Ernest Bernard Smith v. Audrey Smith

Case No.HCMP 261/1974

Court

High Court CFI

Date—

Judge—

Case Document

100%Judiciary

HCMP000261/1974

IN THE SUPREME COURT OF HONG KONG

APPELLATE JURISDICTION

MISCELLANEOUS PROCEEDINGS NO. 261 OF 1974

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BETWEEN:
	Ernest Bernard SMITH	Applicant
		(Plaintiff)
	and
	Audrey SMITH	Respondent
		(Defendant)

Coram: Briggs, C.J. and McMullin, J.

Date of Judgment: 5th July, 1974.

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DECISION

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1. This is a notice of motion asking for "leave to appeal from the judgment and order of the Honourable Mr. Justice Pickering in Chambers made on the 18th day of June, 1974 notwithstanding the refusal of such leave by the said the Honourable Mr. Justice Pickering."

2. The parties to the action are husband and wife, the plaintiff being the husband. The statement of claim asks for the specific performance of part of an agreement made between the parties which may be described as a "separation agreement". It also asks for an order that the defendant remove herself and her personal belongings from the dwelling-house occupied by the plaintiff. There is a further prayer for injunctions to restrain the defendant from remaining in the said house and to restrain the defendant from molesting or interfering with the plaintiff in the course of his employment. The plaintiff was granted an injunction ex parte by a judge in Chambers on the 29th May. The order of the judge was that the defendant do remove herself from the house then occupied by herself and the plaintiff. This was coupled with an injunction to restrain her from molesting or interfering with the plaintiff in the course of his employment. This order was expressed to subsist only until the decision upon an inter partes summons. The inter parte summons was heard by Mr. Justice Pickering on the 17th and 18th June, 1974, when it was dismissed with costs. At the time the plaintiff asked for leave to appeal against the order but was refused, hence this notice of motion is brought for leave to appeal from that order.

3. It is unnecessary to apply for leave to appeal to the Full Court in such a case. This is apparent from section 29(1) of the Supreme Court Ordinance which reads as follows:-

"Subject to subsection (3), an appeal shall lie as of right to the Full Court from every judgment, order or decision of the court in any civil cause or action."

4. Section 2 of the Supreme Court Ordinance defines the expression "court" to include a judge sitting in Chambers and "cause" means any action, suit or other original proceeding between a plaintiff and a defendant, while "action" is defined as a civil proceedings commenced by writ or summons or in such other manner as may be prescribed by enactment.

5. The history of this matter is as follows. As is well-known, the Rules of the Supreme Court of Hong Kong closely follow the Rules of the Supreme Court contained in the White Book. Order 58 rule 7 of the White Book deals with appeals from a judge in Chambers. In the Queen's Bench Division an appeal lies to the Court of Appeal as of right. No leave is required. However, in the Chancery Division and the Family Division, it is necessary for leave to be obtained either from a judge or from the Court of Appeal. As there are no divisions of the Supreme Court of Hong Kong, Order 58 rule 7 appeared originally as in the following terms:-

"Subject to section 29 of the Supreme Court Ordinance an appeal shall lie to the Full Court from any judgment, order or decision of a judge in chambers."

This rule, together with rule 6 of Order 58 were deleted by Legal Notice No. 27 of 1970 in view of the fact that in that year certain amendments were made to section 29 of the Supreme Court Ordinance. The general rule now, therefore, is that in all cases in which a right of appeal exists, no leave either from a judge or from the Full Court is necessary for an appeal to the Full Court. There are two exceptions to this. These are contained in section 29(3) of the Supreme Court Ordinance, paragraphs (a), (b), (c) and (d) of which describe the judgments and orders from which no appeal lies. The remaining paragraphs (paragraphs (e) and (f)) read as follows:-

"No appeal shall lie-

	(e)	without the leave of the judge making the order, or of the Full Court, from an order made with consent of the parties or as to costs only which by law are left to the discretion of the court;
	(f)	from a judgment, order or decision of a judge given or made in summarily determining under sub-paragraph (b) or (c) of rule 5(2) of Order 17 of the Rules of the Supreme Court any question at issue in interpleader proceedings, unless leave to appeal is given by the judge or the Full Court:
		Provided that this paragraph shall have no effect in relation to any interpleader issue which is tried by a judge whether with or without a jury.'

The same provisions appear in Order 58 rule 8.

6. The procedure for application to the Full Court for leave to appeal in such a case is contained in Order 59 rule 14. This motion must be dismissed.

Representation: