MOHAMMED SHABIR v. MARBOLOY ENGINEERING LTD AND OTHERS

HCPI 777/2004

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

PERSONAL INJURIES ACTION NO. 777 OF 2004

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Reasons for Decision

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Background

1. The Plaintiff claims that the 1st defendant or the 3rd defendant was his employer when he suffered injuries in an accident on 4 December 2003.  The 1st defendant has denied in his pleadings that it was employer of the plaintiff.  The 1st defendant says it sub-contracted works to the 3rd defendant, and it was the 3rd defendant who had employed the plaintiff.  The 3rd defendant has admitted in his pleadings that he was the employer of the plaintiff on the date of the alleged accident 4 December 2003.

2. The plaintiff applied by Summons dated 28 December 2005 for Discovery under Order 24 rule 7.  The application was resisted by the 1st and 3rd defendants.

The Application

3. The disclosure sought by the plaintiff can be seen in the Schedule to the Summons:

“	SCHEDULE
	(a)	All attendance records and wage records during the period that the Plaintiff worked for the 1st and/or the 3rd Defendants;
	(b)	Attendance record of comparable fellow workers employed by the 1st and/or 3rd Defendants from 5th December 2001 to 4th December 2003.”

4. The principles that govern an application under Order 24 rule 7 are well established.  Those principles were explained in cases such as Berkeley Administration v McClelland [1990] FRS 381 and Deak & Co (Far East) Ltd v NM Rothschild & Sons Ltd [1981] HKC 78 (C/A).

5. In essence the established principles are that the party applying for disclosure must first establish a prima facie case that:-

(1)	The documents exist;
(2)	The documents relate to a cause or matter in issue in the action;
(3)	The documents are in the possession, custody or power of the opposite party.

6. It is also settled law that, even if the applying party is able to satisfy the prerequisites listed in paragraph 5 above, discovery should only be granted if it is shown to be necessary either for disposing fairly of the cause or matter, or for the saving of costs.

7. There is also a discretion to refuse an application if the order is not drafted with precision, see Hong Kong Civil Procedure 2006 page 450.  The explanation given is that it would otherwise place the person swearing the affidavit on behalf of the disclosing party at risk of swearing a false affidavit.

Turning to the consideration of the classes of documents sought:

8. Class (a) of the Schedule asked for: “All attendance records and wage records during the period that the Plaintiff worked for the 1st and/or the 3rd Defendants;”

9. It is at once apparent that the draft for the order for the Class (a) documents falls foul of the principle discussed in paragraph 7 above.  The application as drafted should be rejected as it is too vague.  There is no distinction drawn between what is required from the 1st defendant and what is required from the 3rd defendant.  The defendants are separate legal entities, and must be treated as such.  As presently drafted, the application would be oppressive, as it places too onerous a burden on the persons making the list on affidavit respectively for the 1st defendant and for the 3rd defendant.  If the draft order does not identify with precision the document or documents required to be disclosed, and does not state with precision the respective time periods for which each defendant is responsible, this will place an unfair and unreasonable burden on the prospective deponents for the 1st and the 3rd defendants.

10. Arguments were advanced before me that 4 of the documents disclosed by the 1st defendant were “inconsistent” with each other.  Based on that ground the plaintiff asked the court to draw inferences that additional documents must exist which have not been disclosed.  Having heard the parties and having considered the documents I am satisfied that no adverse inference can or should be drawn in the circumstances because I accept the 1st defendant’s argument that the “inconsistencies” arose from the plaintiff’s misunderstanding of the said 4 documents.  Furthermore, I do not think that it is open to the plaintiff to put forward an argument that additional documents must exist which have not been disclosed based on inference alone.

11. In coming to this conclusion, I have not forgotten the Chinese document dated 16 November 1998.  In my view it is not possible for the court to draw the inference the plaintiff had been employed by the 1st defendant continuously or intermittently since 1998, although it was written on letter paper of the 1st defendant, and gave salary details of the plaintiff in April 1998.  The fact remains that there is no evidence at all that the plaintiff remained in the employ of the 1st defendant from 1998 to the date of the accident on 4 December 2003.  The present position is that the 3rd defendant has conceded that he was the employer of the plaintiff, (see paragraph 6 of Amended Defence dated 9 June 2005) and that there is no evidence to show that the plaintiff was employed by the 1st defendant at the material time.

12. The plaintiff has also failed to show that the documents sought relate to “matters in issue in the action” as against the 3rd defendant.  Since the 3rd defendant has conceded in his pleadings admitted he was the employer of the plaintiff, as between them, the identity of the employer is not a “matter in issue in the action”.

13. For the reasons stated in paragraphs 9-12 above, the plaintiff has failed to show a prima facie case that there should be disclosure of the Class (a) documents.

Class (b)

14. Here the plaintiff seeks the Attendance record of comparable fellow workers employed by the 1st and/or 3rd defendants from 5 December 2001 to 4 December 2003.

15. The pleadings of the plaintiff will show that the issue of “comparable workers” is not a cause or matter in issue between the parties.  In the circumstances this application does not satisfy the prerequisites stated in paragraphs 4 and 5 above, therefore it would be wrong in principle to grant it.

16. In all the circumstances, I am satisfied that the application for disclosure should be dismissed.  There shall be a nisi order for costs of the application to be to the 1st and the 3rd defendant against the plaintiff in any event, to be taxed if not agreed.  The order nisi shall be made absolute unless an application to vary it is received in writing within 7 days of the handing down of these reasons.