HO CHI CHING v. SAIKY CO LTD

DCEC149/2002

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

EMPLOYEES COMPENSATION CASE NO. 149 OF 2002

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D E C I S I O N

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1. This is an application by the 2nd Respondent to set aside the judgment on liability granted by Judge Carlson on 3 May 2002. The 2nd Respondent failed to attend that hearing but he had filed a purported answer with the court on 17 April 2002, and so the issue in this application is whether the court could enter judgment under such circumstances.

2. There are two matters I need to consider in the present application:

(i) whether the document filed by the 2nd respondent on 17 April 2002 was a proper answer?

(ii) assuming that it was a proper answer, whether the court could enter judgment against the 2nd Respondent if he failed to attend the hearing on 3 May 2002?

I will deal with these issues in turn.

Was the document a proper answer?

3. The document filed by the 2nd Respondent is a so-called "homemade defence". It was written in the form of a letter with the Registry of the District Court as the addressee. In the said document, the 2nd Respondent admitted that the Applicant was employed by him from October 2000 to January 2001. However, as the occupational disease or the injury complained of by the Applicant was suffered by her outside the term of employment with the 2nd Respondent, the latter denies liability to pay compensation in the present case.

4. In this Application, the Applicant complains that she had suffered occupational disease of tennis elbow of right forearm whilst he was working for the 2nd Respondent. In fact, the Applicant also lodged a separate application for employee compensation against other respondents in application DCEC No. 653 of 2002. In that application, the Applicant complained that he had suffered similar injury, namely, occupational disease of tennis elbow of left forearm, whilst he was employed by the other respondents on or about 4 July 2001. That application was settled at an earlier time.

5. Rule 17(2) of the Employee Compensation (Rules of the Court) Rules, Cap. 282 ("the Rules"), reads as follows:

"If the respondent intends to oppose an application he shall, within 21 days after the service of the notice, or within such extended period as the court may upon special request allow, lodge with the registrar a written answer in Form 5 in the Schedule containing a concise statement of the extent and grounds of his opposition."

6. Although the Answer filed by the 2nd Respondent does not comply strictly with the format and the wording used in Form 5, I am of the view that such document is still a valid answer. Section 37(1) of the Interpretation and General Clauses Ordinance, Cap. 1, provides that:

"Where any form is prescribed by or under any Ordinance, deviations therefrom, not affecting the substance of such form, shall not invalidate it."

Obviously, the 2nd Respondent has specified in the document the reason as to why he should not pay compensation to the Applicant, and so such document contains a concise statement of the extent and grounds of his opposition as required by rule 17(2). As the document is in substance an answer to the Applicant's claim, such document should be regarded as a proper answer.

Jurisdiction of the court in entering judgment if a party fails to attend the first hearing

7. As the document filed on 17 April 2002 was a proper answer, the next question I have to consider is whether the court could enter judgment on liability against the 2nd Respondent simply because he failed to attend the first hearing before the court on 3 May 2002. In my judgment, the answer is no.

8. Rule 17(1) of the Rules requires that when the Registrar of the court serves the application upon a respondent, he should also enclose a notice in Form 4 of the Schedule, informing the respondent that he must lodge with the Registrar an answer to the applicant's claim, and that in default of that or of his appearing at the time and place fixed in the notice, such order may be made as the court deems just and expedient. In my judgment, this rule only specifies the contents of the notice. It does not say what the court should do if a respondent fails to attend the first hearing.

9. According to section 21(1) of the Employee Compensation Ordinance, Cap. 282 ("the Ordinance"), this court has all the powers and jurisdictions exercisable by the District Court in or in connection with civil action in such court in the like manner as if this court had by the District Court Ordinance, Cap. 336, been empowered to determine all claims for compensation under the Ordinance and the law, rules and practice relating to such civil actions shall mutatis mutandis apply. In such circumstances, this court has to apply the rules and practice relating to the civil jurisdiction of the District Court in determining whether the court has power to enter default judgment in circumstances similar to the present case.

10. If a respondent has neither filed an answer as required by rule 17(2) nor attended the first hearing before the court, then applying the rules and practice of the civil jurisdiction of the District Court, this court can enter judgment against the respondent in default of the filing of the answer. However, if the respondent has filed an answer, as occurred in the present case, there is simply no room for the court to enter judgment against a respondent. Hence, the judgment in the present case is an irregular one.

11. As discovery and filing of witness statements are not absolutely necessary in an employee compensation application, there is nothing to prevent the court from conducting the trial in the first hearing. In such case, the applicant may proceed to prove his case against the absent respondent, and the court can perhaps enter judgment under such circumstances. On the other hand, if the applicant fails to appear in the first hearing and the court proceeds to conduct a trial, the court can simply dismiss the application for lack of supporting evidence. In my judgment, this is how the court should approach the issue if a party fails to attend the first hearing before the court. As the Applicant had not sought to prove her case in the first hearing and there was a proper defence filed by the 2nd Respondent, I am of the view that the court did not have jurisdiction to enter judgment on liability against the 2nd Respondent on 3 May 2002.

12. In Hong Kong, the weight of the authorities is where the judgment is irregular, it should be set aside without going into the merits of the defence (see Chu Kam-lun v Yap Lisa Susanto [1999] 3 HKC 378, per Leong JA.) In any event, I cannot ignore the defence of the 2nd Respondent in the present case. The Applicant complains of 2 similar occupational diseases in a relatively short period of time. Causation is certainly an issue that needs to be investigated, and it is arguable that whether the occupational disease complained of by the 2nd Applicant in the present case was caused by the employment with the 2nd Respondent. Hence, the judgment on 3 May 2002 should be set aside both on the grounds of irregularity and merits.

13. I agree that it may sometimes be unfair to an applicant. Rule 17(2) only requires a respondent to file an answer with the Registry of the court. It does not say that the answer needs to be served on the applicant at the same time. In such case, the applicant may not know about the existence of the answer when his legal advisors attend the first hearing before the court. It will certainly have an implication on the issue of costs in the subsequent application to set aside the judgment. In any event, practitioners are advised to clarify with the court as to whether there is any answer in the court file, before they apply to enter judgment in default against a respondent in the first hearing.

14. I therefore allow the 2nd Respondent's application and set aside the judgment on liability dated 3 May 2002. I will now listen to the parties' submissions on the issue of costs.