SUSAN ELIZABETH HORTON v. GERARD FRANCIS HORTON AND ANOTHER

bjbj HCMC000019B/1983 Application by a petitioner wife, in her suit for dissolution, for an order staying her husband from proceeding in his suit for dissolution commenced in Australia. Wife s suit was commence first in time on ground of unreasonable behaviour. The ground relied on by the husband in his suit in Australia was separation for one year which ground is unknown to the law in Hong Kong. The parties reside and the husband earns his living in Hong Kong. The Court was satisfied that its jurisdiction to make the order sought was placed beyond doubt by the decision in British Airways Board v. Laker Airways Ltd. & Others (1983) 3 W. L. R. 545 and that the test was whether the relief was necessary to avoid injustice. The Court considered all of the circumstances and in particular: - that the husband s later commenced suit would have the effect of quashing the wife s suit if it was allowed to continue; that the mounting costs of dual proceedings imposed a particular burden on the wife; that the parties lived in Hong Kong and the husband earned his living in Hong Kong from which an order for permanent maintenance, which was likely to be made, would have to be paid. The Court was satisfied that the wife would suffer injustice if the order was not made and ordered that husband be stayed from proceeding further in Australia. 1983, No. 19 IN THE HIGH COURT OF JUSTICE DIVORCE JURISDICTION BETWEEN SUSAN ELIZABETH HORTON Petitioner and GERARD FRANCIS HORTON 1st Respondent and GERALDINE FELICIA VIOLA 2nd Respondent ______ Coram : Hon. Power, J. Date : 26th October, 1983. ________________ JUDGMENT ________________ This is an application by a wife who has commenced proceedings for dissolution in Hong Kong asking that her husband be stayed from pursuing dissolution proceedings which he has commenced in Australia. The wife is English and the husband is Australian. The parties were married in London in 1960 and there are 4 children of the marriage. After marriage the parties resided in England until 1964 when they moved to Australia and then, in March 1976, they came to live in Hong Kong. The husband had practised at the Bar in Sydney and continued to so practise in Hong Kong. Thereafter the parties lived in Hong Kong and the husband pursued his career as a barrister in the Colony. While it appears that he has something of an international practice and that he, at times, travels outside the Colony there is no contest that his principal place both of residence and of work has, since March 1976, been Hong Kong. During the years preceding 1983 unhappy differences arose between the parties and, in consequence of these differences, the husband began to contemplate commencing dissolution proceedings. He informed his wife of this and by the 5th April 1982 he had given initial instructions to his solicitor Mr. Delaney in Sydney. The wife, because of what she had been told by the husband, saw her solicitor in Hong Kong. She gave instructions to him and a petition was issued on the 17th May 1983 alleging that the marriage had broken down irretrievably because the husband had behaved in such a way that the petitioner could not reasonably be expected to live with him. The parties had been living apart for some time prior to April 1983 but they did resume cohabitation in Hong Kong for a short time, the period is in dispute, during that month. The wife says that she was endeavouring during this time to effect reconciliation. It appears that both parties were in Hong Kong at the end of April and that the husband left Hong Kong on 1st May and did not return until the 20th May, three days after the wife s petition had been issued. He was served with that petition on the 21st May. The husband left the matrimonial home on the 23rd May and, shortly thereafter, proceeded to Australia. On the 26th May, five days after service on him of the wife s petition, the husband swore an affidavit in his proceedings in Australia and on the 30th May his petition was issued in Sydney. The husband s petition was based upon the ground contained in section 48 of the Australian Family Law Act 1975 which states that the ground for a divorce shall be that the marriage has irretrievably broken down and that this ground shall be held to have been established if the court is satisfied that the parties have separated and thereafter lived separately and apart for a continuous period of 12 months immediately preceding the date of the filing of the application for dissolution. Section 50 deals with the effect of the resumption of cohabitation during that period indicating that, if the period of resumption of cohabitation is less than 3 months, then that period will not prevent the period of separation that has hitherto taken place from being aggregated with the period of separation that follows thereafter. It must be emphasized that there is no such ground in Hong Kong. The only comparable, but markedly different, ground is irretrievable breakdown and separation for a period of 5 years. On the 7th June 1983 the husband filed an affidavit in support of an application to the Family Court in Sydney for an injunction seeking to restrain the wife from proceeding further in Hong Kong as regards certain matters of ancillary relief. This application was heard ex-parte by the Family Court in Sydney on the 9th June and certain interim orders were made. On the 10th June 1983 the wife went to Macau and when she returned therefrom was served with the Australian proceedings by an agent of her husband who had by then returned from Australia. On the 14th June the application for an injunction in which interim orders had been made on the 9th June was served on the wife. On the 16th June the husband filed an answer in Hong Kong admitting irretrievable breakdown but denying unreasonable behaviour. On the 18th June the wife swore two affidavits in answer to her husband s petition in Australia. In one of these she challenged the Australian court s capacity to hear the petition on the grounds of (1) convenience (2) domicile and (3) that she had a petition for dissolution already in existence. On the 24th June when the husband proceeded in Australia with his injunction application, all the interim orders which had been made on 9th June were discharged. On the 7th July 1983 the husband filed an application in the District Court in Hong Kong, where the wife s petition was then being dealt with, asking that paragraph 8 of the petition, which alleged irretrievable breakdown of the marriage, be struck out and that the petition be stayed or dismissed. This application was made because the wife, in one of tier affidavits field on 18th June, had said that she denied that she felt that the marriage had broken down irretrievably. The wife s reply to this was that when she made the statement she was referring to the position in April 1982. On 14th July the matter was transferred from the District Court to the High Court. After the transfer an identical application to that referred to above was taken out by the husband in the High Court. This was eventually heard on October 10th by Mantell J. On the 9th August 1983 Mr. Justice Hogan granted a decree nisi in the Family Court of Sydney having refused the wife s application for an adjournment of the proceedings. On the 12th August the wife entered a notice of appeal against this decision which had the effect of staying the husband s dissolution proceedings. There are four children of the marriage, two boys and two girls. The older son and the two daughters are now over the age of 18. The younger son, Gerard, who was born on 20th February 1968, is presently 15 years and 8 months of age. There is an issue as to the custody of that child. On the 12th August 1983 after that child, who is at boarding school in England, visited his parents in Hong Kong, his father took him to Europe and returned him to his boarding school in England. On that same day, 12th August, the husband made an application to the High Court in the same terms as that which had been made on 7th July to the District Court. On the 6th September the wife took out a summons asking for interim custody in the Hong Kong proceedings and on 7th September she issues a summons asking for directions as to the conduct of the action. On 8th September she issued a summons asking for maintenance pending suit. It appears that on the 8th September the husband took the child from Monaco to Sydney where on the 9th September he made an ex-parte application before Mr. Justice Ross-Jones for an interim custody order. This application was refused. On the 12th September the court in Hong Kong gave directions on the wife s application as to the conduct of the action. On the 14th September the husband, still in Australia, applied to Mr. Justice Tone, asking that the wife s appeal against the decision of Mr. Justice Hogan, which had been fixed for the 15th November, be expedited. The husband also asked the judge to make an order staying the wife s proceedings for custody in Hong Kong. The judge acceded to the first application, ordering that the appeal date be put forward to the 5th October, and stood over the second application. On the following day, the 15th September, at the resumed hearing Mr. Justice Tonge, who had apparently consulted with Mr. Justice Ross-Jones overnight refused to stay the wife s custody proceedings in Hong Kong and discharged his order of the previous day whereby he had expedited the hearing of the wife s appeal. Criticism is directed towards the wife in this regard as her counsel at this hearing indicated to the court that the proceedings in Hong Kong would not proceed further pending the hearing of the appeal. It is submitted that it was never the wife s intention that this should be so and that it was quite wrong that the court should have been so informed There can be no doubt as to the correctness of this submission and I have not had any real explanation as to how this came about. On 16th September the husband, who was still on that date in Sydney, took out a, summons in Hong Kong asking that the wife s action and all interlocutory applications therein be stayed pending the outcome of her appeal against the order of Mr. Justice Hogan. This application was heard on the following day and dismissed. On that day the husband took the son Gerard from Sydney back to Monaco. It appears that by the 18th September Gerard was back at school and, from the affidavit of Mr. Trotter, a solicitor consulted by the husband in London, we know that on Wednesday, 21st September, the husband was consulting him as to what should be done with regard to Gerard s interests. Mr. Trotter sent Gerard to see Dr. Arnon Bentovim, a psychiatrist, and went to Gerard s school to discuss matters with Gerard and to obtain a letter from his classmaster. By the 28th September the husband had returned to Hong Kong and on the 29th September he issued an application for leave to appeal against the order of the court made on the 16th September refusing to stay the wife s Hong Kong proceedings. On the 4th October that application came before this Court and leave was refused. On the 6th October the husband applied ex-parte on notice to Mr. Justice Hogan in Sydney asking for an order that the wife be directed not to proceed further with her proceedings in Hong Kong and for an order expediting the hearing of the appeal. Both of the applications were refused but an indication was given that the hearing of the appeal might be expeditiously dealt with in Melbourne. On the 7th October the husband s solicitors in Hong Kong gave notice to the wife s solicitors in Hong Kong that the appeal would be heard in Melbourne on the 13th October. On the 8th October the wife issued this application asking that the husband be directed that he must not pursue proceedings in Australia. On the 10th October there was a hearing of the husband s application of the 12th August which had sought to have the wife s petition stayed or dismissed before Mr. Justice Mantell. The application was dismissed. The wife s application of the 8th October came on for hearing on 12th October and during the course of argument on that application the court dealt with an application by Mr. Jolly of Deacons asking for the appointment of a guardian ad litem for the son Gerard. I was prepared to order the appointment of a guardian ad litem but was satisfied that it was not desirable that Mr. Trotter, the solicitor who had been approached by the husband, act in that capacity. I therefore asked Mr. Jolly to approach the Official Solicitor in London to enquire whether he would act. While the wife s application was being heard in Hong Kong her appeal was, on 13th and 14th October, being heard in Melbourne. I have been told that that hearing has now concluded and that judgment therein is likely to be handed down in about 8 weeks. I am informed that at the conclusion of the appeal hearing the husband issued another petition. Miss Leong who appeared for the husband submitted that certain matters in the affidavit sworn by the wife on the 7th October for the purpose of these proceedings were inadmissible as the sources of the information were not sworn to. These concerned the nature of the hearing in Australia and the advantageous position which the wife suggested her husband will be placed in, as regards certain family property, if he is allowed to pursue his proceedings in Australia. It is true that this evidence did not reveal its sources and I am satisfied that it was not admissible. In the outcome I did not rely in any way upon the passages objected to. Objection was taken on the same ground to paragraph 11, paragraph 14, paragraph 16 and, in part, paragraph 25 of an affidavit by Mr. Broun, Q. C. who deposed as to certain matters of Australian divorce practice and law. The objection seemed to me well founded. I have not relied upon any of the matters objected. The husband also filed an affidavit as to Australian matrimonial law from a Mr. Joseph Goldstein. When I read that part of para. 25 of Mr. Broun s affidavit to which no objection was taken and para. 22 of Mr. Goldstein s affidavit I am satisfied that Australian courts generally do not make an order for costs in matrimonial matters. I have not otherwise relied upon the evidence contained in the affidavit of Mr. Broun. Mr. Rodway who appeared for the wife relied, in particular, upon the following matters: - (1) The wife had instituted proceedings in Hong Kong before any proceedings were commenced in Australia. (2) Hong Kong is the natural forum for the hearing of the divorce and the ancillary proceedings given that it is the residence of both husband and wife and that the husband earns his living in Hong Kong. (3) The expense of paying for dual proceedings and the cost of travel to Australia must work an unfairness to the wife as the husband earns approximately HK$3 million per annum and she has gainful occupation . (4) The wife has, according to the medical evidence contained in an affidavit from Dr. Robert Anderson, suffered severe mental stress by reason of the marital break down which can only be exacerbated by the existence of dual proceedings. (5) There will be financial unfairness to the wife as regards the matrimonial property, as is shown in the affidavit of Mr. Broun, Q. C., if the proceedings allowed to continue in Australia. Mr. Rodway relied upon MacShannon v. Rockware Glass Ltd.(1) when making his submissions. He submitted that the court must order a stay if it was satisfied that justice so demanded. He referred to the judgment of Lord Salmon at 819 where he said: - To my mind the real test of stay or no stay depends upon what the court in its `discretion considers that justice demands. I prefer this test to the test of whether the plaintiff has behaved vexatiously or oppressively on a so-called liberal interpretation of those words. He referred also to Lord Keith at 828 where he said: - My opinion therefore, in the present state of the authorities, is as follows. Where a defendant seeks a stay of proceedings on the ground that the action can and should be prosecuted elsewhere, he must show good reason why the court s discretion should be exercised in his favour. He must satisfy the court that the continuance of the action would work an unjustice because it would be oppressive or vexatious to him or would be an abuse of the court in some other way, that expression being understood in a broad and reasonable sense and without any necessary moral connotations, and also that the stay would not cause an injustice to the plaintiff. Where England is the natural forum for the action, in the sense of being that with which the action has a most real and substantial connection, it is necessary for the defendant, in order to establish injustice to him and no injustice to the plaintiff, to show some very serious advantage to him which substantially outweighs any advantage to the plaintiff. Mr. Rodway also referred to the judgment of Lord Reed in The Atlantic Star (2) at 454, where he said: - In the end it must be left to the discretion of the court in each case where a stay is sought, and the question would be whether the defendants have clearly shown that to allow the case to proceed in England would in a reasonable sense be oppressive looking to all the circumstances including the personal position of the defendant. That appears to me to be a proper development of the existing law. Mr. Rodway did not attempt to make a direct, hand in a glove, application to the facts of the present case of the test propounded in MacShannon s case by Lord Diplock, at 811. He should not, in my view, be criticized for not so doing. The principles enunciated in the cases he cited, undoubtedly, give general guidance to a court considering an application for stay. The test propounded in MacShannon s case is, however, of doubtful application, as I shall later indicate, to proceedings of the kind before this Court. Mr. Rodaway referred to Shemshadsfard v. Shemshadsfard(3), Mytton v. Mytton(4), suggesting these cases showed that in matrimonial disputes the test was one of fairness and convenience. Unfortunately these 2 cases seem to me to be of no real assistance in the present circumstances. In each the party applying was seeking an order staying English proceedings and relying upon the Domicile & Matrimonial Proceedings Act 1973, which has no parallel in Hong Kong. This Act, in s.5 (6), gives power to order a stay of the English proceedings and, in paragraph 9 of Schedule 1 thereof, enacts, in terms, the balance of fairness and convenience test. Much more in point was the case of Bryant v. Bryant (5) to which Mr. Rodway then referred. In this matter the wife sought an injunction restraining the husband from continuing his divorce suit in Ontario, and from taking any steps to cause the decree nisi to be made absolute until the determination of her suit in the English court. Eastham J. said, correctly in my respectful view, that the court s power to stay foreign proceedings must be used with great discretion unless there was injustice. In the outcome His Lordship being satisfied that there would be injustice if he failed to act granted the wife s application. Mr. Rodway contended that this case established that, quite apart from statute, it was proper for the court, for the prevention of injustice in a matrimonial action, to issue an injunction restraining a party both from continuing a divorce in another jurisdiction and from, taking any steps to cause a decree nisi to be made absolute until after the determination of the suit in the English Court. Miss Leong submitted, initially, that the court had no jurisdiction relying, in this regard, principally upon the Siskina(6) and Richards v. Richards (7) Miss Leong, after finally referring to British Airways Board v. Laker Airways Ltd. Other (8) conceded that, in the light of that decision, she could no longer seek to argue that the court had no jurisdiction. She then submitted that the balance of justice demand that the application be refused. She submitted upon the basis of Hyman v. Helm (9) that the husband was entitled to take advantage of the simpler ground and the lower costs in Australia. In that action an English court refused to restrain a San Francisco resident who had brought a commercial action against English defendants from pursuing the same action against the defendants in San Francisco. The principles enunciated in a commercial action brought in 1883 are, to my mind, of doubtful assistance in a matrimonial action brought in 1983. However that may be, what Miss Leong did not advert to was that the husband in the present case, unlike the plaintiff in Hyman s case, was seeking to pursue a different cause of action. This, as I will demonstrate later, is, in my view, a factor of considerable, if not determining, importance. Miss Leong also referred to the Atlantic Star (2) and particularly to the judgment of Lord Reed at 453 where he said: - They (the modern authorities) support the general proposition that a foreign plaintiff, who can establish jurisdiction against a foreign defendant by any method recognised by English law, is entitled to pursue his action in the English Court if he genuinely thinks that that will be to his advantage and is not acting merely vexatiously. Neither the parties nor the subject matter of the action need have any connection with England. There may be proceedings on the same subject matter in a foreign court. It may be a far more appropriate forum. The defendant may have to suffer great expense and inconvenience in coming here. In the end the decisions of the English and foreign courts may conflict. But nonetheless the plaintiff has a right to obtain the decision of an English Court. He must not act vexatiously or oppressively or in abuse of the process of the English Court, but these terms have been narrowly construed. I fully realise the strength of the words cited. It nonetheless must again be pointed out that the Court in the Atlantic Star was dealing with one cause of action being litigated in 2 jurisdictions and was being asked to make a determination as to whether that cause of action should to stayed in England. Miss Leong also referred to Castanho V. Brown and Root(10) and particularly to the judgment of Lord Scarman at 570 where he said: - The question in the appeal is, therefore, whether the plaintiff should be restrained by the English Court from pursuing his claim for damages in the American Court. It is a question of great importance to the parties. In the American Court the plaintiff Claims punitive as well as compensatory damages ($5 m. compensation and at least $10 m. punitive or exemplary). In England he has no claim for punitive damages; and the scale of compensatory damages is much less. It is conceded that, had he begun in Texas in the first place, the English Courts would not grant an injunction to restrain him from continuing there. The defendants base their case upon the fact that he started in England, upon the advantages he has won from them in the litigation which ensued here, and upon the disadvantages, in the circumstances, which have arisen, of their being sued in America. Again what must be borne in mind when considering this authority is that the court was dealing with a plaintiff seeking to pursue the same cause of action in another jurisdiction. Finally Miss Leong asked me to apply the classic test, which is a distillation of the reasoning in St. Pierre v. South American Stores (Gath & Chaves) Ltd. (11) and The Atlantic Star (2) , propounded in Macshannon v. Rockway Glass Ltd.(12) by Lord Diplock, at 811, as follows: - If these expressions are eliminated from Scott L. J. s statement of the rule, (in St. Pierre) the gist of the three speeches of Lord Reed, Lord Wilberforce and Lord Kilbrandon (in The Atlantic star) in my opinion enables the second part of it to be restated thus. (2) In order to justify a stay two conditions must be satisfied, one positive and the other negative: (a) the defendant must satisfy the court that there is another forum to whose jurisdiction he is amenable in which justice can be done between the parties at substantially less inconvenience or expense, and (b) the stay must not deprive the plaintiff of a legitimate personal or juridical advantage which would be available to him if he invoked the jurisdiction of the English Court. Only with considerable modification can these conditions be applied to the circumstances of the matrimonial proceedings before this Court. This Court is not dealing with the exercise of a discretion to stay its own proceedings so that foreign proceedings in the same action can be pursued but is being asked to decide whether it should, in the exercise of its discretion, order a plaintiff to proceed no further with a cause of action brought in a foreign court so that the proceedings before it, in a different cause of action, can be pursued. With some hesitation, and without being fully convinced that the 2 conditions are capable of proper application to the facts before me, I will attempt to apply them. The 2 conditions, laid down by Lord Diplock, may be broadly stated as follows: - (a) the person who seeks the stay must show that justice can be done at substantially less inconvenience or expense in the forum in which the proceedings will not, if the order is made, be stayed; (b) the stay must not deprive the party who seeks to pursue proceedings in the forum where it is sought to stay them of a legitimate personal or juridical advantage. I again emphasize that the crucial matter to bear in mind when applying these conditions to the present circumstances is that, although each party is seeking a decree to dissolve the same marriage, each is pursuing a separate action - the husband, as petitioner in Australia, seeks a decree of dissolution on the ground of separation for one year, a ground unknown in Hong Kong, while the wife, as petitioner in Hong Kong, seeks a decree upon the ground of unreasonable behaviour. When considering condition (a) the question for this Court must be: Can justice be done in the action before it (the wife s action) at substantially less inconvenience and expense in Hone Kong? The matters of inconvenience and expense do not really all for consideration when this question is posed for, clearly, justice can never be done in the wife s action if the Australian proceedings are allowed to continue to the point where there is pronouncement of a decree absolute. If the husband s action is pursued to that point the wife s action will be extinguished. If one for the moment leaves aside the fact that one is dealing with two actions it seems clear that - (i) as regards expense, if the order is made there must be substantially less expense than if, as is presently occurring, each of the actions continues to be pursued, (ii) as regards convenience, given that the residence of the parties is Hong Kong and that the husband earns his living in Hong Kong, it must be more convenient to have the matter heard in Hong Kong. In this regard I must deal with the suggestion that has been made by Miss Leong that Australian accountants, tax experts and trustees may need to be called as regards the ancillary relief. I find nothing in the evidence before me to satisfy me that this must be so. On the material before me I am satisfied that Hong Kong is the most convenient forum. Applying condition (a), as far as it can be applied, the result is in favour of an order. I turn now to condition (b). Clearly the advantage being referred to in MacShannon s case was an advantage in the cause of action which the plaintiff was pursuing. What Lord Diplock was saying was that the Court must not deprive the party against whom the stay is sought from a legitimate advantage in that action. The court both in MacShannon s case and Castanho s case was dealing with a situation where it had to ask whether the plaintiff would be deprived of a legitimate advantage in the action if the stay was granted. The court was dealing with the same plaintiff and the same defendant and the same cause of action. What the court asked itself was whether the plaintiff would be deprived of a legitimate advantage in that action if the stay was granted. What this Court must ask itself is whether the husband will be deprived of a legitimate advantage as regards the cause of action being determined by it if he is stayed from proceeding in Australia. The answer must, I am satisfied, be that he cannot be deprived of any legitimate advantage as regards that cause of action as he is not a party to it in Australia. The advantage he will obtain in the Hong Kong action is clearly not a legitimate one as he will, by taking another action, based upon aground unknown to the law in Hong Kong, extinguish it. The result of the application of condition (b) also then favours the making of an order. As I have already indicated I am not convinced that the conditions enunciated in MacShannon s case are really applicable. As Lord Scarman said in Castanho s case, at 575: - The formula is not, however, to be construed as a statute. No time should be spent in speculating as to what is meant by legitimate . It, like the whole of the context, is but a guide to solving in the particular circumstances of the case the critical equation between advantage to the plaintiff and disadvantage to the defendants. I am satisfied that what the court must adopt is the broad view, to which I have already referred, enunciated by Lord Salmon in MacShannon s case where he said at 819: - To my mind the real test of stay or no stay, depends upon what the court in its discretion considers justice demands. This view is supported by the words of Lord Scarman in Castanho s case, at 573, where he said: - But the width and flexibility of equity are not to be undermined by categorisation. Caution in the exercise of the jurisdiction is certainly needed; but the way in which the judges have expressed themselves from 1821 onwards amply supports the view for which the defendants contend that the injunction can be granted against the party properly before the court, where it is appropriate to avoid injustice. In the British Airways case Sir John Donaldson M.R. having quoted those words said at 577: - In our judgment that passage confirms the existence of the jurisdiction which we are asked to exercise and poses the question which we have to ask ourselves, namely, In all the circumstances, is it appropriate to grant the relief sought in order to avoid injustice? In the context of this case, the avoidance of injustice to all parties may not be possible but, that failing, we have to ask ourselves whether the grant or the refusal of the relief sought will create the lesser injustice. We have in Lord Scarman s words to resolve that critical equation . That involves taking account of a number of circumstances to which we now turn. It is clear, then, that what the court must do is to, having considered all the matters in the critical equation , determine whether it is appropriate to grant the relief sought to avoid injustice . While the court must be slow to inhibit the rights of a party to proceed in another jurisdiction it must not hesitate to act if injustice would result from its failure so to do. The matters to be considered are set out in the judgment of Lord Denning M. R. in Smith Kline & French v. Bloch (13) at 78 where he says: - The plaintiff has no longer an inborn right to choose his own forum. He no longer wins the toss on every throw. The decision rests with the courts. No matter which jurisdiction is invoked, the court must hold the balance between the plaintiff and the defendant. It must take into account the relative advantages and disadvantages to each of them: not only the juridical advantages and disadvantages, but also the personal conveniences and inconveniences: not only the private interests of the parties but also the public interests involved. The court decides according to which way the balance comes down. What then must be thrown into Lord Denning balance or, if one prefers, Lord Scarman s critical equation , in the present case? On the one hand there is the right of the husband to pursue his action for dissolution in his country of domicile where some of the assets with which the ancillary relief will deal are situated before a court seized of jurisdiction upon an uncomplicated ground in proceedings which will be both expeditious and inexpensive. On the other hand is the right of the wife to pursue her action for dissolution, commenced first in time, before a court in a jurisdiction where both parties are resident, which she contends will establish that she is, as regards matrimonial misconduct, an innocent party in a marriage which was brought to an end by the unreasonable behaviour of the husband. She will not be able to be vindicated in this way by the court in the place where the parties live and work if the husband is allowed to continue and conclude the Australian proceedings. The most substantial single family asset is the husband s income. Hong Kong is the residence of both parties and the husband s income is almost wholly earned in Hong Kong. Given the above, Hong Kong is clearly the forum in which questions as to maintenance can be best determined. If the wife is given an order for permanent maintenance which has a continuing effect, and some such order may well be made, Hong Kong would clearly be the place where applications for variation could be best determined for, if such an order were made in Australia, the parties would have to return thereto when any application for variation was made. The wife is presently required to bear her part of the mounting costs of the dual proceedings and will have to continue to do so if no order is made. The wife s unchallenged statement is that her costs of the dual proceedings had reached $350,000, before the commencement of this application and of the appeal in Australia. The wife has no gainful occupation whereas the husband has a large, and continuing income. The Australian courts do not generally make an order for costs in matrimonial proceedings. There is evidence that the matrimonial discord has effected the wife s health and that she suffers further stress because of additional worries that arise out of the dual proceedings. This may be so but I do not think any real weight can be given to this aspect of the matter in the critical equation. A substantial issue was made by the wife s counsel of the suggestion that the Australian courts would not be able to deal in a comprehensive way with the various trusts which the husband has set up some of which are not in Australia. In the outcome both the value of these trusts and the constraints, if any, which would inhibit the Australian courts when dealing with them were left unclear. That being so I have not felt that I could properly throw this matter into the critical equation. Having placed the above matters, except for those two as to which I have indicated reservations, into the critical equation am I satisfied that the wife will suffer injustice in her action if relief is not granted? Taking into account the relative advantages and disadvantages to each of them: not only the juridical advantages and disadvantages, but also the personal convenience and inconveniences: not only the personal interests of the parties but also the public interests involved I am satisfied that the wife will suffer injustice and I, therefore, accede to her request and order that the husband be stayed from proceedings to such a dissolution of the marriage in Australia. I direct also that wife is to proceed no further with proceedings she has instituted in Australia. By the making of this order I have not intended and I hope I have not conveyed any disrespect to the Australian courts. The appeal proceedings presently in train will, of course, be concluded in the normal way by the Appellate Court and both parties are at liberty to appear in those proceedings for the purpose of receiving judgment and making submissions with regard to costs. I am informed that wife wishes to reopen those proceedings and to make further submissions therein. Subject, of course, to hearing being granted by the Appellate Court, she is at liberty so to do and husband is at liberty to appear and answer those submissions. Both parties are to be at liberty to make applications for such adjournments as may be necessary in the Australian proceedings and to exhibit this decision in any such applications. (N. P. Power) Judge of the High Court. Representation: Mr. Rodway, Q. C. and Mrs. Pennington (instructed by Hampton, Winter & Glynn) for Petitioner. Miss J. Leong (instructed by Helen A. Lo & Co.) for 1st Respondent. (1) (1978) AC 795 (3) (1981) 1 All E. R. 726 (4) (1977) 7 Fam. Law 244 (5) (1981) 11 Fam. Law 85 (6) (1979) AC 210 (7) (1983) 3 WLR 173. (8) (1983) 3 WLR 545 (9) (1883) 24 Ch. D. 531 (2) (1974) AC 436. (10) (1981) AC 557 (11) (1936) 1 K.B. 382 (2) (1974) AC 436. (12) (1978) AC 795 (13) (1983) 2 All E.R. 72 PAGE PAGE - - &`#$ "/42@ "/42 CCAC000019/1983 Normal.dot Judiciary Hong Kong SAR Microsoft Word 9.0 CCAC000019/1983 Title Microsoft Word Document MSWordDoc Word.Document.8