IOF v. BCA

CACV356/2005

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO. 356 OF 2005

(ON APPEAL FROM FCMC NO. 11752 OF 2004)

_________________________

BETWEEN

_________________________

________________________

________________________

Hon Chu JA giving the judgment of the court:

1.  These appeal proceedings were brought by the respondent (BCA) against the order of HH Judge Chu (“the Judge”) in the Family Court made on 21 September 2005, pronouncing a decree nisi in respect of the respondent’s marriage with the petitioner (IOF) and ordering him to pay the petitioner the costs of the suit. At the direction of Lam VP, the case was listed for hearing before us to determine whether the respondent’s appeal ought to be dismissed for want of prosecution.

FCMC 11752 of 2004

2.  The petitioner and the respondent were married in November 2001 and have no children.  In 2004, the petitioner, who was legally aided and represented by a firm of solicitors (“MC”), petitioned for divorce on the ground that the marriage had broken down irretrievably by reason of the respondent’s unreasonable behaviour.  The respondent did not file an Answer within the time prescribed by the Matrimonial Causes Rules, Cap.179A.  In May 2005, he applied for leave to file his Answer out of time.  On 10 June 2005, the Judge refused his application.  The Judge also refused to give leave to appeal.  The respondent applied to the Court of Appeal for leave to appeal under HCMP 1901/2005.  The application was refused by Yuen JA and the renewed application was also dismissed by the Court of Appeal (Yeung JA & Burrell J)[1]. 

3.  On 21 September 2005, the Judge pronounced the decree nisi and ordered the respondent to pay the costs of the suit.  Six weeks later, this appeal was launched.

4.  On 30 June 2006 (which was after the commencement of this appeal), the respondent issued a summons in the Family Court applying for the rescission of the decree nisi and the dismissal of the Petition.  The petitioner’s legal aid certificate was discharged on 6 July 2006, but because it could not be served on the petitioner, MC remained on record as her solicitors.  At the hearing of the respondent’s summons on 25 July 2006, the Judge made an order rescinding the decree nisi and dismissing the Petition and further ordered the costs of the summons and of the hearing be paid by the petitioner personally to the respondent.  However, no arrangement was made for the pending appeal from the decree nisi.

5.  Thereafter, MC commenced proceedings to tax the costs of the suit which the Judge had ordered the respondent to pay.  On 26 January 2007, the Allocatur for the costs of the suit was sealed.  The Director of Legal Aid then proceeded to recover the taxed costs from the respondent by issuing enforcement proceedings.  Subsequently, upon the respondent’s application, the Allocatur was set aside on 23 November 2010.  Proceedings to tax the costs to be paid by the respondent have since been commenced in the District Court, but the taxation hearing had twice been vacated and is pending the outcome of the appeal herein.

FCMC 8256 of 2007

6.  In the meantime in 2007, the respondent commenced divorce proceedings against the petitioner under FCMC 8256/2007.  The petitioner was granted legal aid to claim ancillary relief against the respondent.  A decree absolute was made in 2010 together with a costs order in favour of the respondent.     

The history of the appeal

7.  On 2 November 2005, the respondent commenced this appeal by filing the Notice of Appeal.  On 4 November 2005, he filed a Notice of Setting Down in respect of the appeal.

8.  Pursuant to Order 59 rule 9 of The Rules of the High Court, Cap. 4A and Practice Direction 4.1 (see paragraph 22 below), the respondent is required to prepare an appeal bundle and to submit the draft to the Registrar of Civil Appeals for approval. 

9.  By letter dated 16 November 2005, the respondent requested to defer the lodging of the draft appeal bundle until after the disposal of his application for leave to appeal in HCMP 1901/2005.  The Registrar of Civil Appeals granted the extension and directed that the draft appeal bundle should be submitted within seven days after the completion of the hearing of HCMP 1901/2005.

10.  On 10 April 2006, the Court of Appeal dismissed the respondent’s application in HCMP 1901/2005.  Notwithstanding that, the respondent did not proceed to lodge the draft appeal bundle.  Instead, by letter dated 26 April 2006, he requested for a 30 days’ extension because he was “a litigant in person and the high volume of documents involved”.  A 14 days’ extension was granted by the Registrar of Civil Appeals.

11.  As no action was taken by the respondent, the court wrote to him on 15 May 2006 to remind him to submit the draft appeal bundle as soon as possible.  On 18 May 2006, the respondent replied to say that the preparation of the bundle was more difficult than he had envisaged and requested for a further extension of 14 days.  The request was granted. 

12.  As no draft appeal bundle was forthcoming, the court sent a reminder to the respondent by fax and by post on 9 June 2006.  On the same day, the respondent faxed to the court a letter said to be written by the petitioner indicating that she wished to discontinue and withdraw the divorce suit.  The respondent stated in the covering fax that he would file the original letter in the following morning.  The court replied on the same day pointing out it was unclear what the respondent wanted to do about the appeal.  It further informed the respondent of the required procedure for discontinuing an appeal and enclosed the relevant forms for his further action.    

13.  Nothing further was heard from the respondent. On 5 July 2006, the court wrote to the respondent, noting that there was no application for dismissal of the appeal, and reminded him to comply with the direction to submit the draft appeal bundle expeditiously.  On 14 July 2006, the respondent wrote to the court stating that he had issued a summons for the rescission of the decree nisi and that he had obtained the petitioner’s consent to it.  He said he would inform the court of the outcome of the application and would withdraw the appeal if the application was successful. This he did not despite the order of the Judge made on 25 July 2006 rescinding the decree nisi.  Neither did he take step to discontinue the appeal.   

14.  In view of the respondent’s inaction, the Registrar of Civil Appeals directed on 1 August 2006 he must submit the draft appeal bundle within 14 days, failing which his appeal risked being dismissed on application.  Seeing that there was no response from the respondent and to avoid further delay and believing that the petitioner was still legally represented, the Registrar of Civil Appeals on 17 August 2006 directed the preparation of the appeal bundle be carried out by the petitioner’s solicitors.

15.  On 17 August 2006, MC wrote to inform the court that the petitioner’s legal aid certificate had already been discharged and they no longer had instruction to act for the petitioner.  On the same day, the respondent wrote to the court indicating that he wished to withdraw the appeal.  On 22 August 2006, the Registrar of Civil Appeals informed the respondent that if he wished to discontinue the appeal, he should either file a Request for Dismissal of Appeal by Consent (if consent from the petitioner was forthcoming) or apply for dismissal of the appeal by filing a Request for Dismissal of Appeal, in which case he had to undertake to pay the costs of the petitioner.  The relevant forms were provided to the respondent for a second time.  

16.  The respondent neither responded to the letter nor took any action with regard to his appeal.  Nearly five years later, on 11 July 2011, he wrote to the court asking to continue with the appeal but only in relation of the costs matter.  The court replied on 13 July 2011, informing him of the need to give to the petitioner not less than one month’s notice of his intention to proceed with the appeal and that he had to comply with the requirement of submitting the draft appeal bundle.  The letter enclosed the relevant specimen form for giving notice, the directions given by the Registrar of Civil Appeals as well as a sample index to an appeal bundle.

17.  On 21 July 2011, the respondent filed a Notice of Intention to Proceed.  More than three months later on 7 November 2011, he wrote to the court saying he had some difficulty in completing the appeal bundle and asked for a hearing date to be fixed.  The Registrar of Civil Appeals listed the case for a preliminary directions hearing on 1 December 2011.  Notice of the hearing sent to the petitioner’s last known address was returned.  Only the respondent attended the hearing.  The Registrar of Civil Appeals directed the respondent to submit a draft appeal bundle by 16 January 2012 and ordered that the costs of the hearing be in the cause of the appeal.

18.  Again, the direction was not complied with.  After the court sent a reminder on 27 January 2012, the respondent wrote on 31 January 2012 to request a further extension, saying that he was in the course of drafting additional grounds of appeal and that he could finish the drafting and the preparation of the appeal bundle within 14 days.  The Registrar of Civil Appeals granted an extension to 16 February 2012.  On 27 February 2012, the court sent a reminder to the respondent as the draft appeal bundle was still outstanding. 

19.  Nothing was forthcoming.  Then more than a year later on 17 April 2013, the respondent wrote to say that although he had wanted to avoid an appeal, this was not possible as his negotiations with the Director of Legal Aid on his costs liability in the matrimonial proceedings had broken down.  He requested an extension up to 1 June 2013 to lodge the appeal bundle.  The Registrar of Civil Appeals granted the extension and directed him to file a Notice of Intention to Proceed, which was done on 7 May 2013.

20.  As of today, no draft appeal bundle is produced.  Apart from filing two Notices of Intention to Proceed, the respondent had taken no step in the appeal since setting down the appeal in 2005.  On 20 December 2013, Lam VP directed that the case be listed for a hearing to consider whether it should be dismissed for want of prosecution.  Notice of the hearing sent to the petitioner was returned undelivered.  Only the respondent appeared at the hearing before us.

21.  We should also mention that on 22 April and 10 December 2013, MC twice wrote to the court to enquire about the progress of the appeal because the hearing to tax the costs to be paid by the respondent in FCMC 11752/2004 is pending the outcome of the appeal herein.

Discussions

22.  Under Order 59 rule 9(3) of The Rules of the High Court, the Registrar of Civil Appeals may “give such directions in relation to the documents to be produced at the appeal, and the manner in which they are presented and as to other matters incidental to the conduct of the appeal”.  In appeals involving litigants in person, Practice Direction 4.1[2] provides that no appeal will be listed until the directions given by the Registrar of Civil Appeals have been complied with.  An appellant is required by Order 59 rule 9 to lodge with the court documents for the appeal in the form of appeal bundle.  For an unrepresented appellant, he has to comply with the directions of the Registrar of Civil Appeals on the preparation of the appeal bundle and the appeal bundle has to be approved before it can be lodged with the court.  

23.  In the present case, the Registrar of Civil Appeal has given directions for the submission of the draft appeal bundle, and many generous extensions of time had been granted.  As of today, no draft appeal bundle has been produced by the respondent.  As a result of the persistent failure to comply with the directions given by the Registrar of Civil Appeals, the appeal has yet to be heard despite more than eight years have passed since the appeal was brought.  The delay to proceed with the appeal is inordinate.

24.  From the history of the proceedings outlined above, it is clear that the delay is due to the respondent’s inaction and his neglect and non-compliance with the court’s directions.  There is no good justification for the respondent’s conduct in the proceedings.  Although he claimed initially to have difficulty in compiling the appeal bundle, he gave no details of the nature and content of the difficulty involved.  At the same time, it is clear from his letters to the court that he had been approaching the Resource Centre for Unrepresented Litigants for assistance.  The court had also provided him with sample index of appeal bundle.  In view of the brevity of the proceedings leading to the decree nisi in FCMC 11752/2004, the number of documents relevant to the appeal cannot be many.  It is further to be noted that the respondent had previously applied for leave to appeal in HCMP 1901/2005, and he had produced a hearing bundle for the Court of Appeal.  There was no major step in FCMC 11752/2004 between the Judge’s refusal to extend time for the filing of the Answer and Cross-Petition (the subject matter of the application for leave to appeal) and the pronouncement of the decree nisi.  We do not think the respondent’s failure to comply with the court’s directions is due to difficulty in compiling the draft appeal bundle.                  

25.  In addition, there have been very substantial periods of inaction since the appeal was commenced.  They are indicative of a lack of genuine intention on the part of the respondent to proceed with the appeal. 

26.  The respondent accepted at the hearing that there was no good reason for the delay and non-compliance with the court directions.  He, however, sought to explain that he had been involved in negotiations with the Director of Legal Aid for a set-off of the costs of the suit in FCMC 11752/2004 (for which he is liable) against the costs in FCMC 8256/2007 (which was made against the petitioner).  He also argued that the Judge did not properly exercise her discretion in not rescinding the costs of the suit when she rescinded the decree nisi and dismissed the Petition.  He asked for a 30 days’ extension so that he could submit the draft appeal bundle and put in additional grounds of appeal.

27.  The respondent had raised the issue of set-off in the taxation proceedings below.  In response, the Director of Legal Aid had as early as 2010 explained that since the petitioner was legally aided in FCMC 8256/2007, although costs had been ordered against her in those proceedings, neither the Director of Legal Aid nor the petitioner is liable for them by reason of section 16C(1)(b)(ii) of the Legal Aid Ordinance, Cap.91[3].  It is therefore not open to the respondent to set-off his costs liability in FCMC 11752/2004 against the costs ordered against the petitioner in FCMC 8256/2007.

28.  As to the correctness of the costs order made on 21 September 2005, the respondent had on 17 February 2011 applied to the Judge for leave to appeal out of time.  The application was dismissed on 25 May 2011.  The respondent had taken no further step.  Although he had told the Registrar of Civil Appeals he wished to amend his grounds of appeal, he never went about doing it.  Neither had he produced any draft additional or amended grounds of appeal at the hearing before us.  And insofar as the respondent is suggesting that the Judge ought to have rescinded the costs order against him when granting his application to rescind the decree nisi and dismissing the Petition, this is in relation to the order made on 25 July 2006, which is not the subject matter of this appeal.       

29.  In short, there is no proper basis for this court to grant further indulgence to the respondent. 

30.  The respondent’s delay in prosecuting this appeal is inexcusable and his conduct is contumelious amounting to an abuse of the court process.  The appeal ought therefore to be dismissed for want of prosecution.  For the reasons explained above, there is no injustice in so ordering.      

Disposition

31.  Accordingly, the appeal is dismissed.