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CACV000113/1990
| IN THE COURT OF APPEAL |
1990, No. 113
(Civil) |
BETWEEN
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CHAN KWOK KEUNG |
Applicant
(Respondent) |
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AND
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MOLESWORTH LIMITED |
1st Respondent |
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LEUNG MAU HUNG alias LEUNG SHIU HUNG t/a LEUNG SHIU HUNGP RODUCTION CO. |
2nd Respondent
(Appellant) |
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and |
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LEUNG MAU HUNG alias LEUNG SHIU HUNG t/a LEUNG SHIU HUNG PRODUCTION CO. |
3rd Party |
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Coram: Hon. Sir Derek Cons, VP, Kempster & Clough, JJA
Date of hearing: 15 November 1990
Date of delivery of judgement: 15 November 1990
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JUGMENT
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Sir Derek Cons, VP,
1. On the 4th April 1987 Chan Kwok Keung fell from a eight whilst taking part in the making of a motion picture. He received. neck injuries which have left him quadriplegic. At that time he was only 25 years of age.
2. On the 18th August 1988, through an attorney, he commenced proceedings under the Employee's Compensation Ordinance Cap. 182 against Molesworth Limited (the "1st Respondent") and against one Leung Mau Hung trading as the Leung Shiu Hung Production Co. (the "2nd Respondent") alleging that he was employed by them jointly or in the alternative; alternatively that the 1st Respondent was liable as a principal contractor within the Ordinance. That would be under section 24(1).
3. By its answer the 1st respondent has denied the allegation of employment; alternatively it denies that the accident arose out of or in the course of any such employment. It is further alleged that Chan Kwok Keung was employed by the 2nd Respondent, but at the same time denied that the 2nd Respondent was a sub-contractor of the 1st Respondent. Nevertheless, with the leave of the court below, it has served a Third Party Notice on the 2nd Respondent.
4. In his turn the 2nd Respondent has alleged that Chan Kwok Keung was employed by the 1st Respondent as one of three assistant kung fu directors, himself being the actual director; alternatively that at the time of the accident Chan Kwok Keung was operating independently as a stunt man on his own account, doubling for a Japanese actor in the performance of what would appear to have been a rather dangerous sequence.
5. On the 23rd August 1989 Judge Scriven made a general order for discovery. The affidavit in support was sworn by a Mr. McCormick of the Director of Legal Aid's Department who had the conduct of the case on Chars Kwok Keung's behalf.
6. However before that, apparently on the 12th April 1989, Judge Roy had made an order that the 2nd Respondent should file within 21 days thereafter a list of the earnings of Chan Kwok Keung for the 12 months prior to the accident. There is no copy of that order in the appeal bundle or of any affidavit in support. According to the affirmation of the 2nd Respondent made on the 11th October 1989 the order had been made at a time when no papers at all had been served on the 2nd Respondent. In the same affirmation he emphasized that he was not in a position to provide any list of earnings and observed that the question of who was the actual employer was the central dispute in the proceedings.
7. No further affidavit seems to have been filed at that stage by Mr. McCormick, yet on the 25th October, when the 2nd Respondent was applying to have Judge Roy's order set aside, Judge Henry Wong, although acceding to the application to set aside, made a further order in identical terms.
8. No appeal was lodged against that order, thereby allowing the Director of Legal Aid to obtain on the 27th December, in the absence of the 2nd Respondent, an "unless" order, i.e. an order that in default of the 2nd Respondent's filing the list of earnings before 4 p.m. on the 3rd January judgment was to be entered on liability against him with costs. Such judgment was entered by a further order of the same judge on the 23rd January this year, together with an order for the compensation to be assessed.
9. On the 22nd March the 2nd Respondent took out a summons to set aside all three orders, i.e. those of the 25th October and the 27th December 1989 and of the23rd January this year. The complaints set out in the summons were in effect fourfold. I paraphrase them and take them not in the order in which they were presented:
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(1)
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The judge had no jurisdiction to make the order of the 25th October, alternatively ought not to have made it because:
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(a) |
there was a dispute as to whether the 2nd Respondent was the employer; and
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(b)
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the 2nd Respondent did not have the appropriate documents in his possession, custody, power or control;
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(2)
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The notice of the hearing for the 27th December was not served on the 2nd Respondent until after the time for the hearing had passed. I observe additionally in passing that the notice, even when served, did not mention that Cheung Kwok Keung was going to apply for an "unless" order;
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(3)
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The order itself did not specify the time after service for compliance. I emphasize the words "after service" because the 2nd Respondent was not present at the hearing when the order was made; and
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(4)
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The order of the 27th December had never been served on the 2nd Respondent. I note now a suggestion in the skeleton argument of counsel for Chan Kwok Keung that it was served on the 16th December. |
10. The marginal reference typed on the summons is to the Rules of the Supreme Court Order 2 Rules 1 and 2 and to Section 53 of the District Court Ordinance Cap. 336. That is the section which enables a district judge to decide, within one month, to review any judgment or order previously made by him.
11. When the summons came before the judge on the 6th June it was as an application to review that it was opened to him by counsel who then appeared for the 2nd Respondent. It was only later in that proceeding that counsel referred to the Rules of Supreme Court. By then objection had been taken by counsel for Chan that the application had not been made within one month of the decision, an objection which was eventually upheld by the judge. He declined to consider the alternative submission under the Rules of Supreme Court saying:
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"Lastly I hold the view that if an Ordinance has specifically made provision for a particular procedural matter, then that provision should apply. And it is only when such provision is lacking or absent that Rules of Supreme Court can be invoked." |
He had in mind no doubt Rule 9 of the District Court Civil Procedure Rules which however does not quite put it that way: -
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"9
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(1)
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Subject to the provisions of the Ordinance and of these Rules, the Rules of Supreme Court as for the time being enacted and save as it therein may otherwise be provided shall apply to proceedings in the court as they apply to proceedings in the Hight Court with such modifications as, are necessary for that purpose.
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(2)
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Those parts of the Rules of the Supreme Court which are listed in the Schedule shall not apply to the court or to any proceedings in the court." |
Order 2 is not included in the Schedule.
12. With every respect to the judge below, and to those who so put the matter before him, it was not a question of review at all. It was a question of whether certain orders should be set aside as having been irregularly obtained. That was a question of first instance which had not been asked or dealt with before. Section 53 of the District Court Ordinance would only become relevant if tile judge, having then dealt with the question, was at some later stage asked to reconsider his decision.
13. It is also a question which, being one for which as far as I know no provision is made in either the District Court Ordinance or the rules made thereunder, is apt to be decided under Order 2 of the Rules of Supreme Court or perhaps under Order 32 Rule 6, an order which was not mentioned to the judge below.
14. For these reasons I would, for my part, allow the appeal and remit the matter to the court below so that it can be dealt with as I have suggested. But I would, with some diffidence, suggest that the Director of Legal Aid cease spending time in an effort to preserve an order which, even if he is successful, may perhaps not have much practical use and instead allow without argument the two orders to be set aside - we understand from Mr. Wong for the 2nd Respondent that he no longer wishes to set aside the order of the 25th October - and in return obtain from the two Respondents an agreement to have the question of liability dealt with as a separate issue at tile earliest opportunity.
15. If not, some help to the subsequent proceedings may be found in a decision of this Court given three years ago in which reference is made to many authorities which may be pertinent to the question which the judge below will have to decide. I venture to mention this because, as far as I am aware, the case has not been reported and may not have come to the attention of counsel. It is called Michael Ma Wing v. Fong Sze Ming Civ. App. 72/87 and was decided in this Court on the 11th December 1987.
Kempster, JA:
16. I agree with the order proposed by my Lord and with the reasons he has given for making such order. I would only add that in my view the material rules of the Supreme Court are in no way invalidated either by Section 50 of the Employee's Compensation Ordinance Cap. 282 or by the Employee's Compensation (Rules of Court) Rules made thereunder.
Clough, JA:
17. I agree with both of the judgments which have been delivered and have nothing to add.
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(Sir Derek Cons)
Vice President
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(M.E.I. Kempster)
Justice of Appeal
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(P.G. Clough)
Justice of appeal
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Representation:
Eric Waley (D.L.A.) assigned for the Applicant/Respondent
P.H. Wong (M/s, Chan, Lau & Wai) for 2nd Respondent/Appellant
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