ELIJAH SAATORI v. RAFFLES MEDICAL GROUP (HONG KONG) LTD

CACV 230 /2016

[2018] HKCA 732

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO 230 OF 2016

(ON APPEAL FROM HCPI NO 1114 OF 2006)

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J U D G M E N T

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Hon Kwan JA (giving the judgment of the court):

1.  This is the plaintiff’s appeal against the judgment of Chow J dated 7 November 2016 dismissing his claim in HCPI 1114/2006 as a result of his failure to comply with an unless order made on 7 September 2016.

Background

2.  The relevant background matters may first be related as follows.

3.  The plaintiff commenced this action against the defendant on 9 May 2006.  He acted in person at that time and was granted a legal aid certificate on 28 January 2011.  The legal aid certificate was revoked on 29 August 2016.  He successfully appealed against the decision of the Director of Legal Aid and the legal aid certificate was restored retrospectively from the date of revocation.  The decision to restore legal aid was received by the plaintiff two days after 7 November 2016, by which time judgment had already been entered against him dismissing his action[1].

4.  The claim against the defendant is for damages for medical negligence.  The plaintiff’s case is that he attended the defendant’s clinic on or about 5 August 2003 for the propose of wax removal in the right ear.  Shortly after the treatment which he received at the clinic, he experienced acute, chronic tinnitus which developed into serious physical and psychological injuries and disabilities.

5.  The trial of the action was scheduled to commence before Chow J on 2 September 2016 with ten days reserved.  On 1 September 2016, the judge dismissed the plaintiff’s application to adjourn the trial on the ground that his legal aid certificate had been revoked on 29 August 2016.  The judge also lifted the legal aid stay.

6.  On 2 September, the plaintiff did not turn up for the trial as he had apparently collapsed at home earlier that morning and was taken to hospital for treatment.  The judge adjourned the hearing to 5 September and ordered the plaintiff to make himself available for a medical examination by a neurologist appointed by the defendant at the plaintiff’s costs to determine his fitness to attend court for the trial.

7.  Dr Brian Choa, the neurology specialist appointed by the defendant, examined the plaintiff on 3 September.  According to his report, the most likely cause for the plaintiff’s brief loss of consciousness at home on 2 September was the multiple medication he had taken, leading to syncope in the context of stress and an empty stomach.  Dr Choa expressed the opinion that the plaintiff should be fit to attend court by 7 September 2016, especially if his attendance was confined to the afternoon sessions.

8.  The plaintiff failed to turn up at the adjourned hearing on 5 September as he was staying in hospital for further medical tests. After considering Dr Choa’s report and the medical certificate and letter of the plaintiff’s treating doctor, the judge adjourned the trial to 7 September.

9.  The plaintiff did not turn up for the adjourned hearing of the trial on 7 September.  He produced further medical certificates from his treating doctor and a certificate from a specialist in psychiatry in support of his application for adjournment.

10.  Taking all relevant matters into account (the conflicting medical opinions on the plaintiff’s fitness to attend court, the plaintiff was again without legal representation, the prejudice that would be suffered by the defendant in the event of an adjournment), the judge reluctantly granted an adjournment of the trial to new dates to be fixed, subject to these conditions (“the adjournment conditions”):

(1) the plaintiff do pay the defendant $438,491.60 within 21 days, being the outstanding taxed costs which he had been ordered to pay the defendant in this action and in CACV 109/2008;

(2) the plaintiff do pay into court $1,200,000 within 21 days as security for (i) the costs which he had been ordered to pay to the defendant in this action and in CACV 184/2009, and (ii) the defendant’s costs thrown away by the adjournment of the trial;

(3) unless the plaintiff shall make full payment in accordance with (1) and (2) above, his action against the defendant shall stand dismissed without any further order of the court with costs to the defendant.

11.  This is the unless order of 7 September 2016 referred to earlier.

12.  On 29 September 2016, the judge dismissed a number of applications by the plaintiff including an application to stay or set aside the 7 September 2016 order.  Instead, the judge extended the time for the plaintiff to comply with the adjournment conditions in the unless order of 7 September to 7 November 2016.

13.  The plaintiff applied for leave to appeal against the decision of 29 September.  On 7 November 2016, the judge refused to grant leave.  The plaintiff renewed his application for leave to appeal to the Court of Appeal under HCMP3224/2016.  His application was dismissed by the Court of Appeal (Chu JA and Poon JA) on 13 September 2017.

14.  As the plaintiff failed to comply with the adjournment conditions in the unless order within time as extended, judgment was entered on 7 November 2016 dismissing his claim in this action.  The plaintiff filed a notice of appeal on 29 November 2016 to appeal against this judgment and this is the appeal that we are concerned with.

The grounds of appeal

15.  The notice of appeal is 33 pages.  The plaintiff lodged skeleton arguments of 14 pages.  He also made oral submissions to this court.  He has lodged seven hearing bundles in court for this appeal (one of them being a bundle of authorities).  There are quite a number of repetitive documents.  Some of them are not adduced in the proceedings below (such as an “Appeal Affirmation” of the plaintiff of 29 pages made on 14 December 2017 in “File 2”) and no leave has been given for new evidence to be adduced on appeal. To avoid any further delay in the appeal, the Registrar of Civil Appeals did not request any change to be made to the bundles[2].  We have considered the documents in the bundles on a de bene esse basis.

16.  In summary, the main grounds of appeal are as follows:

(1) the judge erred in accepting Dr Choa’s report and in finding that the plaintiff was fit to attend trial[3];

(2) the judge wrongly exercised his discretion in adjourning the trial on terms upon the advice of the defendant’s counsel in the absence of the plaintiff[4];

(3) the judge erred in law in ordering him to provide security for costs[5];

(4) the judge erred in accepting the amount of massive untaxed costs as submitted by the defendant without making enquiry as to whether it was true[6];

(5) the judge erred in lifting the legal aid stay[7];

(6) the judge erred in refusing to recuse himself from being the trial judge as he was biased against the plaintiff[8]; and

(7) based on the doctrine of res judicata, the defendant should be precluded by the judgment of Barma J in HCSD 31/2009[9] from being paid the costs awarded until the trial is concluded[10].

17.  These are substantially the same grounds raised before the Court of Appeal in the plaintiff’s leave to appeal application in HCMP 3224/2016, which was dismissed on 13 September 2017[11].  The plaintiff’s arguments, which are substantially the same as those he advanced in the present appeal, were addressed comprehensively and rejected for the reasons given in that judgment at §§40 to 56.

Analysis

18.  On the face of the notice of appeal, this is an appeal against the judgment entered on 7 November 2016 whereby it was adjudged that the plaintiff’s claim against the defendant in this action be dismissed as the plaintiff had failed to comply with the adjournment conditions stipulated by the unless order dated 7 September 2016 as extended by the order dated 29 September 2016.

19.  Mr Eric Tsoi, who appeared for the defendant, contended that this appeal against the judgment dated 7 November 2016 is incompetent. That judgment is “no more than an administrative step to give effect to the order for adjournment on terms” dated 7 September 2016.  The order dated 7 September 2016 is interlocutory in nature, and the plaintiff has exhausted all applications for leave to appeal and hence avenues of appeal against the order for adjournment on terms, by virtue of the decision of the judge on 7 November 2016 refusing leave to appeal and the judgment of the Court of Appeal in HCMP 3224/2016.  There can be no appeal from the refusal to grant leave to appeal.  The judgment entered on 7 November 2016 flowed from the order for adjournment on terms and is interlocutory in nature.  It is not a final judgment giving rise to an appeal as of right.  Nor is it an interlocutory judgment within the exceptions provided in Order 59 rule 21, as it does not by itself determine the substantive right of the plaintiff and is merely a collateral effect flowing from his failure to comply with the adjournment terms.  He even sought to argue that the order made on 7 September 2016 was not in the nature of an unless order.

20.  Mr Tsoi’s contention is misconceived.  The order of 7 September 2016 is clearly an unless order in that once the condition on which it depended had been satisfied, the sanction became effective without the need for any further order.  Thus, Order 2 rule 4 says: “Where a party has failed to comply with a … court order, any sanction for failure to comply imposed by the … court order has effect unless the party in default applies to the Court and obtains relief from the sanction within 14 days of the failure.” This makes it clear that no further order is required to render the sanction effective, it is incumbent on the defaulting party to apply to the court for relief from sanction.

21.  The judgment dated 7 November 2016 against which the plaintiff is appealing is one which was obtained pursuant to an “unless” order. Pursuant to Order 59 rules 21(1)(a) and (2)(g), it is regarded as a judgment determining in a summary way the substantive rights of a party and accordingly an appeal lies as of right from it.  No leave to appeal is required for this appeal against the judgment dated 7 November 2016.

22.  In his submissions in this appeal, the plaintiff is in effect trying to re‑litigate the substance of matters which have been determined by the Court of Appeal in his application for leave to appeal against the judge’s decision of 7 November 2016.  His central point is that as his legal aid appeal was successful and legal aid was restored retrospectively from 29 August 2016, the judge was wrong to order him to pay $438,491.60 to the defendant and $1,200,000 into court as conditions to grant an adjournment, as all the costs which the defendant might recover from him would only be paid at the conclusion of the proceedings and not before and would all be covered by funds from the legal aid.

23.  The plaintiff had sought to challenge the decisions of the judge of 7 September, 29 September and 7 November 2016 by renewing his application for leave to appeal to the Court of Appeal in HCMP 3224/2016. The Court of Appeal refused to grant leave to appeal by its judgment of 13 September 2017.  It is provided in section 14AB of the High Court Ordinance, Cap 4 that “no appeal lies from a decision of the Court of Appeal as to whether or not leave to appeal to it should be granted.”  By virtue of section 14AB, the decision of the Court of Appeal is final.  The plaintiff cannot seek to go behind that judgment, which upheld the judge’s decisions of 7 September, 29 September and 7 November 2016, or mount a collateral attack on all the previous decisions arguing that they were “flawed”.  This would amount to an abuse of the process of the court.

24.  The plaintiff has failed to comply with the unless order of 7 September 2016 by the extended deadline of 7 November 2016. Pursuant to Order 2 rule 4, where a party has failed to comply with a court order, any sanction for failure to comply imposed by the order has effect unless the party in default obtains relief from the sanction within 14 days of the failure.  No relief from the sanction for failure to comply was ever given. The plaintiff’s challenge to the order of 7 September 2016 was rejected by the judge on 29 September 2016, and his applications for leave to appeal against the latter decision was refused by the judge and dismissed by the Court of Appeal.

25.  As a result of non‑compliance with the unless order, the plaintiff’s claim in this action was dismissed by the judgment entered on 7 November 2016 pursuant to the unless order.  There is no legal basis for him to challenge this judgment.

26.  This appeal should not be an occasion for the plaintiff to re‑litigate his arguments on his challenge against the decisions of the judge dated 7 September 2016 and 29 September 2016, as the Court of Appeal’s decision in HCMP 3224/2016 on 13 September 2017 is final.  It is wholly unnecessary for this court to deal with those arguments.

27.  We dismiss this appeal as it is devoid of merits. As there is no dispute from both sides that costs should follow the event, we order the plaintiff to pay the defendant’s costs of this appeal, to be taxed if not agreed.