CHINACHEM CHARITABLE FOUNDATION LTD v. CHAN CHUN CHUEN AND OTHERS

HCAP 8/2007

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

PROBATE ACTION NO 8 OF 2007

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J U D G M E N T

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1.  This is an application by the 1st defendant for all future interlocutory applications to be heard by a judge of the Court of First Instance rather than by a master, as per the usual practice. 

2.  I have no doubt that this Court has the jurisdiction to entertain the application.  After all, the system of masters (hearing interlocutory applications at first instance) is there to assist High Court judges to deal with matters of a more procedural or interlocutory nature.

3.  I have been referred to Practice Direction 5.7 regarding long cases and the management of long cases but that Practice Direction is not exclusive in nature in the sense that it does not prevent the Court from giving case management directions in appropriate cases.

4.  Another matter that is relatively unknown is the fact that I do sit as the probate judge, who has been given the responsibility of trying probate cases.  In that capacity the Court certainly has the power to give case management directions regarding probate cases in general or in relation to a particular probate case.  Of course it is true that thus far no specific Practice Direction has been given by the probate judge regarding the trial of probate cases or case management in general; yet as I say, it does not mean that the probate judge cannot give case management directions in a particular probate case.

5.  Returning to the present case, I think it cannot be denied that the present probate case is an unusual one – borrowing Mr Harris SC’s word – the issues that are going to be raised by the parties are probably not going to be straightforward.  The earlier some case management measures are put in place regarding the progress of the case, the better.  

6.  And I do not think that the Court, in giving the direction sought, if it is going to give it, will be necessarily proceeding on the premise that the plaintiff will need another extension of time to prepare its defence to the counterclaim; and of course it is true that one has not reached the stage of summons for directions. 

7.  But the Court should adopt a proactive approach in this type of case.  In my view, reserving all future interlocutory applications for the decision of a High Court judge would seem to be a measure in the right direction. 

8.  In terms of time and costs, since all these interlocutory applications will most likely be heard by a judge in chambers, where both counsel and solicitors can appear just like a hearing before a master, so to that extent I cannot see any difference in terms of litigation costs.

9.  So far as time is concerned, I do not have a precise idea as to the sort of waiting time that one may experience in trying to list a hearing before a master, but the direction that is being sought is that all future applications be heard by a judge, who need not be the probate judge, so I do not believe that finding a hearing time before a judge would greatly hamper the progress of the hearing of any such interlocutory application.

10.  One obvious advantage of having all interlocutory applications heard by a judge is that it would eliminate the possibility of time and costs being expended on an appeal from a decision by a master to a judge and, hopefully, a decision by a judge will bring some finality to whatever issue that the parties cannot agree on and requires a determination by the court in the first place.

11.  Certainly, in relation to the two matters raised specifically by the 1st defendant in the supporting affidavit, if, for instance, a further extension of time is required by the plaintiff, such an application should, in my view, be heard by a judge because, as has been intimated, there may be a cross-application for the prosecution of the counterclaim in default of pleadings (under Order 76, rule 10).  That certainly is a matter that should be dealt with by a judge if it should ever arise at all. 

12.  As regards the summons for directions, which is another matter raised by the 1st defendant, given the fact that, as I say, this is an unusual case, that summons should again be heard by a judge, in my view.

13.  For all these reasons, I am with the 1st defendant in his application and I am prepared to give the direction sought. 

14.  By doing so, I am not suggesting for a moment that the case has been handled otherwise than perfectly properly by the master thus far in terms of the extension of time granted.

15.  Nor am I suggesting at all that the plaintiff has been dragging its feet in terms of preparation of pleadings or in terms of the need to ask for an extension of time.  I can well understand the possible difficulties in drafting and preparing a pleading in a case of the present type. 

16.  I am not influenced by considerations of such kind in my decision today.  Rather, the direction that I am going to give is more in the nature of a proactive case management approach, which is indeed the modern day approach to litigation in general.

17.  For all these reasons, I make an order in terms of paragraph 1 of the summons. 

18.  The direction only says that “all future interlocutory applications in the matter be returned before a judge”.  As I say, it does not designate any judge.  Normally the parties can expect that the summons will be listed before the probate judge but if for any internal administration or management reasons it is not convenient or possible for the probate judge to handle the matter it will certainly be listed before another judge.  So the direction that I am giving does not fetter the discretion of the listing clerk in this matter.

[Submission on costs]

19.  As I say, the direction given is really in the nature of case management by the Court.  The plaintiff has put forward reasonable reasons why they think that the application is premature.  Although at the end of the day I am not with the plaintiff, that fact alone does not, in my view, make this a fair case for awarding costs against the plaintiff. 

20.  So in line with the usual costs orders made in applications relating to case management, I order that costs be in the cause.