SUSAN CAROLINE BERRY v. WILLIAM ALLAN

IN THE COURT OF APPEAL

1996, No. 170
(Civil)

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J U D G M E N T

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Nazareth, V.-P.:

1. This matter comes before us in the context of ongoing matrimonial proceedings which after a very long time are now approaching their end, one hopes, with the resolution of ancillary relief relating to division of the family assets. What brings the matter to this Court is a summons that was taken out by the husband on 11th March 1996. It was an application for an order "that this action be stayed or dismissed with costs including the costs of and occasioned by this application to be on the indemnity basis".

2. What was meant by "this action" is not very clear but it could only mean the remaining part of the action because the earlier part had already been resulted in a decree of divorce which no one is minded to disturb.

3. That summons came before P. Chan J in chambers on 14th June. Having heard the parties he made the following order:

"Upon hearing Dr Alison Allan for the Respondent and the Petitioner's solicitors it is Ordered that:

(1) Dr Alison H. Allan (sister to the Respondent) be allowed to continue to act for the Respondent in view of the medical history of the case.

(2) Costs of the hearing on 30th April 1996 and 1 hour on 14th June 1996 to be to the Respondent in any event.

(3) Hearing adjourned to a date to be fixed 1 day reserved."

4. The wife appealed against that order. It is clear from the history of the proceedings put before us and, more particularly, the submissions of Miss Remedios, for the appellant, that this was and is upon the basis of the understanding of the appellant (and possibly also at some time on the part of the respondent) that the order was open ended and would extend beyond the application before the judge to that part of the main substantive proceedings that remains to be resolved. That is not how I construe the judge's order. In the ordinary way, the courts only address the matters and applications before them. The only application before P. Chan J on that occasion was the summons seeking a stay or dismissal of the action. That was the summons before him and it was in that context that the question was raised as to whether the respondent should have his sister, Dr Allan, acting for him. It was raised on behalf of the appellant. P. Chan J's order must in the ordinary way be taken to be made in the context of and to apply to the hearing of that summons. That is so notwithstanding suggestions and apparently a note of proceedings that the order would be reviewed nor indeed the adjournment of the summons for updated medical evidence to be procured. But however that may be, having looked at the notes of the proceedings, and having studied the terms of the order, I see no reason why the judge's order should be construed as an open-ended order, extending beyond the summons being dealt with.

5. Viewed in that way, the broad submissions that Miss Corinne Remedios has made on behalf of the appellant are simply not engaged. What happened was that on behalf of the husband it was suggested that he was not able to conduct the proceedings due to his medical condition. The judge apparently aware of the previous non-objection to Dr Allan and the earlier medical evidence accepted the latter on an interim basis and made his order. He certainly had discretion to do so. He also had jurisdiction to regulate the proceedings before him and to allow Dr Allan to act in those proceedings before him. On the evidence before him, he could plainly have come rationally to the conclusion that the respondent was not able effectively to conduct the proceedings on his own behalf. I can see nothing irrational or wrong about allowing his sister to do that for him.

6. Having heard all Miss Remedios's submissions, I would add here in particular that I do not accept that the judge did not take into account various matters like prejudice to the wife, the conflict in the position that Dr Allan would occupy with reference to her duties to the court, that she was a person who had been virtually guilty contempt of court in moving the husband's assets out of the jurisdiction, that she was unqualified and made life difficult for the appellant and her advisers and that this would result in the proceedings dragging on, to mention only some of the points she made.

7. Having regard to all this, I am not satisfied that the exercise of the judge's discretion was beyond the broad range of rationality within which the jurisdiction could be exercised nor am I persuaded that the exercise of discretion was faulted by the omission of consideration of any factors that should have been taken into account or that it was vitiated by having regard to matters that should not have been taken into account.

8. In those circumstances I am not persuaded that the appeal should be allowed. I would dismiss it.

Bokhary, J.A.:

9. I have the greatest sympathy for both parties. This marriage seems to have almost destroyed them. And this litigation, if one is not careful, will complete that process of destruction.

10. Turning to more immediate matters, the husband took out an application to stay or dismiss the divorce suit: obviously insofar as it is still outstanding. That application came before Mr Justice Patrick Chan. And all that the judge did on that occasion was to exercise his discretion to permit the husband's sister to address him on her brother's behalf in support of his stay or dismissal application.

11. The judge's decision to permit that course was within the four corners of his discretion. Clearly, there were pros and cons on both sides of the question. It is impossible to imagine that, with his experience at the bar and on the bench, the judge would not have perceived and balanced all of those. There is no reason to think that he had not.

12. His decision does not bind any other judge. It does not extend to any other application. If any other judge were to misunderstand the position and think otherwise, then the error would be that of the other judge, and not of Mr Justice Patrick Chan.

13. Despite Miss Remedios's skilled and sustained arguments in support of the appeal, I have no doubt that it must be dismissed. And I agree with my Lord accordingly.

Liu, J.A.:

14. Miss Remedios has made the best of a very difficult appeal which, I agree, should be dismissed for the reasons given by the Vice-President and my Lord Bokhary.