BRUCE JAMES STINSON v. GU MING GAO

HCA 2352/2012

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

ACTION NO 2352 of 2012

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D E C I S I O N

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The judgment

1.  By a Judgment (“Judgment”) handed down on 15 June 2016, I dealt with three summonses listed before me.  The relevant facts and my reasons were contained in the Judgment which I incorporate by reference.  The three summonses were:

(1) the plaintiff’ November 2014 Summons[1];

(2) the plaintiff’s December 2015 Summons[2]; and

(3) the defendant’s December 2015 Summons[3].

Section 14AA of the High Court Ordinance, Cap 4

2.  Section 14AA of the High Court Ordinance, Cap 4, provides that leave is required for an appeal from an interlocutory judgment of the judge.  This was a new requirement introduced by the Civil Justice Reform.  The section provides that:

“(1) Except as provided by rules of court, no appeal lies to the Court of Appeal from an interlocutory judgment or order of the Court of First Instance in any civil cause or matter unless leave to appeal has been granted by the Court of First Instance or the Court of Appeal.

(2) …

(3) …

(4) Leave to appeal for the purpose of subsection (1) shall not be granted unless the court hearing the application for leave is satisfied that —

(a) the appeal has a reasonable prospect of success; or

(b)  there is some other reason in the interests of justice why the appeal should be heard.”

The plaintiff’s summons for leave to appeal

3.  By a summons issued by the plaintiff on 29 June 2016, the plaintiff applied for leave to appeal against the Judgment:

“on the grounds which are set forth in the draft Notice of Appeal annexed hereto”.

4.  The summons for leave to appeal was listed for (a half day) hearing more than five months later on 2 December 2016.  I asked for an explanation why such a distant hearing date was fixed, but no satisfactory explanation had been given by Mr John Yan SC who at one stage alleged that it had something to do with the state of my diary which I knew could not have been the explanation.

The plaintiff’s December 2015 Summons

5.  The Registrar’s Unless Order dated 22 August 2014 was included in the hearing bundles for the hearing before me.  The Registrar’s Unless Order ordered as follows:

“1. Unless the Plaintiff by 4:00 pm on 28^th November 2014 takes out all interlocutory applications that may be advised, the Plaintiff is debarred from taking out further interlocutory applications.

2. The interlocutory applications, if contested, shall be fixed before the Registrar for argument.

3. …

4.   …”

8.  By §13 of the Judgment, I ruled that the plaintiff was debarred from taking out further interlocutory applications after 4:00 pm on 28 November 2014.  The plaintiff’s December 2015 Summons was barred by the Unless Order and I dismissed the plaintiff’s December 2015 Summons.

9.  By the draft notice of appeal, the defendant contended that:

(1)  the defendant had “never taken the position, either in the oral and written submissions made on his behalf, that the Plaintiff’s December 2015 Summons had been debarred by the Unless Order”;

(2)  I had not “ever intimated that [I] was of the view that the Plaintiff’s December 2015 Summons had been debarred by the Unless Order”; and

(3)  I “had erroneously acted in breach of the principles of natural justice and procedural fairness in not affording the Plaintiff an opportunity to deal with the point”.

There was no contention in the draft notice of appeal that the Unless Order did not cover the plaintiff’s December 2015 Summons.

Consideration of the plaintiff’s draft grounds of appeal in respect of my judgment on the plaintiff’s December 2015 Summons

10.  Mr John Yan SC and his legal team had actual knowledge of the existence of the Unless Order.

11.  Inclusion of the Unless Order in the hearing bundles was a conscious and deliberate decision made by the plaintiff which demonstrated that Mr John Yan SC and his legal team plainly considered the Unless Order relevant to the issues before me.

12.  If Mr John Yan SC had an answer to the bar under the Unless Order, he owed a duty to the plaintiff to argue the point before me.  The Unless Order was most certainly a material fact for me as the judge to know in dealing with the application as made, and materiality was to be decided by the court and not by the assessment of the plaintiff or Mr John Yan SC and his legal team.

13.  If Mr John Yan SC had no answer to the bar under the Unless Order, and as he had chosen not to draw the court’s attention to the Unless Order, he is not entitled to complain afterwards since he had chosen to forfeit his opportunity to be heard.

14.  The hearing before me took four days.  Mr John Yan SC and his legal team had had ample opportunity, if they had wished to, to address me on the Unless Order which they had included in the hearing bundles.

15.  By §16 of the “Points of Reply of the Plaintiff”[4], Mr John Yan SC most helpfully confirmed that it was a considered decision on his part not to:

“seek any relief from sanction since it was P’s view that the Unless Order does not cover P’s December 2015 Summons”.

16.  This means that his contention the plaintiff had not been afforded an opportunity to deal with the Unless Order is plainly untenable as it was his own considered decision not to draw the court’s attention to the Unless Order.  He forfeited the plaintiff’s opportunity to be heard.  He is not allowed to blame the court for the position which he chose to take.

17.  Mr John Yan SC sought to justify his own silence on the ground that the Unless Order did not apply.  He conveniently overlooked the point that materiality was to be decided by the court, not the party or his legal advisers.  In my judgment, the Unless Order was plainly material.

18.  I would deal briefly with the construction contended by Mr John Yan SC in his reply submission.  The construction seems so absurd that I have no hesitation in rejecting it.

19.  His construction is to deprive the Unless Order of any practical effect.  If an application was advised before the deadline, it should, in the normal course of events, have been taken out before the deadline and was thus permitted under the Unless Order.  If an application was advised after the deadline, it was not caught by the Unless Order and could thus be made.  I do not see why it was in the form of an unless order if it was not intended to apply to applications advised after the deadline.  There is no rationale for confining the deadline to applications advised before the deadline.  All the plaintiff need do was to wait until the expiration of the deadline before advising on an application.  This defects the very purpose of a deadline.

20.  More importantly, the construction contended by Mr John Yan SC is untenable.  § 1 of the Unless Order reads as follows:

“Unless the Plaintiff by 4:00 pm on 28^th November 2014 takes out all interlocutory applications that may be advised, the Plaintiff is debarred from taking out further interlocutory applications.”

21.  “That may be advised” merely made it plain that the plaintiff was not bound to take out any interlocutory application.  “That may be advised” was not qualified by any deadline and thus it meant “whenever advised”.  The “4:00 pm on 28^th November 2014” deadline was not the deadline for advice, but the deadline for taking out “allinterlocutory applications”.  Being debarred from taking out “further interlocutory applications” barred any and all furtherinterlocutory applications, whenever advised.

22.  The appeal from my judgment on the plaintiff’s December 2015 Summons does not have a reasonable prospect of success.  There is no other reason in the interests of justice why the appeal should be heard.

The plaintiff’s November 2014 Summons

23.  Mr John Yan SC devoted a lot of energy in arguing that my judgment on the plaintiff’s November 2014 summons was wrong.

24.  With respect, he was rehashing arguments advanced at the earlier hearing, arguments which I did not accept and the reasons for my judgment were given in the Judgment which I have incorporated by reference.

25.  I am not satisfied that the appeal from my judgment on the plaintiff’s November 2014 Summons has a reasonable prospect of success.  There is no other reason in the interests of justice why the appeal should be heard.

The defendant’s December 2015 Summons

26.  By §36 of the Judgment, I said it was not necessary to deal with the defendant’s December 2015 and I made no Order in respect of that Summons.

27.  Mr John Yan SC argued that I should have dismissed it.

28.  With respect, I disagreed.

29.  I am satisfied that it was open to me to make no order by reason of the lack of necessity to deal with it.

30.  I am not satisfied that the appeal from my judgment on the defendant’s December 2014 Summons has a reasonable prospect of success.  There is no other reason in the interests of justice why the appeal should be heard.

Residual discretion to refuse leave

31.  Ms Winnie Tam SC invited me to exercise the court’s residual discretion to refuse leave even if the appeal has a reasonable prospect of success.  She cited the following authorities:

(1)    Ho Yuen Ki Winnie and another v Ho Hung Sun Stanley and another, unrep. HCMP 1009/2009, 24 August 2009, where Le Pichon JA (with whom Hartmann JA agreed) said:

“Whether leave should be granted

15. The Civil Justice Reform introduced a leave requirement for interlocutory appeals. It is common ground that leave should only be granted if the court is satisfied that the appeal has a reasonable prospect of success or there is some other reason in the interests of justice why the appeal should be heard. See section 14AA(4) of the High Court Ordinance.

16. As a preliminary matter, it is relevant to bear in mind that the leave requirement was introduced largely to address satellite litigation on interlocutory issues (often of only marginal significance to the outcome of the litigation) which almost invariably gives rise to major delay and expense. See the Final Report on Civil Justice Reform (§643). For leave to be granted, this court must be satisfied that the appeal has ‘reasonable prospects of success’. Merely showing that the appeal is ‘arguable’ and ‘not fanciful’ would not be sufficient. In my view, ‘reasonable prospects’ requires something more and, in that regard, some assistance may be derived from the test applied when setting aside a default judgment.

…

22. In any event, even if I were satisfied (which is not the case) that the intended appeal has reasonable prospects of success, in deciding whether or not, as a matter of discretion, leave should be granted, I would not consider it appropriate to grant leave in the present case.  In my view, the due administration of justice would not be furthered by allowing interlocutory skirmishes of this kind which would only serve to increase costs and delay the adjudication of the litigation.”

(2) Mimi KarKee Wong Hung v Severn Villa Limited and others [2012] 1 HKLRD 887 where Kwan JA (with whom Fok JA agreed) said:

“The principles on granting leave to appeal

29. The principles on granting leave to appeal are well established. Leave can be granted if the court is satisfied that (a) the appeal has a reasonable prospect of success; or (b) there is some other reason in the interests of justice why the appeal should be heard. Reasonable prospects of success involve the notion that the prospects of succeeding must be ‘reasonable’ and therefore more than ‘fanciful’, without having to be ‘probable’. As the leave requirement was introduced largely to address satellite litigation on interlocutory issues which almost invariably gives rise to major delay and expense, so for the court to be satisfied that the appeal does have ‘reasonable prospects of success’, merely showing that the appeal is ‘arguable’ and ‘not fanciful’ would not be sufficient.

30. Even if the threshold test of reasonable prospect of success is satisfied, the court still retains discretion whether to grant leave, although the fact there is, ex hypothesi, a reasonable prospect of success would heavily influence the court’s exercise of discretion. The court may refuse leave to appeal in the interests of procedural economy and proportionality.

31.    It must also be borne in mind that the orders made by the Judge in the intended appeal are case management decisions in the exercise of the discretion of the trial judge.  Case management decisions are only subject to appeal in rare circumstances.  The appellant faces a ‘very high hurdle’ and must show that the judge ‘has gone clearly wrong and made orders which will clearly involve an injustice or an inability for the trial court to carry out its task’, or if the judge ‘erred in principle or the order was irrational having regard to the issues that had to be resolved’.  It need hardly be emphasised that generally, an appellate court will not interfere with a judge’s exercise of discretion unless the judge has misunderstood the law or the evidence or the exercise of his discretion was plainly wrong such that it was outside the generous ambit within which a reasonable disagreement is possible.”

(3) Sunny Tadjudin v Bank of America National Association, unrep. HCMP 337/2012, 29 March 2012 where Fok JA (with whose judgment Tang VP agreed) said:

“The relevant test for leave

8. It is common ground that the Judge’s decision is interlocutory in nature and, as such, pursuant to s.14AA of the High Court Ordinance (Cap. 4), the plaintiff requires leave to appeal against the orders dated 22 December 2011 and 6 January 2012. The applicable principles are now well known and I do not propose to repeat them here. The plaintiff must show that the proposed appeal has a reasonable prospect of success or that there is some other reason in the interests of justice why the appeal should be heard.

…

Residual discretion

40. The Judge identified, as an additional reason for refusing leave to appeal, the residual discretion which remains even if a court takes the view that there is a reasonable prospect of success in the intended appeal: see Ho Yuen Ki Winnie & Anor v Ho Hung Sun Stanley & Anor, unrep, HCA 391/2006, 25.5.09, A Cheung J (as he then was) at §§7‑9 and, on appeal, HCMP 1009/2009, 24.8.09 at §22.

41. In her Decision dated 9 February 2012, the Judge held:

‘This action was commenced in 2008, but even now the parties have been bogged down at the stage of discovery without having made any progress to trial. A further round of argument over discovery, particulars or costs at the appellate level would only increase costs and further delay the trial, and would not advance the real interests of the parties or the due administration of justice in accordance with the objectives of the Civil Justice Reform. The interests of the parties in this case would be much better served by their actively progressing to the exchange of witness statements, and thereafter proceeding to have an early trial of the issues in dispute.’

42. I would fully endorse those remarks. However, notwithstanding those remarks, the parties’ respective statements in support and in opposition to the application for leave to appeal refer to the fact that a contested discovery application was pursued by the plaintiff in the discrimination proceedings in DCEO 4/2009. It appears that out of 39 requests, the Judge hearing that application ordered discovery in respect of 6 classes. The plaintiff has indicated an intention also to seek to appeal that order for discovery.

43. The merits of that proposed appeal in DCEO 4/2009 are a matter for another occasion but, so far as the present application is concerned, it is my firm view that it is high time the interlocutory skirmishing in this matter came to an end and the action is taken to trial so that the real issues between the parties can be resolved.”

Application of the principles on residual discretion

32.  It is now four years since the writ was issued on 19 December 2012.

33.  Witness statements were served by the plaintiff on 16 August 2013 and by the defendant and his witnesses on 9 August 2013.  I said in §7 of the Judgment that I regarded the service of witness statements as an indication that the parties were ready to proceed to trial.  The service of witness statements took place in August 2013.  That was more than three years ago and the trial of the action is nowhere in sight. In §7 of the Judgment, I went on to say that:

“The parties (the plaintiff in particular) seemed more interested in making one interlocutory application after another. These interlocutory applications included those referred to in §§8 and 9 below. The proliferation of interlocutory applications after the service of witness statements and after the introduction of the CJR is amazing. The parties put in a total of 10 lever arch files (not including written submissions and authorities) before me. There are no dividers and the only index is inserted in Bundle 1. Many documents were not referred to at all.”

34.  In the event, the hearing took four days.

35.  As stated in §4 above, the hearing for leave to appeal was listed for hearing more than five months after the filing of the summons for leave.  I am satisfied this was not the earliest available date for a half day hearing.

36.  In addition to the parties’ skeleton arguments and authorities, the parties placed six lever arch files as “Agreed Bundles”.  Only a handful of the documents in the first and sixth bundles had been referred to.  Swamping the Court with irrelevant documents may suggest propensity in indulging in interlocutory skirmishing and clouding the relevant issues.

37.  In my view, the due administration of justice would not be furthered by allowing interlocutory skirmishes of this kind which would only serve to increase costs and delay the adjudication of the litigation. In my judgment, I may and should refuse leave to appeal in the interests of procedural economy and proportionality.  It is high time the interlocutory skirmishing in this matter came to an end and the action is taken to trial so that the real issues between the parties can be resolved.

Disposition

38.  I dismiss the summons issued on 29 June 2016 by the plaintiff for leave to appeal.

39.  The parties have effectively agreed that costs should follow the event.  I make an order that the defendant’s costs are to be paid by the plaintiff to the defendant, to be taxed if not agreed, with a certificate for two counsel.