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Wjt v Yatm

Judgment Cited authorities 10 Cited in Precedent Map Related
Vincent
Judgment Date07 December 2018
Neutral Citation[2018] HKFC 225
Judgement NumberFCMP79/2017
Subject MatterMiscellaneous Proceedings
CourtFamily Court (Hong Kong)
FCMP79/2017 WJT v. YATM

FCMP 79/2017

[2018] HKFC 225

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

MISCELLANEOUS PROCEEDINGS NO. 79 OF 2017

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IN THE MATTER of the child of the Applicant and the Respondent, (“the child”)
and
IN THE MATTER of Section 10 of the Guardianship of Minors Ordinance, Cap.13

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BETWEEN
WJT Applicant
and
YATM Respondent

----------------------------

Coram: Deputy District Judge D. Cheung in Chambers (Not open to public)
Date of Hearing: 28th September 2018
Date of Handing Down Judgment: 7th December 2018

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D E C I S I O N
( Specific Discovery )

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Introduction

1. The Applicant is the Mother (“the Mother”) and the Respondent is the Father (“the Father”) of the child born out of the wedlock in 2013 in USA. The Mother is claiming financial reliefs for the child which includes a lump sum and/or periodical payments as the Court thinks reasonable.

2. On 9th July 2018, the Mother took out a Summons for specific discovery (“Mother’s Discovery Summons”) against the Father seeking disclosure of various documents and information.

3. On 10th July 2018, the Father also took out a Summons for specific discovery (“Father’s Discovery Summons”) against the Mother seeking disclosure of various documents and information.

4. The present hearing is to deal with both parties’ aforesaid summonses.

The applicable principles

5. Orders for discovery are governed by Order 24 rules 3, 7 and 8, of the rules of the High Court, Cap.4A (“RHC”).

6. Order 24 rule 7 of the RHC is applicable to matrimonial proceedings by virtue of Rule 3 of the Matrimonial Causes Rules, Cap.179A (“MCR”).

7. In particular, Order 24 rule 8(1) provides :-

“on the hearing of an application for an order under 3 or 7 the court, if satisfied that discovery is not necessary, or not necessary at that stage of the case or matter, may dismiss or, as the case may be, adjourn the application and shall in any case refuse to make such an order if and so far as it is of opinion that discovery is not necessary either for disposing fairly of the cause or matter or for saving costs.”

8. The principles governing specific discovery have also been succinctly summarised by Hon Ng J in the decision of Jade’s Realm Ltd v. Director of Lands (HCA No.1509/2012) dated 9 January 2015 where His Lordship said as follows :-

“(1) There is no jurisdiction to make an order for specific discovery under RHC O.24 r.7 unless there is sufficient evidence or prima facie case that : (a) the documents or classes of documents exist which the other party has not disclosed; (b) the documents relate to a matter in issue in the action; and (c) the documents are in the possession, custody or power of the other party;

(2) Once it is established that those three prerequisites for jurisdiction do exist, the court has a discretion whether or not to order discovery.

(3) The Court will not make an order unless the discovery sought is necessary either for disposing fairly of the cause or matter or for saving costs.

(4) The Peruvian Guano test remains the test of relevance, A document is relevant if :

(i) it is reasonable to suppose that it contains information which may, not must, either directly or indirectly enable the party requiring the same either to advance his own case or to damage the case of his adversary; or

(ii) it is a document which may fairly lead the party to a train of inquiry which may have either of those two consequences.

(5) For the purpose of discovery, the pleadings have to be looked at broadly.

(6) The order must identify with precision the documents or categories of documents which are required to be disclosed, for otherwise the person giving the discovery may find himself in serious trouble for swearing to a false affidavit, even though doing his best to give an honest disclosure.

(7) Notwithstanding the Peruvian Guano test, ‘fishing’ is not allowed, and discovery should not be oppressive.

(8) The respondent may answer an application for specific discovery by an affidavit stating that he does not have the documents, and this will be conclusive at the interlocutory stage.”

9. Full and frank disclosure is an important role and also a continuing obligation of the parties with no exception in matrimonial cases. The rationale behind is to reveal all documents and information one party has or possesses which is relevant (my emphasis) whether it advances his or his opponent’s case or destroys his own case (see Compagnie Financiere du Pacifique -v- Peruvian Guano Conpany (1882) 11 QBD 55). This is commonly called the ‘Peruvian Guano’ principle.

10. ‘Relevance’ is to be determined by reference to the pleadings (see Re Estate of Ng Chan Wah [2003] HKEC 317). In the context of ancillary reliefs applications between spouses where there are no pleadings exchanged, the Court is entitled to consider the issue of relevance by reference to the disclosure of assets under the parties’ Form E or answers to questionnaires.

11. As regards the ‘existence’ of a document, Deputy High Court Judge Queeny Au-Yeung (as she then was) in the case of Ngan In Leng v. Chu Yuet Wah [2013] 1 HKLRD 717 had said :-

“42. A prima facie case on existence may be established on merely showing the probability arising from the surrounding circumstances or on specific facts deposed to : Hong Kong Civil Procedure 2012, Vol.1, para.24/7/1, at pg 554. For example, a prima facie case on existence may be established simply by assessing whether it is business practice for a certain type of document to exist : Union Bank of India v. General Nice Resources (Hong Kong) Ltd , HCA 299/2007, 10 May 2010, Bharwaney J at para 10.”

12. In the case of B v. B (matrimonial proceedings : discovery) [1979] 1 All ER 801 where Dunn J summarised the law on discovery in ancillary relief application at page 811 :

“I will conclude the part of my judgment by summarising my conclusions as to law.

(1) A party to a suit must disclose all the documents in his possession, custody or power which are relevant to the matters in issue. The court has discretion whether or not to order him to make such disclosure, and also has discretion whether or not to order him to produce the documents for inspection by the other party or the court.

(2) …………….

(3) …………….

(4) …………….

(5) The discretion is a judicial discretion, and in exercising it the court will have regard to all the circumstances. The court will balance the relevance and importance of the documents and the hardship likely to be caused to the wife by the non-production against any prejudice to the Husband and third parties likely to be caused by production………..….. The court will not order production unless it is satisfied that production is necessary either for disposing fairly of the issues between the parties or for saving costs.”

13. It is also stated that in B v. B at 805b-d that :

“Although in practice it will often be convenient to deal with discovery in one piece, it is important to remember that under the terms of the rules discovery proceeds by stages, and different considerations may apply at each stage. The order in this case was an order under RSC Ord. 24 r 7, for the discovery by the husband of specific classes of documents and for their production for inspection by the wife’s solicitor. Before any question of discretion arises, however, the court has no jurisdiction to make an order for discovery or production unless, firstly the person against whom discovery is sought is a party to the suit, secondly, the documents are in his possession, custody or power, and thirdly, the documents relate to matters in question in the proceedings. These requirements must be satisfied before discovery is ordered even if hardship is thereby caused to one party to the suit; see James Nelson & Son Ltd v Nelson Line (Liverpool) Ltd…”

14. Guided with the above principles, I now consider the Mother’s and the Father’s Discovery Summons.

Discussion

15. The Mother’s claim was based upon Section 10 of the Guardianship of Minors Ordinance (“GMO”) Cap.13 which provides for financial reliefs to be made for the future support of child of unmarried couples as well as for enabling any liabilities or expenses reasonably incurred before the making of the Order to be met (see Section 10(2)(a)). Thus, it also covers reimbursement so to speak. For future payments, the two predominant factors to be decided by the Court are the needs of the child and the parent’s ability to pay. For reimbursement, it refers to reasonableness of the expenses incurred and spent.

16. The Mother submitted that the relevant considerations that the court is required to take into account when determining a claim of this nature are summarized in Re P (Child : Financial Provision) [2003] 2 FLR 865 :-

“(i) The welfare of the child while a minor, although not paramount, is naturally a very relevant consideration as one of ‘…all the circumstances…’of the case.

(ii) Considerations as to the length and nature of the parents’ relationship and whether or not the child was planned are generally of little if any relevance, since the child’s needs and dependency are the same regardless : J v C (Child : financial Provision)[1999] 1 FLR 152 at 154B.

(iii) One of the ‘…financial needs of the child…’(to which by para 4(1)(c) the court must pay regard) is for him or her to be cared for by a mother who is in a position, both financial and generally, to provide that caring. So it is well established that a child’s need for a carer enables account to be taken of the caring parent’s needs : Haroutunian v Jennings (1980) 1 FLR 62 at 66C; and A v A (A Minor) (Financial Provision)[1994] 1 FLR...

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