TING PUI LEUNG v. ETERNAL EAST CROSS-BORDER COACH MGT LTD

DCEC996/2005

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

EMPLOYEES’ COMPENSATION CASE NO. 996 OF 2005

D E C I S I O N

1.  This is the applicant’s application against the respondent for an unless order for the respondent to produce an insurance policy within 10 days pursuant to section 44A of the Employees’ Compensation Ordinance (“the Ordinance”).

2.  Since the taking-out of the summons, the respondent has already produced the insurance policy concerned to the applicant.  Therefore, insofar as the substantive relief requested under paragraph 1 of the summons is concerned, it has been overtaken by event.  The parties are, however, in dispute on the question of the costs of this summons.  Hence, today’s hearing. 

3.  I shall begin by setting out section 44A of the Ordinance.  It provides that:

“An employer insured under a policy of insurance issued for the purposes of this part shall, within 10 days after receiving the written request of an employee or other person having a claim against the employer, produce for inspection to the employee or other person or his agent the policy of insurance and all other documents relating to the policy.”

4.  The respondent is not disputing that under section 44A it is a mandatory requirement for the respondent to produce the insurance policy concerned.  It is also common ground that:

(1)	The applicant has made a written request for the policy by the letter dated 5 September 2005, exhibited in NL1.
(2)	The applicant was only provided with two pages of the policy (but not the whole policy) on 15 September, that is, within 10 days from the date of the letter.
(3)	The applicant then requested for the full policy but to no avail.
(4)	By a letter dated 23 September 2005, the applicant informed the respondent that unless the full policy was produced within three days, the applicant would take out a summons to request for its production.
(5)	By a letter dated 28 September 2005, the respondent replied to the applicant that the respondent’s solicitors were taking instructions and it would take about two weeks
(6)	The summons was taken out by the applicant on 6 October; and
(7)	On the same day, but subsequent to the taking-out of the summons, the respondent produced the policy to the applicant.

5.  Today, the respondent took four points in resisting the costs of the summons.

(1)	The summons is unnecessary in view of the respondent’s letter dated 28 September that the respondent’s solicitors were taking instructions and would revert within 14 days.
(2)	The applicant’s application is in the nature of a discovery and that the applicant has not shown that the policy is relevant to the issues in this case.
(3)	The applicant applied for an unless order under paragraph 1 of the summons, which is inappropriate in the circumstances; and
(4)	The applicant should have enforced section 44A by way of a separate originating application as opposed to the summons in the present employees compensation proceedings.

6.  In relation to No. 1, although the respondent’s solicitors might have indicated by their letter dated 28 September that they would take instructions, there was no promise that the policy would be provided.  In fact, if one looks closer at the content of that letter, the respondent’s solicitors were only saying that it would take instructions as to whether or not to disclose such policy to the applicant.  Given the history of the correspondence between the applicant and the respondent and the content of this letter, there is really no indication whatsoever that the policy would be forthcoming.  And more importantly, the respondent is now not disputing its obligation to produce the policy within 10 days after written request according to section 44A.  So, in the circumstances, it is not open to the respondent now to complain that the summons is unnecessary.

7.  In relation to points No. 2 and 4, first of all, I do not find the respondent’s analogy with discovery helpful.  The applicant’s application is based on section 44A of the Ordinance and not based on the rules governing discovery.  The respondent is not disputing its obligation to produce the policy under section 44A.  Under that section, there is no question of relevancy and the respondent must produce the document.

8.  The applicant’s counsel has further reminded me that under section 43(2)(b) of the Ordinance, the insurer may not be liable for the compensation eventually awarded to the applicant if no sufficient notice has been given to the insurer.  Therefore, the identity of the insurer as well as the scope of coverage of the insurance policy are always relevant to these proceedings in any event.  In the circumstances, I consider that the applicant is justified in making an application within these proceedings to require the respondent to produce the policy.  There is no justification to institute a separate proceeding for the purpose solely of enforcing section 44A.

9.  Lastly, concerning point No. 3 raised, whilst it is true that there may not have been a history of failure to comply with court orders in this case, which is a prerequisite to an unless order (see paragraphs 3/5/6 to 3/5/8 of Hong Kong Civil Procedure 2004), I find the applicant’s application justified by reason of section 44A.  In any event, the court has a discretion in considering what relief to grant.  Whilst the applicant may ask for an unless order, the court is not bound by the terms of that application and may consider other appropriate relief.  In the circumstances of this case, since there is no question that the respondent is not obliged to produce the policy, I find that the applicant’s application by way of the summons for enforcement of that section justified.

10.  By reason of the above and on the summons dated 6 October 2005, I make no order on paragraph 1 but an order in terms of paragraphs 2 and 3 of the summons.

(Court discussion re costs)

11.  In paragraph 2 of the summons, I assess such costs by gross sum assessment at $8,000.

Mr Nick Lee, of the Legal Aid Department, for the Applicant

Miss Chak Mei-sze, Maze, of W K To & Co., for the Respondent