o'ferrall ja

4.36: Discontinuance of claim
14.5: Appeals only with permission

Case Summary

The Plaintiff filed for divorce and sought equal division of the matrimonial property. Divorce was granted and the Plaintiff intimated that she was considering discontinuing her Action with respect to the division of property. The Defendant applied for an Order preventing the Plaintiff from discontinuing. The Chambers Judge granted the Order and held that the Discontinuance was to avoid dividing the Plaintiff’s Property in the Philippines. The Plaintiff appealed the Order of the Chambers Judge prohibiting her from discontinuing her Action. As she did not file her Appeal in time, she also applied to extend the time for filing her Appeal.

In deciding whether to grant an extension of time to appeal, O’Ferrall J.A. noted that an Applicant must show:

1.   a bona fide intention to appeal while the right to appeal exists;

2.   an explanation for the delay and a lack of prejudice to the other side;

3.   assurance that the applicant has not taken the benefits of the judgment from which appeal is sought; and

4.   the demonstration that the appeal would have a reasonable chance of success if allowed to proceed.

Justice O’Ferrall held that the Plaintiff did not satisfactorily account for her delay, and that she had taken the benefits of the Order from which the Appeal was sought. The Court also held that the Appeal would not have a reasonable chance of success if allowed to proceed. The Court noted that Rule 4.36 provides that a Plaintiff may discontinue all or part of an Action at any time before a date is set for Trial. However, a Plaintiff may not discontinue his or her Action if to do so would amount to an abuse of process. The Court commented that, although the matter had not been set down for Trial as contemplated by Rule 4.36(1), the matter had been set for Judicial Dispute Resolution, something clearly analogous to a Trial. O’Ferrall J.A. concluded that allowing a Discontinuance to be filed at this stage of the proceedings would constitute an abuse of process.

Justice O’Ferrall refused to allow an Appeal on Costs, which would have been within the Appeal period. His Lordship noted that, since the Plaintiff could not appeal the Chambers Judge’s substantive Decision, the Plaintiff’s Appeal would be as to Costs only, which is an Appeal only with permission pursuant to Rule 14.5. O’Ferrall J.A. held that the Plaintiff had not satisfied the Court of the merits of a Costs Appeal, and declined to grant permission.

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