Ballantyne v Ballantyne

• Jurisdiction: Barbados
• Judge: Douglas, CJ
• Judgment Date: 01 September 1975
• Neutral Citation: BB 1975 HC 14
• Docket Number: No. 105D of 1975
• Court: High Court (Barbados)
• Date: 01 September 1975

High Court

Douglas, C.J.

No. 105D of 1975

Ballantyne

and

Ballantyne

Appearances:

Mr. D.K. Rawlins for petitioner

Mr. J.M.G. Adams for respondent and co-respondent

Practice and Procedure - Divorce.

Facts: The respondent and co-respondent parties in a divorce action sought orders that service of the petition on each of them be set aside on the ground that service of the petition was not affected on them by the Marshal or anyone deputed by him in writing — Counsel for the parties relied on Rule 7 of the Matrimonial Causes Rules, 1937 — The writs served by counsel on the petitioner were signed by the Deputy Registrar of the Supreme Court.

Held: That it would be unreasonable to require personal service by the Marshal of the Supreme Court with regard to petitions served outside Barbados.

Douglas, CJ

1 By these application, the respondent and the co-respondent in these proceedings seek orders that service of the petition on each of them be set aside on the ground that service was not effected by the Marshal or by anyone deputed by him in writing. The petition was filed on the 13th June, 1975. On the 24th June, 1975 Mr. Rawlins, Attorney-at-Law acting on behalf of the petitioner, applied for and obtained an order granting leave to effect service out of the jurisdiction and on the 27th June, 1975 Mr. Rawlins served on the respondent and the co-respondent, in St. Lucia, sealed and certified copies of the Writ of Summons, the Petition and the Order of court dated the 24th of June, 1975.

2 On the 3rd July, 1975 Mr. Adams entered appearance under protest for the respondent and co-respondent and on that same day took out summonses to set aside service.

3 It is common ground that the Writs served by Mr. Rawlins were endorsed as follows –

“I hereby authorise Mr. Deighton K. Rawlins, Attorney-at-Law of Pinfold Street, Bridgetown, Barbados to serve this Writ

(Sgd) Keith Mayers

Deputy Registrar of the Supreme Court.”

4 Mr. Adams relies on Rule 7 of the Matrimonial Causes Rules, 1937 which provides –

“Service of the petition shall be effected by the Marshal, or by anyone deputed by him in writing so to do, by delivering to the respondent or respondents personally a copy sealed as aforesaid and endorsed with notice to appear.”

5 Mr. Rawlins on the other hand contends that the Matrimonial Causes Rules were repealed by reason of the repeal of section 8 of the Matrimonial Causes Act, 1935 (hereinafter referred to as “the 1935 Act”) by section 53 (1) of the Supreme Court of Judicature Act, 1956 (hereinafter referred to as “the 1956 Act”). Section 8 of the 1935 Act had empowered the Judge of the court for Divorce and Matrimonial Causes to make such rules and regulations concerning the practice and procedure under the 1935 Act as he thought expedient and to revoke or alter the same.

6 Counsel cites the case of Herbert v. Herbert (1961) 3 W.I.R. 183. In that case objection was taken that the petition for alimony pendente lite should be struck out because it was signed by the petitioner and not by the Solicitors on the record. This issue turned on whether or not the Matrimonial Causes Rules, 1937 applied. At page 186 of the report, Stoby C.J. stated — “It is possible that no saving section was included in the Act of 1956 because of the existence of section 19 of the Interpretation Act, 1949, which is as follows:.

‘Where any section conferring a power to make subsidiary legislation is repealed and other provisions, which include a power to make subsidiary legislation, are substituted therefor, but the Act of which such section formed a part is not itself repealed, then all subsidiary legislation made under the repealed section, and in force at the time of such repeal, shall continue good and valid as...