WONG CHIN NAM v. NG HON CHUNG

IN THE COURT OF APPEAL

1986, No. 142
(Civil)

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JUDGMENT

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Sir Alan Huggins, V.-P.:

1. This is an application for extension of time for filing the record of appeal. There is a further application for abridgement of time for making that application. This further application is not opposed.

2. The appeal was lodged on 4th November 1986. On 17th December 1986 the appeal was fixed for hearing today, and notice of the hearing was given on 18th December. On Monday of this week, i.e. two days ago, the record had not been filed and I directed that the case be listed for dismissal for failure to comply with O.59 r.9, an English practice which has been followed here on a number of previous occasions. Our r.9 requires that the record be filed not less than seven days before the date of hearing or that is the effect of it. In fact the Appellant attempted to file the record later on Monday but it was rejected as being out of time. Thereupon the present application was lodged. In support there was an affirmation from a solicitor representing the Appellant, which indicated that in about mid-December the Appellant had said that he proposed to appear on the appeal in person. However, no attempt was made to remove the solicitor's name from the record. There were, however, some attempts to compromise the matter and an approach was made to counsel on the other side with a proposal for settlement. This was not immediately rejected, although counsel apparently indicated-that it was unlikely to be accepted, Counsel communicated with his client and it was in fact rejected, but no further communication was made to the Appellant. Eventually the solicitor for the Appellant inquired whether the terms were going to be accepted and was told that they would not be - but that was not until 4th February, i.e. just a week ago.

3. It must be recognized that the listing procedure in Hong Kong is not identical to that in England. In England there is a considerably longer period during which it is possible for the Registry to give notice to an appellant who has failed to comply with O.59 r.9: although there may have been a failure already, there is usually time for a record then to be filed in sufficient time for everybody to have an opportunity to see it before the case actually comes on for hearing. The time available here for filing may not in the event be shorter than the time in England, but any non-compliance takes place only seven days before the hearing, and the giving of any notice of non-compliance is then so late that a record filed after receipt of such notice will be of little assistance. We think, therefore, that it may well be desirable that the Rules Committee should re-examine the position and see whether some new procedure ought not to be adopted.

4. Each case at present must be dealt with on its own merits. I do not propose to say very much about it. We have considered all the arguments which have been addressed to us and we think that the proper course is to extend the time for the filing of the record not until 9th February as is asked for in the Notice of Motion (because that date has already passed) but until tomorrow, 12th February. All costs thrown away by the necessity for an adjournment of the hearing of the appeal are to be taxed forthwith on an indemnity basis and paid by the Appellant to the Respondent before a new date is fixed. The Respondent is to have liberty to apply.