YUEN TOOMBS STEPHANIE DOWNS v. YUEN ELMER

HCMC 2/2000

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MATRIMONIAL CAUSES NO. 2 OF 2000

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REASONS FOR DECISION

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1. This is an application under Order 35 rule 2 by way of Notice of Motion to set aside the judgment given by me on 21 February 2001 after a hearing on 7, 12 and 13 February 2001 in the absence of the respondent. The respondent also seeks an extension of time within which to bring the application. At the hearing on 4 October 2001 I dismissed both applications with costs to the petitioner and now give my reasons for so doing.

2. The hearing which commenced on 7 February, and was adjourned to 12 February under circumstances with which I shall deal shortly, was in respect of applications for ancillary relief by both parties. The original matrimonial proceedings had commenced in 1996 and there had been a number of orders and directions, both here and in the District Court, largely concerning discovery, and what other judges in both courts considered the respondent's unsatisfactory response to orders for such discovery. Indeed, the petitioner sought adjournments of the application for ancillary relief on more than one previous occasion on the ground that insufficient information about the respondent's means was forthcoming.

3. The date for the hearing before me was fixed in the presence of the respondent and the petitioner's solicitors in June 2000. At some stage the respondent returned to the USA where he then lived, in a New York apartment the ownership of which was one of the matters raised in the hearing, and in respect of which the respondent has still not given a convincing explanation.

4. The respondent did not appear at the hearing on 7 February. However, the Court had received, shortly before, a letter requesting an adjournment on medical grounds, and enclosing two medical reports, which I refer to in my judgment, one of which cited severe pain from gouty arthritis in the foot and advised him to remain at home until 9 February. On the basis of this, I acceded to his request and adjourned the hearing to the following Monday, 12 February, which would allow him two days travelling time to arrive in Hong Kong after the period of rest referred to. On 12 February a further letter by fax was received by the Court from the respondent saying that he had been strongly advised by his doctor not to travel in the coming few weeks, accompanied by a further medical report describing his foot pain as moderate and suggesting he should take it easy and not travel. Although doubts were raised by counsel for the petitioner as to the genuineness of this report, this was a matter I did not have to consider as the report itself, in my view, did not support what the respondent claimed to be strong advice not to travel, and was insufficient reason to further adjourn a hearing for which the parties had been preparing for a long time. The report did not say that he was unable to travel, nor what treatment was being given, or was available, to relieve any discomfort he might have felt while travelling. This was not after all, as I observed to counsel at this hearing, a life threatening condition, but a painful foot. I would add that an affidavit since sworn by the doctor who wrote that report gives no further clarification as to the severity of the ailment nor the treatment. Neither does it confirm that the respondent was not able to travel.

5. I accepted the respondent's letter as a further application for adjournment, but, for the reasons given in my judgment and above, I declined to grant the adjournment and ordered the proceedings to continue in his absence, which I took to be without good and sufficient reason.

6. This application is, as I have said, made under Order 35 rule 2 which reads as follows:

"Judgment, etc., given in absence of party may be set aside (O.35, r.2)

2. (1) Any judgment, order or verdict obtained where one party does not appear at the trial may be set aside by the Court, on the application of that party, on such terms as it thinks just.

(2) An application under this rule must be made within 7 days after the trial. "

7. It is contended by Mr Coleman on behalf of the petitioner that this does not apply to the situation here, where an application for an adjournment has been made and refused, leaving the other party with the only option of an appeal. This rule, he submits, is only for the situation where a party has not appeared, without explanation at the time, to give him an opportunity of explaining that non-appearance, and the Court an opportunity of revisiting the matter if it considers the reasons for non-appearance sufficient. In support of this he has drawn my attention to a number of authorities which he says show that this rule only applies where a party has not appeared owing to a mistake, accident, or other circumstances which caused a party to be unavoidably absent from the hearing, and when the court was not informed of the reason at the time. In Grimshaw v. Dunbar [1953] 1 QB 408, Jenkins LJ said, at page 416:

".................... a party to an action is prima facie entitled to have it heard in his presence. He is entitled to dispute his opponent's case and cross-examine his opponent's witnesses, and he is entitled to call his own witnesses and give his own evidence before the court. If by some mischance or accident a party is shut out from that right and an order is made in his absence, then common justice demands, so far as it can be given effect to without injustice to other parties, that that litigant who is accidentally absent should be allowed to come to the court and present his case, no doubt on suitable terms as to costs, as was recognised in Dick v. Piller."

8. Similarly, in Re Barraclough (deceased) [1965] 2 All ER 311, in considering the then equivalent rule, Payne J said, at page 316:

"The fundamental principle, therefore, is that a party should be bound by the decision if he has had an opportunity to appear and oppose the proceedings; but if by some unavoidable accident the kind of thing for which RSC, Ord 36, r 33 provides a defendant has been prevented from coming to the court and opposing the proceedings, it does seem to me that the court would in the interests of justice (and under RSC, Ord 36, r 33) put the matter right. It would lead to a grave injustice if a decision, such as the decision which I gave in this case at the first hearing, could not be put right although by mistake or by accident it had been given in the absence of somebody who genuinely wished to come to court and oppose it. For my part I would hold, and do hold, that RSC, Ord 36, r 33 is available in appropriate circumstances to a defendant who is in the real sense of the word absent or who, in the terms of the rule, does not appear at the trial."

9. From these it is apparent that the rule is intended to provide a party who, as a result of circumstances beyond his control, or by mistake, does not appear at trial, with an opportunity to explain that non-appearance to the court, which, if satisfied on settled principles that justice requires a rehearing, will so order, subject to terms. Those principles have been clearly set out by Leggatt LJ in Shocked and another v Goldschmidt and others [1998] 1 All ER 372, where, at page 381, after an exhaustive review of the then authorities, he says:

"These authorities about setting aside judgment after a trial indicate that each case depends on its own facts and that the weight to be accorded to the relevant factors will alter accordingly. But from them I derive the following propositions or "general indications" as Lord Wright might have called them. (1) Where a party with notice of proceedings has disregarded the opportunity of appearing at and participating in the trial, he will normally be bound by the decision. (2) Where judgment has been given after a trial it is the explanation for the absence of the absent party that is most important: unless the absence was not deliberate but was due to accident or mistake, the court will be unlikely to allow a rehearing. (3) Where the setting aside of judgment would entail a complete retrial on matters of fact which have already been investigated by the court the application will not be granted unless there are very strong reasons for doing so. (4) The court will not consider setting aside judgment regularly obtained unless the party applying enjoys real prospects of success. (5) Delay in applying to set aside is relevant, particularly if during the period of delay the successful party has acted on the judgment, or third parties have acquired rights by reference to it. (6) In considering justice between parties, the conduct of the person applying to set aside the judgment has to be considered: where he has failed to comply with orders of the court, the court will be less ready to exercise its discretion in his favour. (7) A material consideration is whether the successful party would be prejudiced by the judgment being set aside, especially if he cannot be protected against the financial consequences. (8) There is a public interest in there being an end to litigation and in not having the time of the court occupied by two trials, particularly if neither is short."

10. I accordingly find myself in full agreement with Mr Coleman that there is a wide gulf between cases such as these, which envisage a non-deliberate absence of a party from the proceedings, with a reasonable excuse, and those where a party has made an application for an adjournment, which has been refused. In the former, the party may make use of Order 35, rule 2 to request the court to reopen the matter, but in the latter, the only recourse is for him to appeal the decision of the judge refusing the application to adjourn, and the court has no jurisdiction under this rule to entertain the former application.

11. I have no hesitation in finding that there was a clear application for a further adjournment in this case, albeit not in precise words, and that this application is accordingly misconceived. Mr Chan for the respondent frankly admitted at the outset of this hearing that he would be in difficulties if I found that there had been an application for an adjournment, which was refused. I do so find, and the respondent's proper course is to appeal my refusal of that application, which I understand he has already done as part of his appeal against my judgment in this case as a whole. At that appeal he may put forward the arguments which Mr Chan has put before me as to the reasons for refusing the adjournment, and whether the respondent would have produced better grounds for such adjournment had he been aware of the exchange between myself and counsel for the petitioner at the first hearing on 7 February. I will not deal with those arguments here, as I do not consider them relevant to this application.

12. Before leaving this matter I will deal briefly with the application to extend time for making this application, although, in the light of my decision on the substantive application, it is now not strictly relevant. The grounds for this were that the respondent was unrepresented and was unaware of the availability of the procedure to set aside the judgment. I have little sympathy for this application as well. The respondent has, as I observed in my judgment of 21 February, frequently chosen to represent himself when it suited him to. On those occasions it has been apparent from the preparation of his documents that he has received some professional assistance. He also filed a comprehensive notice of appeal and has been able to set down that appeal for hearing, although not yet apparently applied for a date. As I also found in that judgment, he is financially well able to afford representation, even if it had been for a solicitor to appear alone to make his application for an adjournment. I therefore find that his plea of ignorance of the rules to be unconvincing. Further, this application was not made until four and a half months after the judgment, where the period provided by the rule is seven days. It may well be that, as Mr Chan has said, it was he who first drew the respondent's attention to the possibility of this application, but as I have already found, the respondent did have access to legal assistance, and even if he had not, I would find this period, in the circumstances of this case and the respondent's attitude to a number of previous orders, too long to permit discretion being exercised in his favour to extend the time for applying.

13. For these reasons both applications were dismissed with costs to the petitioner to be taxed and paid forthwith.