LAW WAI DUEN NINA v. CHAN SHIU CHICK

cacv 85/2004

in the high court of the

hong kong special administrative region

court of appeal

civil appeal no. 85 of 2004

(on appeal from HCMC NO. 3 of 2002)

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REASONS FOR JUDGMENT

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Hon Rogers VP:

1.  This is an appeal from a judgment and order of Hartmann J given on 23 February 2004 following a hearing on 17 February of an application on behalf of the petitioner.  By that application, which had been filed on 19 January 2004, the petitioner had sought an order that the whole of the sixth affirmation of the respondent, which had been filed on 6 December 2002, be struck out, that the respondent should file a further affirmation and that the respondent should also serve “a further and proper answer to the following questions in the Petitioner’s second questionnaire dated 10 October 2003, namely, Questions 1 to 4, 5.1 to 5.2, 5.3(1)-(8), 5.3(13)-(14), 6 to 11 inclusive”.  The judge dismissed the summons and made an order nisi that there be no order as to costs in respect of the petitioner’s summons and the costs of the hearing on 17 February be to the respondent in any event.  A subsequent application to vary the order as to costs was dismissed.  At the conclusion of the hearing of this appeal this appeal was dismissed with costs with reasons to be given in writing later.

Background

2.  As the judge observed, these matrimonial proceedings have become litigation on a grand scale.  In addition to the ancillary relief litigation there is also company litigation, which the judge, again, observed was impossible to separate entirely from the present proceedings.  The present proceedings have themselves generated a massive amount of documentation.  We were told in the course of argument that the judge below has been involved in the case from the beginning.

3.  On 6 December 2002 the respondent filed the affirmation about which complaint is made.  In March 2003 the solicitors for the petitioner wrote complaining of the contents of that affirmation.  Nothing further was done in the meantime.  On 10 October 2003 the petitioner served a second questionnaire pursuant to Rule 77(4) of the Matrimonial Causes Rules.  There was an answer filed to that questionnaire on 18 November 2003.

4.  The summons which the judge was hearing was issued on 19 January 2004.  On 30 January the respondent’s solicitors wrote indicating that whilst they did not see any reason to strike out any part of the respondent’s sixth affirmation they were prepared to agree in part to the request which had been made and to have various paragraphs in that sixth affirmation removed provided that there were no implications as to costs.

The decision below

5.  As already indicated, the judge below had the advantage of knowing something of the background of the case having been involved in it from the beginning.  He was taken through the second questionnaire and the answers which had been provided.  He came to the conclusion that the petitioner’s second questionnaire was clearly oppressive.  He said so in no uncertain terms.  Having done so he then considered whether it was appropriate for the court to go through an exercise of vetting the second questionnaire to leave it in some way or another in a condition which was acceptable.  In paragraph 31 of his judgment he said:

“In my judgment, a party who seeks to interrogate the other party in ancillary relief proceedings on an improperly broad basis is not entitled, when objection is taken, to attempt to rescue his position by going through a sifting exercise, excluding either irrelevant or oppressive questions and then attempting to press home his cause with the questions that he has decided should remain.”

6.  The judge also came to the conclusion that although he considered that many of the assertions made by the respondent in his supplemental affirmation could have been more happily phrased with a view to the essential purpose of the ancillary relief proceedings, there was some justification in the view which the respondent took of some of the assets and hence some justification in his setting out his position as regards those assets.  He went on to say:

“The chronology set out by the husband is a factual chronology.  It attempts to show how the wife moved what the husband considers to be matrimonial assets out of Hong Kong and into a form which no longer makes them subject to this court’s control.  As Mr Grossman put it, what is to be done with the monies moved into the trusts by the wife will be an essential issue at trial.  At the moment I have no reason to doubt that this will in fact be the case.  Without any criticism intended, the wife’s position concerning these trusts during the course of this litigation to date has been somewhat guarded.  In the circumstances I do not see how it can be said that the paragraphs in question, or other paragraphs dealing with the same issue can be said to be irrelevant, scandalous or otherwise oppressive.”

This appeal

7.  It is clear, the judge was exercising his discretion in a matter of case management.  It is trite law that in this court does not interfere with the exercise of a judge’s discretion unless it can be shown that there has been some serious error.  This is all the more so in matters of case management and particularly so in cases where the litigation has been extensive and the judge has the advantage of a familiarity with the background.

8.  The first matter to be considered on this appeal was whether, on the basis that the second questionnaire was oppressive, it was open to the judge to dismiss the application entirely or whether he should have tried to salvage something from the second questionnaire.  In this respect Mr Jat SC, on behalf of the petitioner, relied upon cases such as Mid Pacific Services Inc v Crown Solicitor [1992] 1 HKLR 367 at 372 and Re Q. Ltd; In re a letter of request [1997] 4 HKC 439 at 448 E-G.  He said that it was not open to the judge to dismiss the application but that he should have salvaged what he could from the questionnaire.

9.  In my view this case is a prime example of a judge’s discretion as to what course he deems it most appropriate to take, particularly in any situation such as the present.  If he considers that a questionnaire can be readily modified so that it is in an acceptable form it is, of course, open to him to apply the blue pencil approach.  But he is most certainly not bound to do so.  He can take the application as he finds it.  If he considers that an application is oppressive he can dismiss it for that reason.

10.  In this case there were added complications.  There had been an answer to the second questionnaire.  That answer was complicated by the fact that there were cross-references to materials in other cases, in particular the company litigation.  Given the amount and complexity of the litigation which has arisen around these proceedings, including the company litigation, I consider that it is indeed a reasonable approach for the parties to refer to material in the company litigation rather than repeating matters in the present proceedings.  Coupled with that the judge was faced with arguments that some of the responses by the respondent to the second questionnaire were unsatisfactory.

11.  Not only was it open to the judge to dismiss the application on the basis that the second questionnaire taken as a whole was oppressive and the judge was clearly not obliged to perform functions which properly lay in the province of the petitioner’s advisers, but there were clearly good grounds for the judge taking the line which he did.  The second questionnaire was clearly oppressive in many respects.  I do not intend to repeat what the judge said on that matter.  It suffices to say that it is no answer to say that the second questionnaire followed the standard format.  Standard formats are there to be used and adapted as appropriate for each case and not to be used as a means of generating every conceivable question no matter how unrealistic it would be to expect an answer.  To a certain extent that has been tacitly, if not explicitly, conceded by the fact that on this appeal many other parts of the second questionnaire are not now sought to be relied upon.

12.  I would also add that in this case a rather strange situation has arisen in the fact that on 19 March 2004 the petitioner served a third questionnaire and this was answered on 14 April 2004.  The purpose of this appeal, therefore, becomes slightly obscure.  In my view, this litigation should be progressed to a conclusion as quickly as can be done and the best way of doing that is for the petitioner’s advisers to limit their inquiries to those which can be considered specifically relevant and necessary in the light of the information and material which they now have in their possession.

13.  The point in relation to the sixth affirmation, in so far as it was relevant on this appeal, was one in respect of costs.  Mr Jat argued that since parts of affirmation were taken out, the petitioner should be awarded the costs not only of the application to strike out but of the hearing as well.  I consider that it was well open to the judge to make the order which he did.  In the first place, the application to strike out the sixth affirmation was not wholly successful, only parts have been struck out.  In the second place, the application to strike out the affirmation was combined with the other application in respect of the second questionnaire and, in the third place, the relief which was eventually obtained was offered well before the hearing.  In those circumstances the judge’s discretion as to costs was clearly open.  No doubt the most important aspects of the application and hearing related to the second questionnaire and I cannot see any reason now for interfering with the order as to costs.

Hon Le Pichon JA:

14.  I agree.