LUCY MICHAELS v. CENTALINE PROPERTY AGENCY LTD AND OTHERS

CACV 512 /2018

[2020] HKCA 706

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO 512 OF 2018

(ON APPEAL FROM HCPI NO 902 OF 2016)

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BETWEEN

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J U D G M E N T

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Hon Kwan VP (giving the Judgment of the Court):

1.  On 12 September 2018, Deputy High Court Judge Paul Lam, SC handed down his decision (“the Decision”) dismissing the plaintiff’s appeal against the decision of Master Leong. The master had on 15 February 2017 ordered the plaintiff’s claim against the 1^st, 2^nd and 3^rd defendants be struck out and dismissed her application for summary judgment.

2.  This is the plaintiff’s appeal against the Decision.

3.  Her appeal, which was scheduled to be heard on 17 March 2020, was adjourned due to the general adjournment of court proceedings for public health reasons.  With the consent of all the parties, we directed on 6 March 2020 that this appeal is to be disposed of on paper and gave leave to the plaintiff to lodge a skeleton argument in reply.

4.  The plaintiff (alternatively referred to as “Mrs Michaels”), the 2^nd and 3^rd defendants (alternatively referred to as “Mr Chiu” and “Ms Pow”) acted in person throughout.  Ms Shannon Leung is the counsel for the 1^st defendant (alternatively referred to as “Centaline”) in this appeal.  We will give our judgment in English as the plaintiff’s skeleton arguments, the 1^st defendant’s skeleton argument and the Decision are all in English.  The 2^nd and 3^rd defendants, who have lodged a skeleton argument in Chinese, may contact the court to arrange for this judgment to be interpreted to them if they so wish.

Failure to seek leave to appeal to the Court of Appeal

5.  There is no need for the plaintiff to seek leave to appeal to the Court of Appeal in respect of that part of the judge’s order striking out her claims in this action, as this is an order determining in a summary way the substantive rights of a party (section 14AA(1) of the High Court Ordinance, Cap 4 and Rules of the High Court Order 59 rules 21(1)(a) and (2)(f)).

6.  However, it is necessary to seek leave to appeal for that part of the judge’s order dismissing her appeal against the master’s order refusing to grant her application for summary judgment, as the effect of that order is not to determine in a summary way the substantive rights of any party to this action.  Where an application for summary judgment is dismissed, the action goes to trial in the usual way and the substantive rights of the parties will be determined at the trial (unless the action is struck out as in this instance).  See Winpo Development Ltd v Wong Kar Fu & Ors, CACV 39/2011, 22 July 2011, §§24 to 28; Kwok Mei Ha May v Chiu Yung [2018] HKCA 311.

7.  As the plaintiff has not obtained leave to appeal as regards the dismissal of her application for summary judgment, that part of her appeal is incompetent and will be struck out and dismissed.

8.  We will focus on the appeal against the order to strike out.  If the order for striking out is upheld, the application for summary judgment does not arise, so an appeal against the refusal of summary judgment would be futile.

The plaintiff’s case as pleaded

9.  This action was brought by the plaintiff to recover damages for pain and suffering due to various alleged wrongful acts or omissions of the 1^st to 3^rd defendants relating to alleged defects in a flat rented by the plaintiff’s daughter from the 2^nd and 3^rd defendants at Tower 3, Vianni Cove, Tin Shui Wai, Yuen Long (“the Property”).  The 1^st defendant was the estate agency involved in negotiating and concluding the tenancy agreement.

10.  The writ of summons was issued on 28 April 2016 and had attached to it a statement of claim of 36 pages.  The causes of action stated at the head of the writ of summons read as follows:

“Tort: Breach of Contract

Breach of Fiduciary Relationship/Breach of Quiet Enjoyment

Misrepresentation/Violation of Rights/Conspiracy

Breach of Duty/Unsecured and unsafe premises

Defective Appliances known and Concealed

Exposure to danger of Physical Harm/Personal Injury

Invasion of Privacy/Discrimination/Financial Losses

Intentional Infliction of Emotional Distress”^[1]

11.  We adopt this summary of the plaintiff’s claim as pleaded set out by the judge in §3 of the Decision^[2]:

“(a) Mrs Winny Wu (“Wu”) was an estate agent of Centaline.  [The plaintiff] and her daughter [“(Ms Michaels”)] engaged the service of Mrs Wu.  In the first week of March 2011, Wu arranged them to inspect a property owned by Mr Chiu and Ms Pow … (“the Property”).  She made various complaints about the service of Mrs Wu.

(b) On 25 March 2011, her daughter, Ms Michaels, as tenant, and Mr Chiu and Ms Pow, as landlords, signed a Tenancy Agreement for 24 months from 8 April 2011 (“the Tenancy Agreement”).

(c) After moving in, she discovered various problems.  First, the gas stove was malfunctioning and there was a leakage of toxic gas.  Second, the lighting fixture was defective. Third, there was mildew in the kitchen.  Fourth, the front door key was missing.

(d) Mrs Wu refused to handle their complaints, and concealed these problems before the execution of the Tenancy Agreement. Nevertheless, the missing front door key was given to them by Mr Chiu and Ms Pow subsequently.  The lighting defect was, however, never fixed so that they had to rely on a desk lamp.  The problem caused by the mildew in the kitchen was also not rectified.  Apparently, her main complaint was about the gas stove.  It was replaced 5 months later on or about 8 August 2011.  However, they still could not use it due to the risk of gas leakage.  She and her daughter have been suffering from the side effects of inhaling poisonous gas.”

12.  As noted by the judge in §19 of the Decision^[3], the key complaint of the plaintiff is that she and her daughter have suffered personal injuries due to the inhalation of poisonous gas, ie carbon monoxide, leaked from the allegedly defective gas stove in the Property.  The personal injuries they allegedly suffered include ailments such as dizziness, nausea and vomiting, confusion, tiredness, shortness of breath and difficulty in breathing.  Although the plaintiff complained of other problems or defects with the Property, it is not her case as pleaded that they have caused or contributed to the ailments suffered by her and her daughter. 

The summonses issued by the parties

13.  On 1 June 2016, the 2^nd and 3^rd defendants issued a summons to strike out the claim against them for disclosing no reasonable cause of action.  Further or alternatively, they sought to strike out on the basis that the action against them claiming damages for personal injuries is time barred.  They also sought an extension of time to file a defence.

14.  On 2 June 2016, the 1^st defendant issued a summons to strike out the plaintiff’s claim against it on the ground that it discloses no reasonable cause of action.  It also sought leave to file and serve its defence until 28 days after the determination of this application.  The 1^st defendant later amended this summons to add that the statement of claim should also be struck out as it is scandalous, frivolous or vexatious.

15.  On 29 July 2016, the plaintiff issued a summons for summary judgment against all three defendants.

16.  This action was ordered to be transferred to the Personal Injuries List on 15 August 2016 and it was ordered on 23 August 2016 that the application for summary judgment and the defendants’ strike out summonses were to be heard together.

The hearing before Master Leong

17.  The applications were scheduled to be heard by Master Leong on 15 February 2017.  On 10 February, the plaintiff issued a summons seeking that the summonses be heard by another master as she “strongly [believed]” she had not been treated with fairness in the prior hearings before Master Leong.

18.  On 15 February 2017, Master Leong dismissed the plaintiff’s application that he should withdraw from the hearing.  He told the plaintiff at the hearing there was no medical report served with her statement of claim as required by Order 18 rule 12(1A) of the RHC.  The master struck out her claim against the three defendants and dismissed her application for summary judgment.  He awarded the costs of this action, including the summonses before him, to the defendants, which he assessed summarily on paper.

The appeal to a judge in chambers

19.  The plaintiff filed a notice of appeal against the master’s decision on 27 February 2017.  A notice of hearing was issued by the court on 7 November 2017 stating that the appeal would be heard on 3 May 2018 before Deputy High Court Judge Saunders.

20.  On 7 March 2018, Au-Yeung J directed the 2^nd and 3^rd defendants to provide certified English translation of the affirmations and exhibits in Chinese to be relied on for use before DHCJ Saunders.  On 29 March 2018, Au-Yeung J made a further direction that as a bilingual judge happened to be available on 3 May 2018, the appeal would be heard by DHCJ Lam, SC instead and the 2^nd and 3^rd defendants would not be required to provide translation of the documents.

21.  On 13 April 2018, the plaintiff wrote to the court seeking a stay of the hearing on 3 May due to her “severe heart condition” and for the appeal to be rescheduled before DHCJ Saunders.  She followed up this request with subsequent letters to the court dated 20 and 25 April 2018.

22.  DHCJ Lam invited submissions from the defendants regarding the plaintiff’s application on 20 April.  Having considered the responses, he directed on 26 April that the hearing of the appeal would take place before him as scheduled on 3 May, as he was not satisfied there were good and sufficient reasons to adjourn the hearing or that the matter must be heard by DHCJ Saunders.

23.  On 2 May, DHCJ Lam made a further direction rejecting the plaintiff’s application on 25 April to adjourn the hearing and ordered the 1^st defendant’s solicitors to use their best endeavours to serve a copy of his direction on the plaintiff at her addresses as stated within that day.

The hearing before DHCJ Lam

24.  The hearing took place before the judge on 3 May 2018.  The judge also heard the plaintiff’s appeal in another action involving a different defendant (HCPI 898/2016) on the same occasion.

25.  After the hearing, the plaintiff lodged a written submission dated 5 May 2018 in which she replied to various points made in the 1^st defendant’s skeleton submission dated 30 April.  There was no explanation why she did not make this submission at the hearing on 3 May, and her submission, which was received by the court on 8 May 2018, was not even copied to the defendants.  The judge took into consideration that the plaintiff, as a litigant in person, might not be aware what she did was improper and on 15 May he invited submissions from the defendants whether he should consider the plaintiff’s further submission and what would be their substantive reply.  The judge made clear in his direction of 15 May that subject to the defendants’ submissions to be lodged, he would not consider any further submission from any party including the plaintiff.

26.  The defendants lodged their respective submissions on 28 May and 12 June 2018.  The judge decided to take into account the plaintiff’s further submission on 5 May and the defendants’ submissions in response.

27.  On the same day the judge gave his direction on 15 May, the plaintiff filed three additional affidavits.  In the first affidavit, she attached a “self-assessment report based on the medical records” coupled with miscellaneous medical documents, purportedly to meet the requirement in Order 18 rule 12(1A) of the RHC that a plaintiff in an action for personal injuries shall serve a medical report.  The second affidavit attached another skeleton submission dealing with the court’s power to override the limitation period.  In her third affidavit, she deposed that the court should override the limitation period.  On 19 June 2018, the plaintiff wrote further letters to the court with attachments.  The defendants had no opportunity to respond to these further submissions and documents.

28.  The judge considered these affidavits and further documents on a de bene esse basis.  He took the view that they are substantially similar to the plaintiff’s submissions made in previous documents and so did not require the defendants to respond.

The Decision of the judge

29.  The judge handed down the Decision on 12 September 2018 dismissing the plaintiff’s appeal.  

30.  In view of the nature of a strike out application, the judge did not resolve the factual disputes between the parties relating to the various alleged defects in the Property.  He held that the claim against the 1^st defendant is doomed to failure, as there is no legal basis to hold the 1^st defendant, which was merely acting as an estate agent, liable, even assuming that the plaintiff and her daughter had suffered personal injuries due to any defect in the Property.  Besides, there can be no claim for breach of contract as there was never any contractual relationship between the plaintiff and the 1^st defendant.

31.  Further, the plaintiff’s claim against all three defendants for damages for personal injuries is time barred.  It is not in dispute that the tenancy agreement was terminated at the request of the tenant, ie the plaintiff’s daughter, on 7 April 2012.  Any personal injury that could have been caused to the plaintiff and her daughter due to any defect in the Property must have occurred before that date and the potential causes of action must have accrued before 7 April 2012.  The writ issued on 28 April 2016 is prima facie time barred.  The judge was not satisfied that the plaintiff had only acquired knowledge of the relevant facts in late 2014 as she has asserted, such that the limitation period would run from the later date of her knowledge pursuant to section 27(4)(b) of the Limitation Ordinance, Cap 347, as a person’s knowledge includes knowledge which he might reasonably have been expected to acquire from facts observable or ascertainable by him, or from facts ascertainable by him with the help of medical or other appropriate expert advice which it is reasonable for him to seek (section 27(8) of Cap 347).

32.  The judge concluded there is no reasonable prospect that the court would exercise its discretion under section 30(1) of Cap 347 to disapply the limitation period, even if the plaintiff should make a proper application for that purpose, in light of these matters: the length of the delay in bringing this action is more than one year; the plaintiff has not given satisfactory explanation supported by credible evidence to explain the delay; and most important of all, there is absence of any evidential basis to support her claim . Not only has she not produced any proper medical report in compliance with Order 18 rule 12(1A) of the RHC, she has no viable claim at all.  There is no evidence, other than her bare assertions, of leakage of gas in the Property, the quantity or content of the gas leaked, the quantity of the gas inhaled, or that the symptoms or ailments suffered by the plaintiff and her daughter were in fact caused by inhalation of poisonous gas.

33.  The judge held that even if the limitation period had not yet expired, it would still be wrong to allow the plaintiff to proceed with a hopeless claim.

34.  The judge ordered the plaintiff to pay to the defendants the costs of this action including the applications before him.  The plaintiff did not file any list of objections to the statements of costs lodged by the defendants.  On 9 November 2018, the judge assessed the costs payable to the defendants summarily at $170,000 for the 1^st defendant, $10,000 for the 2^nd defendant and $10,000 for the 3^rd defendant.

The appeal to the Court of Appeal

35.  On 9 October 2018, the plaintiff filed a notice of appeal against the Decision.  The grounds of appeal were stated to be contained in 11 enclosures to this document. She lodged a draft appeal bundle on 30 October 2018.

36.  On 18 December 2018, the Registrar of Civil Appeals directed her to file an amended notice of appeal, as the documents lodged by her were prolix and unfocused and contained lengthy submissions and enclosures not relevant to the appeal.

37.  On 11 January 2019, the plaintiff filed an “Amended Notice of Appeal”.  It is a document of 31 pages.

38.  On 14 January 2019, the Registrar directed her to prepare a succinct and focused summary of her grounds of appeal in table form, setting out in four columns the findings challenged, the alleged errors, the paragraph numbers in the Amended Notice of Appeal, and identifying the relevant documents.  The Registrar withheld giving directions on the appeal bundles lodged by her until she had prepared a document framing in a proper manner her grounds of appeal.

39.  On 13 February 2019, the plaintiff lodged a “Revised-Amended Ground of Appeal” of 19 pages with a table of four columns running to 35 pages.

40.  On 21 February 2019, the Registrar gave directions that the “Revised-Amended Ground of Appeal” shall be treated as the only Notice of Appeal of the plaintiff and she should retrieve her appeal bundles lodged on 30 October 2018 and prepare fresh bundles for the appeal containing only the documents relevant to the appeal with a proper index.  He directed the defendant to provide comments on the new draft bundles within 14 days of receipt.

41.  The plaintiff lodged fresh draft appeal bundles on 4 April 2019.  The 1^st defendant provided its comments on 18 April.  On 6 June 2019, the Registrar gave further directions to the plaintiff to lodge revised draft bundles.  She did so on 11 July and the 1^st to 3^rd defendants commented on the same on 15 July and 8 August.  As it had been almost one year since the plaintiff brought this appeal and she still failed to prepare draft appeal bundles in the manner as directed by the Registrar, on 4 September 2019 the Registrar directed the 1^st defendant to compile draft appeal bundles.  On 21 October 2019, the Registrar approved the draft appeal bundles lodged by the 1^st defendant and directed the plaintiff to file an application for the hearing of this appeal.

42.  On 31 October 2019, the plaintiff filed an application for the hearing of the appeal.  On 19 November 2019, the Registrar gave directions that the appeal be fixed for hearing, that the 1^st defendant should lodge with the court three sets of the appeal bundles as approved by the Registrar on 21 October and serve another set on the plaintiff.  He also directed the plaintiff to retrieve her bundles lodged on 11 July.  The Registrar also gave directions for the parties to lodge skeleton arguments and list of authorities in compliance with Section G of Practice Direction 4.1.  The Registrar made clear that no further document or submission shall be lodged without leave of the court and that any document or submission lodged in non-compliance will not be considered.

43.  The notice of hearing of the appeal was issued on 2 December 2019, stating that the appeal was to be heard on 17 March 2020.

44.  On 16 December 2019, the plaintiff wrote to the court asking the court to reconsider her draft appeal bundles.  This was refused on 18 December 2019.

45.  On 19 February 2020, the 2^nd and 3^rd defendants wrote to the court requesting to include in the appeal bundle an affidavit of the plaintiff filed on 12 October 2016.  The 1^st defendant wrote to the court on 26 February opposing the inclusion of this affidavit.  We do not think this affidavit, which was not served on the 1^st defendant at any time and was apparently not placed before the master or the judge, is of relevance to this appeal. We will not consider this affidavit.

46.  After directions were given on 6 March 2020 for the disposal of this appeal on paper with the consent of all parties, on 19 March the plaintiff lodged her skeleton argument^[4] (dated 8 March 2020) of 13 pages and a “List of Authorities” of 28 pages containing quotations from the authorities and her submissions.  The 2^nd and 3^rd defendants lodged their skeleton argument on 23 March of ten pages with seven enclosures.  The 1^st defendant lodged its skeleton argument by Ms Leung with an appendix and a list of authorities on 2 April.

47.  On 14 April, the plaintiff lodged a skeleton argument in reply (dated 14 March 2020) of five pages and a second “List of Authority”.

48.  Between 5 March 2020 and 1 May 2020^[5], the plaintiff lodged with the court a very large number of documents via the no-reply email address of this court, including the appeal bundles compiled by her, purported evidence in support and further written submissions.  These documents and submissions were lodged without leave of the court.  The plaintiff well knew that the only appeal bundle was that approved by the Registrar on 21 October 2019 and lodged by the 1^st defendant pursuant to the directions on 19 November.  Her request for reconsideration of her bundles was refused by the court in December 2019.  She had been disabused by the judge in the Decision of the most unsatisfactory way she chose to conduct these proceedings.  There are no special circumstances to justify the lodging of the additional documents and submissions.  They will not be considered by this court, apart from the documents already included in the appeal bundle lodged by the 1^st defendant and the two skeleton arguments served by the plaintiff on 19 March and 14 April.

The grounds of appeal

49.  The grounds of appeal raised in the “Revised-Amended Ground of Appeal” and the plaintiff’s skeleton arguments may be summarised as follows:

(1) The judge failed to give proper reasons or had overlooked some significant points and material evidence.

(2) He reached a decision on some points which had not been argued and his decision cannot be supported by the evidence.  The irregularity has caused substantial injustice to the plaintiff and is unfair to a litigant in person.

(3) The judge sympathised with the defendants.  His decision is perverse or biased or both.  He failed to give equal treatment to the parties.

(4) The judge exceeded his power in overriding the medical records and the “self-assessment report based on the medical records” compiled by the plaintiff.  He failed to make a finding on the source of the medical records of the plaintiff and her daughter.

(5) The judge failed to take into account and/or give proper weight to the plaintiff’s evidence and failed to apply the proper standard of proof to her evidence.

(6) He failed to draw an adverse inference from the failure of the 1^st defendant to serve a defence.

(7) He found it extremely difficult to identify the causes of action of the plaintiff notwithstanding that a list of all her causes of action was posted on the writ of summons.

(8) He miscalculated the time factor on the issue of limitation of time.

(9) His decision is contradicted by the evidence and is self-contradictory.

(10) There had been prejudice, partiality, administrative irregularities and judicial misconduct in the conduct of these proceedings: there was a sudden change of the presiding judge before the hearing on 3 May 2018; the judge refused to adjourn the hearing on 3 May 2018 despite the “severe heart condition” of the plaintiff, he forced her to attend the hearing and ordered the 1^st defendant’s solicitors to go to her residence to remind her; the court allowed the bundle prepared by the plaintiff to be replaced by the 1^st defendant’s bundle which removed, omitted and excluded vital key evidence.

50.  We do not find it necessary to deal with each of the grounds of appeal raised by the plaintiff for the proper resolution of this appeal.  We would only address such of the plaintiff’s arguments on fact and law only insofar as they are material to the resolution of the critical issues, which are whether the causes of action pleaded by the plaintiff are obviously unsustainable and whether they are time barred.  Where there are factual disputes, we would approach them on the basis whether they are material to the resolution of the critical issues, and if it is necessary to resolve them, whether they can be resolved on the basis of undisputed or indisputable evidence.

51.  The court is not required to deal with each and every argument raised by a party in support of his or her case, but only to identify the issues critical to its decision and explain how the issues should be resolved (Eagil Trust Co Ltd v Pigott-Brown [1985] 3 All ER 119 at 122c to e; English v Emery Reimbold & Strick Ltd [2002] 1 WLR 2409 at §§16 to 21; Welltus Ltd v Fornton Knitting Co Ltd, CACV 268/2011, 14 March 2013, §§19 to 25).  The plaintiff’s complaints that the judge had failed to give proper reasons for his decision and that he had not taken into account her evidence are misconceived.  We are satisfied that the judge has given his reasons in sufficient detail to show the principles on which he has acted, and the reasons which led him to his decision.

The approach in this appeal

52.  A decision to strike out is made in the exercise of discretion of a judge.  On well-established principles, an appeal court would not interfere with the judge’s decision unless there was an error in law, or misapprehension of material facts, or the judge had failed to take into account relevant matters, or had taken into account irrelevant matters, or that the decision was plainly wrong (Tan Shaun Zhi Ming v Euromoney Institutional Investor (Jersey) Ltd [2019] HKCA 523 at §16).

53.  Once a limitation defence is raised, the onus is on the plaintiff to prove that the cause of action relied on accrued within the limitation period (Kensland Realty Ltd v Tai, Tang & Chong (2008) 11 HKCFAR 237 at §153).  We reject the plaintiff’s contention this is reversing the burden of proof by placing a burden on her.

Whether the plaintiff’s causes of action are viable

54.  In relation to the claims against the 1^st defendant, the judge made two material holdings why the 1^st defendant could not have been liable to the plaintiff, even if her allegations were true.  First, there could not be any contractual claim as there was never any contractual relationship between the plaintiff and the 1^st defendant.  Second, even if the plaintiff and her daughter had suffered any personal injuries due to any defect in the Property, there is no legal basis to hold the 1^st defendant liable, as the 1^st defendant was merely acting as an estate agent.

55.  The plaintiff sought to rely on various provisions in the Estate Agents Ordinance, Cap 511 (sections 36 to 44, 55, 56).  Sections 36 to 44 are found in Part V of the Ordinance governing estate agents’ duties, liability and advertising.  Section 36 relates to information as regards a property in relation to which a licensed estate agent has entered into an estate agency agreement.  The 1^st defendant did not enter into any estate agency agreement with the plaintiff.  The other provisions in Part V are totally irrelevant to the claims in this action. Section 55 makes provision for criminal liability.  Section 56 empowers the Estate Agents Authority to make regulations.  None of the statutory provisions cited by the plaintiff could have any possible relevance to found a cause of action against the 1^st defendant.

56.  The plaintiff argued that the 1^st defendant can be held vicariously liable in tort.  This is wholly misconceived.  The 1^st defendant, acting as an agent, had no control over the acts of the principal and would not be held vicariously liable for any tortious act of the principal.

57.  We agree with the judge that the claim against the 1^st defendant is doomed to failure.

58.  In respect of the claims against all three defendants, the judge found there is no evidential basis to support the claims, other than the bare assertions of the plaintiff. We entirely agree.

59.  There is no medical report served by the plaintiff in compliance with Order 18 rule 12(1A). Order 18 rule 12(1C) provides that for the purpose of this rule, “medical report” means “a report substantiating all the personal injuries alleged in the statement of claim which the plaintiff proposes to adduce in evidence as part of his case at the trial”.

60.  The judge had considered all the materials presented by the plaintiff in purported compliance with the rules, including the “self-assessment report based on the medical records” adduced by the plaintiff without leave after the hearing.  He is clearly right to hold that no medical report in compliance with the rules has been served by the plaintiff.

61.  Nor did the judge overlook the literature the plaintiff found on the internet about the harmful effects of inhaling carbon monoxide, which suggested that this may cause symptoms such as dizziness, nausea and vomiting, tiredness and confusion, shortness of breath, difficulty in breathing, atrial fibrillation which may in turn lead to mental stress, similar to the symptoms complained of by the plaintiff as recorded in two referral letters of a medical officer who attended her at the Tin Shui Wai (Tin Yip Road) Community Health Centre on 30 April 2018.

62.  One referral letter referred the plaintiff to a cardiologist for “chronic rheumatic heart disease/atrial fibrillation” and recorded “palpitation 10 days ago” which was a “1^st episode”.  The other referral letter requested the consultant in charge of the Department of Psychiatry to assess the plaintiff for “post-traumatic stress disorder” and recorded her complaints similar to the symptoms in the literature she adduced.

63.  The first letter records the doctor’s impression that the plaintiff was suffering from chronic rheumatic heart disease and heart murmur.  The second letter records the plaintiff’s own complaints that she “feels” she has PTSD.  This is not independent medical evidence that the symptoms or ailments were likely to have been caused by the inhalation of carbon monoxide in the Property vacated by the plaintiff in April 2012.

64.  We agree with the judge that the plaintiff’s claim is “far-fetched, imaginative and fanciful” and to pursue such a hopeless claim is frivolous, vexatious and an abuse of the process of the court.

Whether the plaintiff’s causes of action are time barred

65.  As held by the judge, the plaintiff’s claim for damages for personal injuries is prima facie time barred as the writ was issued more than three years from the date on which the cause of action accrued, pursuant to section 27(4)(a) of Cap 347.  The plaintiff sought to rely on section 27(4)(b), contending that she only acquired knowledge of the relevant facts some time after 7 April 2012 so the limitation period should run from the later date of her knowledge.  She asserted that she did not know that the ailments suffered by her and her daughter were caused by the inhalation of poisonous gas until in late 2014, when a specialist asked if they had been exposed to carbon monoxide.

66.  The judge rejected the plaintiff’s bare assertion.  He noted that she did not mention who the specialist was, when the conversation with the specialist took place, and was unable to produce any documentary proof in this respect.  The judge cannot be faulted in concluding that the plaintiff has not adduced credible evidence to support a reasonably arguable case she only acquired the requisite knowledge in late 2014.

67.  The judge also decided there is no reasonable prospect that the court would exercise its discretion under section 30(1) of Cap 347 to disapply the limitation period, even if the plaintiff should make a proper application under that provision.  We consider his decision well founded for the reasons he gave.

68.  In the “Revised-Amended Ground of Appeal”, the plaintiff sought to provide explanation for her delay in bringing this action, alleging that she could not commence litigation until she knew the source of her ailments in 2014, that she had made complaints to the 1^st defendant in February or March 2015, that she was unable to contact the 2^nd and 3^rd defendants, and her poor health.

69.  The explanation she sought to give on appeal had been furnished to the judge and was mentioned in the Decision.  He took the view that the plaintiff has not given satisfactory explanation supported by credible evidence to explain the delay.  There is no basis for this court to take a different view.

Other complaints of the plaintiff

70.  There is no substance in the plaintiff’s complaint about the change of the presiding judge.  Nor could it be said that the judge was in error in refusing to adjourn the hearing on 3 May 2018.  These are case management decisions within the province of the trial court.  There is no basis for the appeal court to interfere with the proper exercise of discretion by the court below on the well-established principles (Wong Kar Gee Mimi v Severn Villa Ltd [2012] 1 HKLRD 887 at §31).

71.  There was no administrative irregularity and the Registrar did not act improperly in declining to accept the draft appeal bundle compiled by the plaintiff.  The plaintiff was given adequate opportunity to submit a draft bundle for the appeal that is compliant with the directions given by the Registrar, including the requirement that the bundle should contain only the documents relevant to the determination of the appeal and documents that had been placed before the judge.  It was after her repeated failure to submit a compliant draft bundle that the Registrar gave directions to the 1^st defendant to prepare a draft bundle for his approval so that the appeal could proceed without any further delay.

72.  As for the allegation of bias and partiality of the judge towards the defendants, there is no basis for this complaint, whether this be actual or apparent bias.  A fair-minded and informed observer would not reasonably conclude there was a real possibility of bias in all the circumstances.

Conclusion and orders

73.  For all the above reasons, the judge is plainly right in concluding that the plaintiff’s causes of action are obviously unsustainable and that they are time barred.  The plaintiff has failed to establish any basis for this court to interfere with the exercise of discretion by the judge in ordering her claims to be struck out.

74.  We dismiss her appeal against the judge’s order that her claims in this action be struck out.  We strike out and dismiss her purported appeal against the refusal to grant summary judgment on the basis that this is incompetent as leave to appeal has not been obtained.

75.  Costs of the appeal should follow the event. We make an order nisi that the plaintiff is to pay the costs of the 1^st, 2^nd and 3^rd defendants in this appeal.  If no summons is taken out by any party to vary the order nisi within 14 days of the handing down of this judgment, the costs order nisi will be made absolute. 

76.  We propose to assess costs of the appeal by summary assessment.  We direct the 1^st, 2^nd and 3^rd defendants to lodge their respective statement of costs for this purpose within 14 days hereof, and give leave to the plaintiff to lodge a submission if she wishes to object to any item of costs within 14 days thereafter.  The plaintiff’s submission is not to exceed five pages on A4 paper, printed in font size of not less than 14 and in line spacing of not less than 1.5.  Any non-compliant submission will not be read by the court.