李竹英 v. 胡炳雄 (WU PING HUNG) 的遺產代理人

DCEC 2446/2019

[2024] HKDC 326

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

EMPLOYEES’ COMPENSATION CASE NO 2446 OF 2019

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IN THE MATTER OF AN APPLICATION BETWEEN

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REASONS FOR DECISION

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Introduction

1.  By a summons filed on 19 January 2024 (“the summons”), the Employees Compensation Assistance Fund Board (“the Board”) applied to join as the 2^nd respondent to contest the issue of quantum and to file a notice of appeal pursuant to Section 18 of the Employees’ Compensation Ordinance out of time.

2.  At the hearing on 16 February 2024, I allowed the Board’s application.

3.  Here are my reasons for decision.

The joinder application

4.  Mr Lucas Lau, counsel for the applicant, opposed the application and argued that the application was late for more than 2 years after the interlocutory judgment was entered.

5.  Mr Lau submitted that since the commencement of the proceedings in 2019, the applicant kept on informing the Board the progress of the case. In particular, the Board was informed of the unless order of Her Honour Judge Levy dated 18 June 2021 which resulted in an interlocutory judgment on liability dated 26 July 2021 being entered.

6.  Mr Lau also submitted that the Social Welfare Department documents contained no new information regarding the applicant’s salary that were already pleaded in the amended Form 1. The Board’s intended challenge on the applicant’s salary is unmeritorious.

7.  Ms Flora Lam, counsel for the Board, firstly pointed out that the case of Cheung Ching Yee, the administratrix of the estate of Kwok Kam Sing, Deceased, and in her own capacity v Daily Joy Investment Ltd & ano [2022] HKDC 269 relied on by Mr Lau is in fact unhelpful to the applicant because in that case the Board was not allowed to join in the proceedings on the issue of liability only. The Board was in fact allowed to join as the 2^nd respondent to contest the issue of quantum.

8.  Ms Lam said the Board had been actively following up with the applicant’s solicitors the progress of these proceedings and the provision of documents supporting the applicant’s income. On 19 June 2023, the Board was informed by the applicant that the respondent had passed away. However, the Board was only informed by the applicant on 18 January 2024 that leave was granted by Her Honour Judge Levy under Order 15 rule 15 of the Rules of the District Court on 24 November 2023 (“the Carry-On Order”).

9.  Ms Lam submitted that in view of the Board’s potential liability under Section 16 of the Employees Compensation Assistance Ordinance, Cap 365 (“ECAO”) to pay compensation to the applicant, the Board should be given an opportunity to test the applicant’s case on quantum.

10.  Ms Lam submitted that in the Comprehensive Social Security Assistance declaration of the applicant, the applicant reported that she worked as a salesperson on 27 November 2017, which is in conflict with what she stated in her witness statement at paragraph 21 that she commenced working for the respondent as a masseur on that very same day. Also, in light of the income she claimed to have earned while working for the respondent, there is a need to test her actual earnings.

11.  The Board is not bound to make joinder application in all cases which fall within the circumstances as specified in Section 25A of ECAO. To safeguard public fund, the Board should only take out such application when there is a real need to test the applicant’s claim. For this reason, I do not regard the lapse of time from the date of entry of the interlocutory judgment to the date of the application as a period of delay.

12.  Given the fact that the Board was only informed of the Carry-On Order on 18 January 2024 and the application was taken out on the following day, I do not accept that there is any delay on the part of the Board.

13.  In the light of the apparent conflict of the applicant’s occupation on 27 November 2017 and her claim of earnings while working for the respondent, I am satisfied that there is a real need for the Board to join in these proceedings in order to test the applicant’s case and to assist the court to come to the correct computation of compensation.

The out of time application

14.  The Board was provided a copy of the Form 9 on 19 June 2023, which was issued on 25 May 2023.

15.  According to Section 18(2) of the Employees Compensation Ordinance, Cap 282, an appeal should be lodged within 6 months.

16.  However, the Board was only informed of the Carry-On Order on 18 January 2024, ie after the expiry of the time limit for appeal.

17.  Therefore, the Board cannot be criticized for causing the delay. In any event, I do not see any prejudice that would have caused to the applicant by allowing the Board’s application.

Conclusion and order

18.  For the foregoing reasons, I allowed the Board’s applications and make an order in terms of paragraphs 1 to 4 of the summons.

Costs

19.  At the hearing, Ms Lam asked for the costs of the summons with certificate for counsel whereas Mr Lau asked for costs in the cause.

20.  As the applicant is legally aided and the Board is funded by public fund, I make a costs order nisi that there be no order as to costs of the summons.

21.  In the absence of any application for variation by summons within 7 days from the date of this decision, the costs order nisi shall become absolute.

22.  The applicant’s own costs shall be taxed in accordance with the Legal Aid Regulations.