Read the full judgment text of CACV 152/2014 on BabelCite. This Court of Appeal judgment was delivered on 13 August 2014 before Lam VP, Barma JA.
Civil procedure – subpoena – leave to issue subpoena – case management – family proceedings – Guardianship of Minors Ordinance s.10(2) – child maintenance – trust over HK$32 million – late application – filter process – balancing exercise – appeal from case management decision – costs of late application – proceedings under the Guardianship of Minors Ordinance concerning the welfare and maintenance of a 5½-year-old child of the parties – the court must have regard to the means of the paying parent under s.10(2) – the applicant father had transferred HK$32 million from his bank account to his mother's account, claiming it was held on trust for her due to her old age and infirmities – the mother's evidence was admitted by affirmation without cross-examination but the weight remained a question for the trial – the applicant applied one day before trial for leave to issue a subpoena to a bank officer who had been told about the trust arrangement before any dispute arose between the parties – the Deputy Judge refused leave on paper on 11 June 2014 and again on 12 June 2014 on a renewed inter partes application – the Court of Appeal considered the proper approach to applications for leave to issue subpoena in family proceedings – under CJR, Orders 1A and 1B apply to family proceedings via PD 15.12 paragraph 16, and active case management is equally applicable – the filter process in Li Man York Evelyn v Li Wai Tat Walton applies to timely applications, but for late applications the court must conduct a balancing exercise considering delay, prejudice, significance of the evidence, and overall justice – delay alone is not determinative and there is no mechanical rule that eleventh-hour applications must be refused – the Judge erred by adopting a starting premise that 'eleventh hour application is unlikely to be considered by the court unless in very exceptional circumstances' – the proposed bank officer's evidence was relevant and satisfied the test in Li Man York Evelyn – the Judge also failed to take into account that the trial could not have finished on 12 June in any event, that the bank officer's evidence would not take long, and that the respondent suffered no prejudice – the appeal was allowed, the Judge's order was set aside, and leave to issue the subpoena was granted – the applicant to bear the costs of the renewed application for leave and the application for leave to appeal at the court below, taxed if not agreed, on the basis that but for his delay the court would have readily granted leave – each party to bear his or her own costs of HCMP 1572/2014 and the appeal – the respondent's own costs to be taxed according to Legal Aid Regulations – the Court expressed concerns about case management in family proceedings and emphasised that parties and their legal representatives owe a positive duty to assist the court in case management
Legal issues: Proper approach to late applications for leave to issue subpoena in family proceedings · Whether the Judge's exercise of discretion was vitiated by irrelevant considerations · Costs allocation following successful appeal arising from delayed application
Outcome: Appeal allowed; the Deputy Judge's order refusing leave to issue the subpoena was set aside; leave to issue the subpoena to the bank officer was granted
Cites 5 cases