PETER MARTEINSON v. HONG KONG MANAGEMENT ASSOCIATION AND ANOTHER

HCA 3527/2003

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

ACTION NO. 3527 OF 2003

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J U D G M E N T

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1. In these proceedings Mr Marteinson has issued a writ seeking a very substantial sum of damages against Hong Kong Management Association and what he has described as the Hong Kong Management Association College Limited.

2. Mr Marteinson is a registered teacher in Hong Kong who was employed by the Hong Kong Management Association School Limited as a teacher from 15 August 2000 until 11 July 2003, he having been dismissed on 8 July 2003.

3. The writ was issued on 23 September 2003, and on 20 October 2003 the Defendant applied to strike out the Statement of Claim. That matter came before the Master on 12 February 2004 and the claims were dismissed with costs. The last day on which a Notice of Appeal against that decision could be filed was 26 February 2004.

4. On 10 March 2004, Mr Marteinson issued a new writ and a statement of claim, this time against the Hong Kong Management Association School Limited as the 1st Defendant; the Hong Kong Management Association as 2nd Defendant and Mr Pong Wing Yam as 3rd Defendant.

5. The issue of the new writ is a claim of defamation against the three Defendants. Mr Marteinson has also attempted to file and amended the Statement of Claim in these proceedings, amending the original claim, largely to bring it in line with the new action that he has commenced.

6. On 19 March 2004, 23 days out of time, Mr Marteinson, after having had advice from The Resource Centre for Unrepresented Litigants, filed a Notice of Appeal against the Master's decision. This he served on 27 March 2004, substantially out of time. When asked by me for his explanation for bringing the appeal out of time, he said that he was unaware of the time limit and did not know about it until after the time for appeal had expired.

7. It is right that he is representing himself in this matter and thus proceeds at some disadvantage, but even an unrepresented litigant must expect that would be time limits, and he must find out what those time limits are and endeavour to come within them. Mr. Marteinson has given a bare explanation, however of his failure to appeal within time.

8. In considering whether or not I should extend the time for appeal it is necessary to consider the chances of the appeal succeeding if leave is given. The Statement of Claim filed is not a perfect document, not surprisingly bearing in mind that it was drafted by a layman and it is difficult to follow, it is confusing and it contains a great deal of evidence rather than setting up facts upon which the plaintiff relies.

9. I do not intend to go into detail, but I am satisfied that it does not disclose a reasonable cause of action in its present form. I do not have regard to the amended Statement of Claim that Mr. Marteinson has filed as no leave has been given to file an amended Statement of Claim and in any event this stage, the proceedings have been struck out.

10. In considering whether or not to extend time, I have to consider whether or not to do so would prejudice the Defendant. Mr Marteinson has taken the advice of the Master and has filed new proceedings in which he has substantially tidied up the allegations, casting them more directly in terms of defamation, and using expressions which are traditional in defamation actions and which are consequently much more understandable. There is also, in that new statement of claim, a claim based upon alleged negligence by the defendants. I am highly doubtful whether that claim will be allowed to proceed, but that will be a matter that will have to be considered at a future time.

11. It would be quite unreasonable to the Defendants to reinstate these proceedings when Mr Marteinson has elected to issue and proceed on a new writ. He cannot have both, and he has elected to issue the new writ. If he is to go on, it is on the new writ that he should proceed. He having elected to file a new writ, there is no proper basis upon which I should extend the time for him to appeal the Master's decision out of time.

12. Although it is not necessary for me to consider the merits of the appeal, I should say that having read and considered the papers, I am satisfied that it is a proper matter for an order striking out the Statement of Claim. It was no prospect to any event of the appeal succeeding. The appeal will be dismissed with costs to the Defendants, there will be a certificate for senior counsel.