Scott v Scott

• Jurisdiction: Jamaica
• Court: Supreme Court (Jamaica)
• Judge: Bingham, J.
• Judgment Date: 27 July 1989
• Docket Number: D. S043 of 1988
• Date: 27 July 1989

Scott

and

Scott

Bingham, J.

D. S043 of 1988

Supreme Court

Family law - Divorce — Motion to set aside order of a decree nisi — Hearing before trial judge proceeded on the basis that suit for dissolution of marriage was an “undefended cause” — Answer and cross petition filed in the matter — Matter not an “undefended cause” — Material facts excluded from judge's bundle had the effect of rendering the hearing before the trial judge a nullity — Attorneys-at-law responsible for matter proceedings on an “undefended cause” — Attorneys-at-law ordered to pay costs — Decree nisi set aside.

Appearances:

Mrs. Margaret Macaulay for the applicant.

Gordon Steer for the respondent.

Bingham, J.

1 On 13th July, I heard this motion brought by the respondent to the above cause and at the end of the hearing of the submissions I granted the application and set aside the order of a decree nisi entered by Orr, J. (Actg.), on 26th April, 1989.

2 The hearing before Orr, J., had proceeded on the basis that the suit for dissolution of the marriage of the parties brought by the petitioner on the ground of cruelty was an undefended cause.

3 In so far as the Judge's Bundle prepared by the petitioner's attorneys-at-law sought to include therein copies of documents which from the history they related of the proceedings grounding the petition presented before the learned judge represented the matter as being an “undefended cause”, there is no suggestion nor can there be any argument or complainant advanced that given these circumstances he was quite justified in not only proceeding to hear the matter but equally so that in the light of the allegations contained in the petition if supported by evidence satisfying the required standard of proof, the order made by him was on the face of it a proper order and one that he could lawfully make.

4 When the motion to set aside the decree nisi was heard, however, based upon the allegations contained in the notice of motion as well as in the affidavit of the respondent filed in support thereof, an examination of the record (Court file) revealed a situation which can only be described as a number of startling irregularities which sought to establish the merits of the respondent's application making the eventual order setting aside the order of Off, J. (acting) inevitable as it was clear that material facts of such a nature were excluded from the Judges Bundle and this had the effect of rendering the hearing before that Court a nullity.

5 In order to fully appreciate the state of affairs which the Court was faced with in this matter it is necessary to set out the Notice of Motion and the affidavit in support of it in its entirety, as although the petitioner sought to file an affidavit in reply, it did not seek to challenge the contents of the respondent's affidavit in so far as it amounted to a true representation of the history of the matter up to the hearing of the petition.

6 The Notice of Motion dated 12th June, 1989, having referred to the particular cause and the parties as well as the venue in the body thereof stated:–

“Take Notice that this Honourable Court sitting at the Supreme Court Public Buildings, East Block, King Street, Kingston will be moved on Thursday the 13th day of July, 1989 at 10:00 o'clock in the forenoon or so soon thereafter as counsel may be heard on behalf of the respondent Burnham Jon Scott, for an Order setting aside the order of Decree Nisi made on 24th April, 1989 declaring the marriage had and solemised between he petitioner and the respondent is dissolved On the grounds that the aforesaid order of decree nisi is void having been illegally obtained in that the material facts were withheld from the court, in that the petition was heard as an undefended petition when in fact the respondent had entered appearance and filed and served an answer and cross petition.” (Emphasis supplied).

7 The respondent sought thereafter in the Notice of Motion to rely upon his affidavit sworn to on 12th June, 1989 which as it has already been stated from documents contained in the Court file relating to this matter accurately reflects the facts deponed to in the respondent's affidavit in support.

8 The affidavit of 12th June, 1989 states in the body thereof: “I, Burnham Scott being duly sworn make oath and say as follows:

• 1. That I reside at and have my true place of abode at 1 Sharrow Close, Kingston 8 in the Parish of Saint Andrew and my postal address at 17A Duke Street, Kingston.

• 2. That I am an attorney-at-law and the respondent in this action.

• 3. That the petitioner filed petition for a dissolution of marriage dated 6th May, 1988 on 6th May, 1988.

• 4. That the respondent filed memorandum of appearance and notice of appearance on 10th october, 1988 and served the same on the attorney-at-law on the Record for the petitioner, Messrs. Myers, Fletcher, and Gordon, Manton and Hart on 21st October, 1988.

• 5. That the respondent filed answer and grounds for relief for dissolution of marriage endorsed with notice to appear on 10th october, 1988 and served same on the attorneys-at-law on record for the petitioner on the 11th october, 1988 and on the co-respondent on 19th october, 1988.

• 6. That on the 15th day of August, 1988 the petitioner's attorneys-at-law forwarded to the respondent Ex Parte Summons to amend petition and affidavit in support for attention. The amendment was to insert the words ‘Audrey Lilieth Scott’ after the words, ‘them’ appearing in line 1 of paragraph of the petition and to delete the words “notwithstanding the adultery committed by your petitioner during the marriage.”

• 7. That on 7th October, 1988 the respondent filed an affidavit for the purpose of contending the Ex Parte Summons.

• 8. That on the 7th October, the attorneys-at-law for the petitioner informed the attorneys-at-law for the respondent that the application to amend by deleting the words ‘notwithstanding the adultery committed by your petitioner during the said marriage’ will be abandoned. It was abandoned.

• 9. That at the hearing of the application the respondent was...