LO SUK LING VILLY v. THE METHODIST CHURCH HONG KONG & OTHERS

CACV355/2001

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO. 355 OF 2001

(ON APPEAL FROM HCA 8395 OF 1997)

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J U D G M E N T

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Hon Leong CJHC (giving the judgment of the Court) :

1. There are two applications before this court. The 1st application is the defendants' application to vary the order nisi on costs made by this court when we allowed the appeal of the plaintiff. The 2nd application is the plaintiff's application for payment out of the sum of $35,834.89 paid by the defendants into court on 11 November 1998.

2. The costs order nisi which the defendants now seek to vary is that the defendants do pay the costs of the plaintiff at the trial and in the appeal. The defendants seek to vary this order to the extent that the costs of the trial in the Court of First Instance be taxed on the District Court scale if not agreed.

3. Mr Ambrose Ng, counsel for the defendants, submits that the amount involved in the case is one within the jurisdiction of the District Court and costs should accordingly be awarded on the District Court scale. He refers to a number of statutory provisions and authorities. Among these, section 44A(6) of the District Court Ordinance states as follows :

"Where proceedings in which the Court has jurisdiction are brought in the Court of First Instance, the Court shall order costs on the scale and in the amount as if the proceedings had been brought in the Court, unless the proceedings were brought by leave of the Court of First Instance or unless the Court of First Instance otherwise orders."

("Court" in that section means the District Court).

4. It should be noted that the plaintiff did not bring her case in the Court of First Instance of the High Court. The claim, which was brought by several claimants, was transferred from the Labour Tribunal by the Presiding Officer under section 10 of the Labour Tribunal Ordinance upon him declining jurisdiction. The venue to which the transfer was made was the decision of the Presiding Officer and it was outside the control of the plaintiff. The plaintiff was compelled to pursue her claim in the Court of First Instance and to involve costs at High Court level. Section 44A(6) applies only to a case brought in the Court of First Instance when it should be brought in the District Court.

5. In any case, the defendants did not seek a transfer of the plaintiff's claim to the District Court when the claim was split in the High Court before the Master. Further, there was no argument on costs before Chung J at the trial and there was no application for variation of Chung J's order nisi on costs which was that the plaintiff do have her costs against the defendants (as affirmed by our order). Still, if the defendants who are not satisfied with that order for costs, they could have argued that in their respondents' notice on appeal but that was not done. It is now too late for the matter to be revisited.

6. We see no ground in the defendants' application and we regard such an application as utter nonsense. The application is dismissed with costs to the plaintiff to be taxed on common fund basis.

7. Regarding the application for payment out, we grant the application to the plaintiff and order that the sum of $35,834.89 be paid to the plaintiff out of court with no order as to costs. The plaintiff's own costs is to be taxed in accordance with the Legal Aid Regulation.