Wendy Wenta Seng Yuen v. Philip Pak Yiu Yuen

Case No.

Court

Date12 Jun 1984

Judge—

Case Document

100%Judiciary

HCMC000018A/1983

IN THE HIGH COURT OF JUSTICE

1983, No.18

DIVORCE JURISDICTION

BETWEEN

WENDY WENTA SENG YUEN

Petitioner

AND

PHILIP PAK YIU YUEN

Respondent

_________________

Coram: Hon. Power, J.

Dates of Hearing: 18 May 1984

Date of Delivery of Judgment: 12 June 1984

__________

JUDGMENT

__________

1. In this matter Wendy Wenta Seng Yuen is seeking a decree of dissolution of her marriage from the Respondent Philip Pak Yiu Yuen. In an earlier application before me the Petitioner asked that the Defendant be ordered to produce the audited accounts of a partnership Yung, Yu, Yuen & Co., solicitors of which he is a member.

2. I held that where a party seeks to claim protection from production for inspection of a document on the ground that it is not his sole property, then the burden will be on him to justify such ground of protection. I was satisfied that where there was an objection by joint owners of a document and where the Court was satisfied by the Defendant that there was no contrivance to defeat its powers then the Court would refuse to order production for inspection. I stated that I was "satisfied that as regards audited partnership accounts which are relevant to matters in question in an action the party who was a partner must, in order to comply with 0.24, disclose:-

(i)	whether he as the originals of those accounts in his possession;
(ii)	if not, whether he has ever had them in his possession, where they are presently kept and by whom;
(iii)	whether he has had a copy of them in his possession;
(iv)	if not, whether he has ever had a copy in his possession;
(v)	if the answer to (iv) is Yes, where such copy is presently kept and by whom and whether he is entitled to command its return to him;
(vi)	if the answer to (iv) is No, whether copies exist, as to any of which he is entitled to possession;
(vii)	if the partners object to the production of the accounts, what effort he has made to obtain their consent and why such objection is taken."

3. The Respondent has now filed an affidavit in which he says that the partnership accounts are audited and drawn up annually by Messrs. Lowe, Bingham & Matthews and are signed by the partners and by himself. He says that in 1973 the partners came to an oral agreement that the audited accounts would be kept by the accountant firm of Mr. Tang Kam Man and that since that time Mr. Tang has kept the audited accounts. He said that he had never had possession of the audited accounts himself although both he and his partners had access to them and that he had never had any copies or the originals of the audited accounts. He said that he has approached his partners and enquired whether they had any objection to production and all of them objected strongly.

4. There were a number of grounds of objection. The principal one was that the partners objected to their private financial affairs being known to anyone outside the firm and its auditors.

5. The Petitioner has sought further and better particulars of the facts set out in the affidavit. The Petitioner, as I understand it, wishes to challenge both the assertion that he has never had any copy of the documents and does not have such a copy now and his assertion that the partners object to the production of such document.

6. Mr. Rodway for the Petitioner now asks to cross-examine on that affidavit. Mr: Stone for the Respondent resists that application saying that, in the circumstances obtaining, it would not be proper for the Court to make any order under 0.38 r. 2(3). This sub-rule states that where evidence has been given by affidavit, "the Court may, on the application of any party, order the attendance for cross-examination of the person making any such affidavit, and where, after such an order has been made, the person in question does not attend, his affidavit shall not be used as evidence without the leave of the Court."

7. Mr. Stone argues that no order should be made unless special circumstances were shown. He referred to Oriental Pacific Mills Ltd. v. Nan Fung Woollen Mills Ltd. (1965) H.K.L.R. 703, Lawson and Another v. Odhams Press, Ltd. and Others. (1948) 2 All E.R. 717 and Terrapin Ltd. v. Builders' Supply Co. (Hayes) Ltd., Taylor Woodrow Ltd. and Swiftplan Ltd. (1960) R.P.C. 128 as authorities for this proposition. None of these cases are cited in the note to 0.38 r.2 in the white Book nor does the notation anywhere suggest that special circumstances must be established before an order requiring attendance for cross-examination will be made. Both Lawson v. Odhams Press and Terrapin Ltd., v. Builders' Supply Co. are, however, cited elsewhere in the White Book as authorities for propositions unconnected with 0.38 r.2.

8. It was the submission of Mr. Rodway that the three cases referred to were concerned with interlocutory injunctions and that the rule that special circumstances are required is one peculiar to such applications. This submission receives support from a note which appears, at 38/2/3, as follows:-

"Cross examination upon affidavits sworn in applications for interlocutory injunctions is very rare".

9. It is true that Tucker L.J. (in Lawson v. Odhams Press Ltd.), was dealing with the requirement that there must be special circumstances before a deponent in interlocutory proceeding will be required to attend for cross-examination. However it seems clear from his judgment, at 719, that the requirement with which he was dealing is one which is limited to applications for interlocutory injunctions in libel cases:

"	Counsel for the plaintiffs has taken us through the authorities on this point and it is not necessary to refer in detail to then. It has now become a matter of practice, and, possibly, a matter of law, that an interrogatory of this kind will not be allowed to be administered to the proprietor or publisher of a newspaper. I do not think it is necessary to go further than Plymouth Mutual Co-operative and Industrial Society, Ltd. v. Traders' Publishing Association, Ltd. (1906) 1 K.B. 403. In that case Vaughan Williams, L.J., after referring to Hennessy v. Wright (1888) 24 Q.B.D. 445 and Hope v. Brash (1897) 2 Q.B. 188 and quoting from them, said (1906) 1 K.B. 415:-
	'	It seems to me that under these circumstances the question which we have to ask ourselves is whether there are any special circumstances in this case which would justify a departure from the general rule of practice as to not compelling the disclosure of the names of the persons who supplied the information on which the alleged libel was based incases of this kind, where the proprietors of a newspaper or other periodical publication set up a defence such as is here pleaded. I do not find any such special circumstances in this case.'

That is, as Vaughan Williams, L.J. said, the general rule of practice which had sprung up by 1906 and which was prevailed ever since."

10. Terrapin Ltd. v. Builders' Supply Co. (Hayes) Ltd., Taylor Woodrow Ltd., and Swiftplan Ltd. was another case in which interlocutory injunction was being sought. It is true that in this case the Court of appeal indicated that it was proper to make an order for cross-examination of a witness only because there had been, in the words of Lord Eurished M.R., at 133, "very special circumstances" and that the narrow rule of practice, upon which the decision in Lawson v. Odhams Press, Ltd. rested, was not relied upon.

11. Sellers L.J., however, in the following the passage, at 144, which was cited by Scholes J. in the Oriental Pacific Mills Ltd. case, made it plain that the Court was only concerned with the propriety of requiring the attendance of a witness for cross-examination when it was being asked so to order in an application for an interlocutory injunction:

"What must be concluded on such an application (an application for an interlocutory injunction), as I apprehend it, is whether the Plaintiffs make out a prima facie application for relief. That depends on a number of circumstances which I will not enumerate fully, but it would depend on whether any conduct on their part or delay or such ground would or would not justify such interlocutory relief, and more particularly whether their case on the face of it appears to be one which has a reasonable chance of success. Unless the Judge gets as far as that, that the case has a reasonable chance of success, I apprehend he would not go on to consider any interlocutory relief. But if the evidence is sufficient, as it clearly was sufficient in this case, to say that the Plaintiffs had an apparent good cause of action so that interlocutory relief could be considered, that is as far as it is necessary to go without making more precise affirmative findings which are germane to the main action." (The words in brackets are mine)

The above authorities establish:

	(i)	that where an interlocutory injunction is sought in a libel action against the proprietor of a newspaper, there is a general rule of practice requiring that special circumstances be shown before a witness will be ordered to appear for cross-examination as to the names of the persons who supplied the information upon which the alleged libel was based;
	(ii)	that, generally, in cases where an interlocutory injunction is being sought the Court will not, unless some special circumstances are shown, be prepared to order attendance for cross-examination of a deponent where that will entail the canvassing of matters that will be in issue at the trial of the action.

12. I am satisfied that the requirement as to special circumstances is not one of general application when the Court is called upon to decide whether or not a witness should be ordered to attend for cross-examination under 0.38 r.2.

13. The Court will, however, examine any request for attendance for cross-examination with care and will, bearing in mind the unnecessary expense and delay that will be caused if cross-examination is allowed in interlocutory proceedings on matters that should properly be canvassed at the hearing of the action, refuse to make any such order unless good reason is shown therefor.

14. Mr. Stone suggested that the application to cross-examine was being made so that a general attack canvassing wide issues could be made upon the Respondent. He suggested that what the Petitioner was seeking was the opportunity to cross-examine the husband at large about financial matters and to canvass questions which should properly be dealt with at the hearing of the action. Mr. Rodway strongly denied that this was so and I am not prepared to accord any weight to this suggestion.

15. The Petitioner has made it plain that she desires to see the audited partnership accounts so that an assessment can be made with regard to the ancillary relief she is claiming. These accounts are relevant in those proceedings and will clearly be of assistance to the Petitioner when formulating her claim. This is information which the Respondent will eventually have to disclose and I see no reason to doubt her bona fides when she says that she wants this information as early formulate as possible so as to be able to properly formulate her claim.

16. Mr. Rodway pointed out

	(i)	that this was not cross-examination upon any issue in the trial but was cross-examination to determine whether or not objection was properly being taken to the production of a document.
	(ii)	that this was a self-contained application and that, if the Court refused it, the Petitioner would, whether or not she might obtain the document or knowledge of its content in some other way, be prevented from obtaining the document at this stage of the action by way of discovery.
	(iii)	that although it was made clear at the time of the original hearing that the bona fides of the partner's objection was a matter in issue the only evidence the Respondent has seen fit to place before the Court in this regard was the evidence from himself.

17. Mr. Rodway referred particularly to the note at 38/2/3 where it reads:-

"Where there is a question of motive or a good faith of deponent, the Court ought not to be asked to act without cross-examination".

18. Mr Rodway relied upon Comet Products v. Hawkex Plastics (1971) 1 All E.R. 1141. In that matter Megaw L.J. said at 1146: -

"In general I think that in interlocutory proceedings, where there is a bona fide application to cross-examine a deponent on his affidavit, that application should normally be granted".

19. He also referred to the statement by Cross L.J. at 1147 where he said:-

"It is, I think, only in a very exceptional case that a judge ought to refuse an application to cross-examine a deponent on his affidavit".

20. Mr. Rodway also relied upon Re Smith and Fawcett (1942) Ch 304. In that case Lord Greene M.R. at 308 said:-

"If it is desired to charge a deponent with having given an account of his motives and his reasons which is not the true account, then the person on whom the burden of proof lies should take the ordinary and obvious course of requiring the deponent to submit himself to cross-examination."

21. This passage is significant as it refers to cross examination of a deponent as an "ordinary and obvious course".

22. In the present circumstances an application is being made to cross-examine a deponent to test his good faith as regards facts sworn to in an affidavit made to resist an application for discovery a matrimonial proceeding. The cross-examination will not involve the canvassing of matters that will be in issue in the trial of the action. I am satisfied that it is proper to order the deponent to attend for cross-examination. I make an order nisi reserving the costs of the application.

	(N.P Power)
	Judge of the High Court

Representation:

Mr. Rodway Q.C. with Mrs. Penlington (Helen A. & Lo Co.) for Petitioner.

Mr. William Stone (Yu, Tsang, Loong) for Respondent.