NG CHUN PUI AND OTHERS v. LEE CHUEN TAT AND ANOTHER

Headnote

                It is permissible to aggregate claims properly joined within a single action to satisfy Rule 2(a) of the Order in Council regulating appeals to Her Majesty in Council.

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RULING

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Cons, V-P.:

1. In February 1982 an accident occurred in Castle Peak Road when a coach carrying a party of children veered across the central reservation and collided with a public light bus travelling in the opposite direction. One passenger in the bus was killed and the driver and three passengers were injured.

2. In due course an action for damages and other relief was brought by or on behalf of those injured and by the administrator of the estate of the deceased. There is no suggestion that the joinder of the various Plaintiffs in the one single action was in any way improper. At the hearing at first instance the judge was asked to deal with liability alone. He found for or the Plaintiffs. On appeal to this Court his decision was reversed.

3. The five Plaintiffs now seek leave to appeal to Her Majesty in Council. The first point taken on their behalf is that they have an appeal as of right. Damages of course have not yet been assessed but it is agreed for the purposes of this application that the aggregate of the five claims must exceed $500,000 although no individual claim could reach that amount.

4. Rule 2 of the appropriate Order in Council provides that an appeal shall lie "as of right, from any final judgment of the Court, where the matter in dispute on the Appeal amounts to or is of the value of $500,000 or upwards, or where the Appeal involves, directly or indirectly, some claim or question to or respecting property or some civil right amounting to or of the value of $500,000 or upwards."

5. We are told that there is no direct authority in point but such authority as we have been referred to, in my view, seems to point in favour of the Plaintiffs. I am referring to the two New Zealand cases. In the first, Good v. Bruce ⁽¹⁾, the fact that the potential liability of the Defendant to all possible plaintiffs exceeded the minimum was held sufficient to bring, the matter within a similarly worded "rule", even though no one plaintiff recovered that amount. That was followed in the second Bankier and Others v. New Zealand Waterside Workers' Union and Another ⁽²⁾ ,where the total liability of the defendant had in fact already been established. I appreciate that in those cases it was the defendant who was seeking to appeal the decision to the Privy Council. But on the general principle that what is sauce for the goose is sauce for the gander I would have thought     that the converse should apply. It is suggested that the case of Allan v. Pratt ⁽³⁾ precludes the application of the converse but for myself I do not find that case of assistance with respect to the aggregation of separate claims. Nor do I think the New Zealand cases can be distinguished simply on the ground that they were representative actions rather than actions in which more than one plaintiff had joined. For myself I would be disposed to follow the New Zealand approach.

6. If I should be wrong in that, I would turn then to the wording of the rule itself. It is upon the first part that the plaintiffs rely, that is, "the matter in dispute on the appeal amounts to or is of the value of $500,000 or upwards". I observe first that it is in general not technical language. It does not refer to "causes of action". It does not use the word "claim". Nor indeed does it make any reference to "parties".

7. We have been referred to Rule 1 of the Order in Council which expressly provides that words in the singular include the plural and vice versa. But even without recourse to that rule it seems to me that the natural, commonsense construction of the words "matter in dispute on the Appeal" would comprehend joined claims which in the aggregate do exceed the amount stipulated. The object of the rule seems to me to be to ensure that their Lordships are not troubled by trivial appeals. This appeal is not trivial. In itself it does involve more than $500,000. For my part I am satisfied that the Plaintiffs are entitled to leave as of right.

8. It is not necessary then to consider whether the questions which will he argued before their Lordships are in themselves of great general or public importance, which, if so, would allow this Court in its discretion to grant leave. I would merely observe that in my view the judgment complained of did not decide questions of that degree.

(1)    1917 N.Z.L.R. 919

(2)    [1950] Gazette Law Reports 307

(3)    (1888) 13 App. Cas. 780

Fuad, J.A.:

9. I agree. I acknowledge the force of the arguments advanced to us by Mr. Bharwaney but in the absence of direct authority I reach the same conclusion as my Lord the Vice-President. I think this is clearly a final judgment. The intended appeal is from what is clearly a final judgment of the Court of Appeal of Hong Kong, and I think it can fairly be said that the matter in dispute on the appeal amounts to $500,000 or upwards. I do not think that the words used by the relevant rule should be given a grudging interpetation.

10. I would also indicate that if an appeal to Her Majesty in Council does not lie as a right, I am not satisfied that the condition precedent to the grant of leave in the discretion of the Court given by paragraph (b) of that Rule has been satisfied.

Clough, J.A.:

11. I agree with the judgment delivered by my Lord the Vice-President and I too would grant the application. I have nothing further to add.