Diedre Anne Hart Chang v Leslie Chang
| Jurisdiction | Jamaica |
| Judge | COR: EDWARDS, J. |
| Judgment Date | 22 November 2011 |
| Judgment citation (vLex) | [2011] 11 JJC 2201 |
| Docket Number | CLAIM NO. 2010/HCV 03675 |
| Court | Supreme Court (Jamaica) |
| Date | 22 November 2011 |
IN THE SUPREME COURT OF JUDICATURE OF JAMAICA
CLAIM NO. 2010/HCV 03675
Ms. Denise Kitson, Suzanne Risden-Foster & Terri-Ann Gibbs instructed by Livingston Alexander & Levy for the Claimant.
Mr. Gordon Steer instructed by Bunny & Steer for the Defendant.
Property (Rights of Spouses) Act – application made out of time – extension of time granted – leave to apply not granted – jurisdiction – effect of Brown v Brown– validity of the fixed date claim form filed before leave granted – effect of Allen v Mesquita.
IN CHAMBERS
Reasons For Decision
Background
This judgment is in respect of my decision in one of several applications which came before me and for which I promised to put my reason in writing. I do so now. I granted leave to apply under the Property (Rights of Spouses) Act (the Act) out of time and extended the time within which to do so. The remaining matters have been otherwise dealt with in orders made on the same day.
This matter came before me at an adjourned case management conference by way of notice of application for court orders and was set down for hearing over two days. There was before me a Further Amended Notice of Application for Court Orders filed October 7, 2011 requesting the consolidation of proceedings in Claim HCV 2010/03675, which was a claim for relief under the Act and Claim M/2009/01099, which was an application for relief under the Matrimonial Causes Act and the Maintenance Act for custody and maintenance of child and maintenance of wife. In that said notice of application were also applications for disclosure of assets, preservation of assets and extension of time.
There was also properly before me a Notice of Application for Court Orders filed Friday November 17, 2011 which was an application for leave to apply out of time and for extension of time within which to file a claim under the Act.
The claimant's attorneys indicated that they would be pursuing matters in the first application and would not be pursuing the latter ‘at this time.’ The reason for this, it would appear, was that there was an order extending time granted by the Honourable Mrs. Justice M. Cole-Smith on February 28, 2011. However, Counsel Mr. Steer indicated at the outset that the Court had no jurisdiction to hear the applications, as the claim was not properly before the Court. He indicated that no leave had been granted to file the claim out of time and that the order of the Honourable Mrs. Justice M. Cole-Smith, made on 28 th February 2011, was invalid.
Counsel Mr. Steer's complaint was based on the fact that the claim was filed under section 13.1(b) of the Act and was filed outside of the time limited by the Act. An extension of time was sought both in the Fixed Date Claim Form and by way of Notice of Application for Court Orders which was heard by the learned judge and granted. Both parties were ad idem however, that at the time the extension was granted there was no evidence in any of the affidavits filed, outlining the reasons for the delay.
At the time the preliminary point was raised by Mr. Steer this court was of the view that the order for extension of time having been made by a court of concurrent jurisdiction, I could not go behind that order.
Mr. Steer indicated that on the authority of Brown v Brown [2010] JMCA Civ 12 decided in the Court of Appeal on March 26, 2010 the issue of jurisdiction could be raised at any time. He further argued that on the authority of Allen v Mesquita [2011] JMCA Civ 36, leave to apply out of time was required under section 13 (2) of the Act; leave to apply having not been granted by the learned judge and the judge having had no basis on which to grant an extension; the Fixed Date Claim Form filed by the claimant was invalid and a subsequent order of the court could not ‘revive the dead.’ At the invitation of Counsel, the Court took time to advise itself of the decisions in the cases cited by him.
Chronology of Events
This is the history of the matter as it appears on the record and as was submitted to me:
Jurisdiction
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1. The parties are husband and wife having been married on February 25, 1995. The marriage produced one child born September 3, 1995.
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2. The parties became separated in January of 2008.
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3. The wife filed petition for dissolution of marriage on May 12, 2009.
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4. A Fixed Date Claim form was filed July 26, 2010 in the Supreme Court seeking relief under the Property (Rights of Spouses) Act. At paragraph 14 the applicant sought orders and declaratory relief pursuant to the Act and at paragraph 14(Q) she sought an order for extension of time to apply to the court for the orders sought pursuant to section 13 (2) of the said Act.
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5. A Notice of Application For Court Orders was also filed concurrently with the Fixed Date Claim Form on July 26, 2010 seeking orders for consolidation of proceedings; extension of time to apply for orders sought in the Fixed Date Claim Form; preservation of assets and for disclosure. The parties were given a date for hearing on the 28 th February 2011.
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6. A Notice of Application For Court orders was also filed in M-01099/2009 for custody and maintenance of child on July 26, 2010.
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7. On February 16, 2011 an Amended Notice of Application For Court Orders was filed and was set down for hearing on the 28 February, 2011. The orders sought was for consolidation of the action with that of the matrimonial proceedings filed by the petitioner in Claim No. 2009/M 01099 and for extension of time to apply to the court for the orders sought in her fixed date claim form filed herein pursuant to section 13 (2) of the Property (Rights of Spouses) Act, for disclosure and preservation of assets.
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8. On February 28, 2011 the matter came before the Honourable Mrs. Justice M. Cole-Smith at case management conference where she made the following order:
‘The Time within which to file the Fixed Date Claim Form is extended to 26 th July 2010.’
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9. The case management conference was adjourned to 11th October 2011. A Further Amended Notice of Application For Court Orders was filed on October 7, 2011 now seeking an amendment to the Fixed date Claim form to rely on the Maintenance Act as an alternative to the order for consolidation. At this adjourned hearing before the Honourable Mr. Justice R. King, it was further adjourned for the applications to be heard on the 21 st -22 nd November 2011.
In Brown v Brown the applicant filed a claim in January 2007. Her marriage had been dissolved in May 2005. In January 2007, subsequent to filing the claim she sought by notice of application for court orders, an order for ‘leave to present the application for division of matrimonial (sic) home out of time.’ Leave was granted on 28 th June, 2009.
At the trial a preliminary issue was raised as to whether the court had jurisdiction to hear the claim. This issue of jurisdiction raised by Counsel had to do with whether the Act was retrospective in effect. The learned trial judge decided that the Act having come into effect on the 1 st day of April 2006, it provided the court with powers under it as of that date and not before. Based on this reasoning the learned trial judge took the view that the Act would not cover marriages which were dissolved before April 2006. He therefore declined to exercise jurisdiction over the matter.
On appeal the appellate court took the view that the Act was indeed retrospective. Most importantly for our purposes, the Court of Appeal agreed that the judge was entitled to entertain the jurisdictional point at trial, despite the applicant having obtained an order of the court for leave to present her application out of time pursuant to section 13 (2) of the Act. It is this narrow point in the Court of Appeal's decision that Mr. Steer relies on in his submissions to this court.
Cook J.A. in his judgment said at para.14;
‘ It would seem to me that at the application for the extension of time, no issue as to jurisdiction of the court was raised. Accordingly although the judge extended time, it cannot be said that she made any ruling in respect of jurisdiction. The affidavit opposing the application was at best perfunctory (see paragraph 2 above). It is therefore my view that Marsh J. was properly entitled to give audience to submissions pertaining to his jurisdiction.’
In paragraph 77 of his judgment Morrison J.A. also addressed the issue of jurisdiction and declared that he was in full agreement with Cooke J.A's conclusions. He noted that the learned judge who heard and granted the application was not invited to make and made no ruling on the issue of jurisdiction. He went on further to state:
‘On an application under section 13 (2), it seems to me, all that the judge is required to consider is whether it would be fair (particularly to the proposed defendant, but also to the proposed claimant) to allow the application to be made out of time, taking into account the usual factors relevant to the exercise of a discretion of this sort, such as the merits of the case (on a purely prima facie basis), delay and prejudice, and also taking into account the overriding objective of the Civil Procedure Rules of ‘enabling the court to deal with matters justly’ (rule 1.1 (1)).
The issue was dealt with succinctly by Phillips J.A. at paragraph 94. She noted the sparseness of the affidavit evidence and the fact that neither party had addressed the applicability of the Act at the hearing of the application for extension of time. Phillips J.A. decided that the issue of the applicability of the Act could therefore be dealt with by the trial judge as a matter of law. This issue of jurisdiction as a matter of law could be raised at any time.
According to Mr. Steer, the issue of whether the court...
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