Lo Kwan Wai-ching, Marilyn v. Lo Kwong-hi and Another
Read the full judgment text of FCMC 186/1974 on BabelCite. This Family Court judgment before Jones, D.J..
Divorce – Ancillary relief – Registrar’s decision – Appeal jurisdiction – Matrimonial Causes Rules – Whether District Court has jurisdiction to hear appeal from registrar – Appeal transferred to Supreme Court – No order as to costs
Legal issues: Jurisdiction to hear appeal
Outcome: Appeal transferred to Supreme Court; District Judge holds no jurisdiction.
|
FCMC000186/1974 IN THE DISTRICT COURT OF HONG KONG HOLDEN AT VICTORIA DIVORCE JURISDICTION ACTION NO. 186 OF 1974 -----------------
----------------- Coram: Jones, D.J. in Chambers. Date of Judgment: 4th January, 1975. ----------------- RULING ----------------- 1. On the 17th August 1974 I granted a decree nisi to the Petitioner in an undefended petition for divorce on the fact of behaviour pursuant to Section 11A(1)(b) of the Matrimonial Causes Ordinance. By a separate order made at the hearing of the divorce the matters of ancillary relief claimed in the petition were referred to the registrar, Supreme Court in Chambers. This reference to the registrar Supreme Court was made in his capacity as registrar of the District Court by virtue of S.14(4) of the District Court Ordinance. At this stage no answer had been filed by the 1st respondent. 2. Rule 49 of the Matrimonial Causes Rules provides inter alia that a respondent shall not without filing an answer be heard on any question of ancillary relief. When an answer is filed, the proceedings will by order of the registrar be transferred to the Supreme Court under Rule 18(5) of the Matrimonial Causes Rules. 3. The petitioner's solicitors filed a Notice of Intention to Proceed with the application for ancillary relief on the 25th November 1974 following which the petitioner and the 1st respondent filed affidavits of means. However no answer as required by Rule 49 was filed by the 1st respondent. At the hearing of the application before Mr. Registrar Barnes on the 2nd December 1974 various orders were made in favour of the petitioner. 4. On the 11th December 1974 the 1st respondent lodged a notice of appeal against the decision of the registrar which came before a judge of the Supreme Court in Chambers on the 20th December 1974. Having regard to Rule 116(1) of the Matrimonial Causes Rules the learned judge referred the appeal to a District Judge on the grounds that an appeal from the registrar of the District Court necessarily lies to a judge of that Court, and not to a judge of the Supreme Court. 5. Although an answer was not filed to the claim for ancillary relief it appears that the registrar accepted that he had jurisdiction by treating the 1st respondent's affidavit of means as an answer. In this event the registrar would be acting in his capacity as a registrar of the Supreme Court with the result that any appeal will lie to a judge of the Supreme Court in Chambers by virtue of Order 58 rule 1(1) of the Rules of the Supreme Court. On the assumption that the 1st respondent's affidavit of means was accepted as an answer for the purposes of the application for ancillary relief which would have debarred the 1st respondent from being heard if this had not been the case, upon its filing the cause should have been transferred to the Supreme Cour. However, I consider that the omission to carry out the necessary mechanics for a formal transfer can be cured without too much difficulty. 6. Accordingly for the reasons that I have given I hold that I have no jurisdiction to hear the 1st respondent's appeal. The appeal is therefore transferred for hearing to a judge of the Supreme Court. 7. There will be no order as to costs. 8. Dated 4th day of January, 1975.
Representation: Miss Leung of P.H.Sin & Co., for petitioner Respondent in person |