Ioanna Maria Fairbairn v. Martin Douglas Fairbairn

HCMP000661/1980

Privy Council - Appeal - application for leave - order for maintenance in matrimonial proceedings - periodical payments and lump sum - lump sum expressed to be "in the mean time" - leave to appeal to Court of Appeal refused on ground of delay - that refusal not a final judgment - amount in issue not exceeding $200,000 - matter in dispute personal to Applicant and not of any, let alone of great, public importance - application dismissed.

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Coram: Huggins and McMullin, JJ.A., and Garcia, J.

Date of Judgment: 26 September 1980

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JUDGMENT

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Huggins, J.A.:

1. This is an application for leave to appeal to the Privy Council against the refusal by this court of leave to appeal to this court from a decision of Cons, J. given on 9th May 1979. The matter before Cons, J. was an application for ancillary relief in matrimonial proceedings and, in particular, in relation to the provision to be made for the wife and child of the Petitioner.

2. The learned judge on that occasion made an order, inter alia, providing for periodical payments of $9,000 a month, a lump sum of $10,000 and an additional monthly payment equal to the rent presently charged by the hotel where the Respondent was then living. This last payment was expressed to be "in the mean time" and it was clearly in the contemplation of the judge and of the parties that there would be a subsequent application to vary this order and that provision would be made for a lump sum payment so that a flat or other accommodation could be provided for the Respondent and the child.

3. The Applicant before us complains that she was ill-served by her professional representatives and that the evidence put before Cons, J. was not as full and as accurate as it ought to have been. The ground upon which leave to appeal to the Court of Appeal was refused was that the Applicant had delayed for over a year in bringing an appeal and that the delay had not been sufficiently explained. That, and that alone, was the reason for the refusal of leave.

4. The question is, first of all, whether we are compelled to give leave to appeal to the Privy Council under the Order in Council regulating appeals from Hong Kong. In my view the Applicant does not bring herself within r. 2(a), which is the provision which gives an absolute right of appeal in specified circumstances. It was not a "final judgment" which was given in July by this court, and it is only where the appeal is both an appeal from a final judgment and where the matter in dispute exceeds $200,000 that an appeal as of right exists. Even if this were a final judgment, I am not persuaded that the amount in dispute does exceed $200,000. I accept Mr. Rodway's approach, which is that the matter in issue at the moment is nothing more than $1,000 a month and that, on that basis, clearly the figure is not within this paragraph.

5. We then have to consider whether this is a case which comes within para. (b), in respect of which we have a discretion, but it is a discretion to be exercised judicially and only where the question involved in the appeal is one which, by reason of its great general or public importance or otherwise, ought to be submitted Her Majesty in Council for decision. I am very far from persuaded that this comes within those words. The matter in dispute is personal to the Applicant: it in no way involves any matter of law or fact which is of general public importance, let alone of great general public importance. What, in fact, the Applicant is complaining about is the manner in which she has been treated by her representatives, and, in particular, she complains of the treatment she has received from the Legal Aid Department. I make no comment, one way or the other, about her complaint, but that is not a matter in issue in the appeal and for that reason she cannot bring herself within para. (b).

6. We are not here concerned directly with the correctness of the decision against which it is sought to appeal. It would have been a factor under para. (b): if we thought that the decision were wrong, we might have been more inclined to grant leave if the case came within para. (b) at all. For my part, I have heard nothing in the course of a very long submission to us which leads me to believe that the decision of the other division of this court which refused leave to appeal was wrong. Be that as it may, in my view this application must be dismissed.

McMullin, J.A.:

7. I agree. Nothing that has been said this afternoon has persuaded me that Mrs. Fairbairn has succeeded in bringing her application within the provisions of either para. (a) or (b) of the rule. I also would dismiss the application.

Garcia, J.:

8. I agree and I have nothing further to add to what has been said. This application should be dismissed.

26th September 1980.