Application by a "Public Figure" to have a petition in divorce heard in camera.
Review of U.K. Authorities and observations on evidential onus on applicant. Consideration of circumstances when such an application may be granted, and limitations thereto.
IN THE DISTRICT COURT OF HONG KONG
No. 138 of 1984
Coram: H.H. Judge Caird in Court
Date: 7 September 1984
1. The parties were married in April or May of 1937 and the husband has filed a petition in divorce dated the 12th January, 1984, alleging that Respondent has behaved in such a way that he cannot reasonably be expected to live with her. Various detailed particulars have been pleaded. Respondent denies or explains these particulars in her Answer and in turn she has cross-petitioned for a decree of judicial separation, alleging that she cannot reasonably be expected to live with Petitioner, and as a consequence of this Answer Petitioner has filed a Reply.
2. Petitioner has applied by way of summons dated the 3rd August, 1984, filed the following day, for an order to be made that :
||The hearing of this petition be conducted in camera.
||Costs be provided for."
3. The application is opposed by Respondent and the only evidence before me is an affidavit of the Petitioner and two medical reports, one from 1974 and the other 1984. Respondent has elected not to file any affidavit, however, I am informed that she will, at the appropriate time take issue with the Petitioner, over at least one aspect of the doctor's report involving her relation's with Petitioner.
4. The application has been presented in argument under two heads :
||Petitioners position in the community and
||The fortunate state of Petitioner's health as evidenced by the medical reports.
5. As far as Petitioner himself is concerned he is indubitably a well-known public figure, a philanthropist, a community and business leader possessed of both fame and fortune with various honours conferred upon him.
6. Respondent has not advanced any evidence to show her position in society although various matters have been traversed in the Particulars of the Petition and Particulars of the Cross-Petition relating to her status as Petitioner's wife and her own failing health.
7. There are six children of the family all over the age of 21 and at various stages in the particulars there are references to grandchildren. May I take this opportunity of entering a plea on behalf of both the children and the grandchildren. That is for each of the parties to reconsider their position in relation to the allegations each has made against the other and further consider with the advice of their counsel and solicitors the possibility of proceeding to a decree of dissolution of marriage on the basis of two years living apart with the consent of the spouse. So many people less blessed than either Petitioner or Respondent do see their way clear to such a course of action, for various considerations, not least being the interests of any children concerned.
8. It is common ground that the Court has jurisdiction to deal with this matter and Miss Leong in answer to a specific question from the bench, acknowledged on behalf of the Respondent that the Court did have jurisdiction, and I assume that she has made this concession on the basis of the reasoning adopted by the full bench in Xavier v Xavier(1) following Jennison v Baker.(2) However, it is pressed upon me by Miss Leong that the discretion of the Court is extremely limited and further she presents two further submissions :
(1) The application is too general in its scope; and
(2) That the application is premature.
9. Mr. Daniel Fung, opening for the Petitioner, referred me to the various textbooks and there can be no doubt that in a number of instances a Court does have jurisdiction to hear cases in camera. The logic is quite clear for persons suffering from mental illness, wards of Court, cases concerning adoption of children and even appeals relating to the custody of children heard by the Court of Appeal may all be heard in camera. Other instances are where publicity would defeat the object of the action, for example, proceedings to retrain disclosure of confidential communications or actions involving a secret process. Another head is where it is necessary for the due administration or where publicity would prevent justice being done and in such instances departure from the general rule is justified to the extent and no more than the extent that the Court reasonably believes it to be necessary in order to serve the ends of justice. An example, which, should requires no elucidation is trials under the Official Secret Act where the interests of the State may be imperilled.
10. The head under which Mr. Fung seeks to bring the instant case is that head where "witnesses in divorce suits cannot give their evidence properly in public" and one of the best illustrations is Moosbrugger v. Moosbrugger.(3)
11. What is also clear is that the public ought not to be excluded any longer than is necessary.
12. The House of Lords considered the position in Scott v. Scott (4) Viscount Haldane L.C. after considering a number of earlier cases stated at p.438.
"But unalese it be strictly necessary for the attainment of justice, there can be no power in the Court to hear is camera either a matrimonial cause or any othee where there is contest between parties. He who maintains that by no other means than by such a hearing can justice be done, may apply for an unusual procedure but he must make out his case strictly and bring it up to the standard which the underlying principle requires."
And at P.439.
"A mere desire to consider feelings of delicacy or to exclude from publicity details which will be desirable not to publish is not, I repeat enough as the law now stands. I think that to justify as order for hearing in camera it must be shown that the paramount object of securing that justice is done...