KWOK HING YUEN v. GOODPOINT ENGINEERING LTD AND OTHERS

CACV 107/2006

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO. 107 OF 2006

(ON APPEAL FROM HCPI NO. 736 OF 2004)

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Reasons for Decision

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1. The plaintiff applied to adjourn the hearing of the appeal which is scheduled to be heard on 16 June 2006.  I granted the adjournment.

2. The appeal is in respect of an order by Deputy High Court Judge Muttrie.  He dismissed the plaintiff’s appeal against Master Kwan’s decision in refusing leave to the plaintiff to adduce a supplementary report of a medical expert.  There is in existence an order dealing with expert evidence.

3. The application to adjourn became necessary because the plaintiff had, since the lodging of the appeal, applied to adduce a report by another medical expert in substitution of the supplementary medical report.  The application will be heard by Suffiad J on 14 June 2006.  The plaintiff’s stand is that if the application is successful then he will withdraw the appeal with costs to the defendants.  If it fails, the plaintiff will pursue the present appeal and may consider lodging a further appeal against the refusal to allow him to adduce the substituted report.

4. There is no indication that the application by the plaintiff before Suffiad J is bound to fail.  In any event I have not been addressed on this issue.  In terms of case management it will be unsatisfactory if the matter on whether the appeal should proceed is not dealt with now but to be decided only after the hearing listed before Suffiad J.  By then if the appeal is to be withdrawn, it will mean that resources both in terms of the Court and the parties will be wasted.  Obviously if the appeal is not vacated, then costs for the hearing will likely to be incurred.  The parties had at the meantime agreed not to prepare the appeal bundle.  The suggestion by the 1^st and 2^nd defendants that the hearing before Suffiad J should be adjourned to a date after the appeal is also unsatisfactory because the plaintiff obviously wishes to explore a different way of dealing with the expert report first.

5. Accordingly I granted the adjournment.

Costs

6. I also ordered costs of the adjournment to be borne by the 1^st and 2^nd defendants.  The hearing date before Suffiad J is the earliest date the plaintiff could obtain after issuing the summons on 28 March 2006.  Two earlier available dates were not convenient to counsel for the 1^st and 2^nd defendants.  The plaintiff had also made known to the defendants as early as 11 May 2006 of its position regarding the appeal if the application is successful before Suffiad J and had sought consent from the defendants to adjourn the appeal by letter on 18 May 2006.  The 1^st and 2^nd defendants objected to the adjournment and the present application was required as a result of the objection.  The objection was unreasonable and the 1^st and 2^nd defendants failed in their objection.  Accordingly costs should follow the event.