LEE CHUNG HAN v. FIRST INTERNATIONAL MONEY EXCHANGE LTD.

1993, No. 30

H E A D N O T E

Once time is extended under rule 31(3)(b) and (4) of the District Court Civil Procedure (General) Rules, Cap. 336, in an action struck from the Register of Civil Actions under rule 31(2), an entry in respect of such extension must be made in the Register under rule 11(1), thus effecting an automatic restoration of the action to the Register.

IN THE COURT OF APPEAL

1993, No. 30
(Civil)

_______________

_______________

J U D G M E N T

_______________

Litton, J.A.:

1. I will ask Mr Justice Bokhary to give the first judgment.

Bokhary, J.A.:

2. This appeal comes to us from the District Court. The claim is for $77,650 arising out of dealings between the parties in respect of currency exchange.

3. The writ was issued on April 23, 1992. An application for summary judgment was taken out on July 6, 1992. It was dismissed. Leave from the District Court to appeal to this Court against such dismissal was sought. Such leave was refused. An application to this Court for such leave was contemplated; but in due course that idea was abandoned. By then, over three months had expired since the service of the Defence; but no application to fix a date for the hearing of the action had been made. Therefore, by reason of rule 31(2) of the District Court Civil Procedure (General) Rules, Cap 336, the Registrar of the District Court was required to strike the action from the Register of Civil Actions. That was done on November 27, 1992.

4. The Defence had been filed on May 14, 1992. The plaintiff sought an extension of time for applying to fix a date for hearing. By his order dated February 9, 1993, His Honour Judge Britton so extended time. Clearly, he had jurisdiction to do that. Rule 31(3)(b) gave him power so to extend time; and Rule 31(4) empowered him to do so even though the application for such extension had not been made until the action had been struck from the Register.

5. The learned judge went on to order that upon such application being made, the action be restored to the Register. It is said by the defendant, who appeals against the Order of February 9, 1993, that the learned judge had no power to order restoration, its contention being that only judicial review in the High Court can achieve that. It seeks from this Court an order setting aside the Order of February 9, 1993, or declaring it void, and directing that the action do stand struck from the Register. Rule 11(1) requires the Registrar to cause the Register

"to be maintained by proper entries therein in relation to all actions and proceedings in the Court".

Clearly, the action remained in existence. It had not been dismissed; and it must remain even if for nothing other than an application made in it for an extension of time such as the rules expressly permitted and which the learned judge granted in the present case.

6. Once time was extended, that created the need for an entry to that effect by which the Register had to be maintained, therefore triggering the Registrar's duty to make that entry thus in effect restoring the action to the Register as an automatic consequence of extension. Even in the absence of such an express rule, the result, in my judgment, would have been no different: for a registry is there to serve the court to which it is attached. It provides the administrative back-up for the judicial activities of the court. It is the court's servant, not its master.

7. The worst thing that can be said about the learned judge's direction that the action be restored to the Register is that it was, strictly speaking, unnecessary. And so I think it was. Nevertheless, it seems to me a sensible direction to have given for the avoidance of doubt and in order that the Registrar may know for sure what he had to do.

8. What remains, therefore, is the learned judge's exercise of discretion, it being challenged as wrong.

9. In the course of the argument, my Lord put to counsel for the defendant a certain proposition for him to deal with; and the proposition was this, if I may make so bold as to summarise it. The learned judge is well-placed to appreciate the reality of these matters and the way in which, given the practicalities and exigencies of litigation, the statutory regime in the court of which he is a judge in fact operated. Not surprisingly, although I did not detect any willingness on his part to accept the proposition or at least accept it without reservation, counsel for the defendant found it very difficult to point to any flaw in it, for indeed there is no flaw. What he did suggest was that if the learned judge was making good use of his experience as opposed to acting in an arbitrary manner, it was necessary for him to make that clear before this Court could take the view that he had in fact made proper use of his experience. I am not disposed to think that we should assume arbitrary conduct on the part of the learned judge. But if it is necessary to see that he has made it clear to us that he has put his experience to good use, then in my judgment it is possible to see that from what the learned judge said.

10. In the course of his argument counsel for the defendant said that he found it difficult to "decipher" the learned judge's reasons so as to discern a proper exercise of discretion. It seems to me that a sensible reading of what the judge said will demonstrate that he did not express himself in code but rather that he expressed himself in clear. And this is what he said:

" Turning to the merits of whether this particular application should be granted; Mr. Li frankly admits that the plaintiff was at fault in not making a timeous application for the matter to be set down. However, he contends that the facts show that the plaintiff had not gone to sleep. He was very active in pursuing the application for summary judgment and the considerations of an appeal from the dismissal of that application. In doing so, the plaintiff's legal advisers took their eye off the ball, so to speak, and overlooked the need to ask for a hearing date.

Regrettable though that oversight was, these things do happen and the Court has power to set things right provided that no injustice thereby results and a suitable award of costs is made. The delay in this case is not excessive.

However, Mr. Lo submits that the defendant would be prejudiced. The gentleman who was the assistant manager of the defendant company, Mr. Chu Yiu Cheung, and who has personal knowledge of the matter germane to the issues, has left the defendant's employ. He is now employed in China trade. However, there is no suggestion that he has left Hong Kong or would be unavailable as a witness for the defence. I cannot see how the defendant is really prejudiced at all."

11. The whole of what the learned judge said in general and his reference to the fact that "these things do happen" in particular suggest to me most clearly and positively that he made full use of his experience as a judge of the court with whose procedure we are here concerned. Clearly, he took into account all the matters properly urged upon him; and it seems to me quite impossible to impeach his exercise of discretion. Far from merely saying that his exercise of discretion is sustainable, I wish to say that I find it impossible to see how his discretion could properly have been exercised the other way.

12. In my judgment, this appeal must be dismissed.

Litton, J.A.:

13. I wholly concur with the judgment just delivered by my Lord, Mr Justice Bokhary and have nothing to add. I too would dismiss this appeal.

Mayo, J.:

14. I also agree and would dismiss the appeal.