The document provides an overview of injunctive relief in family law cases in Hong Kong, with a focus on injunctions relating to children. It discusses common injunctions like non-removal orders and domestic violence injunctions. It outlines the basic principles of considering the best interests of the child as paramount and the court's positive duty to protect children. The document also covers jurisdiction and forum considerations, outlining the statutory jurisdiction of the family court versus the inherent jurisdiction of the high court over injunctive matters. Procedural aspects of applications like the use of undertakings are also addressed.
This document summarizes key principles of natural justice or procedural fairness in administrative law. It discusses the right to a fair hearing, including adequate disclosure of allegations, the right to answer charges, and the right to cross-examine. It also addresses exceptions, the right to reasons for decisions, statutory rights to reasons, and the rule against bias. The document provides examples from case law from various Caribbean countries to illustrate these principles.
This document discusses key principles of administrative law in the Caribbean context. It covers several topics:
1) Grounds for judicial review including jurisdiction, illegality, irrationality, and procedural fairness.
2) Errors of law made by public authorities including misinterpretation of statutes and failure to comply with statutory requirements.
3) How public authorities exercise discretionary powers including the need for decisions to be reasonable and not fettered or made in bad faith.
4) Standards of review applied by courts, particularly Wednesbury unreasonableness and the increasing use of proportionality.
This document summarizes recent developments in lawyer discipline and criminal conduct from 2014. It discusses several cases of lawyers who were disciplined or suspended for felony convictions related to offenses such as filing false tax returns, forgery, and theft. It also discusses cases of judges who received criminal convictions. The document outlines the process for interim suspension of lawyers and notes several lawyers who received interim suspension in 2014 for felonies. It identifies factors courts consider when determining sanctions and provides examples of sanctions imposed in 2014. Finally, it discusses some ethics issues that are particularly relevant to in-house counsel.
John J. Pankauski is a partner with Pankauski Hauser PLLC in West Palm Beach, Florida. Mr. Pankauski has spent over 20 years of his career handling matters involving wills, trusts, estates, probates, and guardianships. His practice is limited to disputes, trials and appeals of such matters. He is AV Preeminent rated by Martindale Hubel.
The Federal Rules of Civil Procedure (Series: Newbie Litigator School)Financial Poise
This webinar provides an overview of the Federal Rules of Civil Procedure. It discusses how a civil case is initiated through filing a complaint and serving the defendant. It also covers motions to dismiss, discovery procedures, summary judgment, and other pre-trial and trial processes governed by the Federal Rules. The panelists are experienced litigators who provide context and real-world perspectives on the Rules. The webinar is part of a series aimed at refreshing attorneys on civil litigation fundamentals.
THE "JURISDICTIONAL FACT DOCTRINE" IN NEW SOUTH WALES LOCAL GOVERNMENT AND EN...Dr Ian Ellis-Jones
First Published: (2006) 12 LGLJ 16 - All Rights Reserved. Disclaimer: The information contained in this publication does not constitute legal advice of any kind. The author Ian Ellis-Jones does not guarantee or warrant the current accuracy, legal correctness or up-to-dateness of the information contained in the publication.
Contractual Provisions: What Do They Really Mean and How Can They Work for You?BoyarMiller
Andrew Pearce and David Stockel, shareholders in BoyarMiller’s litigation group, discussed what you need to know around contractual provisions – interpretation and legal support behind forum/venue selection clauses, merger clauses, arbitration provisions, prevailing party clauses, jury waivers, and others.
This document summarizes rules regarding candor toward the tribunal for lawyers engaged in litigation. It discusses Model Rule 4-3.3, which prohibits lawyers from making false statements to a tribunal or offering false evidence. The rule requires lawyers to remedy any false statements or evidence that they later learn are not true. It also discusses the duty to disclose adverse legal authority to the tribunal. Scenarios are provided to illustrate how the rules apply in different situations involving potential client perjury or failure to correct false prior statements to the court.
This document summarizes key principles of natural justice or procedural fairness in administrative law. It discusses the right to a fair hearing, including adequate disclosure of allegations, the right to answer charges, and the right to cross-examine. It also addresses exceptions, the right to reasons for decisions, statutory rights to reasons, and the rule against bias. The document provides examples from case law from various Caribbean countries to illustrate these principles.
This document discusses key principles of administrative law in the Caribbean context. It covers several topics:
1) Grounds for judicial review including jurisdiction, illegality, irrationality, and procedural fairness.
2) Errors of law made by public authorities including misinterpretation of statutes and failure to comply with statutory requirements.
3) How public authorities exercise discretionary powers including the need for decisions to be reasonable and not fettered or made in bad faith.
4) Standards of review applied by courts, particularly Wednesbury unreasonableness and the increasing use of proportionality.
This document summarizes recent developments in lawyer discipline and criminal conduct from 2014. It discusses several cases of lawyers who were disciplined or suspended for felony convictions related to offenses such as filing false tax returns, forgery, and theft. It also discusses cases of judges who received criminal convictions. The document outlines the process for interim suspension of lawyers and notes several lawyers who received interim suspension in 2014 for felonies. It identifies factors courts consider when determining sanctions and provides examples of sanctions imposed in 2014. Finally, it discusses some ethics issues that are particularly relevant to in-house counsel.
John J. Pankauski is a partner with Pankauski Hauser PLLC in West Palm Beach, Florida. Mr. Pankauski has spent over 20 years of his career handling matters involving wills, trusts, estates, probates, and guardianships. His practice is limited to disputes, trials and appeals of such matters. He is AV Preeminent rated by Martindale Hubel.
The Federal Rules of Civil Procedure (Series: Newbie Litigator School)Financial Poise
This webinar provides an overview of the Federal Rules of Civil Procedure. It discusses how a civil case is initiated through filing a complaint and serving the defendant. It also covers motions to dismiss, discovery procedures, summary judgment, and other pre-trial and trial processes governed by the Federal Rules. The panelists are experienced litigators who provide context and real-world perspectives on the Rules. The webinar is part of a series aimed at refreshing attorneys on civil litigation fundamentals.
THE "JURISDICTIONAL FACT DOCTRINE" IN NEW SOUTH WALES LOCAL GOVERNMENT AND EN...Dr Ian Ellis-Jones
First Published: (2006) 12 LGLJ 16 - All Rights Reserved. Disclaimer: The information contained in this publication does not constitute legal advice of any kind. The author Ian Ellis-Jones does not guarantee or warrant the current accuracy, legal correctness or up-to-dateness of the information contained in the publication.
Contractual Provisions: What Do They Really Mean and How Can They Work for You?BoyarMiller
Andrew Pearce and David Stockel, shareholders in BoyarMiller’s litigation group, discussed what you need to know around contractual provisions – interpretation and legal support behind forum/venue selection clauses, merger clauses, arbitration provisions, prevailing party clauses, jury waivers, and others.
This document summarizes rules regarding candor toward the tribunal for lawyers engaged in litigation. It discusses Model Rule 4-3.3, which prohibits lawyers from making false statements to a tribunal or offering false evidence. The rule requires lawyers to remedy any false statements or evidence that they later learn are not true. It also discusses the duty to disclose adverse legal authority to the tribunal. Scenarios are provided to illustrate how the rules apply in different situations involving potential client perjury or failure to correct false prior statements to the court.
PowerPoint presentation on the doctrine of jurisdictional error - for information purposes only - all rights reserved. Disclaimer: The information contained in this publication does not constitute legal advice of any kind. The author Ian Ellis-Jones does not guarantee or warrant the current accuracy, legal correctness or up-to-dateness of the information contained in the publication.
THE ANISMINIC DOCTRINE OF EXTENDED JURISDICTIONAL ERROR IN NEW SOUTH WALES SU...Dr Ian Ellis-Jones
First Published: (2007) 12 LGLJ 164 - All Rights Reserved. Disclaimer: The information contained in this publication does not constitute legal advice of any kind. The author Ian Ellis-Jones does not guarantee or warrant the current accuracy, legal correctness or up-to-dateness of the information contained in the publication.
BoyarMiller - Review of Boilerplate Contract Provisions: Say What You Mean an...BoyarMiller
Review of Boilerplate Contract Provisions: Say What You Mean and Mean What You Say
Presented by: Chris James & Jon Goch
to HYLA - Houston Young Lawyers Association on
March 4, 2015
This document summarizes ethics rules regarding technology and the practice of law. It discusses limits on fee-sharing with non-lawyers, paying for referrals, online legal document preparation, unauthorized practice of law, illegal investigations, communications with represented persons, viewing public social media information, marketing on social media, responding to negative reviews, preserving evidence, protecting client confidentiality, handling client funds, and receiving payments. The document provides guidance to lawyers on complying with ethics rules when using technology in legal practice.
The Rules Have Changed: Developments that Impact the Landscape of Texas Litig...BoyarMiller
The document summarizes several key developments that have impacted litigation in Texas. These include: narrowing the scope of general personal jurisdiction over non-resident defendants; the availability of Rule 91a motions to dismiss baseless claims and mandatory fee awards for prevailing parties; expanding uses of anti-SLAPP motions to dismiss; recognizing double-derivative shareholder suits for closely-held corporations; clarifying the standard for spoliation jury instructions. The document analyzes important cases related to each development and discusses the implications for litigators in Texas.
The ability to trace assets across the world is becoming increasingly relevant to the business sphere as businesses continue to become progressively more global. As individuals and companies continue to move assets away from countries in which they are subject to dispute it is important that parties are able to trace assets across jurisdictions.
This Guide draws together contributions from tracing experts across a number of territories.
We hope you will find the Guide a useful resource for getting to grips with the framework in asset tracing law in each of these territories, safe in the knowledge that if further specialist advice is needed, it’s only a call or email away.
We are grateful to all who have taken part in and contributed to this project. The world’s second largest law firm network, with over 150 leading independent law firms spanning more than 100 jurisdictions, TerraLex provides truly global business law support. The strength of the network is built around not only the quality of its member firms and lawyers (all 19,000 of them) but also the depth of relationships – network members all know each other well, sharing best practice at regular meetings held all over the world throughout the year.
Production, Privileges, and Practice PowerPointDavid Ammons
This document discusses attorney-client privilege and work product doctrine in the context of an oil and gas practice. It covers [1] the elements and scope of these privileges, [2] what can result in waiver of the privileges, and [3] common privilege issues that arise regarding dealings with the government, title opinions, and selling assets. The document also provides tips for both preserving and piercing privileges.
Christy Prince presented "Litigation 101: Overview of Pleadings" on September 16, 2014, at the Columbus Bar Association's new lawyer training. She discussed the basic foundation of litigation and answered new attorneys' questions.
Hot Off the Presses: Recent Cases & Decisions (Series: Legal Ethics - Best Pr...Financial Poise
This webinar is for the lawyer -or anyone else- who wants to brush up on the latest issues and strategies to be aware of regarding legal ethics and best practices. The panelists discuss recent and important case law in the area and explain how those decisions can have real-world impact on the situations you may be involved in. Among others, the panel will address the following Model Rules of Professional Conduct: Rule 1.7-Conflict of Interest: Current Clients; Rule 1.8-Conflict of Interest: Current Clients: Specific Rules; Rule 3.8 - Special Responsibilities of a Prosecutor; and Rule 4.4(a) Respect for Rights of Third Persons.
To view the accompanying webinar, go to: https://www.financialpoise.com/financial-poise-webinars/recent-cases-decisions-2021/
The document summarizes recent cases related to the legal concept of unreasonableness in administrative decision making. It discusses Minister for Immigration and Citizenship v Li, a rare case where a decision was invalidated solely on the grounds of unreasonableness. The document outlines key principles from the case, including that decisions must have an evident and intelligible justification. It also summarizes other recent cases and implications for decision makers, advising them to ensure decisions are reasonable and proportionate given the applicable statutory provisions.
International Discovery 1782 Issues (by L.O\'Naghten 2009)onaghtenl
Luis Perez is an international litigation partner at Shook Hardy & Bacon in Miami. His contact information is:
Luis Perez
Shook Hardy & Bacon LLP
Miami Center, Suite 3200
201 South Biscayne Boulevard
Miami, FL 33131
Phone: 305-358-5171
Email: lperez@shb.com
Mr. Perez' practice focuses on international commercial litigation and arbitration with an emphasis on Latin America. He has over 15 years of experience advising clients in complex cross-border disputes.
A penny saved is a penny earned: Navigating your company through spoliation claims and strategies to maximize recovering attorneys' fees. Presented at the Association of Corporate Counsel.
Recent developments have increased the authority and discretion of the Patent Trial and Appeal Board in patent validity disputes. Join the co-chairs of our PTAB Litigation practice group for a practical discussion of how patent owners and petitioners can take advantage of these developments to increase success at the PTAB. Topics will include:
· The standard for proving that printed publications are prior art;
· The PTAB's increasing discretion to institute or deny petitions; and
· Significant Supreme Court and Federal Circuit decisions
Federal Rules of Evidence Restyled, December 1, 2011 "PowerPoint"Litig8or
The document discusses the copyright policies of the Legal Information Institute (LII) and an editor, Garrett Cutler. It states that the LII and Cutler do not assert copyright over US government works but do claim copyright over any value-added content they provide. This content is covered by a Creative Commons license allowing copying and distribution with attribution, non-commercial use, and sharing under the same license. It also provides conditions of use noting the information is not legal advice and no warranty is made regarding accuracy or completeness.
The document discusses the obligation of judicial, administrative and arbitral bodies to provide reasons for decisions, and whether inadequacy of reasons alone constitutes an error of law. It notes that while some cases have found inadequacy can be an error, the Victorian Court of Appeal in Sherlock v Lloyd found otherwise for decisions under the Administrative Law Act. The implications for reviewing decisions of VCAT and other decision-makers are discussed.
Christopher H. Dolan, Faegre Baker Daniels, Understanding Attorney Client Pri...Kevin Perry
Christopher H. Dolan, Faegre Baker Daniels, Understanding Attorney Client Privilege, Confidential Business Information and the Work Product Doctrine, Midwest Environmental Compliance Conference, Chicago, October 29-30, 2015
The Official Committee of Unsecured Creditors (the "Committee") in the chapter 11 bankruptcy case of Cordillera Golf Club, LLC (the "Debtor") filed an application seeking approval to retain the law firm Munsch Hardt Kopf & Harr, PC ("Munsch Hardt") as counsel. The Committee selected Munsch Hardt due to its experience in bankruptcy cases and matters relevant to the case such as real estate and hospitality. Munsch Hardt will represent the Committee and provide legal advice regarding the Debtor and case administration. The application provides notice of the request for approval of Munsch Hardt's employment and discloses certain prior relationships between Munsch Hardt and potential
Look through the list of twelve injunctions. Consider whether you have experienced the living problems or discomforts associated with each one. Note the injunctions you think have been important for you.
Restraints on dealings prevent transactions related to disputed land from being registered. The main types of restraints in Malaysia are lis pendens, injunctions, caveats, and prohibitory orders. Caveats freeze the land register until the dispute is resolved, protecting the caveator's claim. Unlike caveats, injunctions are court orders that do not register on the land title but can still prevent dealings. While caveats and injunctions both restrain transactions, injunctions require court approval and can protect a broader range of interests.
PowerPoint presentation on the doctrine of jurisdictional error - for information purposes only - all rights reserved. Disclaimer: The information contained in this publication does not constitute legal advice of any kind. The author Ian Ellis-Jones does not guarantee or warrant the current accuracy, legal correctness or up-to-dateness of the information contained in the publication.
THE ANISMINIC DOCTRINE OF EXTENDED JURISDICTIONAL ERROR IN NEW SOUTH WALES SU...Dr Ian Ellis-Jones
First Published: (2007) 12 LGLJ 164 - All Rights Reserved. Disclaimer: The information contained in this publication does not constitute legal advice of any kind. The author Ian Ellis-Jones does not guarantee or warrant the current accuracy, legal correctness or up-to-dateness of the information contained in the publication.
BoyarMiller - Review of Boilerplate Contract Provisions: Say What You Mean an...BoyarMiller
Review of Boilerplate Contract Provisions: Say What You Mean and Mean What You Say
Presented by: Chris James & Jon Goch
to HYLA - Houston Young Lawyers Association on
March 4, 2015
This document summarizes ethics rules regarding technology and the practice of law. It discusses limits on fee-sharing with non-lawyers, paying for referrals, online legal document preparation, unauthorized practice of law, illegal investigations, communications with represented persons, viewing public social media information, marketing on social media, responding to negative reviews, preserving evidence, protecting client confidentiality, handling client funds, and receiving payments. The document provides guidance to lawyers on complying with ethics rules when using technology in legal practice.
The Rules Have Changed: Developments that Impact the Landscape of Texas Litig...BoyarMiller
The document summarizes several key developments that have impacted litigation in Texas. These include: narrowing the scope of general personal jurisdiction over non-resident defendants; the availability of Rule 91a motions to dismiss baseless claims and mandatory fee awards for prevailing parties; expanding uses of anti-SLAPP motions to dismiss; recognizing double-derivative shareholder suits for closely-held corporations; clarifying the standard for spoliation jury instructions. The document analyzes important cases related to each development and discusses the implications for litigators in Texas.
The ability to trace assets across the world is becoming increasingly relevant to the business sphere as businesses continue to become progressively more global. As individuals and companies continue to move assets away from countries in which they are subject to dispute it is important that parties are able to trace assets across jurisdictions.
This Guide draws together contributions from tracing experts across a number of territories.
We hope you will find the Guide a useful resource for getting to grips with the framework in asset tracing law in each of these territories, safe in the knowledge that if further specialist advice is needed, it’s only a call or email away.
We are grateful to all who have taken part in and contributed to this project. The world’s second largest law firm network, with over 150 leading independent law firms spanning more than 100 jurisdictions, TerraLex provides truly global business law support. The strength of the network is built around not only the quality of its member firms and lawyers (all 19,000 of them) but also the depth of relationships – network members all know each other well, sharing best practice at regular meetings held all over the world throughout the year.
Production, Privileges, and Practice PowerPointDavid Ammons
This document discusses attorney-client privilege and work product doctrine in the context of an oil and gas practice. It covers [1] the elements and scope of these privileges, [2] what can result in waiver of the privileges, and [3] common privilege issues that arise regarding dealings with the government, title opinions, and selling assets. The document also provides tips for both preserving and piercing privileges.
Christy Prince presented "Litigation 101: Overview of Pleadings" on September 16, 2014, at the Columbus Bar Association's new lawyer training. She discussed the basic foundation of litigation and answered new attorneys' questions.
Hot Off the Presses: Recent Cases & Decisions (Series: Legal Ethics - Best Pr...Financial Poise
This webinar is for the lawyer -or anyone else- who wants to brush up on the latest issues and strategies to be aware of regarding legal ethics and best practices. The panelists discuss recent and important case law in the area and explain how those decisions can have real-world impact on the situations you may be involved in. Among others, the panel will address the following Model Rules of Professional Conduct: Rule 1.7-Conflict of Interest: Current Clients; Rule 1.8-Conflict of Interest: Current Clients: Specific Rules; Rule 3.8 - Special Responsibilities of a Prosecutor; and Rule 4.4(a) Respect for Rights of Third Persons.
To view the accompanying webinar, go to: https://www.financialpoise.com/financial-poise-webinars/recent-cases-decisions-2021/
The document summarizes recent cases related to the legal concept of unreasonableness in administrative decision making. It discusses Minister for Immigration and Citizenship v Li, a rare case where a decision was invalidated solely on the grounds of unreasonableness. The document outlines key principles from the case, including that decisions must have an evident and intelligible justification. It also summarizes other recent cases and implications for decision makers, advising them to ensure decisions are reasonable and proportionate given the applicable statutory provisions.
International Discovery 1782 Issues (by L.O\'Naghten 2009)onaghtenl
Luis Perez is an international litigation partner at Shook Hardy & Bacon in Miami. His contact information is:
Luis Perez
Shook Hardy & Bacon LLP
Miami Center, Suite 3200
201 South Biscayne Boulevard
Miami, FL 33131
Phone: 305-358-5171
Email: lperez@shb.com
Mr. Perez' practice focuses on international commercial litigation and arbitration with an emphasis on Latin America. He has over 15 years of experience advising clients in complex cross-border disputes.
A penny saved is a penny earned: Navigating your company through spoliation claims and strategies to maximize recovering attorneys' fees. Presented at the Association of Corporate Counsel.
Recent developments have increased the authority and discretion of the Patent Trial and Appeal Board in patent validity disputes. Join the co-chairs of our PTAB Litigation practice group for a practical discussion of how patent owners and petitioners can take advantage of these developments to increase success at the PTAB. Topics will include:
· The standard for proving that printed publications are prior art;
· The PTAB's increasing discretion to institute or deny petitions; and
· Significant Supreme Court and Federal Circuit decisions
Federal Rules of Evidence Restyled, December 1, 2011 "PowerPoint"Litig8or
The document discusses the copyright policies of the Legal Information Institute (LII) and an editor, Garrett Cutler. It states that the LII and Cutler do not assert copyright over US government works but do claim copyright over any value-added content they provide. This content is covered by a Creative Commons license allowing copying and distribution with attribution, non-commercial use, and sharing under the same license. It also provides conditions of use noting the information is not legal advice and no warranty is made regarding accuracy or completeness.
The document discusses the obligation of judicial, administrative and arbitral bodies to provide reasons for decisions, and whether inadequacy of reasons alone constitutes an error of law. It notes that while some cases have found inadequacy can be an error, the Victorian Court of Appeal in Sherlock v Lloyd found otherwise for decisions under the Administrative Law Act. The implications for reviewing decisions of VCAT and other decision-makers are discussed.
Christopher H. Dolan, Faegre Baker Daniels, Understanding Attorney Client Pri...Kevin Perry
Christopher H. Dolan, Faegre Baker Daniels, Understanding Attorney Client Privilege, Confidential Business Information and the Work Product Doctrine, Midwest Environmental Compliance Conference, Chicago, October 29-30, 2015
The Official Committee of Unsecured Creditors (the "Committee") in the chapter 11 bankruptcy case of Cordillera Golf Club, LLC (the "Debtor") filed an application seeking approval to retain the law firm Munsch Hardt Kopf & Harr, PC ("Munsch Hardt") as counsel. The Committee selected Munsch Hardt due to its experience in bankruptcy cases and matters relevant to the case such as real estate and hospitality. Munsch Hardt will represent the Committee and provide legal advice regarding the Debtor and case administration. The application provides notice of the request for approval of Munsch Hardt's employment and discloses certain prior relationships between Munsch Hardt and potential
Look through the list of twelve injunctions. Consider whether you have experienced the living problems or discomforts associated with each one. Note the injunctions you think have been important for you.
Restraints on dealings prevent transactions related to disputed land from being registered. The main types of restraints in Malaysia are lis pendens, injunctions, caveats, and prohibitory orders. Caveats freeze the land register until the dispute is resolved, protecting the caveator's claim. Unlike caveats, injunctions are court orders that do not register on the land title but can still prevent dealings. While caveats and injunctions both restrain transactions, injunctions require court approval and can protect a broader range of interests.
The document discusses injunctions related to patents and trademarks. It provides an overview of different types of injunctions such as temporary, perpetual, and mandatory injunctions. It explains the requirements for granting injunctions, including showing a strong prima facie case and irreparable harm. The document also covers principles of patents, trademarks, and what constitutes infringement of each. It discusses some judicial precedents related to granting or denying injunctions in patent and trademark cases.
This document is the Courts of Judicature Act 1964 of Malaysia. It establishes the structure and jurisdiction of the superior courts of Malaysia, including the High Court, Court of Appeal, and Federal Court. The Act provides definitions of key terms, outlines the composition and powers of each court, and establishes their original and appellate jurisdiction over both civil and criminal matters. It also addresses administrative details such as court sittings, vacations, and rules of procedure.
This document discusses breach of contract and remedies for breach. It defines breach of contract and explains that there are remedies available at law, such as damages, and in equity, such as specific performance, injunctions, rescission and restitution, and reformation. It provides details on different types of damages including compensatory, consequential, punitive, and nominal damages. It also explains the requirements and applications of equitable remedies.
This document summarizes various remedies available for breach of contract, including rescission, damages, quantum meruit, specific performance, and injunction. It defines each remedy and provides examples to illustrate when each would apply. Rescission cancels the contract, allowing the non-breaching party to be discharged from obligations. Damages compensate for losses from the breach. Quantum meruit pays for work completed if a contract is terminated before completion. Specific performance requires actual fulfillment of contractual obligations. An injunction restrains a breaching party from prohibited actions.
The document provides a summary of the Children's Bill, expert evidence, and enforcement. It discusses the history and structure of the Children's Bill, including key reforms around parental responsibility and new orders. It outlines considerations for instructing and using expert evidence, including single joint experts. It discusses general issues around enforcement, including judgment summonses and stays of execution. The document analyzes the Children's Bill, expert evidence procedures, and enforcement mechanisms in detail across multiple sections and subsections.
NEWBIE LITIGATOR SCHOOL - Part I 2022 - The Federal Rules of Civil ProcedureFinancial Poise
Has it been 10 years since you took Civil Procedure in law school? Are you a business owner that’s been sued for the first time? How does litigation really move through the Federal Courts? This webinar provides an overview of the Federal Rules of Civil Procedure, with emphasis on recent changes and developments. By the end of the hour, the listener will have a clear understanding of how a case is initiated, how defendants and issues are brought into the case, and the required pre-trial steps. We also touch on settlement procedure and trial practice. Join us to hear one of the cornerstone law school classes condensed into a brisk and engaging hour-long discussion.
Part of the webinar series: NEWBIE LITIGATOR SCHOOL- PART 1 2022
See more at https://www.financialpoise.com/webinars/
This document discusses ex-parte proceedings and the procedure for setting aside ex-parte orders and decrees. It begins with introducing key concepts like natural justice, remedies for wrongs, and provisions in the Code of Civil Procedure regarding party appearance and non-appearance. It then defines key terms like suit, pleadings, summons, ex-parte, and decree. It discusses the objectives of pleadings and distinguishes between decrees and orders. Finally, it covers appearance and non-appearance of parties, noting that appearance can be made in person or through a representative and is necessary to submit to the court's jurisdiction.
This webinar discusses discovery practice in litigation. It begins with an overview of the rules governing discovery, including initial disclosures, written discovery like requests for production of documents and interrogatories, and oral discovery such as depositions. It covers topics like proportionality, preservation of electronic data, discovery from non-parties, and expert discovery procedures. The webinar provides both an explanation of the procedural rules and practical guidance about managing the discovery process.
Hamilton 2013 best interests representation in Children's CourtVictoriaLegalAid
Presentation by Robyn Hamilton about exceptional circumstances best interests representation of children unable to give instructions in the Family Division of the Children's Court.
The document discusses intra-EU freezing and search orders. It summarizes that:
1) Freezing orders can be obtained in England and Wales even when the substantive claim is proceeding elsewhere in the EU, as long as there are assets or a defendant present in England and Wales.
2) Obtaining permission to enforce a freezing order in another EU jurisdiction requires following guidelines to balance interests and ensure effectiveness and proportionality.
3) While the jurisdiction for cross-border freezing orders is established, search orders across EU borders remain limited in scope due to sovereignty issues.
TROs and Preliminary Injunctions (Series: Newbie Litigator School 101 - Part 1)Financial Poise
Sometimes—often at the beginning of a case—you need the court to take immediate action to protect your client’s interests or to maintain the status quo while the litigation progresses. This webinar discusses procedures and strategies for obtaining temporary restraining orders and preliminary injunctions. The topics discussed include the procedural and substantive requirements for obtaining TROs and preliminary injunctions, some best practices for how to succeed on motions seeking TROs and preliminary injunctions, and how to challenge and defeat those motions.
To view the accompanying webinar, go to: https://www.financialpoise.com/financial-poise-webinars/tros-and-preliminary-injunctions-2021/
Discovery Practice (Series: Newbie Litigator School - Fall Edition)Financial Poise
If you say the word “discovery” to a litigator, the reaction may not be kind. Discovery-the exchange of relevant information- usually in the form of documents or oral depositions, takes up the majority of a litigator’s time and costs clients the most money.
To view the accompanying webinar, go to: https://www.financialpoise.com/financial-poise-webinars/discovery-practice-2020/
Discovery and interrogatories allow parties to obtain relevant information from opponents to assess their cases. Discovery concerns obtaining documents, while interrogatories involve answering questions under oath. The court has discretion to order discovery and interrogatories if necessary for fair case disposal or cost savings. Privileged documents like legal advice are exempt from discovery. Parties have duties to conduct thorough searches and provide full, truthful answers throughout proceedings. Non-compliance can result in sanctions like dismissing claims or defenses.
The document discusses pre-trial procedures and pleadings in civil suits. It covers several key topics:
1. Effective pre-trial procedures like taking instructions from clients can help manage cases by preventing delays and encouraging settlements. Ineffective procedures can lead to court congestion and denial of justice.
2. There are requirements for pleadings like the plaint stating circumstances constituting each cause of action. A court may refuse a plaint if these requirements are not met.
3. Jurisdiction of courts is determined by factors such as where defendants reside, where land is located, or where causes of action arose. There are also pecuniary and other limitations of different courts.
This worksheet is designed to be used by persons contemplating a divorce. It may
also be used by your attorney. Completing this form before your initial interview with your
attorney may save you valuable time and money
The document provides an overview of the Family Courts Act of 1984 in India. It was established to promote conciliation and speedy resolution of disputes related to marriage and family affairs. Key points include:
- The act allows for the establishment of family courts to handle matters related to marriage, divorce, child custody, maintenance, and other family disputes.
- Counseling and conciliation are emphasized to resolve cases amicably when possible. Counselors are tasked with assisting parties to reach settlements.
- Family courts have jurisdiction over a wide range of matters to handle all family law issues under one roof. Proceedings are usually held privately to protect the dignity of parties.
- The act aims to provide inexpensive and
Arbitration of matrimonial property disputes in Australia Corey Gauci
1) Arbitration under the Family Law Act allows parties to have property and financial disputes privately resolved by an arbitrator of their choosing rather than through traditional court litigation.
2) Arbitrators must be legal practitioners with family law experience and training. They have a duty to resolve disputes fairly and disclose any biases.
3) The main advantages of arbitration are reduced costs, privacy, and letting the parties control the process. However, arbitration is only suitable when facts are agreed upon and financial disclosure is full. Arbitral awards can be reviewed by courts on questions of law.
MBHB-Webinar-PTAB-Williams-Lovsin-051616-FINALAndrew Williams
The document summarizes a webinar presentation about the first year of appellate review of decisions from the Patent Trial and Appeal Board (PTAB). Some key points include:
- The Federal Circuit has decided 93 cases from the PTAB so far, with 27 being precedential opinions. Most decisions have been affirmed or partially affirmed and partially reversed.
- The Supreme Court took up its first case involving the PTAB, In re Cuozzo Speed Technologies, which addressed the claim construction standard used in IPRs and the reviewability of institution decisions.
- Issues addressed in the webinar include claim construction, motions to amend claims, and the reviewability of PTAB institution decisions. Statistics on appeal outcomes are
THE DIVORCE TRIALKEY TERMSAppealBench trialBurea.docxcherry686017
The document summarizes the key steps and processes involved in a divorce trial. It discusses the differences between uncontested and contested divorce hearings. In an uncontested hearing, the parties have reached an agreement or one party defaults. In a contested hearing, the parties are unable to agree and the judge must decide disputed issues. The document also outlines the paralegal's role in preparing for trial, which includes developing the theory of the case, assembling evidence like testimony and documents, preparing subpoenas, and creating a trial notebook to organize materials.
How to Make International Commercial Arbitration Proceedings more Efficient -...Dr. Anton G. Maurer, LL.M.
the lecture held at KAA in Seoul, Korea, describes ways and means how arbitral tribunal and the parties can use party autonomy to make arbitration proceedings quicker and less costly.
Action to Recover Solicitor's Fees - Locus Standi and Privity Hurdle: The cas...Acas Media
Under Nigerian law, one who practices a profession and renders his professional services to another at his request is entitled to receive remuneration or professional fees from the beneficiary of such services unless he voluntarily waives the payment . In the case of a legal practitioner, one of the options open to recover fees or costs due to him in his professional capacity is a right of action in court to recover such fees .
This document discusses the consequences of appearances and non-appearances of parties in civil litigation under Order IX of the Code of Civil Procedure, 1908.
The key points discussed are:
- If neither party appears on the hearing date, the court may dismiss the suit under Rule 3.
- If the defendant does not appear, the court may proceed ex-parte and pass a decree against the defendant. The defendant can then apply to set aside the ex-parte decree by showing they did not receive notice or had sufficient cause for non-appearance.
- If only the plaintiff appears, the court may proceed ex-parte or adjourn the hearing to a future date. The consequences of a decree passed
Mortgage actions made up a significant proportion of the Supreme Court of Western Australia's civil caseload from 2011 to 2014, ranging from 31% to 44% of total civil lodgments. Unconscionable dealing claims involve assessing whether the borrower suffered from special disadvantages affecting their judgment, if the lender was aware of this, and took advantage. Successful claims may see loans rendered unsecured but still owing. It can help to apply to external dispute resolution bodies like the Financial Ombudsman Service which operate without prejudice and aim for fairness.
12. MPPO, Cap. 192
• Hong Kong divorces (s.17)
• Foreign divorces (ss. 29AJ & 29AK)
12
13. s.17(1)(a) MPPO
Freezing Order
Four elements:
• with the intention of defeating the claim for financial
provision
• about to make
• disposition or transfer out or otherwise deal
• property
“make such order as it thinks fit for restraining the other
party from so doing or otherwise for protecting the
claim”
13
14. “Intent to defeat”
• Subjective test
• Usually draw inference
• Need not be dominant or sole intention
• Statutory presumption (s.17(3))
14
16. “Disposition”
• Widely defined (s.17(4))
“does not include any provision contained in a
will or codicil but… includes any conveyance,
assurance or gift of property of any description,
whether made by an instrument or otherwise”
16
19. Proprietary Rights?
Re Mordant; Mordant v Halls [1997] 2 FCR 378
Sir Donald Nicholls VC:
“The words "or otherwise for protecting the claim" are
wide. I can see no justification for cutting them down so
as to exclude power to make an order which, when
carried out, will have the effect of making property
security for the claim in the same way as a sum paid into
court under R.S.C. Ord.14 or Ord.22. For instance, the
Judge may direct that a sum shall be paid into court to
await the outcome of a claim for financial provision.”
20. s.17(1)(b)
Four elements:
• with the intention of defeating the claim for financial
provision
• disposition
• property
• If the disposition were set aside different financial
provision would be granted to the applicant
“make an order setting aside the disposition and give such
consequential directions as it thinks fit for giving effect to the
order”
20
22. Third Parties
Caution:
• TL v ML & Ors. [2006] 1 FCR 465 / LWYA v KYW CACV
151/2013, 4 December 2014
“(i) the third party should be joined to the proceedings at the
earliest opportunity;
(ii) directions should be given for the issue to be fully
pleaded by points of claim and points of defence;
(iii) separate witness statements should be directed in
relation to the dispute; and
(iv) the dispute should be directed to be heard separately as
a preliminary issue, before the [Financial Dispute
Resolution].”
22
25. Effect of Setting-aside
Void or Voidable?
• Void ab initio: AC v DC & Ors [2013] 2 FLR 1499
• Voidable: HKCB Finance Ltd v Yuen Yi Wan
Sandy & Anor., DCMP 2017/2002, 29 November
2004
25
26. Procedure
Mode of commencing s.17 applications:
• Freezing order – summons with affidavit
(r.114 MCR )
• Set-aside order – notice of application for
ancillary relief with affidavit (r.74 MCR )
26
27. Foreign Divorces
With leave (s. 29AJ)
• Freezing orders and set-aside orders
Without leave (s. 29 AK)
• Freezing orders
27
28. Similar Provisions
28
Ordinance
s. 42 Bankruptcy Ordinance, Cap. 6 Restrictions on dispositions
s. 49 Bankruptcy Ordinance, Cap. 6 Transactions at an undervalue
s. 50 Bankruptcy Ordinance, Cap. 6 Unfair preferences
s. 118 Companies Ordinance, Cap. 622 Acts of directors
s. 725 Companies Ordinance, Cap. 622 Unfair prejudice remedies
Common law derivative action
s. 12 Inheritance (Provision for Family
and Dependants) Ordinance, Cap. 481
Dispositions intended to defeat
applications for financial provision
30. O.29 Mareva Injunction
Elements:
• Substantive legal/equitable right
• Good arguable case
• Assets in the jurisdiction*
• Real risk of dissipation
• Balance of convenience*
30
31. Mareva v. s.17(1)(a)
MPPO
“real risk of dissipation” vs “intention of
defeating the claim”
“good arguable case” vs “balance of
probabilities”
Undertakings
Proprietary interest (?)
31
32. Procedure
• PD 11.1 / PD 11.2
• Ex parte affidavit
• Inter partes summons
• Undertakings
• Third parties
• Foreign proceedings
33. Looking Ahead
The Chief Justice’s Working Party on Family
Procedure Rules:
Recommendation 99 (Proposal 100)
Sections 17(1)(a) and 29AJ of the MPPO and Order
29 of the RHC/RDC should be combined and
incorporated into the New Code with all necessary
modifications.
35. Anton Piller
Elements:
• Extremely strong prima facie case
• Serious actual or potential damage
• Clear evidence documents in respondent’s
possession
• Real possibility of their destruction
36. Caution
“Draconian” and “inherently oppressive”
Self-help / Breach of confidence
Immerman v Tchenguiz, Immerman v Immerman
[2011] Fam 116
36
37. Procedure
• PD 11.1 / PD 11.2
• Ex parte affidavit
• Inter partes summons
• Full and frank disclsoure
• Usually conducted by solicitor
• Follow strict terms of order
• No forced entry
41. Domestic Stay
SPH v SA (formerly known as SA) (2014) 17
HKCFAR 364:
“The single question to be decided is whether there
is some other available forum, having competent
jurisdiction, which is the appropriate forum for the
trial of an action i.e. in which the action may be tried
more suitably for the interests of all the parties and
the ends of justice?”
42. Test
Applicant to prove:
• Hong Kong does not have most real and substantial
connection
• There is another forum clearly more appropriate than
Hong Kong
Respondent to prove:
• Deprivation of a legitimate personal or juridical
advantage
Court will balance
49. Introduction / Structure
1. Overview of injunctions relating to children
2. Basic principles
3. Jurisdiction and forum
4. Non-removal orders (and alternatives)
51. Varieties of Injunctions (1)
Interlocutory / Final
Temporary / Permanent
Against Parents / Third parties / Non-parties
Mandatory / Prohibitory
52. Varieties of Relief (2)
Wide variety of relief:
• Removal/non-removal from HK
• Surrender of children’s identity documents
• Medical treatment
• Education
• Institutional care, supervision
• Confidentiality and publications related to children
53. Where to begin (3)
Depends upon the forum and jurisdiction
• High Court vs Family Court
• Statutory vs Inherent jurisdicton
54. Part 2: Basic Principles
Children are special!
(i) Court’s duty to protect them
(ii) Best Interests/Welfare Principle
55. Positive Duty of Court (1)
Positive duties on the Government and the Courts to
protect children
• Common Law,
• Statutes, and
• Constitutional Law
56. Positive Duty of Court (2)
Common law
• “Parens patriae” principle – Sovereign is the ultimate
parent of all (see Calvin's Case [1572] Eng.R. 64,
(1572–1616) 7 Co.Rep. 1a, 77 E.R. 377)
• Extended to protect children and non compos mentis
adults
• Exercised by High Court, s 12 of Cap 4 – especially in
wardship jurisdiction (see Re Y (minors) [1984] HKLR
204 at 206 per Jackson-Lipkin J)
57. Positive Duty of Court (3)
Constitutional and Statutory
Hong Kong Bill of Rights (Cap 383, s 8):
Article 19(4)
Spouses shall have equal rights and responsibilities as to marriage,
during marriage and at its dissolution. In the case of dissolution,
provision shall be made for the necessary protection of any children.
Article 20
(1) Every child shall have … the right to such measures of protection
as are required by his status as a minor, on the part of his family,
society and the State.
58. Positive Duty of Court (4)
Basic Law Protections for Children
Article 4
The Hong Kong Special Administrative Region shall safeguard the
rights and freedoms of the residents of the Hong Kong Special
Administrative Region and of other persons in the Region in
accordance with law.
See also Articles 36, 37, 38, 39, and 41, and Chapter VI
59. Positive Duty of Court (5)
Convention on the Rights of the Child (1)
• Life, care and protection (arts 3, 6);
• Non-discrimination (art 2);
• Recognition and protection of personhood including name, nationality, identity,
privacy and liberty (arts 7, 8, 16, 37);
• Civil and political rights including freedom of expression, thought, conscience,
religion and assembly (arts 13, 14, 15);
• Economic and social rights including health care, standard of living and social
security (arts 24, 26, 27);
• Cultural rights including education, development, play, leisure, indigenous and
minority rights (arts 28, 29, 30, 31);
• Protective rights for those deprived of their families, refugees, placed in care,
from violence, drugs, abduction and all forms of exploitation (arts 19, 20, 21,
25, 32, 33, 34, 35, 36); and
• Procedural rights including the right to be heard and protections in penal law
(arts 12, 40)
60. Positive Duty of Court (6)
Convention on the Rights of the Child (2)
Develop the common law
See Derbyshire County Council v Times Newspapers [1992] QB
770, [1992] 3 All ER 65 (CA)
Interpret statutes
See Ubamaka v Secretary for Security (2012) 15 HKCFAR 743, 763 at para
43
61. Best Interests Principle (1)
Best Interests of the Child
Guardianship of Minors Ordinance (Cap 13) (GMO)
Section 3(1)(a)(i)
In relation to the custody or upbringing of a minor … in any
proceedings before any court … the court shall regard the best
interests of the minor as the first and paramount consideration
and in having such regard shall give due consideration to (A) the
views of the minor if, having regard to the age and understanding of
the minor and to the circumstances of the case, it is practicable to do
so; and (B) any material information including any report of the
Director of Social Welfare available to the court at the hearing
62. Best Interests Principle (2)
Welfare Checklist (slimmed down)
• Wishes of child
• Child’s physical, emotional and educational needs;
• Relationship of child with parents and others
• Effect on child of any change in circumstances
• Child’s age, maturity sex, social and cultural background and other relevant
characteristics
• Attitude demonstrated by child’s parents
• Harm child has suffered or is at risk of suffering
• Family violence
• Capability of parents, and other relevant persons of meeting child’s needs …
63. Best Interests Principle (3)
Welfare Checklist (slimmed down)
• …
• Practical difficulty and expense of contact and effect on child’s right to
maintain personal relations and direct contact with parents
• Range of powers available to the court in the proceedings in question; and
• Any other relevant fact or circumstance
Applies in HK:
SMM v TWM (Relocation of Child) [2010] HKFLR 308
see also P v P (Children: Custody) [2006] HKFLR 305
64. Best Interests Principle (4)
Limits to Best Interests
Carefully balanced against rights and freedoms of others
(and the public)
See UN CRC General Comment 14, paragraph 39
Other statutory schemes (eg immigration)
May be totally negated e.g. diplomatic immunity
65. How does this affect
Injunctions? (1)
Interlocutory Injunctions
(modified American Cyanamid test)
• “just or convenient” centers on the child
• Pecuniary loss / adequacy of damages less important
see obiter Garden Cottage Foods Ltd v Milk Marketing Board [1984] AC
130
• “maintaining the status quo” less important
see Zhen Xiao Ting v Yu San Chuen [2001] 1 HKLRD 261 (CA) at 265,
per Le Pichon JA
66. How does this affect
Injunctions? (2)
Court not bound to dispute between the parties
• Quasi-inquisitorial approach (to protect child)
• More likely to make substantive orders sua sponte
Payne v Payne [2001] Fam 473 (CA) at 483 per Thorpe LJ,
Re E (a minor) (wardship: court’s duty) [1984] 1 WLR 156 (HL), 158–
159, per Lord Scarman
67. How does this affect
Injunctions? (3)
Enhanced duties of candour, may override privilege
Essex CC v R [1994] Fam 167, [1994] 2 WLR 407, [1993] 2 FLR 826,
per Thorpe J (as he was then) ordering lawyers to reveal the location of
the child in question
68. How does this affect
Injunctions? (4)
Modified costs rule for Children’s Cases
London Borough of Sutton v Davis (Costs) (No 2) [1994] 2 FLR 569
Followed in HK:
E.g. Re LB (Wardship: Costs) [2012] 1 HKLRD 266
69. How does this affect
Injunctions? (4)
Other procedural differences
Next friends
Official Solicitors
Court meeting children
Separate representation for the child
70. Part 3: Jurisdiction and
Forum
Statutory vs Inherent Jurisdiction
District Court (Family Court) vs High Court
71. Statutory Jurisdiction (1)
Jurisdiction for Injunctive Relief:
General powers of Courts:
HCO s 21L (injunctive relief) / s 21M (interim)
DCO s 52B (injunctive relief)
Relating to children:
• Separation and Maintenance Orders Ordinance s 5 (married couples)
• GMO s 10 (parents and DSW)
• MPPO s 19 (divorce, etc)
72. Statutory Jurisdiction (2)
Normally Injunctive Relief includes:
• Non-removal from jurisdiction by the parties
• Surrender of passport
• Consent to medical treatment
• Education (which school, courses etc)
• Curfew (control the child)
74. Inherent Jurisdiction (2)
Inherent Jx Injunctive Relief may:
[all those reliefs set out above under the statutory jx, and …]
• Require Medical treatment by public authorities
• Require supervision by, committal to care of public authorities
• Restrain both named third-parties and unnamed non-parties (i.e. “the
world”):
a. Publication of information relating to the child
b. Others from transporting, contacting, associating, harboring or molesting a child
c. Exclusion orders from child’s residence
• Require person within jurisdiction (e.g. HK PR) of the Court to return a child
from outside the jurisdiction (if the child is a HK PR)
75. Inherent Jurisdiction (3)
BEWARE
This jurisdiction does not extend to the District Court (Family Court)
See recent decision of QMY v GSS, CACV 68/2014 (unrep, 19 August 2015)
If in doubt start the case in the High Court, or transfer proceedings
NB. RDC Orders 4 and 78, RHC Order 78, PD15.14
76. Inherent Jurisdiction (4)
Word about WARDSHIP
Extraordinary, draconian and flexible jurisdiction
Immediate and powerful – virtually “unlimited”
Anyone may apply (directly or as next friend)
Be warned
Court becomes the “parent” of the Child, until further order or adulthood
*that may not be what your client wants!
77. Part 4: Non-removal
orders
The “Bread and Butter” of HK child-related injunctions
Failure to apply may be NEGLIGENCE:
Hamilton Jones v David & Snape (A Firm) [2003] EWHC 3147
78. Jurisdiction for NROs
• GMO / MPPO / SMOO (DCt, HCt)
• Inherent jurisdiction (High Court)
• Wardship (High Court)
NB: No ward of court can be removed from the jurisdiction, without permission
of the court
NB: Inherent jx and wardship not limited to parents (e.g. grandparents)
79. Applying for an NRO
• GMO / MPPO / SMOO (DCt, HCt)
By summons or ex parte to a judge unless unopposed, in
which can it may be made to the Registrar: RDC O 90 r 5,
MCR 94
• Inherent jurisdiction (High Court)
OS / Summons / Ex p application to a judge
• Wardship (High Court)
Originating Summons
80. Enforcing an NRO (1)
Inform the Immigration Department!
Service on ImmD is NOT AUTOMATIC:
Immediately serve sealed copy of the order (plus copy of birth certificate, ID
and other travel docs) by HAND on the Control Branch of the Department
For wardship cases:- (PD23.1)
1. In urgent cases, apply to Registrar for sealed letter: sealed order delivered
later
2. Duty on practitioners to notify ImmD when the wardship ceases
81. Enforcing an NRO (2)
Inform the Immigration Department!
During office hours (except Saturdays, Sundays and public holidays) Monday
to Friday: 8:45 a.m. to 4:30 p.m.
Control Support Section Room 1402, 14/F Immigration Tower 7 Gloucester
Road Wan Chai, Hong Kong Telephone: (852) 2829 3521
Outside office hours
The Duty Senior Immigration Officer Departure Level (North) Hong Kong
International Airport Chek Lap Kok Telephone: (852) 2182 1501
85. What is Domestic Violence?
What does it look like?
What are its effects?
How common is it?
Who are the victims?
Who are the perpetrators?
86. United Nations
United Nations resolution on the Elimination of domestic violence against women (A/RES/58/147,
of 22 December 2003)
“1. Recognizes:
(a) That domestic violence is violence that occurs within the private sphere, generally between
individuals who are related through blood or intimacy;
(b) That domestic violence is one of the most common and least visible forms of violence against
women and that its consequences affect many areas of the lives of victims;
(c) That domestic violence can take many different forms, including physical, psychological and
sexual violence;
(d) That domestic violence is of public concern and requires States to take serious action to
protect victims and prevent domestic violence;
(e) That domestic violence can include economic deprivation and isolation and that such conduct
may cause imminent harm to the safety, health or well-being of women;”
86
87. Social Welfare
Department
“1.4 Intimate partner violence is a kind of domestic
violence. In using violence or the threat of violence,
physical or psychological harm is inflicted with the
effect of establishing control by one individual over
another. There are many different forms of intimate
partner violence, and a person may be subjected to
more than one form of violence.”
- Procedural Guide for Handling Intimate Partner
Violence Cases (Revised 2011)
89. UK Home Office
any incident or pattern of incidents of controlling, coercive,
threatening behaviour, violence or abuse between those
aged 16 or over who are, or have been, intimate partners
or family members regardless of gender or sexuality. The
abuse can encompass, but is not limited to:
• psychological
• physical
• sexual
• financial
• emotional
91. Prevalence
- K.L. Chan (2005), Study on Child Abuse and
Spouse Battering: Report on findings of
Household Survey
Physical assault, injury or sexual coercion against a
spouse: 21.7%
Physical violence against children: 29%
Far more than recorded!
92. Victims
Young and old
Same and opposite sex couples
Men and women
Transgender persons
Chinese and ethnic minorities
Hong Kong-born and new arrivals
Social classes and education levels
92
93. International Instruments
The Convention on the Elimination of All Forms of
Discrimination against Women
The Convention on the Rights of the Child
The Universal Declaration of Human Rights
The International Covenant on Economic, Social and
Cultural Rights
The International Covenant on Civil and Political
Rights
96. DCRVO Orders
Non molestation order
Ouster/re-entry order
Authorization of arrest
Counseling programme
Vary child custody/access
96
97. Parties
• Spouse/former spouse (s.3)
• Specified minor (s.3)
• ‘Cohabitation relationship’ current and
former (s.3B)
• Relatives (s.3A)
98. “Cohabitation Relationship”
(s.2) …a relationship between 2 persons (whether of the same sex or of the
opposite sex) who live together as a couple in an intimate relationship
???
All the circumstances of the case, including (s.3B(2)):
(a) whether the parties are living together in the same household;
(b) whether the parties share the tasks and duties of their daily lives;
(c) whether there is stability and permanence in the relationship;
(d) the arrangement of sharing of expenses or financial support, and the degree of
financial dependence or interdependence, between the parties;
(e) whether there is a sexual relationship between the parties;
(f) whether the parties share the care and support of a specified minor;
(g) the parties’ reasons for living together, and the degree of mutual commitment to
a shared life;
(h) whether the parties conduct themselves towards friends, relatives or other
persons as parties to a cohabitation relationship, and whether the parties are so
treated by their friends and relatives or other persons.
99. Molestation: Definitions
• “To cause trouble; to vex; to annoy, to put to inconvenience”,
Davies LJ in Vaughan v Vaughan [1973] 3 All ER 449
• “Molest is a wide, plain word which I would be reluctant to
define or paraphrase. If I had to find one synonym for it, I would
select ‘pester’.” Stephenson LJ in Vaughan v Vaughan [1973]
3 All ER 449
• “… molestation may take place without the threat or use of
physical violence and still be serious and inimical to mental and
physical health”, Viscount Dilhorne in Davis v Johnson [1979]
AC 264
• “It applies to any conduct which can properly be regarded as
such a degree of harassment as to call for the intervention of
the court”, per Ormrod LJ in Horner v Horner [1982] Fam 90
99
100. Molestation: Examples
• Physical violence, threats, psychological
abuse, sexual abuse, financial abuse, verbal
abuse, bullying, nuisance calls/text
messages/emails, unwelcome visits,
following/watching/stalking, property damage,
publishing insulting material, improper reports
to authorities…
• Personally or by agents
100
101. Mandatory Counseling
Anti-violence Programme, 5 core concepts:
• Rapport building and ownership.
• Control and monitoring of violence.
• Self-understanding (learn, confront and
challenge).
• Emotional control skills training.
• Relapse prevention skills.
12 x 2-3 hour sessions
102. Authorization of Arrest
Test:
• Has caused actual bodily harm (civil
standard!)
• Reasonably believes respondent is likely to
cause actual bodily harm
“any hurt or injury calculated to interfere with the
health or comfort of the victim” – R v Miller
[1954] 2 QB 282
103. Authorization of Arrest
Can attach at a later date
Applies to other injunctions (if married)
Served on Commissioner of Police by Registrar
(or solicitor if urgent)
104. Ouster and Re-entry
Can cover: home, work, recreation or study
Do not require proprietary interest in the home
(but can still be frustrated)
105. Ouster and Re-entry
Consider:
• Conduct of the parties
• Needs and financial resources
• Needs of any specified minor
• All circumstances
Relatives, additionally:
• Legal/beneficial/contractual rights
• Impact on other family members
Needs of minor not necessarily paramount
107. Procedure
• Notice the signs!
• Collect evidence (civil standard)
• ‘Free-standing’ injunction (different from O.29)
• Usually District Court (s.4)
• Inter partes by originating summons
• Ex parte by affidavit (PD 11.1 / full and frank!)
• Scott schedules
107
110. List of Shelters
a. Christian Family Service Centre (for women – Serene
Court, tel: 2381 3311);
b. Po Leung Kuk (for women – Sunrise Court, Wai On
Home and Dawn Court, tel: 8100 1155);
c. Harmony House (for women – tel: 2522 0434);
d. Caritas, Family Crisis Support Centre (for both men
and women – tel: 18 288); and
e. Tung Wah (for both men and women – CEASE Crisis
Centre, tel: 18 281).
110
I welcome questions
Some of matters will be well known to you all, some will be totally new… I will try not to repeat things you already know
I will try to focus on what is SPECIAL about child related injunctions
If I skip over something you want to know more about, ASK A QUESTION
Fundamentally, the same variety of Injunctive relief that is available in financial and other matters is available relating to children
What is different, is that the court’s approach to disputes relating to children
Another difference, there is a wide variety of injunctive relief available…
This is largely due to the draconian/extensive powers of the High Court (particularly in Wardship)
Practitioners have to be careful to select the appropriate forum, with the appropriate jurisdiction to achieve the desired result
High Court is overloaded, expensive
District Court has limited jurisdiction
Different judicial officers (generally, with less experience of family matters)
The principles applying to CHILDREN are different – because the law is designed to protect them
In the family court, that means:
Duty of HKSARG to protect children
Best interests / Welfare principle
Effect the tests for exercise of discretion, different parties, procedures, costs etc.
The duties of the Government (and the Courts) to protect children are both ancient and modern
Common law
Statutory law
Constitutional and international law (which affects the interpretation and implementation of both the above and policies)
Feudal concept, prerogative power
Exercised by the Chancellor then the Courts of Equity
Welfare principle developed under this jurisdiction, before it was made statutory
Wardship grew out of this principle
Perhaps the most successful piece of international law…
Wide variety of rights under the CRC – applicable in children’s cases:
Article 3(2) requires HKSARG to “ensure the child such protection and care as is necessary for his or her well-being, taking into account the rights and duties of his or her parents, legal guardians, or other individuals legally responsible for him or her, and, to this end, shall take all appropriate legislative and administrative measures”
Article 4 requires HKSARG to “undertake all appropriate legislative, administrative, and other measures for the implementation of the rights recognized in the present Convention. With regard to economic, social and cultural rights, States Parties shall undertake such measures to the maximum extent of their available resources and, where needed, within the framework of international co-operation”
Article 5 requires HKSARG to “respect the responsibilities, rights and duties of parents or, where applicable, the members of the extended family or community as provided for by local custom, legal guardians or other persons legally responsible for the child, to provide, in a manner consistent with the evolving capacities of the child, appropriate direction and guidance in the exercise by the child of the rights recognized in the present Convention.”
Article 19 requires HKSARG to “take all appropriate legislative, administrative, social and educational measures to protect the child from all forms of physical or mental violence, injury or abuse, neglect or negligent treatment, maltreatment or exploitation, including sexual abuse, while in the care of parent(s), legal guardian(s) or any other person who has the care of the child”
CRC and the jurisprudence of the UN Children’s Rights Committee (in particular, its General Comments) are crucial interpretative tools for understanding and developing the law
Best interests (or WELFARE) principle evolved in various states
Now part of international law, through CRC (see articles 3, 9, 18, 20, 21, 37, 40)
Article 3(1), CRC: “[in] all actions concerning children, whether undertaken by public or private social welfare institutions, courts of law, administrative authorities or legislative bodies, the best interests of the child shall be a primary consideration.”
See UNCRC GC 14 for discussion
What does BEST INTERESTS mean?
What does FIRST AND PARAMOUNT mean?
How important is the voice of the child?
In assessing / examining the Best Interests of the child – consider the Welfare Checklist, adopted from UK (Statutory in UK)
Applies in HK
In assessing / examining the Best Interests of the child – consider the Welfare Checklist, adopted from UK (Statutory in UK)
Applies in HK
There are limits to the application of the Best Interests Principle
Just and convenient is not defined solely by the interests of the parties – and more by the interests of the child
Le Pichon JA explained that maintaining or preserving the status quo is not an end in itself and that it may not be in the paramount interest of the child
The Court is more likely to be “Parental” …
Full and frank disclosure – all of the parties, whether interlocutory or not
“Where the court considers the welfare of a child it has the power to override a legal professional privilege which is set up for the adversarial advantage of one of the parties”
Normal rule is no order as to costs – subject to exceptions
SMOO, GMO and MPPO may be ordered by DCt and High Court but are limited
The parties (parents, couples, DSW)
The powers (injunct parties, third persons joined/notified)
Limited to “custody, education and maintenance” – ie can make whatever decisions a parent may make
“custody, education and maintenance” normally means
Parens Patriae prerogative powers include the inherent jurisdiction of the High Court to protect children – s 12 of HCO
This jurisdiction is ancillary to the other jurisdictions of the Court – can be invoked in other proceedings
This jurisdiction is unaffected by proceedings in the Family Court (see Re Y, supra) and Care and Protection proceedings under the PCJO (see s 36, Cap 213)
It may be exercised in WARDSHIP proceedings (an originating process that grows out of it)
“custody, education and maintenance” normally means
QMY v GSS discusses this. Court declined jurisdiction, but appeared to doubt that the DCt has any inherent jurisdiction over a child not in HK (even if a PR) and suggested strongly that the proceedings should have begun in the High Court.
Ancient area of law – suggest you read my book… a topic for another day
The most normal, usual and sensible of injunction orders in HK (international hub etc)
Failure to take steps to prevent removal can result in negligence claim
Save for urgent ex parte on applications, application for an order begins with either an Originating Summons or a summons (in existing proceedings)
If order is sought before before proceedings have begun, must be on the undertaking to begin such proceedings: (see Re N (Infants) [1967] CH 512)
There is no need to apply for a non-removal ORDER if you have filed a wardship OS.
Do not be satisfied with a fax… call them to make sure they got the order / letter
The most normal, usual and sensible of injunction orders in HK (international hub etc)
Failure to take steps to prevent removal can result in negligence claim
I welcome questions
Some of matters will be well known to you all, some will be totally new… I will try not to repeat things you already know
I will try to focus on what is SPECIAL about child related injunctions
If I skip over something you want to know more about, ASK A QUESTION