CCMJ v. SSM formerly known as SKL

HCMP 3205/2016

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

MISCELLANEOUS PROCEEDINGS NO. 3205 OF 2016

(ON AN INTENDED APPEAL FROM FCMP NO. 67 OF 2010)

________________________

________________________

________________________

D E C I S I O N

________________________

Hon Cheung JA (giving Decision of the Court):

1.  This is the applicant father’s (‘the Father’) application for leave to appeal against the decision of Deputy District Judge G Own dated 3 November 2016.

Background

2.  On 5 June 2015, the Judge handed down a judgment in respect of the respondent mother’s (‘the Mother’) application for financial provision by the Father on behalf of their child (‘the financial provision order’).  The Judge ordered the Father to pay costs (including all costs reserved) to the Mother (‘the costs order’). 

3.  The Father was not satisfied with the financial provision order and sought leave to appeal from the Judge and, upon his refusal, from the Court of Appeal.  On 7 December 2015, the Court of Appeal dismissed the application with costs (HCMP 2059/2015).

4.  In addition to the leave application, the Father also sought to challenge the costs order by taking out the Costs Variation Summons (‘the Summons’).  The Summons was taken out and scheduled to be heard before the Judge on 28 April 2016.  About seven days before the scheduled hearing (i.e. on 21 April 2016), the parties’ solicitors applied to the Judge by a joint letter requesting the Summons to be dealt with by paper.  Agreed directions for filing submissions were contained in the letter.  The letter stated that there was a disagreement between the parties on whether the Father should have an automatic right to file a reply submission.  The Judge made an order in terms of the agreed directions on the following day.

5.  The Father filed his written submission on 26 May 2016 (which was more than two weeks after the deadline and was made subject to an unless order), and the Mother filed her written submission on 10 June 2016.

6.  Shortly after the filing of the Mother’s written submission, the Father’s solicitors negotiated with the Mother’s solicitors in regard to the filing of the Father’s written submission in reply.  It appears that no agreement could be reached, and the Father’s solicitors on 24 June 2016 took out a summons for leave to file the reply submission.  This summons was returnable first on 29 August 2016.

7.  On 26 July 2016, the Mother’s solicitors were prepared to agree to the filing of the Father’s written submission in reply (subject to certain suggested amendments to the draft submission).  However, on the next day, i.e. 27 July 2016, the Judge handed down his decision and dismissed the Father’s variation of costs application (‘the Costs Variation Decision’).

8.  On 8 August 2016, the Father requested the Judge to set aside the Costs Variation Decision and give a new decision after the filing and serving of the Father’s written submission in reply.  The Judge did not accede to this request.

9.  On 24 August 2016, the Father’s solicitors issued a summons applying for leave to appeal against the Costs Variation Decision out of time.  This summons was listed to be heard on 11 October 2016. The Father’s summons of 24 June 2016 for leave to file a reply summons was also listed to be heard that day.

10.  On 11 October 2016 the parties attended before the Judge to deal with the two summonses.  They were, however, not able to conclude their submissions before the Judge.  They agreed that the Judge could deal with their applications on paper.  Leave was granted for the Father’s counsel to file a written submission in reply.

11.  On 3 November 2016, the Judge handed down the decision dismissing both the Father’s applications for leave to file the reply summons and for leave to appeal against the Costs Variation Decision.

12.  The Father now renews his leave application before this Court.  In the Father’s draft notice of appeal, the sole ground of appeal is that it is an error of law and a violation of natural justice and the spirit of the District Court Rules in that the Judge did not consider the Father’s written submission in reply before he made his Costs Variation Decision.

Our View

13.  The Court will refuse leave as we are not satisfied that the Father fulfils the threshold for leave under section 63A(2) of the District Court Ordinance (Cap. 336).

14.  The starting point is that costs is at the discretion of the Court and the appellate court will not interfere with the exercise of the discretion unless it is shown that the discretion was wrongly exercised, for example, by being contrary to principle, or the Judge had taken irrelevant matters into account or ignoring relevant matters.

15.  In our view, to the complaint of the violation of natural justice and the spirit of the District Court Rules, the Father proceeded on a false premise that he had a right to file a reply submission notwithstanding the directions on filing of submissions as agreed by the parties did not provide for the filing of a reply submission and the Judge should defer giving his decision before the hearing of the application for the filing of the reply submission.

16.  First, in the absence of directions from the Judge on the filing of the reply submission, the Father had no right to file a reply submission and the Judge plainly had the right to give a decision after the parties have filed submissions as agreed by them.

17.  Further, the lodging of the Father’s summons to file the reply submission does not operate as a stay of the proceedings in respect of the Summons which would preclude the Judge from giving his decision.

18.  It was plainly the Father’s own fault in not obtaining an order for the filing of the reply submission before the Judge gave his decision.  Bearing in mind the disagreement of the parties as contained in the letter of 21 April 2016 on the filing of the reply submission, and the view of the Mother’s solicitors that the Father should apply to the Judge for leave to file the reply submission if he chose to do so, the Father did not immediately, upon the filing of the Mother’s submission, make application for leave to file his reply submission.  Instead, he sought further agreement from the Mother’s solicitors and did not apply forthwith even after the request was rejected by the Mother’s solicitors on 14 June 2016. It took another ten days, i.e. on 24 June 2016, for the Father’s solicitors to finally take out the summons for leave to file the reply submission, even though the matter was then already before the Judge for decision.  Further the Father’s solicitors did not see fit to draw to the Judge’s attention that the Father had filed such a summons.  It is unrealistic for solicitors involved with litigation to even assume that somehow, once a document is filed in the registry of the Court, it will be immediately brought to the attention of the presiding judge.

19.  The Father did not in his written submissions or in his draft notice of appeal address the merits of the Costs Variation Decision.  It is obliquely said that matters concerning a ‘legal aid first charge’ had not been canvassed by the Judge in the Costs Variation Decision.  But the Father did not elaborate on how this matter would have an impact on that decision as a whole.

20.  Further, as the Judge had stated in this Decision refusing leave:

‘29. In order to complete the picture, I have also considered the contents of the Applicant’s submissions in reply sought to be filed which was attach to the Leave to file Reply Summons. I come to the conclusion that those matters had either been canvassed by this Court when arriving at the Costs Variation Decision dated 27 July 2016 or merely a repetition of matters which had earlier been pleaded.’

Conclusion

21.  For the reasons given, there is no reasonable prospect of success in the appeal.  Nor is there any reason in the interest of justice that the appeal should be heard.  The Father’s application for leave to appeal is refused.

Costs

22.  According to the Statement of Costs prepared by the Mother’s solicitors, the Mother’s costs of this application amount to $61,023.  This Court will award costs at $60,000.  The Mother’s own costs are to be taxed in accordance with Legal Aid Regulations.

Further direction

23.  The present application is completely unmeritorious, this Court will, pursuant to Order 59, rule 2A(8), order that no party may request the determination to be reconsidered at an oral hearing.