Lo Kit-loon v. Margery Lo Au Wing-mui
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CACV000144/1982
BETWEEN
_________ Coram: Hon. Leonard, V.-P., Cons and Fuad, JJ.A. Date: 23 December 1982 ___________ JUDGMENT ___________ Fuad, J. A. : 1. This is an interlocutory appeal and arises from a decision by a District Judge sitting in Chambers, given on 26th August this year, whereby he refused leave to a husband/respondent in divorce proceeding to file his Answer out of' time. The wife/petitioner filed her Petition on 21st December last year for dissolution of the marriage. She based her Petition on the ground that the marriage had irretrievably broken down by virtue of the fact that her husband had behaved in such a way that she could not reasonably be expected to live with him. 2. The marriage took place in 1965 and two daughters were born, in 1966 and 1968 respectively. This makes them approximately 16½and 14 years of age today. There are no other children of the family. The Petition was served on 23rd February 1982, and on lst March, the husband filed an Acknowledgement of Service in which he indicated his intention to defend the proceedings and mentioned that he would be asking for custody and access in relation to the two little girls. By a letter of 15th June, the wife's solicitors requested the husband to file his Answer, giving him until 21st June to do so. Nothing happened, and on 24th July, the wife applied for directions for trial. On 27th July, notice of the hearing of the Petition was given and it as on 19th August that the husband took out his summons for leave to file his Answer out of time. The hearing had been set for the 20th August. 3. The affidavit in support of application, sworn by the husband's solicitor, gave the following reason for the delay
and he then went on to explain that he was instructed to apply for leave. 4. When rules 15(2) and 13(1) of the Matrimonial Causes Rules are read together, the effect is that an Answer must be filed within 21 days starting 8 days after the service of the Petition, i. e., 29 days in all. But everything is not suite so simple as it seems, because by virtue of rules 15(3) and 18(2), respectively a notice of intention to defend and an Answer may be filed out of time without leave, provided either is filed before directions for trial have been given. 5. The Judge explained his reasons for refusing leave by noting that he accepted the submissions of Counsel who appeared before him for the wife and who represents her before us today. The submissions he accepted were that there had been a very lengthy delay, that is to say nearly six months from the date of service, before the application for leave was made. Approximately, two months went by after the letter to the respondent's solicitors and even then, three further weeks had passed before the respondent filed his application. The learned Judge accepted the contention that even if the husband had frequently been away from Hong tong (and no details of this had been given in the affidavit) he had nevertheless been able through his solicitors, to take certain measures in the progress of the proceedings, i. e., he had filed an Affidavit of Means on 29th April, a Supplementary Affirmation on 21st June, and two days later he had appeared for a hearing before the Registrar. There seemed, therefore, no reason why he should not equally have been able to file his Answer in good time. 6. The Judge also accepted the submission that no reasonable excuse for delay had been shown; nor had a real ground for defence to the Petition been indicated. He accepted the suggestion that these days parties do not suffer any legal or social stigma in cases for divorce based on allegations such as those in the Petition. He accepted that the petitioner would suffer "extra costs, delays and mental torture'' if the Petition had to be transferred to the High Court, as indeed it would have to be, once an Answer was filed. He concluded his written reasons by saying:
7. Mr. Charles Ching has readily conceded that the Affidavit filed on behalf of the husband was manifestly inadequate and it is perhaps not entirely surprising that the Judge did not look upon the application with any great favour; to that extent the husband is to blame for what happened. But, over the years, the courts have been much less ready to deny the trial of a cause on the merits by reason only of procedural delays, provided, of course, prejudice is not done to the other party that cannot be satisfied by an award of costs. I think that the Judge should have approached the matter from the standpoint that it is undesirable for a matter not to be heard on the merits when it appears, on the face of it, that there are genuine grounds for resisting the proceedings, and the only fault has been one of delay. 8. As regards the time table, I accept Miss Alice Mok's contention that the whole of the period should be taken into account, and not just the period that has elapsed in this case since the 27th July 1982 when the directions for trial were given. On the other hand, as Mr. Ching pointed out, it is significant that despite the 29 day rule, a party is permitted to file an Answer right up to that day and this, without leave. I think here the legislature indicated that wherever possible, if a person wants to defend an action of this kind, he or she should be permitted to do so. Once directions for trial are issued, then leave the court must be obtained for obvious reasons 9. One of the matters that the Judge ought to have taken into account, if he were considering the entire period of delay, was that the letter requesting the respondent to file an Answer which was sent on 15th June, giving the deadline of 21st June 1982, was not acted upon by the husband and yet a whole month passed before the petitioner herself filed an application for directions. 10. With the utmost respect to the Judge, in my view it was wrong to accept the assertion that nowadays no legal or stigma is attached to a party to a divorce based on allegations of the kind that have been made in this case. My own feeling is that many would regard the husband with a considerable measure of distaste if the allegations against him were found to be justified. Particularly so, I would say, in a community such as the one in which we live, where children are so highly cherished The allegations about the treatment by the husband of his two daughters would, in my judgment, cause any reasonable person, if they were found to be true, to regard the husband as a very bad, unfeeling and cruel father. These allegations go far beyond mere irritation and impatience over the antics of young children that a busy man might show from time to time. And, it must be noticed, he now wishes to cross-petition. It seems to me too, that if the petition went on undefended, he might indeed find difficulty in contesting allegations about his conduct in the ancillary proceedings which will follow. And, of course, he could not avoid an order to pay the costs of the suit if the allegations were accepted by default. 11. One of the cases upon which Miss Mok relied was the case of F. v. F. [1968] 2 All E. R. 947. About that case I would say this. First, the facts were quite unusual and second, the remarks made by Salmon L.J. at p.950 of the report, where he inclined to doubt the view that the doctrine of res judicata could apply in custody proceedings, were obiter. Speaking for myself I would not wish to seek to decide that matter (after all there is authority the other way as well) on the material before us. As I have just mentioned, the husband might well face difficulties during the ancillary proceedings, both with regard to custody and maintenance. Surely it must be that a decision in a particular case as to whether res judicata applies or not, will depend on a wide variety of factors and will not be same in every case. It will depend on precisely what was said, precisely what was put forward, and the precise basis upon which the decision which gives rise to the alleged res judicata rested. At this stage of the proceedings, I do not think it is possible to say that the authorities are in such a state that the husband's fears, expressed through his Counsel today, are groundless and should be disregarded. I would remark that this point was not raised before the lower court and it is therefore hardly surprising that the Judge himself did not take into account. 12. In my judgment the Judge misdirected himself by appearing to base his decision to some degree on the fact that since the husband himself also wanted a decree, it did not really make much difference. This I think is to underrate and misunderstand divorce proceedings. Whatever has happened to modernise the law of divorce, it is still not a matter for consent between the parties in cases such as this for a Court must be satisfied that the statutory provisions have been satisfied before it can conscientiously grant a divorce. 13. I am bound to say that I do not feel that the Judge sufficiently weighed the comparative hardships. Had he done so he should have concluded that the prejudice to the husband by not allowing the Answer to be filed out of time would considerably outweigh any prejudice to the wife. Since the Judge misdirected himself and gave insufficient weight to some of the matters before him, I am free to substitute my own discretion for his, and l would unhesitatingly have granted leave to file an Answer out of time so that the merits of the matter could be gone into, and so that the husband was not left at the end of the day with the feeling that because of his lack of diligence, he was denied his day in Court to face and answer allegations of the kind that are made against him. I would myself allow the appeal.
Leonard, V.-P. : 14. I agree and only wish to add my compliments to Miss Mok on the able and attractive way in which she has presented her argument.
Cons, J. A. : 15. I agree that the appeal should be allowed and I have nothing to add.
Representation: Mr. Charles Ching Q.C., with Mr. Kenneth Kwok (David Tong & Co.) for the Appellant. Miss Alice Mok (Lo & Lo) for the Respondent. |