ADJ v ADK

• Jurisdiction: Singapore
• Judge: Judith Prakash J
• Judgment Date: 05 May 2014
• Neutral Citation: [2014] SGHC 92
• Court: High Court (Singapore)
• Docket Number: Originating Summons No 1109 of 2012
• Published date: 15 May 2014
• Year: 2014
• Hearing Date: 26 September 2013,25 October 2013,26 April 2013
• Plaintiff Counsel: Plaintiff in person
• Defendant Counsel: Alice Tan (A C Fergusson Law Corporation)
• Subject Matter: Civil procedure,appeals,leave
• Citation: [2014] SGHC 92

Judith Prakash J: Introduction

Until 21 December 2011, ADJ, the plaintiff-husband herein was married to ADK, the defendant-wife. On that date, an interim judgment for divorce was made on an uncontested basis on the ground that the plaintiff had behaved in such a way that the defendant could not reasonably be expected to live with him. The plaintiff was not happy with this outcome. He filed an application for the interim judgment to be rescinded. This application having failed, he then appealed against the decision to the High Court. His appeal was heard by Choo Han Teck J (“the Judge”) who dismissed it. Throughout the proceedings, the plaintiff has acted in person.

By this originating summons, the plaintiff seeks leave of court to appeal to the Court of Appeal against the decision of the Judge. The Judge’s reasons for his decision are found in his written judgment identified as AWN v AWO and another appeal [2012] SGHC 228 (“the Judgment”).

The defendant resists this application on the basis that the plaintiff has failed to satisfy any of the three prescribed circumstances required for leave to appeal. Ms Alice Tan (“Ms Tan”), counsel for the defendant, argues that: there has been no prima facie error of law applied to this matter by the courts; there is no question of general principle to be decided for the first time; and there is no question of law on which a decision by a higher tribunal would be of public advantage. The issues that I need to decide are encompassed in the circumstances described in sub-paragraphs (a) to (c) above.

Background

The plaintiff and the defendant were married in September 2007. In July 2008, they had a son. In September 2010, the plaintiff filed an originating summons in the Family Court asking for the sole care and custody of the son. The defendant resisted this application and while the custody proceedings were on-going, on 3 October 2011, she filed divorce proceedings (“D 4739”).

The plaintiff filed a memorandum of appearance in D 4739 on 13 October 2011 in which he indicated his intention to contest the divorce proceedings and to apply for the custody, care and control of the son. Thereafter, however, the plaintiff did not file a defence to the claim for divorce. In due course, D 4739 was listed for hearing in chambers as an uncontested matter. As such on the appointed date, 21 December 2011, interim judgment was granted without a hearing at which the parties needed to attend.

The plaintiff says that on 21 December 2011, he went to the Family Court to attend a hearing in accordance with the “NOTICE OF HEARING OF WRIT/PETITION” which had been sent to him. He registered himself electronically at 2.10pm and waited outside the chambers of the court. At 2.50pm, seeing that there was no activity, he approached the court’s Help Centre and was informed that there was no hearing that he could attend and that his attendance had been dispensed with. He found out subsequently about the interim judgment issued that day.

The plaintiff’s various applications

On 14 March 2012, the plaintiff filed a summons in D 4739 in which he asked for the interim judgment to be rescinded pursuant to s 99(2) of the Women’s Charter (Cap 353, 2009 Rev Ed) (“the Charter”). This application came on for hearing before a District Judge (“the DJ”) on 2 August 2012. The plaintiff represented himself whilst the defendant was represented by Ms Tan. During the hearing, the plaintiff made lengthy submissions.

At the end of the hearing, the DJ dismissed the plaintiff’s application and explained to him that the interim judgment stood. The plaintiff was upset and made the following protest:

Then what is the purpose of coming to Court? We are going towards the path of divorce, not issue, but cannot be that these allegations are wrong. My child is wrong, it should not be this way, should be amicable. Right now, the next follow up, the purpose of coming to this Court, if already decided December 2011 someone made a mistake then and asked me to wait, then you all proceed further. There is one date, they asked me to follow up, you asked me to wait and I did, then how come I went to the Court on that day and they told me I need not attend. There is something, someone made a genuine mistake, should not be the way. Someone has to dig into it. It doesn’t make logical societal good sense, for the value of it. You are actually encouraging it. I followed this accordingly. And now someone told me need not come.

On 13 August 2012, the plaintiff filed an appeal against the decision of the DJ. In the meantime, the plaintiff had been unsuccessful in obtaining sole custody of the son: joint custody had been awarded to both parents with care and control to the defendant and access to the plaintiff. The plaintiff filed an appeal against this decision as well.

Both appeals were heard by the Judge at the same time and the Judgment contains his grounds for dismissing both of them. The plaintiff subsequently filed two separate applications for leave to appeal to the court of appeal, one in respect of each set of proceedings. I heard both applications. I dismissed the application for leave to appeal in respect of the custody issue but reserved my decision in relation to the application for the rescission of the interim judgment.

I think it is pertinent to emphasise that the plaintiff conducted both sets of proceedings entirely by himself although he may have had some assistance in preparing part of his submissions. He appeared before me on no fewer than three occasions and spoke at length on each of those occasions. The plaintiff is in his mid-forties and was previously an officer in the navy. He is currently an independent contractor. He speaks English fluently although somewhat idiosyncratically.

The reasons for the decisions made by the DJ and the Judge

The DJ gave brief oral reasons for her decision when she dismissed the plaintiff’s application for rescission. She noted that under s 99(2) of the Charter, any person may apply for rescission of an interim judgment by reason of material facts not having been brought before the court. Under s 99(3), the party against whom the interim judgment was granted may apply for a rescission but there is no specific reason stated in the provision. However, this was not the section relied on. She held that it was for the judge to decide, after having considered all the circumstances of the case, whether the interim judgment ought to be rescinded. She noted that English authorities had held that to rescind an interim judgment, cause such as that the judgment had been obtained by collusion or by reason of material facts not having bought before the court would have to be shown.

On the facts of the case before her, the plaintiff was aware of the divorce proceedings: he sent e-mails to the Family Court after being served with the documents and he attended the pre-trial conferences. While he had filed his memorandum of appearance, he did not file any pleadings subsequently. The plaintiff had also admitted that he was informed by the Help Centre that he needed to file his Defence and Counterclaim if he wanted to contest the divorce and that he would need court approval for an extension of time as he was late in doing so. Yet no application was filed. The plaintiff claimed that he had called the defendant’s lawyer to seek consent for the extension of time but that the calls were unsuccessful. The DJ noted that he could then have applied for leave to file his pleadings out of time but he did not do so.

In his affidavits and at the hearing the plaintiff stated that his basis for setting aside the interim judgment was that he...