Cann v Cann [1963] PGSC 4; [1963] PNGLR 256 (23 September 1963)

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MATRIMONIAL CAUSES - Intervention - After Decree Nisi - Rules of Court - Matrimonial Causes Jurisdiction, Papua - Rule 43 - “Any person” - Rules 44, 45, 46, 47 - Matrimonial Causes Ordinance 1941-1958, Sections 22, 23. Matrimonial Causes - Decree Nisi - Motion to Set Aside - Jurisdiction - Cost - Maintenance - Ancillary Relief - The Rules of the Supreme Court 1900 - Order 39, Rule 33 - Rules of Court 1960 - Rules of Court, Matrimonial Causes Jurisdiction, Papua - Rule 81 - Rules of Civil Procedure - Rule 131 - Matrimonial Causes Ordinance 1941-1958 - Section 45.

In 1958 the defendant’s wife instructed the Public Solicitor in Victoria to commence proceedings on her behalf. On 14th September, 1962, the wife signed a petition but it was never filed for on 17th September, 1962, the writ and statement of claim in her plaintiff husband’s Papuan action were served on her. The defendant informed her solicitor who wrote to a firm of solicitors in Papua on 4th October, 1962, informing them of the plaintiff’s action, indicating that the writ allowed the defendant two calendar months from the date of service, 17th August, 1962 (sic), in which to take action, and asking whether they were prepared to act for the defendant. The Papuan firm replied on 15th January, 1963, agreeing to act and making no reference to the fact that the time for defence had expired. The Public Solicitor instructed the Papuan firm on 22nd January, 1963. It was then discovered that a decree nisi had been pronounced in favour of the plaintiff on 11th December, 1962. The proceedings were perfectly regular.

On 28th March, 1963, the defendant entered an appearance and served an affidavit on the plaintiff, seeking to intervene under Part XII of the Rules of Court, Matrimonial Causes Jurisdiction, Papua. On 2nd July, 1963, the plaintiff took out a Notice of Motion to have the decree made absolute. Further affidavits were filed by both parties. By agreement this Motion was treated as an application by the defendant for directions under Rule 47. In a further Motion the defendant asked that (i) the decree be set aside, (ii) provision be made for her costs and maintenance, (iii) ancillary relief to be granted.

N1>(i) The defendant, being a party to the action, is not “any person other than a Crown Law Officer” within the meaning of Rule 43 in Part XII of the Rules of Court, Matrimonial Causes Jurisdiction, Papua.

N1>(ii) Rule 81 of the Rules of Court, Matrimonial Causes Jurisdiction, Papua, and Section 45 of the Matrimonial Causes Ordinance confer wide authority on the Court to direct what shall be done if any circumstances arise which are not provided for in Rules. The defendant’s circumstances are not provided for and are such as to warrant the exercise of this authority.

Principles relating to depriving a party of a hearing when he desires to be heard and of a judgment when he has obtained it regularly and without misconduct discussed.

Jurisdiction to give relief where the suit has been heard and the defendant’s non-appearance was due to mistake discussed, and authorities reviewed.

SMITHERS J: This is a divorce case in which the husband is plaintiff and the wife is defendant. A decree nisi was pronounced in favour of the husband on the 11th December, 1962, and no suggestion is made that there was any irregularity in the proceedings antecedent to the decree or at the hearing at which the decree was pronounced. Indeed, it is conceded that the proceedings were perfectly regular. All those things were proved which are required to be proved to entitle the husband to the decree. Notwithstanding this, however, it now appears that as long ago as 1958 the wife, who lives in Australia in Victoria, approached the Public Solicitor of that State and instructed him to take proceedings on her behalf, she understanding, however, from him that owing to the state of business in his office he would be unable to commence proceedings for her for some three years. Pursuant to her instructions, the Public Solicitor ultimately prepared a petition on her behalf. She signed it on the 14th day of September, 1962. That petition was never filed in the Supreme Court of Victoria because on the 17th September, 1962, Mrs. Cann was served with the writ and statement of claim in her husband’s Papuan action. Mrs. Cann reported this to the Public Solicitor who wrote to a Moresby firm of solicitors on the 4th October, 1962. In this letter the Moresby solicitors were informed of the Papuan writ and they were told its number and the name of the solicitor acting for the plaintiff. The letter pointed out that the Writ of Summons allowed Mrs. Cann two calendar months in which to take appropriate action and that the documents had been served on her on the 17th August, 1962. In this letter the Victorian Public Solicitor asked the Moresby firm if it was prepared to act for Mrs. Cann and, if so, to advise the probable amount of costs which would be incurred so that the matter might be discussed with Mrs. Cann. For reasons which have not been made clear to me, no answer to this letter was sent until 15th January, 1963 and nothing was done by the Moresby firm during this period. On the 15th January, the Moresby firm acknowledged the letter of the 4th October, 1962, apologised for the delay, stating somewhat ingenuously that it had been caused by the office being re-organised during the Christmas period. The writer then blandly says that the firm would be prepared to act for Mrs. Cann, paying no attention to the fact that the papers, so far as he knew, had been served on the 17th August, and that the time in which Mrs. Cann was to take action and in which any services to her would be effective in her defence had expired on the 17th October, 1962. It is disappointing to those responsible for the service of the law to observe such an example of detached and irresponsible approach to the activities of a member of the legal profession and it calls for severe criticism. I pause to say that this does not reflect on Mr. Stanley Cory, who appeared before me, because he personally had nothing to do with this matter at all at that stage. The Public Solicitor gave instructions to the Moresby firm on the 22nd January, and then, of course, is was discovered that the decree nisi had already been granted. The problem then arose as to what was to be done for Mrs. Cann who, according to her instructions, desired and always had desired, to defend herself in this action and to claim relief herself on the ground of her husband’s alleged desertion.

The matter appears to have been approached by the wife’s legal advisers on the basis that the case was one for intervention under part 12 of the Rules of Court, Matrimonial Causes Jurisdiction, Papua, 1951, which is headed “Showing Cause Against a Decree”. Rule 43 contemplates that “any person other than a Crown Law Officer” desiring to show cause against making absolute an order nisi for dissolution of marriage may enter an appearance in the action and give appropriate notice to all parties of the action. Rule 44 provides that a person so entering an appearance shall file an affidavit within 14 days setting out the facts upon which he or she relies. Rule 45 says that a party in whose favour the order nisi has been pronounced may file an affidavit within 14 days and Rule 46 permits the person showing cause to file another affidavit within 14 days. Rule 47 provides that the questions raised on any affidavit so filed shall be argued in any manner and at any time as a Judge shall on application by motion direct.

Acting on the basis that she was entitled to proceed under part 12, the defendant entered an appearance on the 28th March, and she served an affidavit on the plaintiff on the same day. On the 2nd July, 1963, the plaintiff took out a Notice of Motion asking the Court to order the decree to be made absolute. The plaintiff filed an affidavit on the 12th July, 1963. The defendant filed a further affidavit on the 24th July, and then finally the plaintiff filed another affidavit on the 16th August. As a result the only application which is in strict form before me is the Notice of Motion of the plaintiff but I am informed by Counsel that it is agreed that this Motion be treated as an application by the defendant wife for directions under Rule 47.

Following the form of order nisi provided in the 1951 Rules, the order nisi made on the 11th December, 1962, contains the following “This Court doth order and adjudge that the said marriage be dissolved unless cause to the contrary be shown unto this Court within six months from this day”. It seems to me that this form is not happily phrased in view of the provisions of Sections 21 and 22 of the Ordinance. Section 21 of the Matrimonial Causes Ordinance, 1941, provides that an order nisi shall not be made absolute until expiration of six months or such shorter period as the order directs. Section 22 provides that after the expiration of the time limit in the order nisi, the plaintiff may request the Registrar in writing that the order may be made absolute and that upon receipt of such request in writing the Registrar shall, if there is nothing in opposition to the final order, issue under his hand the order absolute. However, the plaintiff did not until to-day, some nine months after the making of the order nisi, make a request to the Registrar. The result seems to be that neither party took the formal steps agreeable with the Ordinance and the rules to achieve his desired result, although the plaintiff did, fairly soon after the six months had expired, formally approach the Court by way of Motion.

However, treating what is informally before me on behalf of the defendant as properly before me, I have heard argument directed to the defendant’s right to proceed at all under part 12. Mr. Kirke argued that the defendant was not “any person other than a Crown Law Officer” within the meaning of Rule 43. He supported his argument by reference to Pope v. Pope and Another[cccxli]¹, W. v. W.[cccxlii]², McKenzie on Divorce, 5th edition, p. 101, with special reference to Dalrymple v. Dalrymple[cccxliii]³ referred to in the same work. The contention is that Mrs. Cann is not “any person” within the meaning of the Rule because she is a party to the action, and that the whole theory of intervention contemplates action by persons who are not parties, and that any person who is a party to proceedings and who wants any relief in such proceedings, does not seek relief as an intervenor, but, being already in the action, proceeds therein, if at all, only as a party. It seems to me that this argument is correct and that Mrs. Cann is not entitled to approach the Court under part 12.

As a result of discussions yesterday morning, Mr. Cory approached the Court in the afternoon on a Motion asking:

N2>(b) that certain provision be made for Mrs. Cann’s costs and maintenance; and

Mr. Cory contended that I had jurisdiction to set aside the decree either under Order 39, Rule 33, of the Rules of the Supreme Court, or under Rule 81 of the Papuan Divorce Rules of 1951, or as part of the inherent jurisdiction of the Court.

Order 39, Rule 33, is in the form of the traditional rule to the effect that a verdict or judgment obtained where one party does not appear at the trial could be set aside by the Court or the Judge upon such terms as may be just.

Rule 81 provides that if in any action or matter circumstances arise not provided for by the Rules, or if there is any doubt or dispute as to the proper procedure to be followed, the Judge may direct what shall be done in the particular instance, or that the procedure already adopted shall be deemed proper and his directions shall be of the same validity as if incorporated in the Rules.

Mr. Kirke pointed out, however, that Order 39, Rule 33, did not apply because the Rules of Court made on the 17th November, 1960, by this Court, the general effect of which is to apply the Queensland Rules to civil proceedings of Papua, are expressly stated not to apply to Matrimonial Causes. (See Government Gazette No. 51 of the 17th November, 1960.)

Mr. Cory then contended that the Civil Procedure Rules formerly applicable to civil proceedings in Papua could be called in aid. He argued that although there was nothing specific in those rules giving me jurisdiction to set aside a decree in these circumstances, the omission could be cured by looking at Rule 131 which provides that when any matter is not provided for in the Rules of Civil Procedure[cccxliv]⁴, the practice and procedure of the District Courts of the Colony of Queensland as regulated by certain Acts of Queensland shall, so far as circumstances will admit of govern the matter or if such last mentioned Acts and Rules do not provide for the said matter then the practice and procedure of the Supreme Court of the Colony of Queensland as regulated by the “Judicature Act” of the said Colony and the Rules contained in the schedule to such Act and the Rules of the seventh day of December, 1876, made under the provisions of the last mentioned Act shall, so far as circumstances will admit, govern the matter, provided in all cases that any practice and procedure as aforesaid can be followed and applied without contravening any Ordinance, law, enactment or regulation of the Possession. See Laws of the Territory of Papua, Vol. 1, p. 617. Needless to say Mr. Cory did not produce these ancient documents and, I am glad to say, I do not think I am required to travel the path to them which is obviously as tangled and overgrown as any Papuan jungle path may be. Either I have the power under these ancient provisions or I have not. If I have then, subject to the facts so justifying, I am prepared to exercise the jurisdiction. But I doubt very much whether I would find the jurisdiction even if I were to pursue this path relentlessly. I prefer to put my jurisdiction, which I think I have, on a much more modern and less obscure basis by relating it to Rule 81, or perhaps I should more correctly say by basing it on Section 45 of the Matrimonial Causes Ordinance, 1941-1958. This provides that proceedings under the Ordinance shall be conducted in accordance with Rules of Court governing practice and procedure under this Ordinance and then proceeds in the precise terms of Rule 81. In other words, in operating in accordance with the terms of Rule 81, I am not operating merely under a Rule of Court, but under an Ordinance.

Mr. Kirke argued that I should take care not to exceed the powers given to me on a fair reading of Rule 81 because I am not allowed to legislate. He contended that I should not be tempted to invent new law merely to relieve unexpected or hard cases and that if I were to set aside this decree on the grounds indicated at the commencement of this judgment that is what I would be doing. Mr. Kirke emphasised that a party who had obtained a judgment perfectly regularly and without misconduct of any kind should not be deprived of it without what the Privy Council in Brown v. Dean and Anor[cccxlv]⁵ called “very solid grounds”.

I agree with this but I also think in general to deprive of a hearing a party desiring to be heard is a denial of justice. It is this denial of justice in circumstances where justice can still be done by a re-hearing, which provides the solid ground. The question is whether this is one of those general cases which fits those conditions. I think authority indicates that where there has been a genuine accident depriving a party of knowledge of the date of hearing the conditions are fulfilled and that the fact that the accident was the result of negligence of the solicitor of the party does not take it out of the category of cases where relief ought to be given.

I must say that at the hearing I was impressed by Mr. Kirke’s contentions but, on further consideration, I think his approach to the interpretation of Section 81 was too narrow.

My first task is to consider whether within the meaning of the Rule circumstances have arisen which are not provided for. It is quite true that the Rules of 1951 do not provide for the case in which a defendant has not been present at the trial due to some oversight. It was argued that those Rules, and indeed the Rules which preceded them, deliberately did not make provision for setting aside of decrees and that this subject should not be considered as being merely not provided for but as having been legislated against in the sense that the Rules themselves were to be considered as “covering the field”.

But the relief of persons who have had judgment in any form given against them by reason of some inadvertance is by tradition a subject upon which provision is made in most jurisdictions and conditions of relief laid down. This is undoubtedly a reflection of a fundamental requirement of justice. It is abhorrent to the law that a party not entitled to judgment should have it because of some human accident and perhaps more abhorrent that a party with a good defence should have judgment against him because of such an accident. It would, therefore, in my opinion, require very clear expression to persuade me that any set of Rules were intended to exclude the power of the Court to do justice in these circumstances. I do not find any such clear words in these Rules but, on the contrary, the Rules contain a very wide provision in Rule 81 and I find that it is not only a Rule but I am authorized by the Ordinance to direct what shall be done if any circumstances arise not provided for in Rules. Such authority being conferred my duty is to exercise it in a proper case.

The jurisdiction to give relief where the suit has been heard when the defendant did not know the trial was on by some mistake is well established. Thus in Manners v. Manners[cccxlvi]⁶, a new trial was granted where the notice of setting down for trial was served on the solicitor who had been previously acting for the respondent and he accepted it and did not notify her until it was too late for her to appear at the hearing. In Fluister v. Fluister[cccxlvii]⁷ the solicitor for the petitioner wrote to the respondent’s solicitor a letter referring to the cause and stated “I have set the cause down for trial”. It was held that this was sufficient notice of the setting down. The respondent’s solicitor in the belief that a more formal notice ought to be given did not watch the cause list and a decree was made in the absence of the respondent. She applied for a new trial on the grounds of surprise. The Court ordered a new trial on the undertaking of the solicitor personally to pay the costs thrown away. In Manners v. Manners[cccxlviii]⁸ it is clear that the power to order a new trial has long been a feature of the Matrimonial Causes Rules of England and that relief on the general principles of justice where a party had had a decree made against him or her in excusable circumstances should be granted. Again, in Queensland, which is a jurisdiction with considerable persuasive influence in this Territory, Henschmann J. in Donaldson v. Donaldson[cccxlix]⁹ gave relief under Order 39, Rule 33, to a defendant husband who, although an order for substituted service had been made against him and complied with, had no knowledge of the proceedings until he saw a report in the newspaper of the judgment of the order nisi.

The express provision that the Rules of the Supreme Court 1900[cccl]¹⁰ as applied in the Territory by the Rules of Court, 1960[cccli]¹¹ do not apply to Matrimonial Causes in this Territory cannot limit the provisions of Section 45 of the Ordinance, which are repeated by Rule 81, Rules of Court, Matrimonial Causes Jurisdiction, Papua.

The 1960 Rules contain provisions which apply to civil proceedings in Papua the Queensland Supreme Court Rules, but Matrimonial Causes are excepted. This exception no doubt resulted from the fact that the Judges of the Court had already made rules for matrimonial causes in Papua and it probably also reflected the realization of those Judges that Section 45 and Rule 81 were sufficiently wide to provide for any matters of importance not more explicitly covered by the existing matrimonial rules. The excepting of Matrimonial Causes cannot be treated as a positive provision that powers which would be express grant have resided in the Court if the Queensland rules had been adopted are ipso facto denied to the Court. The exception merely leaves the Papuan rules in statu quo ante the 1960 rules.

On reflection I think the circumstances alleged here do fall aptly within the classes of circumstances within the intended scope of Rule 81. It is true to say that the circumstances are not provided for by any one of the Rules of 1951. It is certain that there is doubt and dispute as to the proper procedure to be followed. The course which I am asked to take is not exotic in any sense relevant to legal experience. It does not conflict with any principle of justice, nor does it conflict with any practice of any Court exercising the same sort of jurisdiction with respect to the same sort of subject matter with respect to which I am asked to exercise it. On the contrary, the course which I am asked to take is a course in consonant with tradition and practice in England and the Australian States. I think, therefore, that I should adopt it. The question now remains whether I should on the evidence set this decree nisi aside.

I do not propose to set it aside at the moment. On the other hand, I think it would be quite unjust to dismiss the application. The evidence before me is probably enough to justify me in setting aside the decree but relief of this kind is discretionary and the legitimate interests of the plaintiff must be kept fully in mind. Before I would set aside the decree I think I should have clear evidence of the bona fides of the defendant, of her real desire and intention to take the proceedings to defend this action. I, therefore, propose to adjourn this application until Monday, 4th November, 1963, and if the defendant appears in person to support her affidavit and subjects herself to cross-examination, and if after that and any further evidence which maye be called by the plaintiff in this action, I am satisfied, that the decree should be set aside, I will do so. If I am not satisfied the decree nisi will stand and can be made absolute in due course. If I am satisfied the decree nisi can be set aside and on the application of the defendant or the plaintiff directions can be given for the early re-hearing of the action.

I make no order as to costs at this stage and I mention specifically that the evidence discloses that the defendant is in a financial position to make her journey to this Territory for the purpose of supporting her case.

In view of the fact that the defendant is not without means and that she has supported herself for nine years, I do not make any order for maintenance.

I note that Mr. Cory undertakes that if the defendant proposes to take advantage of this order, the defence in this action will be delivered to the plaintiff’s solicitor not later than the 24th October, 1963, and that if the defendant proposes to proceed by way of counter action in this Court he will use his best endeavours to ensure that the process relevant thereto is served not later than 24th October, 1963.

[cccxli]span>53 W.N. (N.S.W.) 31.

[cccxlii]1936 Probate 187.

[cccxliii]McKenzie on Divorce, 5th edition, p. 466.

[cccxliv]Vol. 1, Laws of the Territory of Papua, p. 599.

[cccxlv](1910) A.C. 373.

[cccxlvi](1936) Probate 117.

[cccxlvii](1897) Probate 22.

[cccxlviii](1936) Probate 117.

[cccxlix](1933) Qld. W.N.

[cccl]Vol. 1, Laws of the Territory of New Guinea p. 617.

[cccli]Government Gazette 17th November, 1960.

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Supreme Court of Papua New Guinea

Cann v Cann [1963] PGSC 4; [1963] PNGLR 256 (23 September 1963)

Papua New Guinea Law Reports - 1963