YAU LAI YI v. YOSHINOYA FAST FOOD (HK) LTD

DCEC 1476/2018

[2018] HKDC 1591

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

EMPLOYEES’ COMPENSATION CASE NO 1476 OF 2018

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DECISION

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1.  There are two applications by the applicant before the court:-

(a)   First, an application (the “Time Application”) by Summons dated 28 June 2018 for leave to the applicant to issue the application for employees’ compensation out of time under section 14(4) of the Employees’ Compensation Ordinance (Cap 282) (the “ECO”).

(b)   Second, an application by Summons dated 5 December 2018 for leave to the applicant to adduce her 3^rd Affirmation in support of her Time Application.

I. Background

2.  The applicant is legally aided.  She commenced the present action on 28 June 2018 by filing an application under DCEC 1476/2018 pursuant to the ECO (the “EC Application”), claiming compensation (pursuant to sections 9, 10, and 10A of the ECO) against her employee, the respondent, for personal injury allegedly arising from an accident occurred while she was at work. In the EC Application, the applicant also asks for an order that leave be granted to the applicant to issue the EC Application out of time.

3.  The facts alleged in the EC Application can be stated in brief.  The applicant was employed as a dish washer in one of the restaurants operated by the respondent in Fanling. She claimed that while she was washing the dishes at the kitchen on 17 June 2016, the water in the basin was hot.  Some hot water overflew and caused injuries to her legs and feet.  Also, while the applicant was using the dish washing machine, she tried to close the door of the machine, but the middle finger of her right hand was hit by the closing door of the machine.  The applicant claimed that as a result of the above incidents at work, she sustained personal injury.

4.  On the same day as the EC Application (ie 28 June 2018), the applicant also filed the Summons for the Time Application.

II. The application to adduce further affirmation

5.  I will first deal with the Applicant’s Summons for adducing her 3^rd Affirmation in support of the Time Application.  This application arose in this way.

6.  The applicant filed her 1^st Affirmation in support of her Time Application on 28 June 2018.  The respondent, in opposition to the Time Application, filed an affirmation on 5 October 2018.  The applicant then filed her 2^nd Affirmation in reply on 26 October 2018.  All the affirmations filed by the applicant are written in Chinese.

7.  Then, by letter dated 22 November 2018 from the respondent’s solicitors, the respondent raised the concern that while there is a declaration in the applicant’s 2^nd Affirmation by the handling solicitor of the applicant to the effect that he had interpreted the contents of that affirmation to the applicant in Punti, there is no such declaration in the applicant’s 1^st Affirmation.  The respondent questioned whether the applicant could understand the contents of her 1^st Affirmation, since it was apparent from her Affirmations that she was not conversant in written Chinese.

8.  By letter dated 29 November 2018, the applicant’s solicitors indicated that the applicant would adduce her 3^rd Affirmation to address the respondent’s concern.  The applicant invited the respondent to deal with the matter by consent but the parties failed to agree.  Hence the Summons dated 5 December 2018.

9.  The applicant’s 3^rd Affirmation is annexed to the Summons dated 5 December 2018.  The gist of it is that the applicant confirmed that her solicitors have explained the contents of her 1^st Affirmation to her in Punti, and that she understood the contents thereof.  This 3^rd Affirmation also contains a declaration made by the applicant’s handling solicitor to the same effect as that stated in paragraph 7 above.

10.  None of the parties has filed any affirmation in support of or in opposition to the application to adduce the applicant’s 3^rd Affirmation.

11.  Before me, the respondent submitted that the applicant’s 3^rd Affirmation should not be allowed to be adduced, as the applicant’s handling solicitor has not proffered any explanation as to the cause of the defect in the applicant’s 1^st Affirmation (ie the lack of a declaration).  The respondent also submitted that the admissibility of the applicant’s 1^st Affirmation is in doubt as it is in breach of RDC O41 r3.

12.  The applicant’s 3^rd Affirmation was filed in further support of the Time Application, and is for the purpose of clarifying the issue concerning the lack of a declaration in the applicant’s 1^st Affirmation.  Whether or not the affirmations filed by the applicant sufficiently supports the Time Application evidentially so as to satisfy the court to grant the application is a matter that I will determine in the Time Application.  The respondent’s complaint that the applicant’s handling solicitor has not proffered any explanation as to the lack of a declaration in the applicant’s 1^st Affirmation is a matter for submission in the Time Application on the admissibility of that affirmation.  Given that the applicant has notified the respondent of the applicant’s 3^rd Affirmation in good time before this hearing, and that there is apparently no affirmation that the respondent wishes to adduce in response to the applicant’s 3^rd Affirmation, I am inclined to the view that the respondent will suffer no prejudice by the filing of the same.

13.  Therefore, during the hearing, I allowed the application and granted leave to the applicant to adduce her 3^rd Affirmation annexed to the Summons dated 5 December 2018.  I will deal with the costs of this Summons below.

III. the Applicant’s Time Application

14.  I now turn to the Time Application.

(A) Whether the applicant’s 1^st Affirmation is admissible

15.  The first issue is whether the applicant’s 1^st Affirmation is admissible, due to the lack of a declaration by the handling solicitor of the applicant to the effect that he has interpreted the contents of that affirmation to the applicant in Punti, and that the applicant understood the contents thereof.

16.  RDC O41 r3 provides that:-

“Where it appears to the person administering the oath that the deponent is illiterate or blind, he must certify in the jurat that—

(a) the affidavit was read in his presence to the deponent;

(b) the deponent seemed perfectly to understand it; and

(c) the deponent made his signature or mark in his presence,

and the affidavit shall not be used in evidence without such a certificate unless the Court is otherwise satisfied that it was read to and appeared to be perfectly understood by the deponent.” (emphasis added)

17.  It is clear from the underlined words quoted above that affidavits of an illiterate deponent can be used in evidence if the court is satisfied that they have been read to and appeared to be perfectly understood by the deponent.

18.  I accept, on the face of what the applicant deposed to in paragraph 4.2(b)-(c) of her 2^nd Affirmation, that the applicant may not be totally conversant in written Chinese, such that her affirmations should be interpreted to her in order for her to understand the contents thereof before she affirms the same.  This has apparently been done as regards the 2^nd Affirmation, but not on the face of the 1^st Affirmation.

19.  On the other hand, the applicant has filed her 3^rd Affirmation, stating under oath at paragraph 5 that before she affirmed her 1^st Affirmation, the handling solicitor from the firm instructed by the applicant has explained the contents thereof to her in Punti, and that she understood the same.

20.  I have no reason to doubt the veracity of the applicant’s evidence stated above.  What was deposed to by the applicant is also not inherently improbable.  Although the respondent complains that the applicant’s handling solicitor has not proffered any explanation as to why there was no declaration in the 1^st Affirmation, this does not mean that the court should then not accept the applicant’s evidence above.  This court is thus satisfied that the applicant’s 1^st Affirmation has been “read to and appeared to be perfectly understood by” the applicant before she affirmed the same.

21.  As such, I conclude that the applicant can adduce her 1^st Affirmation at this hearing in support of her Time Application.

(B) Whether the Time Application is unnecessary or premature

22.  The respondent’s main substantive argument is that the Time Application is unnecessary or premature.

23.  The respondent submitted that according to section 14(1) of the ECO, there is a “primary time bar” such that the applicant must make her application for compensation within 24 months of the accident causing the injury.  Further, there is a “secondary time bar” pursuant to section 18(2) of the ECO which provides for a 6-month time bar starting from the date of the Form 7, which is a certificate of assessment issued by the Employees’ Compensation (Ordinary Assessment) Board regarding the applicant’s permanent loss of earning capacity dated 10 September 2018 (“Form 7”).

24.  It should be noted that:-

(a)   The Form 7 was issued after the commencement of the EC Application.

(b)   Thereafter, both the applicant and the respondent have applied to review the result stated in the Form 7.

25.  In the respondent’s oral submission, it contends that the statutory regime works as follows:-

(a)   The “primary time bar” for any application for employees’ compensation is governed by section 14(1) of the ECO, ie 24 months after the date of the accident causing injury.

(b)   If there is an assessment of the employees’ temporary incapacity or loss of earning capacity pursuant to section 16A of the ECO, resulting in a Form 7 pursuant to section 16D or 16E of the ECO (or a Form 9 upon review pursuant to section 16G of the ECO) being issued by the relevant assessment board, then the “secondary time bar” of 6 months pursuant to section 18(2) will kick in, effectively replacing the “primary time bar” under section 14(1).  Therefore, if a Form 7 or Form 9 has been issued, the applicant can still commence an employees’ compensation application under section 18A (in addition, of course, to an appeal of the assessment or review under section 18) within 6 months after the date of the Form 7 or Form 9.

(c)   If there is no Form 7 or Form 9 being issued, or there is no appeal pursuant to section 18 of the ECO, then the 24-month time limit under section 14(1) will be triggered again, and it is only in this scenario that an extension of time application pursuant to section 14(4) becomes necessary.

26.  In short, the respondents’ submission is that the present EC Application was not commenced out of time, as at this stage, there is a Form 7 and a pending review of the assessment, and it is not known at this stage whether there will be an appeal pursuant to section 18 (such that the “secondary time bar” will apply).

27.  The material part of section 14(1) of the ECO provides that:-

“(1) Except where otherwise provided by this Ordinance, proceedings for the recovery under this Ordinance of compensation for an injury shall not be maintainable unless notice of the accident has been given to the employer by or on behalf of the employee, in the manner hereinafter provided, as soon as practicable after the happening thereof and before the employee has voluntarily left the employment in which he was injured, and unless the application for compensation with respect to such accident (being an application to the court by an employee under section 18A(2)) has been made within 24 months from the occurrence of the accident causing the injury or, in the case of death, within 24 months from the date of death or prior to a determination made by the Commissioner under section 6B(1)(a), whichever is the earlier:” (emphasis added)

28.  On the other hand, the relevant part of section 18 of the ECO provides:-

“(1) Subject to this section, an appeal shall lie to the District Court from any decision or assessment of the Commissioner, an Ordinary Assessment Board or a Special Assessment Board under section 16A, 16D, 16E, 16G or 16GA.

(2) No appeal shall lie after the expiry of 6 months from the date of the decision or, in the case of an assessment, of the date of issue of the relevant certificate under section 16A, 16F, 16G or 16GA, as the case may be:

Provided that the court may, if it thinks fit, extend the time within which to appeal under this section notwithstanding that the time has elapsed.” (emphasis added)

29.  It is therefore clear that the time bars in section 14(1) and section 18(2) of the ECO deal with two different matters.  Section 14(1) deals with an application for employees’ compensation made under section 18A(2) of the ECO, and section 18(2) deals with an appeal from a decision or assessment of the Commissioner, an Ordinary Assessment Board or a Special Assessment Board.

30.  The respondent heavily relies on the Court of Appeal’s judgment in Chung Lung Shun v Adams Parking (International) Limited [1996] 3 HKC 50.  In my view, the clear distinction stated in paragraph 29 above is supported by that case, where Liu JA said at 58I-59B:-

“38. "Two routes, one regime" is the statutory framework provided by the Employees' Compensation Ordinance. This is what this appeal is all about.

39. Section 14 clearly confines its prescribed 24-month time limit to the making of an employee's application for compensation to the court under s. 18A. Within 30 days from the decision of the District Court, an appeal may, in some cases, lie to the Court of Appeal. See s. 23.

40. Section 18 is decidedly different from s. 18A. Section 18 deals with administrative appeals/applications to the District Court from, inter alia, an assessment made by an Ordinary Assessment Board under s. 16D(5) or compensation as assessed by the Commissioner under s. 16A(1). For these administrative appeals/applications, s. 18(2) and s. 16B(2) allow a period of six months.” (emphasis added)

31.  However, there is a complication which arises from Chung Lung Shun.  There, the Court of Appeal dealt with an appeal against the assessment made by the assessment board pursuant to section 18 of the ECO.  Their Lordships held that the time bar in section 14(1) does not apply to an appeal lodged pursuant to section 18.  That much is clear from the Court of Appeal’s judgment.

32.  What is not clear from the Court of Appeal’s judgment (see 57B-C) is whether in that case, there was also an application for employees’ compensation made by the applicant pursuant to section 18A (which would be subject to the time limit stipulated in section 14(1)).

33.  On this matter, the judgment below (Chung Lung Shun v Adams Parking (International) Limited [1995] 2 HKC 605) does shed some light.  It was recorded in HHJ Kwan’s judgment (at 607) that in that case, the accident happened on 11 January 1989, but both the employees’ compensation application and the section 18 appeal was issued together only on 3 September 1991.  The employees’ compensation application was out of the 24-month time limit stipulated by section 14(1), but the section 18 appeal was within the 6-month time limit stipulated by section 18(2). 

34.  The applicant there argued that the District Court need not exercise its discretion under section 14 of the ECO, but should look at the application as an appeal under section 18(1). As the application was made within the six-month time limit allowed by section 18(2), on an appeal under section 18, the District Court can order compensation as appropriate under sections 9 and 10 of the ECO.

35.  The learned District Judge disagreed and held (at 609) that the application was issued out of time, falling foul of the time limit in section 14(4) of the ECO.  This is because “the application itself acts as a ‘vehicle’ which takes on board other forms of relief sought by the employee in his quest for compensation”.  In short, the learned District Judge was of the view that there must be an application on which the section 18 appeal is to “anchor”, in order for the court to make an order for compensation.  If the application was made out of time, the fact that there is a valid section 18 appeal made within time does not assist the main application.

36.  In my view, the complication which arises in the Court of Appeal’s judgment stems from the its rejection of what was stated by HHJ Kwan at 610, namely:-

“Following on from that, it must be envisaged that an appeal under s 18 must be heard together with the application for compensation. Since s 14 sets the limitation period for applications, then s 14 must also set a limitation for any 'new application' brought by way of appeal under s 18.” (emphasis added)

37.  The Court of Appeal rightly pointed out (see 59E-F) that the learned District Judge erred by concluding that the section 14 time limit also sets a limitation for an appeal brought under section 18 of the ECO.  However, in holding that the employees’ compensation application in that case was not commenced out of time, it appears to me that the Court of Appeal was proceeding on the basis, as stated at 58D of Godfrey JA’s judgment: that:-

“[The employee’s] proceedings here are in the nature of an appeal to the court under s.18, notwithstanding that the appeal is an appeal made in the form of an originating application, the form prescribed for which includes a claim for compensation. It is not an original application to the court, made under s.18(A)2, for the determination of his claim by the court in the first instance, which would have been an application made, by reason of the time limit prescribed by s.14, out of time.” (emphasis added)

38.  In other words, in allowing the appeal, it appears that the Court of Appeal treated the proceedings before the court purely as a section 18 appeal but not an application made under section 18A.  It is on this basis that the Court of Appeal then held that only the 6-month time limit stipulated in section 18(2) applied, but not the 24-month time limit stipulated in section 14(1).

39.  Before me, the respondent relies on the result of the Court of Appeal’s judgment in Chung Lung Shun and argued that as a Form 7 is already issued to the applicant in the present case, she is not bound by the time limit in section 14(1), and can take advantage of the time limit set out in section 18(2) which has not yet started to accrue.  On this basis, the respondent argues that the Time Application is not necessary.

40.  I have some difficulty in understanding the Court of Appeal’s approach in Chung Lung Shun.  It appears from the result in that case that an employee can take out an appeal under section 18 only (without the need for an application under section 18A) in order to claim employees’ compensation under sections 7-10A of the ECO. This is apparent from Godfrey JA’s view (quoted above) that the application in Chung Lung Shun was not made under section 18A(2).  During the hearing, I asked the respondent whether an employee can make an application for compensation by way of an appeal under section 18 without also filing an application under section 18A.  The respondent submitted that the answer is yes, according to Chung Lung Shun.

41.  I have doubts on whether this position is correct.  Section 18 is for the purpose of an appeal against the assessment of the employees’ incapacity or loss of earning capacity made by the Commissioner or the relevant assessment boards.  It is not an “original” application for employees’ compensation. Even if section 18(3) provides that on an appeal under that section, the court may confirm or reverse any decision, or confirm or vary any assessment, of the Commissioner, an Ordinary Assessment Board or a Special Assessment Board, or may substitute its own assessment, and “may determine the amount of compensation payable”, there still has to be a claim / application for compensation on foot to begin with before the court can determine the amount thereof. In other words, an employee cannot just “commence” and appeal under section 18 in vacuum without also making an application for employees’ compensation under section 18A.  If an application under section 18A is commenced out of time, that application fails (for non-compliance with section 14(1)) even if there is a section 18 appeal brought within time (in compliance with section 18(2)).

42.  My view is further supported by section 16A(1A) of the ECO which provides that:-

“Compensation shall not be assessed by the Commissioner under subsection (1) unless claim for compensation arises within 24 months after the happening of the accident.” (emphasis added)

In other words, if a claim for employees’ compensation is not made within 24 months after the date of the accident, there will be no assessment by the Commissioner, and hence no Form 7, Form 9 nor any appeals that can ensue.

43.  I am alive to the point that the Court of Appeal’s decisions are binding on this court.  On the other hand, having done the above analysis, I am of the view that even if I wholly accept the Court of Appeal’s judgment and result in Chung Lung Shun, it does not assist the respondent’s argument on the necessity of the Time Application.

44.  In the present case, the EC Application commenced on 28 June 2018 is for a claim of compensation under section 18A of the ECO.  It is not, and could not, be an appeal against the assessment of the Ordinary Assessment Board under section 18.  This is not least because as at 28 June 2018, the Form 7 has not yet been issued.  Further, both the applicant and the respondent have subsequently chosen to review the assessment pursuant to section 16A(3) / 16D(5) of the ECO. The parties may or may not accept the result of the review of the assessment.  There may or may not be an appeal to the District Court under section 18 of the ECO.

45.  I am of the view that at most, Chung Lung Shun should only be confined to the facts of that case, namely, where an employee has already decided to lodge a section 18 appeal within time, and that employee also lodges the section 18 appeal together with a “new application” under section 18A(2) which, by then, is out of time.  The situation is clearly distinguishable here.  When the Time Application was taken out by the applicant on 28 June 2018, the EC Application was already out of time and any section 18 appeal could not be relevant at that stage, as no one knew whether there would be an assessment^[1], when the result of the assessment would be released, and whether there would be any review or appeal of the assessment.  I accept the applicant’s argument that the necessity of the Time Application cannot be dependent on the results of future, unknown events which may or may not materialise.

46.  It is therefore clear that in the present case, the 24-month time limit specified in section 14(1) of the ECO applies to the EC Application filed on 28 June 2018.  As the date of the accident is 17 June 2016^[2], the time bar expired at the end of 16 June 2018.  The EC Application was therefore out of time by 12 days.  The Time Application is necessary.

47.  The respondent next argues that the Time Application was made prematurely, as the respondent has not yet filed and served its Answer to the EC Application.  The respondent submitted that if it does not take any issue of time bar in the Answer, such an issue would not arise, and the Time Application would have been unnecessary.  It is thus argued that the Time Application is at this stage premature, such that it should be dismissed.

48.  I do not accept the respondent’s submissions.  Since the EC Application was commenced out of time, the issue of time bar will arise regardless of whether or not the respondent takes this point in the Answer (or indeed at any later stage).  This is because when the court adjudicates on the EC Application, it still has to be satisfied that the EC Application complies with all the statutory requirements, including the time limit stipulated in section 14(1) of the ECO.  The applicant still has to satisfy the court that it should be allowed to proceed with the EC Application notwithstanding that it was commenced later than 24 months after the accident causing her injury allegedly happened.  Even if the respondent does not take issue with the time limit under section 14(1), this will only be relevant to whether the court may allow the EC Application to be commenced out of time, but would not obviate the need for the applicant to satisfy the said statutory requirement.

49.  I therefore conclude that the Time Application is not premature.

(C) Whether the Time Application should be allowed

50.  I now turn to the issue of whether the Time Application should be allowed.

51.  The legal principles are well-established and need not be repeated at length: see eg 李錦樹 v 太古可口可樂香港 DCEC 1206/2014 (unreported, 26 June 2015) at §10-14 (per HHJ Andrew Li).  In short, when determining whether there is a “reasonable excuse”, I need to take into consideration factors including the reasons for the delay, the length of the delay, whether there is sufficient ground for supporting an application, and prejudice to the respondent.

52.  The applicant’s reasons for the delay in commencing the Application are set out in her 1^st and 2^nd Affirmations, and also Mr Wai’s Affirmation.  In summary, the applicant says that at a time when the 24-month time limit under section 14(1) had not yet expired, she originally intended to sign the papers in support of the Application and file the same with the court.  However, his partner, Mr Wai, intervened and advised her not to sign.  It turned out that Mr Wai was acting under a misapprehension and misconception that signing the papers for the Application would somehow legally prejudice the applicant, as Mr Wai thought that the documents were for the purpose of settling the case with the respondent.  Mr Wai’s interference caused the Legal Aid Department to consider withdrawing assistance to the applicant.  After realising his mistaken view, Mr Wai stopped objecting to the applicant’s signing of the papers.  However, by the time the applicant was able to sign the papers, the 24-month time limitation has already accrued.

53.  The respondent has filed an affirmation in opposition to the Time Application.  Two points were raised therein.  First, the respondent expressed doubts on the genuineness of the EC Application, and submitted that the present case has the hallmarks of a fraudulent claim.  I have considered the points raised by the respondent.  Bearing in mind that this is not an occasion to conduct a trial on the affidavits, I am of the view that there is no clear evidence to conclude at this stage that the EC Application is not genuine.

54.  Second, the respondent complains that the applicant’s handling solicitor has not fully explain to the court what he had or had not done to ensure that the proceedings were issued within the time limit.  I consider that there is some substance in this point.  The affirmations filed in support of the Time Application were filed by the applicant and Mr Wai.  The matters deposed to therein concerned their dealings with the applicant’s handling solicitor and also the Legal Aid Department, and is therefore also within the handling solicitor’s personal knowledge.  In such a case, an affirmation filed by the handling solicitor (who is an officer of the court) confirming the applicant’s and Mr Wai’s evidence will give much comfort to the court on the veracity of the reasons for the delay in commencing the EC Application.

55.  On my invitation, the applicant’s handling solicitor undertook during the hearing that he will, within 7 days thereof, file an affirmation confirming that the facts stated in the applicant’s 1^st and 2^nd Affirmations and also Mr Wai’s Affirmation are true and within his personal knowledge.  In that affirmation, the handling solicitor will also give a brief chronology of his correspondence with the Legal Aid Department during mid-June 2018.  He duly filed such an affirmation on 18 December 2018.

56.  On the basis of the above, I am satisfied that the applicant has demonstrated a “reasonable excuse” for her failure to make the EC Application within the 24-month time limit.  The applicant is not sophisticated and does not have high education level.  She acted on the advice of her partner, Mr Wai, with whom she gave birth to a daughter.  It appears to me that Mr Wai, when initially advising the applicant not to sign the EC Application papers, was genuinely mistaken about the nature of those papers.  When Mr Wai and the applicant realised the mistaken view, it was already too late but the applicant and her handling solicitor acted reasonably quickly to get the EC Application to be filed with the court as soon as possible.  This is thus not a case where the applicant has deliberately sat on the papers well knowing that the deadline would soon be passed.  Further, the delay is not long, only 12 days.  I am not satisfied that such a short period of delay will cause the kinds of prejudice described by the respondent, namely loss of documentary records and difficulty in the investigation of the accident.  Besides, as the applicant rightly pointed out in oral submissions, the respondent has not adduced any evidence in its affirmation to that effect.

57.  For the above reasons, I exercise my discretion pursuant to section 14(4) of the ECO, and grant leave for the applicant to proceed with the EC Application out of time.

IV. Costs

58.  Both parties agreed that for both summonses, the applicant is asking for the indulgence of the court, and that unless the respondent opposed the summonses unreasonably, the applicant should bear the costs of both applications.

59.  For the Summons dated 5 December 2018 to adduce the applicant’s 3^rd Affirmation, as already stated above, I am not satisfied with the reasons for the respondent’s opposition to that application.  Further, on as early as 29 November 2018, the applicant has already let the respondent have sight of the applicant’s 3^rd Affirmation and proposed that the matter be dealt with by consent.  The respondent did not agree for reasons which I have rejected in this judgment above.  Therefore, I consider that the respondent should have dealt with that application by consent, which would have obviated the need for the Summons to be argued in the hearing.  I am therefore minded to order that the respondent should pay the applicant’s costs of that Summons.

60.  For the Time Application, on one hand, apart from the concern raised by the respondent that the applicant’s handling solicitors should file an affirmation to confirm the factual matters that are within his personal knowledge, there can be no real objections to that application.  On the other hand, there is a complication on the issue of the necessity of the Time Application, and it is not unreasonable for the respondent to take the issue arising from the Court of Appeal’s judgment in Chung Lun Shun.  Having considered the matter in the round, I am inclined to the view that it is fair to both parties that there be no order as to the costs of the Time Application.

61.  The respondent submitted that there should be no taxation between the applicant and the handling solicitor assigned by the Legal Aid Department.  I disagree. I am of the view that the applicant’s solicitors have acted reasonably, and there are clearly no circumstances warranting disallowing legal aid taxation.

V. Orders

62.  I make the following orders.

63.  For the applicant’s Summons dated 5 December 2018:-

(a)   Leave be granted to the applicant to adduce her 3^rd Affirmation annexed to that Summons in support of her Summons dated 28 June 2018.

(b)   A costs order nisi that the respondent shall pay the applicant’s costs of the Summons in any event, such costs are to be taxed if not agreed.  In order to assist the Taxing Master, I apportion one fifth of the hearing time on 14 December 2018 to the costs in dealing with the Summons.

(c)   The applicant’s own costs shall be taxed in accordance with the Legal Aid Regulations.

64.  For the applicant’s Summons dated 28 June 2018 (ie the Time Application):-

(a)   Leave be granted to the applicant to proceed with her Application for employees’ compensation filed on 28 June 2018 pursuant to section 14(4) of the Employees’ Compensation Ordinance (Cap 282).

(b)   A costs order nisi that there be no order as to the costs of the Summons.

(c)   The applicant’s own costs shall be taxed in accordance with the Legal Aid Regulations.

65.  The above costs orders nisi will become absolute in 14 days, unless before then any party applies to the court for the variation thereof.