HO KAI FAI v. YIP LAI WAN

Courts practice and procedure - r.31(2) District Court Civil Procedure (General) Rules - power to extend time under R.S.C.O.3, r.5

Where the Registrar has struck out an action from the Register of Civil Actions under r.31(2) of the Rules (because neither party had applied for a date to be fixed for the hearing within 3 months of the filing of the Defence) the District Court has a discretion under R.S.C.O.3, r.5, made applicable by r.9 of the District Court Rules, retrospectively to extend the Plaintiff's time to apply to fix a hearing date.

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JUDGMENT

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Sir Alan Huggins, V.-P.:

1. A Deputy Registrar of the District Court struck out an action under r.31(2) of the District Court Civil Procedure (General) Rules (the "District Court Rules") in default of an application to fix a date for the hearing of the case within three months of the filing of a Defence, and the question upon this appeal is whether such a striking out is final.

2. The Plaintiff took out a writ in the High Court in respect of a cause of action alleged to have arisen on 26th September 1980. The Writ was issued on 5th July 1983 and a Defence was filed on 18th October, 1983. The monetary jurisdiction of the District Court having been increased on 1st January 1984, the parties agreed that the matter be decided in that court. A consent summons for transfer was taken out on 5th May 1984 and an Order followed two days later. On 27th May the Deputy Registrar of the Fanling District Court wrote to inform the parties that the action had been entered in the Register of that court, and the letters were received on 30th May. Nothing further happened until 29th August, when the Defendants wrote to the court to inquire whether the Plaintiff had applied to set the action down for trial or the Registrar had struck out the action under r.31(2). In fact neither had happened. Nevertheless, it is common ground that on 6th September the Plaintiff did apply for the fixing of a date for trial. No date appears to have been fixed, because on 8th September the Deputy Registrar did strike out the action under r.31(2). The Plaintiff then sought to avoid the consequences of his delay. On 2nd October he took out a Summons for (i) an extension of time in which to appeal against the decision of the Deputy Registrar ... whereby the action herein was struck out ... under r.31(2)' and (ii) the setting aside of the said decision". On 23rd October His Honor Judge Rattigan extended the time for appeal, set aside the Deputy Registrar's "decision" and extended to three days from the date of his order the time before which the Plaintiff should apply to fix a date for the hearing of the action. There was an application for review, but we do not have a copy of the Order of 20th November which resulted. It is, therefore, uncertain whether the application was refused (as would be suggested by the fact that the present appeal is against the Order of 23rd October 1984) or was granted and the Order of 23rd October confirmed (as would be suggested by the fact that the leave to appeal subsequently sought and obtained by the Plaintiff was against the Order of 20th November): it is common ground that the Order of 23rd October was not varied, and we have given leave to appeal against that Order.

3. Before considering the arguments addressed to us, I must mention that we have in the appeal record a copy of a document purporting to be signed by the judge ands headed Ruling". It is not dated, but it ends with an order in terms of the application' and would thus seem to be a ruling made on 23rd October 1984. We are, however, informed by counsel that the judge gave no oral reasons on either 23rd October or 20th November. As we have not heard the judge about this, I am reluctant to accept that he did not comply with s.60(1) of the District Court Ordinance, but I would point out that that section impliedly requires that reasons shall be given at the time of a decision, whether orally or in writing. That is merely enacting the Common Law rule that a judge shall give reason for his decisions. The section provides that where the reasons are given orally they may subsequently be reduced to writing. It does not permit a judge to wait until a notice of appeal has been filed and then to give reasons for the first time.

4. The first contention, on behalf of the Plaintiff is that r.31(2) has no application at all to a case where the defence has been filed in the High Court before the action is transferred to the District Court.  In such a case, the argument goes, the defence is never "filed'' in the District Court, for s.44(1)(b) refers to the papers' being "sent to" the Registrar of the District Court. Thus, it is said, absurd results might follow from a strict application of the rule. In the present case, for example, three months from the date of filing the Defence expired before the Order of transfer was made, and, on a strict construction, the Registrar would have been obliged to strike out the action immediately it was transferred. In other cases the three month period, although it had not completely expired, might have only a very short time to run, so that the rule would require immediate application to set down for trial. So far I agree.

5. Then it is submitted that r.31(2) cannot be construed in a manner which would avoid those absurdities. With that I cannot agree. The object of r.31(2) is to ensure the prompt disposal of actions in the District Court, and that object is no less desirable in cases which have been transferred from the High Court.  I think it was clearly intended that the rule should apply to all cases tried in the District Court, and we must endeavour to give effect to that intention. In the context I see no material distinction between "lodging" and "filing" documents in the District Court. I appreciate that a judge of the High Court may order transfer sui motu, and even where the transfer is made upon the application of one on both of the parties some delay is inevitable before the plaintiff becomes aware that a transfer has been effected pursuant to the order. In the present case the Order was made on 7th May and the Plaintiff received notice of the transfer on 30th May. In such a case I think it would be just that the time should run from the receipt of the notice. It is, however, not necessary for us so to decide, because it is accepted that no application to set down had been made by the end of August 1983.

6. The next question is whether a striking out under r.31(2) is a judicial or a purely administrative act. The Defendant contends that it was a purely administrative act and that there was no "order or decision' which could either be the subject of an appeal by virtue of O.58 of the Rules of the Supreme Court or be set aside under the inherent jurisdiction of the court as an order made ex parte. In striking out the action the Deputy Registrar is carrying out a statutory duty the performance of which is not dependent upon any application by a party. There can be no question of his having to hear the parties, but does he have any discretion to refuse to strike out or any power to extend the time within which he must act?

"A discretion necessarily involves a latitude of individual choice according to the particular circumstances, and differs from a case where the decision follows ex debito justitiae once the facts are ascertained': per Lord Wright in Evans v Bartlam 1937 A.C.473, 489.

Under r.31(2) the Deputy Registrar has no choice once he finds that the period of three months has elapsed and, in the ordinary case, the expiry of the three months will appear on the face of the record. In a case similar to the present a question might have arisen as to the date from which time started to run, but even a power to act administratively will always depend upon the existence of a condition precedent, and the existence of a question as to the fulfilment of that condition is not enough to turn what is basically an administrative act into a judicial decision. Thus, a Registrar's action in entering judgment upon default of compliance with a judge's peremptory order is merely an administrative act : Haridas v Khan 1971 W.L.R.507. As it seems to me, the act of striking out under r.31(2) is basically an administrative act and not a judicial order or decision. Accordingly no appeal lies against it. It can be challenged only by judicial review in the High Court.

7. It is still material to inquire whether a judge has jurisdiction to extend the time fixed by the rules for striking out or to set aside an order which has been properly made. It is submitted on behalf of the Plaintiff that, by virtue of r.9 of the District Court Rules, O.3 r.5 of the Rules of the Supreme Court applies and enables the three month period to be extended. The rule reads in part:

 

"	(1) The Court may, on such terms as it thinks just, by order extend or abridge the period within which a person is required or authorised by these rules, or by any judgment, order or direction, to do any act in any proceedings.
	(2) The Court may extend any Such period as is referred to in paragraph (1) although the application for extension is not made until after the expiration of that period"

Counsel submits that, although the Deputy Registrar is not a "person required by [the District Court] Rules" to do an act "within" the prescribed period of three months, the parties themselves are such persons: thus, although the judge may have had no jurisdiction to alter the time "at which" the Deputy Registrar was required to strike out the action, r.31(2) implicitly required the parties to apply "within" three months from the date of filing of the Defence to fix a date for the hearing of the action if a striking out was to be avoided, and that that three month period was one which the judge had jurisdiction to extend. The contrary argument is that r.31(2) in effect requires the Registrar to strike out the action three months after the filing of the Defence unless a hearing date has by then been fixed that not being a period which could be altered, since it was not a period "within which" someone was required to do the act, there was by implication no power to extend the time within which an application to fix a date might be made, because such extension would be futile. Although at one time attracted by this contrary argument, I am now persuaded that that was not the intention of the Rules Committee and that the judge did have power to extend the time for applying for a date of hearing to be fixed.

8. It now becomes unnecessary to consider the argument that the duty to strike out was negatived by the fact that, between the date of the expiry of the three month period and the date when the Deputy Registrar in fact struck out the action, the Plaintiff had applied to fix a date for the hearing, although it seems to me as at present advised that he had no discretion in the matter.

9. The Appellant contends that there was no sufficient evidence to justify the judge in exercising his discretion as he did. I think there was ample evidence: the delay was a matter of only a few days, application to fix a date had been made before the Deputy Registrar struck out the action, the Defendant would suffer no prejudice and it was not suggested that the claim was devoid of merits. Whether or not the Plaintiff would have a cause of action against his solicitors if the action were struck out was, in my view, irrelevant to the question whether the Defendant would suffer prejudice (see Birkett v James 1978 A.C.297, 324A), although it might limit any prejudice suffered by the Plaintiff: Thompson v Brown 1981 1 W.L.R.744.

10. I would dismiss the appeal.

Fuad, J.A.:

11. I have had the advantage of reading in draft the judgment just delivered by Sir Alan Huggins, V.-P., and the judgment that Kempster J.A. is about to deliver, and I agree with their conclusions and the order they propose.

Kempster, J.A.

12. The writ in this action was issued in the High Court on 5th July 1983. On 18th October following a Defence was filed. On 7th May 1984 an order was made by consent transferring the action to Fanling District Court the Deputy Registrar of which, on 8th September 1984, struck it out from the Register of Civil Actions. He did so pursuant to rule 31(2) of the District Court Civil Procedure (General) Rules which reads -

 

"         Where no application to fix a date for the hearing of an action is made under rule 24 within 3 months from the date on which the defence or counterclaim was filed the Registrar shall strike out the action from the Register of Civil Actions, and upon the application of any party a judge may award such costs as he thinks fit."

Provision for the Register in question is made by rule 11.

13. We have to consider the nature, effect and validity of the action of the Deputy Registrar. Taking the last matter first the vires of the rule, albeit canvassed, was not in the event challenged. In my view it was validly made pursuant to Section 72(2) of the District Court Ordinance Cap.336. A Deputy Registrar is authorised by s.14(3) of that Ordinance to perform any act required of the Registrar.

14. I cannot, for my part, accept that actions transferred from the High Court are outside the provisions of the rule having regard to the terms of Section 44(2) of the Ordinance. It would be difficult to accept that it was the intent of the Rules Committee that, in the same District Court, some actions should be subject to stringent provisions as to time and some should not.

15. While it is not obvious that, when approving rule 31(2) the District Court Rules Committee had transferred actions in mind it is, apparently, generally accepted, as it was by the parties before us, that time for the purposes of the rule runs from the date when the Defence, having been served while the proceedings were still in the High Court, is sent to the District Court pursuant to Section 44(2) of the Ordinance and filed. But however beneficent a construction is put upon the rule the Registrar should have struck the action from the Register some days before. he in fact did so. He had no discretion. As Lord Wright said in Evans v Bartlam [1937] A.C.473 at p.489 -

 

"A discretion necessarily involves a latitude of individual choice according to the particular circumstances, and differs from a case where the decision follows ex debito justitiae once the facts are ascertained."

The act of the Deputy Registrar was purely ministerial and may be contrasted with the jurisdiction of a judge to award costs as provided by the rule. By striking out the action, prima facie, he put an end to it but, other considerations apart, the plaintiff was not thereby debarred from commencing afresh action.

16. The question immediately arises as to how, if at all, the act of the Deputy Registrar can be challenged. It cannot as such but an application may be made retrospectively to extend the time during which a party may apply to fix a date for the hearing as provided by this rule as read together with rule 24 by analogy with permissible procedure in relation to "unless" orders: Samuels v Linzi Dresses Ltd. [1981] Q.B.115. R.S.C. Order 3 rule 5 certainly applies to. proceedings in the District Court by virtue of rule 9 of the District Court Civil Procedure (General) Rules and reads -

 

"	(1) The Court may, on such terms as it thinks just, by order extend or abridge the period within which a person is required or authorized by these rules, or by any judgment, order or direction, to do any act in any proceedings.
	(2) The Court may extend any such period as is referred to in paragraph (1) although the application for extension is not made until after the expiration of that period ......"

And it may be that, in any event, a District Court Judge has an inherent power to extend time in order to do justice between parties to litigation. Be that as may the terms of R.S.C. Order 3 rule 5 are in themselves apt to allow the Court to extend the time provided by rule 31(2) and thereby to reinstate the action. Unlike Order 9 rule 10 of the County Court Rules 1981 there is no provision precluding the enlargement of time. As Lord Denning M.R. remarked in Reg. v. Bloomsbury Court, Ex P. Villerwest Ltd. [1976] 1 W.L.R.362 at p.366 -

 

"Even though the action may be said to cease to exist, the court has always power to bring it to life again, by extending the time."

The rule might operate harshly indeed were its time provisions not susceptible of enlargement.

17. Who then was entitled under R.S.C. Order 3 rule 5 retrospectively to extend the plaintiff's time to apply to fix a date for the hearing of the action ? By rule 2(1) of the District Court Civil Procedure (General) Rules, "Court" means ".,.. any judge of the (District) Court sitting in court or chambers" and, having regard to the terms of rule 41, such a judge may hear a relevant application on notice to the other side. In effect the plaintiff sought an extension of time by Summons dated 2nd October 1984 on the hearing of which, on 23rd of that month, His Honour Judge Rattigan extended time under rule 31(2) until 26th October. On 20th November,. on review pursuant to Section 53 of the District Court Ordinance, he upheld his decision but, we are told, on neither occasion did he give his reasons either orally or in writing. None the less he has provided us with a written Ruling, purporting so to do pursuant to Section 60 of the Ordinance I assume, as if he had. No point is taken by either party in this regard.

18. In the Ruling the learned judge treated the matter as if the Deputy Registrar had had a discretion which he had wrongly exercised. This is wrong. But in so far as the learned judge indicated an exercise of his own undoubted discretion, as he did, I see no ground to interfere.

19. The appeal against the learned judge's judicial act in extending time has properly been brought to this Court and heard with our leave For the reasons just given, however, I too would dismiss it and in so doing make it clear that this Court is not bound by any decision of the Full Court and in particular by Edward Sum v. Li Pui Chuen and Others [1962] H.K.L.R.209.

26th March 1985