Lpk v. Sh and Another
Read the full judgment text of FCMC 14402/2011 on BabelCite. This Family Court judgment was delivered on 13 June 2012 before Deputy District Judge G. Own.
Matrimonial causes – FDR hearing – recusal – procedural fairness – Practice Directions 15.11 – 11 October 2011 hearing – 14 October 2011 hearing – Consent Order – whether hearings constituted FDR – whether FDR concluded – recusal application dismissed – costs order – sealing of exhibits
Legal issues: Whether hearings were FDR hearings · Whether FDR hearings concluded
Outcome: Recusal application dismissed
Cites 2 cases
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FCMC 14402 / 2011 IN THE DISTRICT COURT OF THE HONG KONG SPECIAL ADMINISTRATIVE REGION MATRIMONIAL CAUSES NUMBER 14402 OF 2011 ---------------------------- BETWEEN
---------------------------- Coram: Before Deputy District Judge G. Own in Chambers Date of Hearing: 14 May 2012 Date of Decision: 13 June 2012 ____________________________ REASONS FOR DECISION (R E C U S A L) ____________________________ Introduction 1.This is the 1st Respondent’s application for me to recuse myself from participation in any further hearing of the suit on the ground that continued participation compromises the fairness of these proceedings. The Summons was issued on 17 November 2011. 2.The 1st Respondent by his 4th Affirmation affirmed in Taiwan on 28 November 2011 (and filed on 29 November 2011) sets out the grounds of application with the following exhibits :-
3.The Petitioner filed her 12th Affirmation in Reply on 8 December 2011 in response to the 1st Respondent’s 4th Affirmation in Opposition. 4.The Solicitor for the 1st Respondent filed her 3rd Affirmation dated 21 December 2011 exhibiting thereto “CWSV3-1” copy transcripts of the hearings on 11 October and 14 October 2011. 5.All the exhibits attached to in the above Affirmations referred to or connected with proceedings under FCMC No.11930 of 2010 (“FCMC 11930/10”) which, by a Consent Order dated 14 October 2011 granted therein (of which the relevant parts of it I have recited below), stand dismissed upon a decree absolute being granted in the present proceedings. It was also part of that Order that all documents, pleadings filed in FCMC 11930/10 shall stand as if they had been filed in these proceedings. 6.With due respect to the Solicitor for the 1st Respondent, I do not see the logic for her to produce full transcripts of the hearings on 11 and 14 October 2011 in FCMC 11930/10 by way of an exhibit to her 3rd Affirmation. Further, the disclosure of those Notes prepared by Counsels for FDR hearing by way of exhibits to the 1st Respondent’s 4th Affirmation also seem to be uncommon. The 1st Respondent’s present contention for recusal being that the FDR had already taken place at the 11 October hearing. Had that been the contention, they should not be disclosing those exhibits which, in the event a finding that FDR had taken place, would put them in the position of a breach of confidentiality. Therefore, irrespective of my decision on this recusal application, I direct exhibits “SH4-1”, “SH4-2”, “SH4-3” and “CWSV3-1” referred to above be sealed and not to be seen by the trial judge. 7.There is no application by the 1st Respondent’s solicitors for directions on sealing those exhibits nor the filing of the 3rd Affirmation of the Solicitors for the 1st Respondent was filed with the leave of the Court. 8.In this Reasons of Decision, I will only refer to the relevant parts of the transcripts (by their paragraph and page numbers and in italics) and not reciting the contents of it. I will, however, recite those parts of the transcripts as to discussion within the hearing only when it is absolutely necessary to do so for this decision on recusal but not any further than that. Background 9.The Petitioner started the FCMC 11930/10 divorce suit on 13 September 2010 relying on the fact of “Unreasonable Behaviour”. The 1st Respondent filed an Answer dated 3 November 2010 (“the Answer”), under protest as to jurisdiction of this Court, he sought a dismissal of the Petition. There are parallel divorce proceedings in Taiwan commenced by the 1st Respondent seeking dissolution of marriage with the Petitioner. There are also other proceedings commenced by the 2nd Respondent against the 1st Respondent in Taiwan over ownership of certain properties in Taiwan which have to be decided in Hong Kong as part of the Petitioner’s ancillary reliefs claim in these matrimonial proceedings. 10.Suffice at this stage and for the present application to say that, following the 1st Respondent not contesting the jurisdiction of the Hong Kong courts, there are Orders granted by this Court on 28 July 2011 on maintenance pending suit against the 1st Respondent and injunctive orders against both the 1st and 2nd Respondents under FCMC 11930/10 (“July injunctions”). Besides, there are also separate proceedings under FCMP 237 of 2011 taken out by the Petitioner seeking an order for committal for contempt against the 2nd Respondent for breach of the July injunctions. The committal proceedings under FCMP 237 of 2011 were heard and dismissed by this Court on 5 April 2012 with full reasons given. 11.On 4 July 2011, a Consent Order was granted under FCMC 11930/10 on the following, inter alia :-
12.On 30 September 2011, the Petitioner issued an ex parte summons on notice under FCMC 11930/10 seeking further injunctive reliefs against the 1st and 2nd Respondents compelling compliance with the July injunctions. The Petitioner also sought leave to endorse penal notice on the July injunction orders which had not been so endorsed. The ex parte summons on notice was heard on 3 October 2011 (“October injunction”) and directions were granted for issuing an inter parte summons on 4 October 2011 by 4 p.m. With a view to save costs and time, the inter parte summons was made returnable to be heard 8 days later at the same date and time as the FDR scheduled to take place on 11 October 2011. 13.On 11 October 2011, all parties agreed to an adjournment to 14 October 2011 at 4:00 p.m. 14.On 13 October 2011, the Petitioner issued a further Summons seeking an order to strike out the 1st Respondent’s Answer. This Summons was fixed for hearing the following date on 14 October 2011 also at 4:00 p.m. 15.On 14 October 2011, the 1st Respondent issued a Summons seeking leave to amend his Answer. This Summons was fixed for hearing on 2 December 2011. 16.At the conclusion of the hearing on 14 October 2011, after a rather lengthy discussion between all Counsels late in the afternoon, the following terms are agreed. A Consent Order was granted (“1st Consent Order”) on the following, inter alia :-
17.Besides, all parties also agreed on the following. Another Consent Order was granted (“2nd Consent Order”) at the same time on the following, inter alia :-
18.On 17 October 2011, pursuant to the 1st Consent Order, the Petitioner filed the present Petition under FCMC 14402/11 relying on the fact of “One Year Separation and Consent”. 19.On 21 October 2011, the Petitioner issued a Notice of Application for Ancillary Reliefs (Form 25) under FCMC 11930/10. Practice Directions 15.11 20.Under Paragraph 8 of Practice Directions 15.11 :
The Issues 21.There are 2 main issues to be determined :-
The 11 October hearing 22.Although the hearing was scheduled for 2 hours to start at 2:30 p.m., it actually started 1 ½ hours late at 3:59 p.m. (see I at page 1). This was due to the parties before the hearing discussed amongst themselves on various matters. The hearing started at 3:59 p.m. and ended at 4:28 p.m. (i.e. lasted about 29 minutes only) (see R at page 19). 23.At the outset of the hearing, Counsel Miss Remedios for the Petitioner submitted the October injunction which was listed inter parties had to go first and before the scheduled FDR hearing. She sought to adjourn the initially scheduled FDR hearing to take place after the October injunction. Miss Remedios rightly pointed out the practical difficulties involved if it was the other way round. However, it was then submitted by her that fortunately the parties had some form of general agreement that the October injunction was to continue until the hearing of the appeal against the July injunction orders. The appeal was scheduled to be heard on 2 December 2011 (see P to S at page 1, A to D at page 2). 24.The 11 October hearing was then proceeded along focusing upon the 2nd Respondent’s intention to file affirmation evidence from his Taiwan lawyer, reference to different paragraphs of a signed Affirmation of the 2nd Respondent already filed under the FCMP 237/2011 committal proceedings (see P at page 2 up to T at page 3). 25.This Court did express concern to the parties about adjourning the FDR pending resolution of the July injunction (see O to P and T to U at page 4); in particular, there is a Maintenance Pending Suit Order continuing against the 1st Respondent (see D to E at page 7). Miss Remedios informed the Court that some element of breakthrough had arrived between Counsels and she proposed to be back to Court a few days later on 14 October 2011 on some outstanding issues (see T to U at page 7; see B to C at page 8). 26.The hearing then went further along on procedural aspect over the 1st Respondent’s Answer (un-amended) being in place and the way forward as to how the divorce can be proceeded further as an uncontested divorce. There was suggestion of a fresh divorce petition to be filed (see H to U at page 9). 27.Mr. Clough, Counsel for the 1st Respondent, made submissions to the Court which, regrettably, I have to recite them as follows :-
28.The hearing then went on as follows :-
29.Towards the end of the hearing, the following was said :-
The 14 October hearing 30.The hearing was scheduled for 4 p.m. It only started at 4:28 p.m. Before Miss Remedios made any of her submissions, Mr. Clough took the first available chance to start addressing me on matters of procedure. He expressed concern of having already updated me with his client’s position on terms of without prejudice negotiations and the fact that the 2nd Respondent was also invited to attend this hearing, yet Miss Remedios in her earlier note of 10 October (produced under exhibit “SH4-2”) said the hearing before this Court was not the FDR. He further submitted that this Court required the 2nd Respondent attendance on 14 October 2011 implicitly accepted there was to be a settlement. 31.Mr. Clough went further to submit that in relation to the pending Summonses, namely, the Petitioner’s Summons for an expedited Decree Absolute and the 1st Respondent’s Application for variation of Maintenance Pending Suit, I was somehow being functus officio since I had assumed the role of an FDR Judge. Mr. Clough also submitted on the Petitioner’s ex parte summons on notice seeking the October injunction was made without urgency; to further proceed by seeking a mandatory injunction by an ex parte summons on notice returnable at the FDR hearing was absolutely wrong in basic principle. Mr. Clough also referred this Court to the civil practice requiring urgency for obtaining injunctions on ex parte basis. The course adopted so far by the Petitioner was absolutely wrong in principle on virtually every single count that one could think of. 32.Again, regrettably, I need to recite the following submissions (from M at page 18 to O at page 21) :-
33.Between pages 21 and 36 of the transcripts of hearing, there were lengthy submissions on historical development of the case and some aspects on procedure. I then rose at 5:22 p.m. (see G at page 37) : “Court : ………I’ll stand down for a while to review everything first.” 34.The Court resumed at 6:33 p.m. Miss Remedios submitted to the Court that some, maybe not all, differences had been resolved (see H to K at page 37). This ended up with the 1st and 2nd Consent Orders (see paragraphs 16 and 17 of this Decision) were granted upon the written application signed by all parties and their Counsels. Analysis and Discussion 35.In my Decision, there was no FDR hearing held as such on both the 11 and 14 October hearings for the following reasons. I will refer to them as substantive and procedural reasons :- Substantive Reasons (a) The Consent Order dated 4 July 2011 (see paragraph 11 of this Decision) scheduled the FDR hearing to take place on 11 October 2011. This was on the basis of the 1st Respondent complying with paragraph 3 of the same Order, namely, to indicate within 3 days whether amending his Answer or consents to the suit continuing undefended. On 11 October 2011, however, there were no amendments made to the Answer or even a draft of the amendments produced to the Court for consideration nor had the 1st Respondent indicated to the Court whether he would consent to the divorce continuing undefended. Had the 1st Respondent intended to defend the divorce, which turned out to be the case on 12 October 2011 (i.e. the following date), ancillary reliefs and the FDR would have to be dealt with after the divorce suit. There is no basis for the Court to go ahead with the FDR on 11 October 2011 as originally scheduled in July 2011 without first ascertaining whether the divorce suit would be a contested one. (b) The 11 October hearing actually lasted for only 29 minutes on matters other than ancillary reliefs. It was then adjourned to 14 October 2011 for another short hearing of 15 minutes. At no stage during the 11 October hearing (i.e. within the 29 minutes) had the parties made any submissions on the contents of their respective Notes which were produced and intended to be used had there been a FDR as originally scheduled. Accordingly, I find there was no FDR on 11 October 2011. (c) On 11 October, as a matter of fact, it was clear to the 1st Respondent that the FDR was to be kept ‘alive and ongoing’ and not to be adjourned indefinitely. There was merely an ‘offer’ on the table by the 1st Respondent for the Petitioner (see Q to R at page 10) and nothing more than that. Had the FDR been started anytime within the 29 minutes hearing and that observations had been given by the Court on the 1st Respondent’s ‘offer’ or other terms of proposals set out in the FDR Note (as the Court normally does in a FDR), Mr. Clough would not have said - “It’s not a case where the court, I would think, could be very definitive in terms of amount because there are so many issues but that isn’t something which precludes settlement. It’s not something which precludes the court making helpful observations for the parties to take on board.” (see D to F at page 11). The truth and reality is that the Court had not made any observations for the FDR for the parties to take on board. Therefore, I find there was no FDR as such. (d) Mr. Clough did submit that adjourning the FDR to Friday (i.e. 14 October 2011) would be the best way if there was an adjournment by the Court (see D to F at page 12). Here are 2 possible scenarios. First, the FDR had not started and need to be adjourned. Secondly, the FDR had started but not completed; and therefore, need to be adjourned for a second or further FDR hearing. My decision will be the first scenario for those procedural reasons below. Procedural Reasons (e) As Miss Remedios rightly pointed out, the Court when scheduling the FDR in June/July 2011 did raise concern as to whether the case could be progressed up to the stage of FDR in October 2011. In fact, the FDR on 11 October 2011 was scheduled on the premise that the 1st Respondent would consent to the suit continuing undefended within 3 days, that is, before 7 July 2011 since the 1st Respondent had accepted in paragraph 7 of his Answer that the marriage had irretrievably broken down (but subject to the jurisdictional point). (f) The 1st Respondent’s Answer in its original un-amended form contains a prayer seeking dismissal of the Petition on jurisdictional grounds. It was only on 12 October 2011 (i.e. the next day following the 11 October hearing) when the intended amendments to the Answer came to light and sent over to the Family Court under cover of a letter. It was served upon the Petitioner’s Solicitors together with a Summons 2 days later on 14 October 2011 at 2:47 p.m. Unless and until such amendments are incorporated by consent or with the leave of the Court, the 1st Respondent’s stance as to whether the suit to continue undefended could only be ascertained from his un-amended Answers on the Court record; that is to say, he sought a dismissal of the Petition rather than conceding to a divorce. The 1st Respondent contested the divorce suit in his answer on the Form 4 followed by the filing of the substantive Answer (although disputing on jurisdictional grounds at the time of filing). In any event, the 1st Respondent’s position as at 12 October 2011 (as per his Solicitors’ letter to the Court attaching the intended amendments to the Answer) turned out to be that he claimed the divorce suit should not be set down as undefended. Although it is not stated in Practice Directions 15.11 that the decree of divorce must precede the FDR, it is, in my view, procedurally irregular to conduct a full FDR without the position of the divorce being ascertained in the first place. (g) The 1st Respondent’s contention that the intended amendments could not be processed earlier was due to the Petitioner’s legal aid stay is totally unacceptable. There is a Consent Order (dated 4 July 2011) under which the 1st Respondent should indicate whether he would amend his Answer and/or consent to the suit continuing undefended within 3 days (i.e. on or before 7 July 2011). There is a lapse of totally 42 days (counting from 8 July to 18 August 2011) where he could produce his amended Answer or to indicate whether he consents to the divorce suit going undefended. Providing an intention to amend in his solicitors’ letter dated 2 August 2011 (at page 949 in the paginated Pleadings Bundle (4)) without actually disclosing the exact amendments, in my view, would not serve the purpose and objective of paragraph 3 of the Consent Order dated 4 July 2011. The Petitioner’s legal aid application was dated 19 August 2011. The 1st Respondent indication whether he would consent to the suit being undefended or not, in my view, would not be prevented by the legal aid stay. This is just a ‘yes/no’ answer. Moreover, the Summons for leave to amend the Answer could have been issued within the period of 42 days (i.e. between 8 July and 18 August 2011) if he was minded not to delay the Petitioner’s divorce suit. (h) PD 15.11 allows FDR hearing to be adjourned from time to time. At the conclusion thereof the Court may make such consent order as may be appropriate, but otherwise must give directions for the future course of the proceedings, including, where appropriate, the filing of evidence and fixing a final hearing date. At the conclusion of the 11 October hearing, the only arrangement was an adjournment to a short hearing few days later on 14 October 2011. I find there was no FDR hearing as such conducted on 11 October 2011. (i) The 14 October hearing, be it so called a “FDR” hearing, had not commenced at all. Mr. Clough, at the very beginning of the 14 October hearing, raised matters of procedure (see C to D of page 16) and the practice adopted by the Petitioner being inappropriate (see Q at page 17). He submitted the Petitioner’s course of the ex parte summons on notice to seek the October injunction, whether on grounds of urgency or grounds of procedure for seeking at the FDR hearing, was absolutely wrong in principle on virtually every single count (see C at page 17 to I of page 18). Nevertheless, Mr. Clough submitted the 14 October was a FDR hearing (see M to O at page 18). However, upon review of the transcripts and notes of hearing, all the submissions made throughout the entire hearing had not touched upon any financial aspects of the parties or was there any reference to the contents of the respective Notes of the parties produced and intended to be used at the FDR. (j) Although the entire hearing on 14 October had not touched upon any financial issues, the parties were however able to agree amongst themselves without the Court’s assistance on a number of ‘non-financial’ issues; including the October injunction and the way forward for the divorce suit, save and except that the financial issues would have to be carried forward onto a new Petition to be issued. Such agreed terms were arrived at during the adjournment when I stood down for reviewing the matter and before I resumed at 6:33 p.m. (see H to U at page 31). The agreed terms were then recorded in writing and signed by all parties. I endorsed them and embodied into the 1st and 2nd Consent Orders (see paragraphs 16 and 17 of this Decision). Had I been wrong and should have found that there was a “FDR” at the 14 October hearing (which I disagree), my view is that such ‘FDR’ had not been concluded. There was no final hearing date fixed by me, as so required by PD 15.11, if the 14October hearing was a “FDR” which had been concluded. In my decision, there was no FDR conducted, or if there was one (which I disagree), it had not been completed at the 14 October hearing. (k) As the new Petition had yet to be issued, it was inappropriate for me to fix a FDR hearing for the new Petition at the conclusion of the 14 October hearing under FCMC 11930/10. The parties’ ancillary reliefs would have to go through the usual channel of the 1st Appointment under the new Petition to be issued and then may quickly move forward to a FDR hearing. On 14 October 2011, there was no consent order or direction made as to ‘financial matters’. The 1st and 2nd Consent Orders relate to ‘non-financial’ matters. It was thus inappropriate to fix any final hearing date to deal with ‘financial matters’ such as Pre-Trial Review under FCMC 11930/10 which would soon be replaced by a new Petition to be issued. (l) In conclusion, my decision is that there had never been any “FDR” hearing(s) on both 11 and 14 October 2011. If I am wrong in that there was ‘FDR, such hearing had not been concluded. The present Summons for recusal 36.At the beginning of the hearing, Miss Remedios obtained clarification and confirmation from Mr. Clough that the present recusal application will not be based upon any issue of bias despite the fact that paragraph 14 of the 4th Affirmation of the 1st Respondent did raise bias as an issue. Mr. Clough made it abundantly clear that the present recusal application is based upon procedural fairness and no issue of bias would be taken, be it actual or apparent. The issue taken is that since I have commenced to hear the FDR and thus had been privy to without prejudice positions of the parties, any further participation on interlocutory applications substantively would compromise the fairness of the proceedings. 37.Mr. Clough, in his contention, saw fit to say that prior to the 11th October hearing, this Court was given his FDR Note prepared for the 1st Respondent. This Court also has had sight of the Petitioner’s Counsel Further Note effectively also on FDR matters (which is produced as part of exhibit “SH4-2”) although there was disagreement between Counsel as to when such Further Note was given to the Court, before or after the 11 or 14 October hearings. Since I have assumed the role as a FDR Judge and as such, having come across prejudicial proposals and materials on financial matters submitted by the parties in confidence, it would compromise the fairness of proceedings if further interlocutory applications are to be dealt with by me. 38.But for this recusal application, there are three applications pending to be determined. There is the Petitioner’s application for the Decree Absolute to be expedited, the Petitioner’s Summons for leave to file 15th Affirmation of the Petitioner and the 1st Respondent’s application for variation of maintenance pending suit. All these applications including the 1st Appointment have now been adjourned to 26 June 2012 at 2:30 p.m. pending this Decision on recusal. 39.Miss Remedios in reply submitted that such issue of recusal was re-litigated by the 1st Respondent soon upon the Petitioner issuing the Summons on 15 November 2011 (and returnable on 17 November 2011) seeking the Decree Absolute to be expedited. The 1st Respondent’s Summons for recusal was filed right on 17 November 2011 and returnable the following day (i.e. 18 November 2011). The issue of recusal had never been raised when the parties put their heads together on 14 October and reached agreement on various matters embodied in the 1st and 2nd Consent Orders. There was no objection for me to endorse these Orders. The 1st Respondent had not even waited for my deliberation as to whether recusing myself in the late afternoon of 14 October after hearing full submissions from both parties. There was even no objection to me exercising jurisdiction in making the Consent Order on 28 October 2011 for putting together all the Orders in FCMC 11930/10 into these proceedings. 40.Mr. Clough responded in saying that all those were matters on procedure and not related to financial reliefs orders which would be within the ambit of financial dispute resolution (FDR) and fall within the wordings of the Practice Direction in that the FDR Judge would have no further involvement other than to conduct further FDRs. 41.Since this recusal application was taken out solely on grounds of procedural fairness and such grounds can be raised at any point in time, it is hard to believe that such ground of recusal, if it does compromise fairness of these proceedings as presently argued by the 1st Respondent, would have fallen out of the mind of Mr. Clough on 14 October 2011. This is important to note that Mr. Clough saw fit to address me at the first available moment at the 14 October hearing on matters of procedure. Moreover, he had also made specific submissions on my role over the 2 pending summonses in the following words :-
42.Had there been any genuine grounds for seeking my recusal for having assumed the role of the FDR Judge on 14 October, and having been aware of prejudicial materials to the effect that my continued participation would compromise the fairness of proceedings, I believe Mr. Clough would or could have raised such contention when he came to the terms of agreement with Miss Remedios in late afternoon of 14 October 2011 and not over a month later on 17 November 2011. A simple and straight forward way to overcome such procedural fairness problem (only if there is any) is to simply seek my directions on 14 October or incorporate as part of the agreed terms with Miss Remedios that the new Petition should be listed for hearing before another Judge. This was, however, not forthcoming at all until after the Petitioner’s application for expediting the Decree Absolute. Conclusion 43.For the above reasons, I find the 1st Respondent’s Summons dated 17 November 2011 seeking my recusal fails. I dismiss the Summons. I have considered but find no basis for departure from the normal rule on costs to follow the event. Thus, I order the 1st Respondent to pay the Petitioner the costs of the Summons dated 17 November 2011, including all costs reserved, to be taxed if not agreed. The Petitioner’s own costs be taxed in accordance with Legal Aid Regulations. There will be Certificate for Counsels. The Way Forward 44.As I mentioned above, there are 3 Summonses and the 1st Appointment all adjourned to 26 June 2012 pending this Decision. I will hear further submissions from all parties and give all necessary directions at the forthcoming hearing. Orders 45.My Orders are as follows :-
46.This costs order nisi will become absolute unless any party apply to vary the same within 14 days from the date of this Decision. 47.Last but not least, I wish to express my gratitude to both Counsels for their assistance in this matter.
Miss Corrine Remedios instructed by Messrs. Iu, Lai and Li., Solicitors for the Petitioner Mr. Neal Clough instructed by Messrs. Li, Chow & Co., Solicitors for the 1st Respondent | ||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||
Cases cited in this judgment
Further hearings and rulings under FCMC 14402/2011