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256 Singapore Academy of Law Journal (2003) 89 It is arguable that it is possible for a 3 rd party to be one of the “full participants in the battle” 70 although he is not formally made a party. Thus, it may be argued that if the 3 rd party has received due notice of the proceedings and has full knowledge of the same, the court should be able to make orders against the 3 rd party, even though he has not been formally made a party. 90 It is submitted, however, that to be a “full participant in the battle”, not only would the husband and wife have to give him due notice of the proceedings, but they should also treat him as they would any other party to the proceedings at each subsequent stage of the proceedings. For example, if a fresh affidavit is filed by the wife which touches on the 3 rd party issue after the 3 rd party is given due notice of the proceedings, this should be served on the 3 rd party. This is particularly important for ancillary matters where there are no pleadings, unlike in ordinary civil cases. The parties’ cases must be gleaned from the affidavits and affidavits in reply which they file in the weeks or months preceding the ancillary matters hearing (which may go up to three, four, five, or even more “rounds”). 91 The danger with the approach of assuming that if the 3 rd party is treated as if he were a “full participant in the battle”, he thus becomes one (thus enabling the court to make orders against the 3 rd party), is that it opens the possibility of all sorts of factual disputes arising regarding the extent to which the 3 rd party has been given notice and kept informed of the proceedings, how this has been done, and by whom. 92 In the case of Kalsi, for example, the wife had taken out an application to, inter alia, prohibit her husband and his three brothers from exercising any rights of occupation they might have in the matrimonial home, and that their rights of occupation should be suspended or restricted upon such terms as the court deemed fit. This application came up for hearing, and was adjourned. The court noted that there was some doubt as to whether the brothers were present at this hearing, but it was probable that they were aware of the proceedings. At the adjourned hearing, counsel for the husband indicated that he did not oppose the application, but informed the judge that he had no instructions to appear for the brothers. Ultimately, on the judge refusing to adjourn the matter, and stating that the brothers would have to represent themselves, it was agreed by the brothers that counsel for the husband should be instructed by them. After hearing the husband’s 70 per Purchas LJ, in Kalsi, at p 518.
15 SAcLJ Matrimonial Assets and the 3 rd Party 257 counsel, the judge made an order restraining the brothers from remaining at, or entering the matrimonial home until an application for ancillary relief made in the proceedings had been adjudicated upon, or until further order. None of the brothers were parties to the proceedings. The court observed: “At the adjourned hearing…the only indication of the wife’s case—namely that based upon an express trust granting her and her husband exclusive possession—was to be found in the paragraph in the affidavit to which I have already referred [i.e. the wife’s affidavit in support of her application]. There are no grounds for being certain that the brothers were aware that this was the case being made by the wife, or the details upon which she based her case. There was no evidence that the brothers had been served with a copy of her affidavit. They were not parties to the application and would only be aware of documents, etc by virtue of secondhand information obtained from the husband…In addition there appears to be some conflict between the parties as to the stages during which any particular brother might or might not have been in court.” (per Purchas LJ, at page 518) 93 The court held that the judge should have joined the brothers as parties to the proceedings, as this would at least have given them a status before the court which would have made them subject to the court’s jurisdiction. 94 Thus, it appears that once the 3 rd party is made a party to the proceedings, his status vis-à-vis the court and the other parties would be completely clear, as would the rights and duties of all the other parties in relation to the 3 rd party, and vice versa. The situation if he is not made a party to the proceedings is much more ambiguous. 95 It is therefore submitted that if orders against the 3 rd party are requested, the appropriate course of action to take is to apply to join him as a party. If this has not been done, then the court should not make orders against the 3 rd party, no matter what documents have in fact been served on the 3 rd party, and the extent to which he may already have participated in the proceedings (for example, by attending ancillary matters pre-trial conferences, filing witness affidavits, and so on). 71 71 An exception should be made, however, in respect of costs awards against the nonparty. The court may award costs against a non-party inass [continued next page]
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