Wong Kwok Lin v. Wong Ho

FCMC000364/1981

IN THE DISTRICT COURT OF HONG KONG

HOLDEN AT VICTORIA

DIVORCE JURISDICTION

ACTION NO. 364 OF 1981

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Coram: H.H. Judge Bokhary (in Chambers)

Date of Judgment: 12th August, 1981.

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JUDGMENT

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1. This case raises for consideration the correct procedure to be followed when the parties to a marriage become reconciled after the service of the petition and the orders as to costs which are generally appropriate in such situations. These are matters of considerable importance as they go not only to the saving of time and money but also to avoiding the creation of the sort of tension which might jeopardise the reconciliation. The present case is one of two cases calling for consideration of these matters which came before me today (the other being the cause the reference to the record whereof is VDJ 364 of 1981). In all the circumstances, I readily accede to Mr. Day's suggestion that I provide some guidance thereon to Solicitors.

2. The relevant facts are within small compass. On February 26. 1981, only one day after the presentation of her petition for divorce, the wife obtained ex parte orders restraining her husband from molesting her or the children of the family, excluding him from the matrimonial home and granting her interim custody of the children.

3. The husband moved out of the matrimonial home in compliance with the ex parte injunction directing him so to do. However, by the time the inter partes application was heard on March 19, 1981, he had moved back in and the wife was content that he remain. All that she wanted was a continuation until trial or further order of the injunction against molestation and the costs of the inter partes application. The husband, who appeared in person, indicated that he had nothing to say. This injunction was continued as asked and the wife was awarded the costs which she sought.

4. Happily, the parties have become reconciled. The wife no longer wants a diverce. On May 11, 1981, following this reconciliation and change of heart, her legal aid certificate was duly discharged.

5. With a view to tying up the loose ends, so to speak, the wife's solicitors took out a summons on July 22, 1981, seeking an order that this cause be discontinued and that the husband be ordered to pay the costs thereof to be taxed (there having been no order as to the same save for the costs of the inter partes application to which I have referred).

6. Despite being duly served with the summons of July 22, 1981, and the Affidavit in support thereof, the husband has failed to appear. However, the very sensible way in which Mr. Day, who appeared for the wife, approached today's application has avoided the difficulties which might have arisen out of such failure.

7. First, I will deal with the application to bring this cause to an end, to use a neutral expression.

8. Ultimately, the fate of a petition for divorce is either to be successful or to be dismissed. A petition which is subject to a stay is, of course, not finally disposed of until it has been dismissed: see 'Rayden on Divorce', 13th edition (1979) at p. 382. Dismissal is also the ultimate fate of an abandoned petition: Ibid. at p. 369. It has long been established that a petition cannot be withdrawn : see Ryder v. Ryder (1861), 30 L.J. (P.M. & A.) 164. This is because once filed, a petition remains upon the file of the Court - and this is so whether it is stayed, abandoned, dismissed or successful: see Brocas v. Brocas (1861), 2 Sw. & Tr. 383. Although petitions which are not prosecuted following a reconciliation are quite often spoken of as having been 'withdrawn' this is technically incorrect : See 13 Halsbury (4th edition) at p. 428, para. 906, where the term is also put within inverted commas.

9. I come now to discontinuance - which is what is asked for in the summons before me. Discontinuance is never the ultimate fate of a petition. It is merely a step which can bring about dismissal in certain circumstances. Rule 7 of the Matrimonial Causes Rules provides : 'Before a petition is served on any person, the petitioner may file a notice of discontinuance and the cause shall thereupon stand dismissed'. Two further points are to be noted : first, the discontinuance itself does not require any order of the Court; and, secondly, discontinuance is only available before service of the petition. In the present case, the petition has been served. Accordingly, recourse cannot be had to rule 7.

10. What then is the proper course to taken in cases such as the present? It is for the petitioner to give the respondent notice before trial that the petition will not be proceeded with and to then apply for dismissal of the petition. This form of procedure has long been in existence: see Lutwyche v. Lutwyche and Cox (1859), 28 L.J. (P. & M.) 56; Ryder v. Ryder (supra); Hall v. Hall and Richardson (1879), 48 L.J. (P.) 57 and Troward v. Troward (1884) 32 W.R. 864. The notice in question is sometimes referred to as a notice that the petition will not be proceeded with (as I have done and as it is referred to in Halsbury (supra) at p. 372, para. 766) and sometimes as a notice of abandonment (as it is referred to in 'Rayden' (supra) at p. 575). Either term is obviously acceptable.

11. The application for dismissal itself is, by reason of rule 114 of the Matrimonial Causes Rules, made to a registrar by summons.

12. In light of these considerations, Mr. Day very properly refrained from pursuing the application for an order that this cause be discontinued. This set-back, if it be a set-back, ought not to be more than a temporary one. What I anticipate will now be done is that the wife's solicitors will now formally serve the husband with a notice that the petition will not be proceeded with and then take out a summons returnable before a registrar asking for an order that the petition be dismissed and for no order as to costs save for an order that the wife's costs of and incidental to the summons itself be taxed under the Legal Aid Regulations and on the Upper Scale. In the circumstances, I would have thought that the husband would be happy to indorse his consent on such summons. While I must not anticipate the learned Registrar before whom such a consent summons comes, I would expect that he would quite naturally regard it as appropriate to grant such orders for dismissal and taxation without the trouble and expense of attendance by or on behalf of either party.

13. If the husband had appeared today and had indicated that he waived any further notice that the petition would not be proceeded with and was agreeable to the petition being dismissed, I would have acceded to an application by the wife to dismiss her petition there and then. This is what happened in the other case before me today to which I have made mention. Naturally, I am keen to save time and money and to remove unpleasant reminders of a less happy stage of this marriage as soon as possible.

14. The other order asked for in the summons in this cause before me today was, as I have said, an order that the husband pay the costs of this suit (in so far as he has not already been ordered to pay them). Mr. Day refrained from pressing for such an order as to costs. In my view this was very wise and proper. The allegations against the husband have not been finally adjudicated upon. The grant of the interlocutory injunctions to which I have referred is in no way predicated upon any of those allegations being true. All it involves is the learned Judge's view that the truth or otherwise of such allegations constituted a serious question to be tried. Indeed, even before the landmark decision of the House of Lords in American Cyonomid Co. v. Ethicon Ltd. [1975] A.C. 396, the grant would not have implied any more than that a prima facie case that the husband had so behaved had been made out.

15. Such an order for costs against the husband might bring about a feeling of bitterness which could lead to another rift between the parties. Quite apart from anything else, further proceedings could cost the taxpayer a lot.

16. In my view, it would not have been right to make order for costs asked for in the summons before me today. The order for costs made against the husband by the learned Judge who heard the inter partes application is not within my province to question let alone disturb. It was made upon it being asked for and upon the husband, who was in person, indicating that he had nothing to say, Such an order is in accord with a long-standing practice in the Chancery Division, the rationale of which practice is, I confess, no more clear to me than it is to the learned editors of 'the 1979 White Book' as they express themselves at in note 29/1/19 at p. 478 thereof. The Courts have been, as they point out there, showing an increasing willingness to depart from that practice. In any event, I am satisfied that nothing about that order for costs forms any basis for me to award further costs against the husband. There should, of course, be an order for taxation. The order I make in this regard is that the wife's costs of this suit, in so far as no order for taxation have been made as to the same, be taxed under the Legal Aid Regulations and on the Upper Scale.

Representation:

Mr. A.H. Day of Day & Co. for the wife.

The husband absent.