspectors were appointed not under that order but under the Matrimonial Causes Rules 1968. It is the practice of the English Probate Divorce and Admiralty Division that where a medical inspector's report is to be put in evidence at the hearing the inspector must be called as a witness and counsel for the husband relied upon this as indicating that there ought not to be different orders relating to the examination and to the attendance at the hearing. I think there is some force in the argument that it was illogical to make a different order in respect of the attendances from that made in respect of the examinations. The whole purpose of appointing inspectors was that their expert assistance should be made available to the court and the reports, which they were obliged to make, were not such that it was unreasonable for the husband to insist on their being put in evidence for that purpose. However, in my view there was no reason why the wife should not be compensated for the whole of any loss she may reasonably have incurred in proving the non-consummation of the marriage and the impotence of the husband. Had there been a cross-appeal I might have been disposed to the view that the husband should pay the whole costs of the examinations and the preparation of the reports. As it is, I think we should not interfere with the judge's order. 8th December, 1969. (1) 1956 1 W.L.R. 945. (2) 1966 1 All E.R. 524 (3) 1913 P. 198 (4) 1921 P. 399 (5) (1948) 77 C.L.R. 191 (6) 1949 P. 211 (7) 1940 P. 60 (8) 1963 P. 177, 189. (9) (1885) 10 App. Cas. 171, 186. (10) 1964 2 All E.R. 842. |