Leave to Appeal Out of Time against Decree Absolute

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TS v AJ FCMC 7928/2012

Edited: CFF v ZWJ FCMC 12016 / 2010

H H Judge Bebe Chu

After delivering the above oral ruling, it has come to my attention that this Court may not have power to grant leave to appeal out of time, whether against a decree nisi of divorce/nullity or a decree absolute.  I have indicated to the parties’ legal representatives at a further direction hearing that I will be adding this postscript to my oral ruling and they have no objection to this.  My reasons are set out below.

Order 59 Rule 16 (1A) of Rules of the High Court (RHC) states that an appeal lies to the Court of Appeal as of right against a decree nisi of divorce/nullity, and O. 59 r. 16(2) states that the period of serving the notice of appeal of 28 days (not 6 weeks as mistakenly stated in the 2012 Edition of the Hong Kong Civil Procedure) shall be calculated from the date on which the decree nisi was pronounced.

O. 59 r. 16(2) further states that O. 59 r. 15 shall not apply to the above period.

What O. 59 r. 15 states is that without prejudice to the power of the Court of Appeal or a single judge under O. 3 rule 5 to extend or abridge the time prescribed by any provision of O. 59, the period for serving notice of appeal under rule 4 or making application ex parte under rule 14(3) may be extended or abridged by the court below on application made before the expiration of that period.

Thus, according to paragraph 59/16/4 of the Hong Kong Civil Procedure, by excluding the applicability of rule 15, the effect of O.59 rule 16(2) is that the time for appealing against the grant of a decree nisi cannot be extended by the court below; and that it can only be extended by the Court of Appeal, or a single judge (as defined).

By virtue of Rule 3 of the Matrimonial Causes Rules, Rules of the High Court apply to matrimonial proceedings subject to necessary modifications.  Thus the provisions of Order 59 will apply to matrimonial proceedings in the Family Court.

At the further direction hearing after the above oral ruling was delivered, the Respondent’s solicitor, Mr. Ko, agreed that the effect of O. 59 rules 16 (2) was that this Court  had no power to grant an application for leave out of time against the decree nisi. Mr. Ko clarified that this was why in his opening skeleton arguments he was dropping his application for leave to appeal out of time against the decree nisi, and only maintaining his application to seek leave to appeal out of time against the decree absolute, which he submitted that this Court had the power to grant.

The Petitioner’s solicitor, Mr. Fung, did not make any submissions on this issue.

Although I did grant leave to appeal out of time, on reflection, I am, however, not quite certain that this Court does have the power to grant leave to appeal out of time against the decree absolute, if this Court does not  in fact have any power to grant leave to appeal out of time against the decree nisi.  This is also in view of the provisions of s. 14(d) of the High Court Ordinance.

S. 14 (3) (d) of the High Court Ordinance sets out:

“(3) No appeal shall lie-

(a) ………….

(b) …………

(c) …………..

(d) from an order absolute for the dissolution or nullity of marriage in favour of any party who, having had time and opportunity to appeal from the decree nisi on which the order was founded, has not appealed from that decree; “

According to the case of LCM and LYY CACV 445 of 2002, [2003] HKCA 396, [2003] 2 HKLRD 690 (see paragraphs 28-33), s. 14(3) (d) of the High Court Ordinance should also apply to the District Court.

I am further aware of a decision dated 7 July 2008 in LSW and LMYM  HCMP 104 of 2008, [2008] HKCFI 554  which seems to support that  leave to appeal against a decree absolute should be sought from the judge who granted it. I refer to the following paragraphs 21-22 of that decision:

“21. Section 14(3)(d) of the High Court Ordinance (Cap 4) provides that no appeal shall lie to the Court of Appeal from an order absolute of dissolution of marriage by a party who had time and opportunity to appeal from the decree nisi on which the order was founded and who did not appeal from that decree. Although the section does not say that no appeal shall lie if a party has unsuccessfully appealed against the decree nisi (which is the case here), the spirit and intent of the section must be to prohibit such an appeal as well. To lodge such an appeal is, almost by definition, an abuse of the process of the court. In any event, even assuming that such an appeal is not caught by section 14(3)(d) as such, leave to appeal should, as a rule, be refused save in the most exceptional circumstances.

22. Furthermore, assuming section 14(3)(d) does not apply, leave to appeal ought to be sought, at first instance, from Deputy District Judge K W Wong: Order 58, rule 2(4) & (5), Rules of the District Court (Cap 336H). No valid reason has been advanced for applying for leave directly from the Court of Appeal: see Order 58, rule 2(6), ibid.”

The decision of LSW and LMYM was before O. 59 r.16 (1A) was introduced and the above mentioned provisions of O. 59 were not referred to in that decision.

An appeal against a decree nisi was as of right prior to O. 59 r. 16 (1A) was introduced (see paragraph 59/16/1 of the 2008 Edition of the Hong Kong Civil Procedure).

In England & Wales, however, it seems that after their Civil Procedure Rules came into effect, permission for leave to appeal against a decree nisi must be obtained but it seems also that any extension of time will need to be sought from the Court of Appeal.  (see CPR Pt 52 and para 21.1 of the Practice Direction which supplements the part, and also paragraph 51.117 , Volume 1 (2), Rayden 18 Ed).

At the time when our own Civil Justice Reform was brought in, O. 59 r. 16(1A) was introduced to reiterate that an appeal against a decree nisi was as of right.

According to paragraphs 51.117 and 51.118., Volume 1(2) of Rayden 18th Ed. once a decree nisi has been made absolute, it seems then the proper procedure for the appellant is to seek a declaration that the appellant had not had time and opportunity to appeal from the decree nisi.

There have been a number of other similar cases in the Family Court where a respondent has sought leave to appeal out of time against the decree nisi and/or decree absolute.  At the direction hearing, Mr. Ko has indicated that he will be asking the Court of Appeal to clarify as to (i) whether this Court has the power to grant leave to appeal out of time against the decree nisi; (ii) whether this Court has power to grant leave to appeal out of time against the decree absolute, without the applicant having first obtained leave to appeal out of time against the decree nisi, or whether the application should be to seek a declaration.

LCM and LYY CACV 445 of 2002, [2003] HKCA 396, [2003] 2 HKLRD 690 (see paragraphs 28-33), s. 14(3) (d) of the High Court Ordinance should also apply to the District Court.

Hon Cheung JA:

36. I agree with the judgment of Yuen J.A. and the orders she proposes to make. I would add briefly the following observation.

37. The civil jurisdiction of the Court of Appeal is conferred by section 13(2) of the High Court Ordinance. It consists of, among other things,

(1) appeals from any judgment or order of the Court of First Instance in any civil cause or matter and

(2) appeals under section 63 of the District Court Ordinance.

38. Section 63(1) of the District Court Ordinance provides that, subject to the exceptions stated in section 63(3), an appeal can, with leave, be made to the Court of Appeal in a civil cause or matter.

39. Although the District Court Ordinance itself does not identify the jurisdiction to hear matrimonial causes, this is conferred by section 10A(1) of the Matrimonial Causes Ordinance.

40. An appeal against a decision of the District Court in matrimonial causes will require leave by reason of section 63(1) of the District Court Ordinance.

41. Although the District Court Ordinance contains no equivalent provision of section 14(3)(d) of the High Court Ordinance, clearly there should not be any difference in approach on matters affecting the marital status of a person. Hence an appeal from the District Court in respect of an order absolute should be subject to the same restriction imposed by section 14(3)(d).

42. In my view, this provision should be expressly provided for in the District Court Ordinance so that one does not need to go through an analysis of the different subsections in section 14(3) in order to ascertain whether it will apply to a divorce order absolute obtained in the District Court. After all, the context of section 14 is really directed towards appeals from the Court of First Instance to the Court of Appeal.