MOHAMMAD SHAKEEL v. LEUNG YAU CONSTRUCTION CO AND ANOTHER

DCEC1494/2010

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

EMPLOYEES' COMPENSATION CASE NO. 1494 OF 2010

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BETWEEN

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R U L I N G

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1.  Now, as I have indicated at the outset of this hearing, the dispute of costs should not have escalated to this level. I can see the only costs incurred by the 2^nd Respondent was the application to join in under section 25A of the Employees’ Compensation Ordinance which was dealt with by consent.

2.  I cannot agree with Mr Wong that the Board fights this case with a view to laying down a precedent or to clarifying principles.  The facts in this case are peculiar and costs in the end is a discretionary matter.  The approach parties have taken in this matter is, in my view, grossly disproportionate.  Besides, there is not any subject matter for me to deal with in determination of the costs in dispute.  There is no application for discontinuance before me and there is also no striking out application before me.  I was asked to make a determination of costs in a vacuum.

3.  Although I agree that the applicant has all along indicated his intention to withdraw the proceedings, they have never taken out any application, formally or informally, for leave to discontinue.  Given the indication of Mr Sakhrani that the Applicant is minded to continue with the action, the only order I can make today is the costs order for today’s hearing. 

4.  I can understand why the applicant would choose to continue with this action.  The Respondent applied under section 25A to join as a party.  If the application was under section 25A(a), the respondent will be joining as if it is the employer and the Applicant can continue this action without the presence of the 1^st Respondent. However, the 2^nd Respondent submitted that it joined under section 25A(b) instead which does not allow the 2^nd Respondent to take up the defence as if it were the employer. 

5.  On reading the affirmation of Miss Brenda Lee in support of the joint application, I am of the view that it is probably applying under section 25A(b), especially as I read paragraphs 7 and 8 of the application.  I note the point raised by Mr Sakhrani regarding paragraph 5, but I agree with Mr Wong that it is merely setting out the background.

6.  However, if the application is under section 25A(b), I do not think that it satisfied the condition set out there.  There is a condition under section 25A(b) that the employer shall be present in the proceedings.  I do not agree with Mr Wong that the mere fact that the employer was sued means that he is present, otherwise the words “the employer is present in the proceedings” would be redundant under the relevant section.  I am of the view that the employer must at least have responded to the proceedings in some way for him to be present legally.

7.  It is in my view that the application for joinder was premature.  In that case I do not think that even if the Applicant applied to discontinue the action, they should bear the costs of the 2^nd Respondent.

8.  With these reasons, although I am not going to make any costs order in respect of the whole action, I am of the view that the 2^nd Respondent should pay the applicant’s costs for today’s hearing.

9.  Now, I do not think I will make any order in relation to the action unless you ask for direction from me.  For the purpose of the costs order for today’s hearing, I am going to make a summary assessment on costs and I have already indicated my view as to the escalation of costs in relation to the present costs dispute.  I am not minded, subject to your submission, to grant certificate for counsel in relation to today’s hearing.  

(Discussion re costs)

10.  Costs of today’s hearing be to the Applicant by summary assessment at $13,000, payable forthwith, legal aid taxation for the Applicant’s own costs.