CHAN CHI WING v. CHAN TSE YOOK YEE

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J U D G M E N T

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Penlington, J. A. (giving the judgment of the Court):

1. These are appeals brought against an order made by Judge Chism in the District Court whereby he struck out applications made by the Respondent pursuant to Sections 4 and Section 17 of the Matrimonial Proceedings and Property Ordinance (Cap. 192 "The Ordinance"). The appeals are made pursuant, in the case of the Section 4 application, to leave granted by Judge Chism and in respect of the Section 17 pursuant to leave granted by Macdougall J.A. in this Court.

2. It is not necessary to go into the background of this matter in great detail. The basic chronology is that on 11th May, 1984 the Petitioner filed a petition for divorce and on 13th February, 1985 a decree nisi was granted. The question of ancillary relief was as usual adjourned to chambers. The decree nisi was made absolute on 10th April, 1985. Notice of intention to proceed with the application for ancillary relief was filed on 13th January, 1986 and on 28th February of that year the Petitioner filed an affidavit of means. The Appellant filed her own affidavit of means on 5th March, 1986 and the hearing of this matter started before Hansen D.J. on 10th March, 1986. However in April of that year, while the matter was still pending, an application was made by the Appellant for legal aid and the proceedings were consequently adjourned. They resumed on 16th July, 1986 and were then adjourned again until 23rd October, 1986.

3. During the course of the hearing before Judge Hansen evidence however emerged that the Petitioner had transferred a flat to his mother, the 2nd Respondent in Appeal No. 119 of 1989, and he conceded that this was done to prevent the Appellant from being able to obtain possession of that flat. Accordingly leave was given to the Appellant to issue an application pursuant to Section 17 of the Ordinance and the matter was further adjourned to be heard de novo. Notice under Section 17 was duly filed on 11th November, 1986. There was then a lengthy period of some two and a half years before, on 11th May 1989, application was made by both the Petitioner and the 2nd Respondent for dismissal of the applications for want of prosecution. The 2nd Respondent's application was supported by an affidavit sworn by her daughter, Mdm. CHAN Kwok Chuen, stating that the 2nd Respondent's health had very rapidly deteriorated in the last two years and that because of the delay in prosecuting these proceedings she would now be placed at a severe disadvantage in opposing the application under Section 17.

4. Several grounds of appeal have peen filed but in the event only two of them require our attention. The 1st ground of appeal is that there is no statutory limitation period laid down in either Section 4 or Section 17 of the Ordinance. Indeed Section 4 states that an application for ancillary relief may be made "at any time" after a divorce decree has been made. That being so reliance is placed on the leading authority of Birkett v. James [1978] A. C. 297 and in particular the dicta of Lord Diplock at pp. 318-321. The effect of that dicta is that where there is an application to strike out proceedings simply because of inordinate and inexcusable delay such an application should not be granted if the statutory limitation period for commencing the action has not yet expired, for if the application was to be granted, fresh proceedings could he brought within that limitation period as of right. Thus where the legislature has laid down a limitation period it is not for the courts to decide that on the particular circumstances of any case the period of limitation is too long. Likewise a court should not dismiss an application on the sole ground of inordinate and inexcusable delay where, as in the present case, the application may be made "at any time" after the grant of a decree of divorce.

5. The position is different where there has been intentional and contumelious conduct on the part of the Applicant. If there has been wilful failure to obey a peremptory order of the court or conduct amounting to an abuse of tile process of the court then undoubtedly the court does have jurisdiction to strike out the proceedings. There is however not the case here. There is a suggestion made in CHAN Kwok Chuen's affidavit that the Respondent has failed to file an affidavit in support of her application but that clearly was not the ground upon which the orders to strike out were made, namely, pursuant to the inherent jurisdiction of the court "for want of prosecution".

6. We see no reason to distinguish matrimonial proceedings from any other form of civil action in regard to this principle. If the Petitioner or the 2nd Respondent had wished to have the proceedings terminated because he considered that tile efforts at reaching a settlement had failed it was open to either of them to first of all write to the Respondent's solicitors asking if they intended to proceed and, failing a satisfactory reply, to apply to the court for an order that if the Respondent did not have the matter set down within the time stated in tile order, tile application would be struck out.

7. While we are satisfied that on the legal principles set out in Birkett v. James the judge was wrong in striking out these applications we have also considered whether there was in fact inordinate or inexcusable delay on the part of the Respondent, as alleged in the 2nd ground of appeal. The Respondent has filed an affidavit setting out the history of the matter and giving details of negotiations that went on between the parties during the period from 11th November, 1986 to 11th May, 1989. From this it would seem that by March, 1987 the parties were in fact very close to a settlement. After that, however, there were several letters sent by the Respondent's solicitors with a view to finalizing the matter to which no reply was received. The last of these letters was on 9th January, 1989. It may well be that the 2nd Respondent's health had deteriorated to the extent that it was difficult for her solicitors to obtain instructions. The Petitioner himself was at this stage acting in person. Nevertheless we are satisfied that there was no delay on the part of the Respondent which would have justified the order for striking out her applications, even if there had been power to do so.

8. We therefore allow both of these appeals and restore the applications. The Appellant is entitled to her costs; all parties' costs to be taxed in accordance with the Legal Aid Regulations.