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HCMP71/2006
IN THE HIGH COURT OF THE
HONG KONG SPECIAL ADMINISTRATIVE REGION
COURT OF APPEAL
MISCELLANEOUS PROCEEDINGS NO. 71 OF 2006
(ON an intended appeal from HIGH COURT ACTION NO. 389 of 2001)
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BETWEEN:
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YU MAN |
Plaintiff
(Applicant) |
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and |
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PRICEWATERHOUSE COOPERS (A FIRM) |
Defendant
(Respondent) |
Before: Hon. Yuen JA in Chambers (open to the public)
Date of hearing: 23 February 2006
Date of further submissions: 27 February 2006, 10 and 22 March 2006
Date of Decision: 5 June 2006
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DECISION
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Hon. Yuen JA:
Original application - extension of time to appeal
1. Mr Yu Man’s application by summons filed on 13 January 2006 first came before me on 23 February 2006 as an extension of time to appeal against a decision of Chu J. given on 10 March 2003 in HCA389/2001.
2. At the time of the hearing on 23 February 2006, Mr Yu asserted that he had in fact filed a notice of appeal, but he was unable to recall the appeal number, or produce a photocopy of the Notice of Appeal, or say whether he had served it on the Respondent.
3. The hearing was therefore conducted on the assumption that no notice of appeal had been filed. Judgment was reserved.
CACV 79/2003
4. After the hearing, a computer search undertaken by the court indicated that Mr Yu had indeed filed a notice of appeal against Chu J’s order - on 1 April 2003 in CACV 79/2003. The notice of appeal was served on the Respondent as was evidenced by a Notice of Change of Solicitors filed by solicitors for the Respondent.
5. On 28 February 2006, the parties were notified of the results of the court’s search. Mr Yu confirmed that that was the notice of appeal he was referring to.
6. Contemporaneously with the court’s computer search, the Respondent’s solicitors also reviewed the files maintained by the Respondent’s former solicitors and discovered that a Notice of Appeal in CACV 79/2003 had been served. They informed the court and Mr Yu of this by letter dated 27 February 2006.
7. The effect of the matters I have referred to is that CACV 79/2003 had been set down as the documents required under Order 59 rule 5(1) had been provided.
Cause of appeal becoming dormant
8. However because Mr Yu did not apply to fix dates for hearing under Practice Direction 4.1/3 para. 9, the registry considered the appeal to be dormant.
9. Practice Direction 4.1/3 deals with listing of appeals. Paragraph 9 provides:
“9. All applications to fix a date for the hearing of any application or appeal should be addressed to the Registrar of Civil Appeals, who will instruct the Clerk of Court to fix the earliest date available for the hearing of the application or appeal in accordance with the state of the list to which it has been assigned. The application to fix a date must include the applicant’s estimate as to the length of the hearing”.
New application - extension of time to fix hearing date for appeal
10. After the setting down of CACV 79/2003 was ascertained, both parties agreed that it would be appropriate to treat the original application in these proceedings as one for an extension of time to apply to fix a hearing date for CACV 79/2003. The parties made written submissions on this new application.
Discussion
11. For the reasons which I will discuss below, I consider that such an order is not necessary.
12. In relation to Mr Yu’s submission that he was not aware of the Practice Directions because he was not legally represented, that is certainly understandable, but the Practice Directions nevertheless apply to all litigants, and that is not the reason for my decision that an order for extension of time is not necessary.
13. Order 59 rule 5(2) provides:
“Upon the said documents being left, the Registrar shall file one copy of the notice of appeal and cause the appeal to be set down in the list of appeals; and the appeal shall come on to be heard according to its order in that list unless the Court of Appeal or a judge of that Courtotherwise orders”. (Emphasis added).
14. The words I have emphasized indicate that even if no application to fix a hearing date is made, the appeal should still come on to be heard according to its order in the list of appeals. Although there are now three lists, this is clearly an interlocutory appeal and the appeal should come on to be heard according to its order in the interlocutory list. I do not consider that the words “unless the Court of Appeal or a judge of that Courtotherwise orders” can be construed to mean the Practice Directions.
15. Of course, where an application to fix dates is made, the court would be able to assign the most appropriate date for hearing having regard to the type of appeal and the estimate of length of hearing. But in view of the mandatory language of rule 5(2), I do not see how it can be said that an appeal can never be heard unless an application to fix dates is made.
16. This is particularly so when para. 9 of Practice Direction 4.1/3 does not expressly impose an obligation on the appellant to make an application to fix dates, nor does it specify the period within which the application must be made. The making of an application to fix dates makes the process of appeal more convenient for all parties as well as the court, but para. 9 does not expressly impose an obligation on any party to make an application to fix dates, and in any event a practice direction cannot alter rule 5(2) which provides that an appeal shall come on to be heard after it is set down.
17. In this respect the Respondent’s solicitors have drawn my attention to a decision of the Court of Appeal (Leong and Woo JJA) in Law Siu Hong Albert and others v Cheung Kin Ping and another CACV 114/1997, unrep.). In that case, the appeal was set down in 1997 but the appellant did not apply to fix dates until 2000. Wong JA refused to grant the application to fix dates. The appellant renewed his application to a full division of the Court of Appeal who granted him leave.
18. In the Reasons for Decision given by Woo JA (now Woo V-P), the court held (p.4):
“Although the time for setting down appeal is prescribed by Order 59 rule 5 of the Rules of the High Court, there is no specific provision for a time limit within which an appellant must apply to fix a date for hearing of the appeal. However we are of the view that because of the delay, it is within the inherent power of the Court whether to allow a date to be fixed for the hearing of the appeal, so as to regulate its own business and to prevent excessive delays in the proceedings it has to handle. Whether to allow such an application is a matter of discretion”. (Emphasis added).
The court then applied the guidelines applicable to applications to set down appeals out of time and granted the appellant leave to apply to fix dates.
19. In that application, none of the parties was represented. With respect to the court, it would appear that the court did not consider the latter part of Order 59 rule 5(2) i.e. that the appeal “shall come on to be heard according to its order in that list”, and in the italicized passage in para. 18, gives the impression that if no application to fix a hearing date was made, then the appeal would never come on to be heard.
20. Further, the court was not referred to an earlier decision of the Court of Appeal (Sir Derek Cons,V-P, Hunter JA and Barnes J) in Cheryl Chan formerly known as Chan Ngai then Deanna Chan v Ngai Po Lin Paul CACV 12/1990, unrep. in which Sir Derek Cons V-P (giving the judgment of the court) referred to the suggestion in the course of argument that it might be desirable to amend Order 59 rule 5 to include, as a third item in sub-rule (1), an application to fix a date. The court in Cheryl Chan considered that this was not necessary, for there may be occasions when the appellant for good reason was not yet ready to do so. In other words the court in Cheryl Chan did not consider that the practice of making an application to fix dates (under the Practice Directions) should have the same force as the Rules of Court (under Order 59 rule 5(2)). In light of these two conflicting decisions, I am bound to decide which to follow, and in light of the passage in rule 5(2) that I have emphasized in the preceding paragraph, I would prefer to follow the decision of this court in Cheryl Chan to that in Law Siu Hong Albert v Cheung Kin Ping.
21. Since there is no deadline in the Practice Directions for applying for a date to be fixed and Mr Yu has not even made the necessary application to the Registrar of Civil Appeals, I do not consider an order for an extension of time to make an application to fix dates to be necessary. This decision is not to be understood as an indication that I consider the appeal to contain any merits. It is simply unfortunate for all parties that it has lain dormant.
Application to amend name of Defendants
22. By a document dated 10 March 2006 enclosing an unsworn "affirmation", Mr Yu asked that his summons in HCMP 71/2006 be treated also as an application to amend the Statement of Claim in HCA 389/2001 so that the name of the Defendant would be amended from "Pricewaterhouse Coopers" to "C.A. Pacific Securities Co Ltd (in liquidation)" as 1st Defendants and "Liquidators" as 2nd Defendants.
23. By a letter dated 22 March 2006, the Respondent’s solicitors indicated that they had no objection to Mr Yu making this application but made submissions opposing it.
Discussion
24. Procedurally Mr Yu’s application is not correct. There should have been a summons issued under Order 15 rule 6 in HCA 389/2001 itself, not in this HCMP 71/2006. Be that as it may, to avoid further loss of time, I have considered the application as the parties wished.
25. In HCA 389/2001, the Registrar had on 13 September 2001 struck out Mr Yu’s writ as there was no cause of action directed at Pricewaterhouse Coopers.
26. Seventeen months later Mr Yu sought an extension of time to appeal the Registrar’s order.
27. On 10 March 2003, Chu J. refused to extend time for Mr Yu to appeal the Registrar’s order. In her judgment, she explained why she saw no merit in Mr Yu’s proposed appeal. She specifically referred to the fact that the Defendant (i.e. the Respondent) was not the liquidator of CA Pacific Securities Co Ltd (para. 14).
28. In his Notice of Appeal in CACV 79/2003, Mr Yu did not indicate an intention to apply to amend the name of the defendant. It was not until mid-January 2006 that he indicated that he wished to make this application. In my view, this is far too late.
29. More importantly however Mr Yu has already had a number of proceedings in which he has sued the liquidators of CA Pacific Securities Co Ltd. It is well-established that the court requires litigants to put forward their whole case at one and the same time. To permit Mr Yu to correct the name of the defendant in HCA 389/2001 now, so as to pursue fresh proceedings against the liquidators again, would be to condone an abuse of the process.
30. I would therefore refuse Mr Yu’s application for amendment of the name of the defendant in HCA 389/2001.
Costs order
31. In view of the matters I have discussed above, I consider that the appropriate costs order should be that there should be no order as to costs and I would make an order nisi accordingly.
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(MARIA YUEN)
Justice of Appeal |
Mr Yu Man, the Applicant, in person, present
Mr D. Karliner of Heller Ehrman for the Respondent.
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