Mioko Sakurada Louvet v. Louis Aristide Charles Louvet and Another

HCMP000379A/1989

M P NO 379 OF 1989

ON APPEAL FROM

(1) H.C.D.J. NO. 5 OF 1988

(2) formerly D.C.D.J. NO. 4248 OF 1988

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BETWEEN

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Coram: Hon. Kempster, Hunter & Macdougall, JJ.A.

Date of hearing: 6 June 1989

Date of Judgment: 6 June 1989

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J U D G M E N T

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Kempster, JA :

1. On 21 February 1989 a respondent husband, in what had become High Court Domestic Proceedings No 5 of 1988, issued an originating motion of which the distinctive number was MP No 379 of 1988. On the following day, following the direction of my lord Macdougall JA, he went on to issue a summons for hearing in this Court seeking extension of the time within which he might seek leave to appeal, and such leave, against an order made by Judge Blackwell on 12 December 1988 dismissing his application for a stay of the divorce proceedings which his wife had instituted in the District Court on 12 September of that year. On 10 May, by a majority, this court extended time and granted leave to appeal. Now the petitioning wife seeks leave to appeal to Her Majesty in Council against such order.

2. The material rule of the Order in Council governing appeals form the Colony of Hong Kong, being SR & O No 2059 of 1957, reads :

"2. Subject to the provisions of these Rules, an Appeal shall lie -

(a) as of right, from any final judgment of the Court, where the matter in dispute on the Appeal amounts to of is of the value of $500,000 or upwards, or where the Appeal involves, directly or indirectly, some claim or question to or respecting property or some civil right amounting to or of the value of $500,00(or upwards; and

(b)    at the discretion of the Court, from any other judgment of the Court, whether final or interlocutory, if, in the opinion of the Court, the question involved in the Appeal is one which, by reason of its great general or public importance, or otherwise, ought to be submitted to His Majesty in Council for decision".

3. Having regard to the way the application has been argued before us today three questions arise. The first is whether or not the judgment of 10 May 1989 was "final" bearing in mind that by rule 1 "judgment" includes decree, order, sentence or decision.

4. I would say at once that insofar as Miscellaneous proceedings NO 379 of 1989 are to be regarded in isolation the judgment of this Court concluded them and was final. However, I am not prepared so to regard them without reference to the suit upon which they depended in parasitic form. The issue of the Originating Motion, described as Miscellaneous Proceedings, was no more than a procedural means to secure the decision of this Court as provided by section 63 of the District Court Ordinance. I am fortified in this view by the analogies provided by RSC O 73 r 2 in the context of arbitration.

5. Generally speaking we look for guidance as to our approach to the Judicial Committee and two cases fall for consideration. Gladys Becker v Marion City Corporation [1977] AC 271 and Haron Bin mold Zaid v Central Securities [1983] AC 16. In the first the Supreme Court of South Australia had refused the appellant a declaration that she was entitled to require the corporation of the City of Marion to examine a plan for the subdivision of her land and to report thereon to the Director of Planning. Subsequently they also refused the appellant leave to appeal to t Board. By special leave she appealed against such refusal contending, on the basis of rule 2 of Order in Council SR & O No 202 of 1909, which was in like terms to our own, that she was entitled to appeal as of right. The Bard held that, as the judgment refusing her claim for a declaration had conclusively determined t she was not entitled to have her plan considered, it was final.

6. In the second case the Board held that in the absence of any clear misconstruction of relevant legislation the question of whether an order was final or interlocutory was a matter for the Federal Court of Malaysia to decide in accordance with its own practice and procedure. The approach adopted by that court, which was approved, had been formulated by Lord Alverstone LJ in Bozson v Altrincham UDC [1903] 1 KB 547 at pp 548-549 in these words :

"Does the judgment or order, as made, finally dispose of the rights of the parties? If it does, them I think it ought to be treated as a final order; but if it does not, it is then, in my opinion, an interlocutory order".

Neither parity of reasoning nor other authority leads me to the conclusion that the determination by this Court that, despite long delay, the respondent husband should have leave to argue that the domestic proceedings initiated by his wife should be stayed determined the issues or their respective rights in the suit between them or was "final". The exercise of a discretion to extend time and to grant leave to appeal, involving a procedure antecedent to that for the actual determination of the question whether or not there should be a stay could, in my opinion, hardly be more interlocutory in its nature.

7. If my conclusion as to finality is correct the second question which arises namely whether or not the proposed appeal involves, directly or indirectly, some claim or question to or respecting a civil right amounting to or of the value of HK$500,000 or upwards, is academic. I am none the less quite prepared to find, and I do, that an expectation that HK$500,000 or more will be recovered on taxation if the appeal fails does not constitute a civil right to that sum. The value of the petitioning wife's right to tax pursuant to the order for costs made in her favour on 12 December 1988, which is to be ruled on by this Court, is inchoate. Were we to find otherwise we should, in effect, be challenging the decision of the Judicial Committee in Nana Atta Karinkari v Nana Owane Agyekum II [1955] AC 640.

8. The third and final question arising is whether the matters sought to be canvassed in London or any of them ought to be submitted to Her Majesty in Council for decision by reason of great general or public importance or otherwise. If we are not so satisfied there will be no basis upon which we can exercise a discretion in the petitioning wife's favour. Since the division of this Court hearing the application in the Adhiguna Meranti Case [1988] 1 HKLR 410, was concerned with an extention of time for meeting a condition already imposed at the time when leave to appeal to the Privy Council had been granted I cannot think that the merits of an isolated exercise of discretion in an interlocutory context came into the required category so as to warrant the attention of the Board; difficult as it may be to advise with assurance how a Court will act in any particular circumstances.

9. Mr Allman-Brown for the respondent husband has drawn our attention to the rule in Lane v Esdaile [1891] AC 210 but, in the circumstances, I do not find it necessary to determine whether or not the terms of rule 2 of the Order in Council are properly to be equated with those of section 3 of the Appellate Jurisdiction Act 1876.

10. I would dismiss this application.

Hunter, JA :

11. I agree that this application falls to be dismissed for the reasons given by my lord. It seems to me quite impossible to separate Miscellaneous Proceedings No 379 from the underlying suit. The lis here between the parties is whether particular matrimonial proceedings in Hong Kong ought to be stayed. No part of that lis has yet been finally determined. "Miscellaneous proceedings" were simply the means by which a particular matter could be brought before this Court for the purposes of obtaining what I equally agree is an interlocutory order. Likewise the applicant can derive no comfort from the order for costs she has obtained below. On authority it seems to me not relevant to the value for the purposes of sub-rule 2(a) and equally plainly, in my judgment, it does not constitute a civil right within the meaning of the same sub-rule.

12. As far as the discretion of this Court is concerned, upon the basis that this was an interlocutory order, it seems to me that the Court properly had regard to all the relevant matters at the hearing. The members were divided upon a narrow exercise of discretion. I can see no point of great general or public importance involved.

Macdougall, JA :

13. I agree with a11 that my lords have said. I too would dismiss this application.

Representation:

Mr Allman - Brown, Haldane, Midgley and Booth for Respondent/First Respondent

Mr Ian Payne and Miss Van der Eb, Hampton, Winter and Glynn for Applicant/Petitioner