TSUI MAN KIT MICHAEL v. HUNG LAP MING AND ANOTHER

DCEC 1616/2012

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

EMPLOYEES’ COMPENSATION CASE NO. 1616 OF 2012

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IN THE MATTER OF AN APPLICATION BETWEEN:

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REASONS FOR DECISION

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1.  This is effectively an application for joinder of a new party after limitation period has expired.

(A)   Applicant's application

2.  The present Summons ("the Summons") was taken out by the applicant to amend his application ("the Application") in the present employees' compensation case.

3.  On the face of the Summons, it is a simple 3 minutes application for amendment of the Application.  The applicant simply applies for the following order:-

"1.   The Applicant do have leave to amend the Application dated and filed on 15^th September 2012 in the manner as shown in red as per the copy Amended hereto within 14 days from the date of the Order to be made herein" (quote)

4.  The Summons was taken out pursuant to O 20 r 5 of the Rules of the District Court ("RDC").  It was served on the 1^st respondent and the 2^nd respondent.  A copy of draft amended Application ("the proposed Amendment") was annexed to the Summons with the proposed amendment marked in red.  According to the proposed Amendment, the applicant sought to add a new party to the present proceedings as the 2^nd respondent by way of amendment.  However, the new party's name appeared nowhere on the face of the Summons.

5.  In the course of the hearing, the applicant sought leave to amend the marginal note of the Summons by adding s 14(4) of the Employees' Compensation Ordinance (Cap 282) ("ECO") and r 17(3) of Employees' Compensation (Rules of Court) Rules (Cap 282, Subleg B) ("ECR") thereto.  The 2^nd respondent had no objection to such amendment, leave was then granted to the applicant to amend the marginal note of the Summons.

6.  According to the proposed Amendment, the applicant sought to add a new party called Green Elegant International Limited ("Green Elegant") as the 2^nd respondent.  The allegation against Green Elegant was that it was a sub-contractor of the present 2^nd respondent and it was one of the employers of the applicant.  According to the proposed Amendment, the present 2^nd respondent would then become the 3^rd respondent after amendment.

7.  Regarding the contents of the proposed Amendment, the applicant mainly sought to amend paragraph 1 of the Application as follows:-

"1.   On 14^th July 2011, personal injury by accident arising out of and in the course of employment was caused to the applicant, an employee employed by the 1^st Respondent and by 2^nd Respondent being the sub-contractor as well as the 3^rd Defendant being the principal contractor."

(the words underlined hereinabove were printed in red without any underline as per paragraph 1 of the original proposed Amendment attached to the Summons)

8.  However, paragraph 1 of the proposed Amendment was not easy to follow because of various clerical mistakes.  At the hearing, Mr Lam for the applicant helpfully clarified that paragraph 1 of the proposed Amendment should actually read as follows:-

"1.   On 14^th July 2011, personal injury by accident arising out of and in the course of employment was caused to the Applicant, an employee employed by the 1^st Respondent and by 2^nd Respondent being the sub-contractors as well as the 3^rd Respondent being as the principal contractor."

9.  Mr Lam further clarified that the applicant was employed by both the 1^st respondent and 2^nd respondent (ie Green Elegant).  Both of the 1^st respondent and the 2^nd respondent were the sub-contractors of the 3^rd respondent after amendment (ie Jiaduobao Holdings Limited) who was the main contractor.

10.  In the present Reasons for Decision, for avoidance of doubts, I shall stick to the present pleading and I shall refer Hung Lap Ming and Jiaduobao Holdings Limited as the 1^st respondent and 2^nd respondent respectively.

(B) Background of the applicant's claim

11.  On 14 July 2011, the applicant claimed that he worked as a bodyguard to protect the director of the 2^nd respondent.  He was injured when he walked through a small path near Chi Lin Nunnery, Diamond Hill, Kowloon ("the Accident").  As a result of the Accident, the applicant sustained injuries of sprain neck and right elbow contusion.  He was 36 years of age at the time of the Accident.

12.  About 14 months later, he filed his Application against the 1^st respondent and the 2^nd respondent on 15 September 2012 in the present proceedings.  At that time, he had been legally represented.

13.  The applicant stated in the Application that he was employed as a bodyguard "by the 1^st Respondent and the 2^nd Respondent as the principal contractor (quote)" at the time of the Accident.  He also stated that on 14 July 2011, he was instructed to protect Mr Chan Hung To, the director of the 2^nd respondent. 

14.  The applicant pleaded that his injuries were caused in the Accident in the course of his employment with the 1^st respondent and 2^nd respondent.  He said he had given notices of accident to the 1^st and 2^nd respondents on 14July 2011 regarding his employee compensation claim.

1^stRespondent's case

15.  The 1^st respondent filed his Answer in the present proceedings on 25 March 2013 ("1^st respondent's Answer"). In the 1^st respondent's Answer, the 1^st respondent claimed he was the supervisor of the security department of Jiaduobao Group (加多寶集團). The 1^st respondent denied that he had employed the applicant.

16.  The 1^st respondent annexed three copies of documents in his Answer.  The first document was a copy of the business registration record of the 2^nd respondent, ie Jiaduobao Holdings Limited (加多寶集團有限公司). The 1^st respondent described this document as a copy of the business registration of Jiaduobao Group (加多寶集團商業登記副本).  The second document annexed thereto was a copy of the employee compensation policy schedule of QBE Hongkong & Shanghai Insurance Ltd with Green Elegant International Ltd named as "The Insured".  This document was described by the 1^st respondent as a copy of the employment insurance policy of Jiaduobao Group (加多寶集團勞工保險單副本). The third annexed document was in fact two copies of letters dated 28 February 2013 and 31 March 2013 respectively. According to letter dated 28 February 2013, the 2^nd respondent denied that the applicant was employed by it.  According to letter dated 31 March 2013, the 2^nd respondent, JDB Management Ltd and Green Elegant provided all of their security officers' and drivers' names between January 2009 and December 2011 in which the 1^st respondent's name could be found there, but not the applicant's name.  These two letters were described by the 1^st respondent as the staff list of security department of the Jiaduobao Group (2009 to 2011) (加多寶集團保安部職員名單2009年至2011年).

17.  These three documents were relevant to the present Summons in that the name of Green Elegant first came to light.  Of course, their significance was subject to argument.

2^nd Respondent's case

18.  The 2^nd respondent filed its Answer in the present proceedings on 14May 2013 ("2^nd respondent's Answer").  In the 2^nd respondent's Answer, the 2^nd respondent denied employment relationship with the applicant.  The 2^nd respondent said that the 1^st respondent was not its sub-contractor as alleged or at all.  Furthermore, the 2^nd respondent denied the allegation that the applicant was employed by the 1^st respondent.

19.  Also in the 2^nd respondent's Answer, the 2^nd respondent claimed that Jiaduobao Group (加多寶集團) comprised:-

(a)   the 2^nd respondent, ie Jiaduobao Holdings Limited (加多寶集團有限公司);

(b)   JDB Management Limited (加多寶管理有限公司); and

(c)   Green Elegant International Limited ("Green Elegant").

20.  More importantly, the 2^nd respondent averred that the "1^st Respondent is, and was at all material times, an employee employed by Green Elegant as Body Guard (Team Head) to serve Green Elegant and any of its subsidiary/associate companies (including, inter alia, the 2^nd Respondent)"(quote).

21.  Green Elegant's full address was expressly provided in the 2^nd respondent's Answer.

22.  Also on 14 May 2013, the 2^nd respondent filed and served its List of Documents.  Item 1 of the said list was a copy of the Certificate of Incorporation of Green Elegant dated 28 January 2005.  Item 2 of the said list was a copy of computer printout of Offer of Employment from Green Elegant to the 1^st respondent dated 1 August 2006.  Item 3 of the said list was a copy of the Employees' Compensation Policy Schedule from QBE Hong Kong & Shanghai Insurance Ltd to Green Elegant dated 4 April 2011.  Item 10 of the said list was a copy of computer printout of company particular search of Green Elegant.

The witness statements

23.  Thereafter, the applicant filed his witness statements on 10July 2013.  In his witness statement, the applicant stated his background, nature of job undertaken by him and the role of 1^st respondent and etc.  Nothing was mentioned about Green Elegant.

24.  The witness statement of Chau Wai Hung was filed on 29August 2013 for the 2^nd respondent.  His witness statement was basically consistent with the 2^nd respondent's Answer.  Mr Chau added that Chan Hung To was the director and shareholder of the 2^nd respondent and JDB Management Limited.  Chan Hung To was also the shareholder of Green Elegant.  Mr Chau also stated that from August 2007 up to the time he made the witness statement, the 2^nd respondent did not have any business affairs and it had no employees.

25.  The 1^st respondent filed his witness statement on 13 September 2013.  He provided details of the dealings between the applicant and him.  In essence, he denied employment relationship with the applicant.  He said he allowed the applicant to gain private body guard experience without any employment relationship.

The summons

26.  The Summons was taken out on 2 December 2013 which was about twenty-eight and a half months after the Accident.

27.  From the first time the 2^nd respondent averred that the 1^st respondent was employed by Green Elegant in its Answer filed on 14 May 2013, there was a period of inaction of six and a half month until the present Summons was taken out.

28.  In the supporting affirmation of the Summons, no explanation was offered by the solicitors of the applicant as to what had been done by the applicant or his solicitors during 14 May 2013 and 2 December 2013, in enquiring about the role played by Green Elegant.

29.  The Summons was served on the 1^st respondent and the 2^nd respondent only.  The Summons was not served on Green Elegant despite the full address of Green Elegant had be provided to the applicant. The 1^st respondent was absent despite notice of the present hearing had been duly given to him by the applicant.

(C) The Law

30.  Section 5 of ECO stipulates that:-

"(1)   Subject to subsections (2) and (3), if in any employment, personal injury by accident arising out of and in the course of the employment is caused to an employee, his employer shall be liable to pay compensation in accordance with this Ordinance.

Section 14 of ECO provides that:-

"(1)   Except where otherwise provided by this Ordinance, proceedings for the recovery under this Ordinance of compensation for an injury shall not be maintainable unless notice of the accident has been given to the employer by or on behalf of the employee, in the manner hereinafter provided, as soon as practicable after the happening thereof and before the employee has voluntarily left the employment in which he was injured, and unless the application for compensation with respect to such accident (being an application to the Court by an employee under section 18A(2)) has been made within 24 months from the occurrence of the accident causing the injury ...

...

(4)   The Court may receive and determine any application for compensation in any case notwithstanding that the notice required by subsection (1) has not been given, or that the application has not been made in due time as required by that subsection, if it is satisfied that there was reasonable excuse for the failure so to give notice or to make an application, as the case may be."

31.  Rule 17(3) of ECR provides that:-

"The court may, at any time before the determination of the question in dispute and upon such terms as to adjournment or as to costs as may be deemed just, allow an application, or any particulars or statement accompanying the same, or any answer thereto, to be amended.  Any such amendment shall be lodged with the registrar of the court who shall forthwith cause it to be served upon the opposite party."

32.  In relation to joinder of a party to the proceedings, the law is governed by O 15 r 4 of the RDC which provides that:-

"(1)    Subject to rule 5(1), 2 or more persons may be joined together in one action as plaintiffs or as defendants with the leave of the Court or where:-

(a)    if separate actions were brought by or against each of them, as the case may be, some common question of law or fact would arise in all the actions; and

(b)    all rights to relief claimed in the action (whether they are joint, several or alternative) are in respect of or arise out of the same transaction or series of transactions."

33.  In Tsang Yu v Tai Sang Container Cold Storage & Wharf Ltd [2000] 1 HKLRD 780, the plaintiff there was a security guard in a godown.  He was injured in an accident in September 1988.  Some three years later in September 1991, the plaintiff sued the driver as the 1^st defendant, the building as the 2^nd defendant, and the employer as the 3^rd defendant.  The plaintiff was unaware of who the owner of the building was.  The plaintiff obtained default judgment against the 1^st and 3^rd defendants.  In 1994, it was found that the owner of the building was the defendant of the case.  Despite discovering the name of the owner of the building in 1994, nothing happened until March 1997 when a summons was taken out on the plaintiff's behalf under O 20 r 5 for leave to re-amend the writ.  Nothing in the body of the summons indicated that the application was intended to be an application to join the owner of the building as a new party to the action as opposed to amending the name.  That application for amendment was refused by a master of the Court of First Instance.  On 14 October 1997, the plaintiff commenced a fresh action against the owner of the building as the sole defendant.  Among other defences, the owner of the building raised time-bar and estoppel issues by reason of the dismissal of the application for amendment by the master in the earlier action.  The Judge held that limitation point would clearly be open to the defendant but that it was a point which should be taken at trial.  As to the point of re-litigation, the Judge held that no issue of fact had been determined between the plaintiff and the present defendant in the earlier proceedings before the master.  The court held that what the master had decided was the refusal of granting leave to allow the plaintiff to amend the second defendant's name and that should not debar the plaintiff from commencing a new action if so advised.  The defendant appealed to the Court of Appeal.  (emphasis added)

34.  The Court of Appeal dismissed the defendant's appeal and held that:-

"Had the plaintiff in 1997 sought to join the defendant as a new defendant in the earlier proceedings, the Court would have been faced with the problem of limitation period.  The note in the White Book appearing on p 222 under the heading "Adding or substituting parties after expiry of limitation period", marginal note 15/6/4 reads:-

Where a plaintiff seeks to claim against a new party at a time when the limitation period relevant to such claim has plainly expired and the new claim does not come within the conditions prescribed by s 35(5)(b) of the Limitation Act 1980, the proper course is to issue fresh proceedings against the new party rather than to attempt to amend subsisting proceedings against another party to add or substitute the new party as a defendant.  Any application by the new party to strike out the fresh action as an abuse of process on the grounds that it is statute barred, or by the plaintiff, if appropriate, for an order under s 33 of the 1980 Act that the action may be allowed to proceed, may then be made by summons and adjudicated upon in the course of the fresh proceedings.  In this way, the new party has the opportunity to put before the Court his objections to the launch of proceedings against him, whereas, if he is added or substituted as a defendant to the subsisting proceedings, he will have been given no opportunity, and the order giving leave to add or substitute him may subsequently be set aside on his application in order to prevent the limitation point being concluded against him by virtue of s 35(1) of the 1980 Act.  If the fresh action is allowed to proceed it may, if appropriate, be ordered to be consolidated or listed for hearing with the original action."

In my view, the plaintiff has adopted the correct course.  Having failed to satisfy the Master that it was an appropriate case to allow the name of the party to be amended, instead of applying to join the new party to the writ which is, in some respects, an undesirable process, he recognised the difficulties, and commenced new proceedings.  This permitted the defendant to take the limitation point at an appropriate stage." (per Rogers JA at 784J to 785F)".  (emphasis added)

35.  Paragraph 15/6/4 in the White Book cited by Roger JA in Tsang Yu case (above) is now paragraph 15/6/3 of Hong Kong Civil Procedure 2014 at pp 305-306 which reads:-

"Where a plaintiff seeks to claim against a new party at a time when the limitation period relevant to such claim has plainly expired and the new claim does not come within the conditions prescribed by s 35(6)(b) of the Limitation Ordinance (Cap 347), the proper course is to issue fresh proceedings against the new party rather than to attempt to amend subsisting proceedings against another party to add or substitute the new party as a defendant.  Any application by the new party to strike out the fresh action as an abuse of process on the grounds that it is statute barred, or by the plaintiff, if appropriate, for an order under s 30 of the Ordinance that the action may be allowed to proceed, may then be made by summons and adjudicated upon in the course of the fresh proceedings. In this way, the new party has the opportunity to put before the court his objections to the launch of proceedings against him, whereas, if he is added or substituted as a defendant to subsisting proceedings, he will have been given no such opportunity, and the order giving leave to add or substitute him may subsequently be set aside on his application in order to prevent the limitation point being concluded against him by virtue of s 35(1) of the Ordinance.  If the fresh action is allowed to proceed it may, if appropriate, be ordered to be consolidated or listed for hearing with the original action under O 4, r 9.  (See Welsh Development Agency v Redpath Dorman Long [1994] 1 WLR 1409 and Tsang Yu v Tai Sang Container Cold Storage & Wharf Ltd [2000] 1 HKLRD 780, CA).  But in circumstances where the limitation period had not plainly expired, an applicant seeking to add a party who was able to show that the limitation period relied upon in opposition had not expired according to the case he sought to plead was entitled to expect the judge to exercise his discretion under this rule (Lim Ban Thoon v Chintung Securities Ltd, [1991] 2 HKC 204)."  (at p 306)

(D) Applicant's submission

36.  It was the applicant's case that notice to accident pursuant to s 14(1) ECO had not been given to Green Elegant at all and Green Elegant was not claimed against by the applicant within 24 months of the Accident.  As a result, Mr Lam, Counsel for the applicant, urged the Court to exercise its discretion under s 14(4) of the ECO.  Mr Lam argued that by the time the Witness Statement of Chau Wai Hung for the 2^nd respondent was served on the applicant on about 29August 2013, the 24 months limitation period for giving notice pursuant to s 14(1) of ECO had already expired.  Mr Lam also pointed out that it was not uncommon for an employee not to know whom his employer was.  Mr Lam also confirmed that the applicant did not rely on s 14(1)(b) of ECO for the purpose of the present application.

37.  Mr Lam's submissions could be summarized as follows:-

(a)   the Court's discretion under s 14(4) of ECO was wide enough to cover the present application for amendment, including joinder of a new party after the time for giving notice to accident had expired;

(b)   the application of r 17(3) of ECR was wide enough to cover the present Summons, even if the present Summons involved joinder of a new party after limitation period had expired and the Summons had not been served on the intended new party.  Mr Lam acknowledged that there was a distinction between amendment within limitation period and amendment after limitation period had expired, when the court considered if its discretion was to be exercised or not under r 17(3) of ECR;

(c)   In employees compensation claim, there were two ways to join a new party to the proceedings:-

(i)   an applicant could simply amend the pleading by adding the name of the new party to the existing proceedings.  There is no need to serve the summons for amendment on the intended new party as he had not yet been made a party to the proceedings.  After the court had allowed the amendment and the new party had been made a party to the proceedings, the new party was then free to set-aside the order for amendment ("Route 1", as Mr Lam put it).  By Route 1, Mr Lam suggested that there was no distinction of joinder of party through amendment within limitation period and joinder through amendment after limitation period had expired.  It was because, according to Mr Lam, the new party would have a subsequent chance to set aside the order for amendment, the new party might raise a limitation defence as he wished.  The new party might well decide not to raise limitation defence.

(ii)   an applicant could name the new party as "intended party" on the summons for joinder or amendment.  The summons had to be served on the intended party. Then, the intended party was given an opportunity to be heard, before the court decide one way or the other ("Route 2"):  This mode of application was adopted in Chiu Kwok Hung Ban v Ng Fu Wing and others (unrep, DCEC 887/2002)

(d)   ECR did not have specific rules dealing with joinder, consolidation, ordering two or more cases be heard together, or one after the other.  It was because the scheme of employees compensation claim encouraged speedy determination of employees' compensation cases without complicated procedures. Thus, O 15 r 4 RDC only applied to general civil cases, it had no application to employees compensation cases; and

(e)   with respect to joinder of party after prescribed time or limitation period had expired, the course of starting a fresh claim and, if the fresh claim could survive the challenge, then applying for consolidation of the two cases, as described in 15/6/3 of Hong Kong Civil Procedure 2014 and described as "the correct course" by Rogers JA in Tsang Yu v Tai Sang Container Cold Storage & Wharf Ltd [2000] 1 HKLRD 780 (above), applied to general civil cases only.  It had no application to employees' compensation cases.  Further, starting a fresh claim and then applying for consolidation of cases is against the essence of Civil Justice Reform (CJR).

38.  I shall deal with the Applicant's submissions one by one.

39.  There are cases where an applicant seeks to join a new party to the existing employees compensation claim with no time-bar issue.  In such cases, the court will take into account of all relevant matters in deciding if its discretion should be exercised in favour of the joinder.  Generally, the court will consider whether there is sufficient factual nexus to join in the new party, and whether the new party has notice of the application for joinder.  The application for joinder is an inter parte application.  Unless the circumstances are very special, in rare cases will the Court simply join in a new party by ex parte application made by an applicant.

40.  There are cases where an applicant claims against a respondent after the 24 months limitation period for giving notice had expired without any issue of joinder of party.  In these cases, the applicant is required to prove reasonable excuses for his delay as required by s 14(4) of ECO.  In such cases, the court will take into account of all matters before the court decides if its discretion is to be exercised.  Generally, the court will also consider the length of delay, reasons for delay, prejudice to the other party and etc.

41.  There are cases where an applicant seeks to join in a new party after limitation period has expired.  The present application is one of this kind. In this category of cases, an applicant shall satisfy the court with both the requirements of joinder of party and the requirements of invoking s 14(4) ECO at the same time.

42.  With respect to the applicant's submission that the Court can allow joinder of a new party after limitation period has expired by way of amendment under s 14(4) of ECO, I am of the view that s 14(4) ECO is about the jurisdiction of the court to receive and determine application for compensation notwithstanding that notice had not been given.  S 14(4) is not a provision for joinder of new party. 

(E) Joinder of party

43.  As pointed out hereinabove, joinder of party and exercise of the court's discretion under s 14(4) are two different issues.  Here, the applicant is effectively asking for joinder of a new party after limitation period has expired.  The applicant has to satisfy both the test for joinder of a new party and the requirements of s 14(4) ECO at the same time.

44.  In regard r 17(3) ECR, whether or not to allow an amendment is a matter of discretion of the Court.  In my view, if the amendment is clerical in nature or is unlikely to be contested, the court may take a summary approach under r 17(3) ECR.  R 17(3) ER is not about the mechanism of joinder of new party.

45.  Regarding Route 1 as put forward by the applicant, this course is against the approach recognized by the Court of Appeal in Tsang Yu case (above) and para 15/6/3 of Hong Kong Civil Procedure 2014 as mentioned hereinabove.

46.  The problem of Route 1 is that it goes through the backdoor of O 15 r 4 RDC.  It also turns an application for joinder into an ex parte application as far as the intended new party is concerned.  If Route 1 is the right course, then the court will be no more than a rubber stamp.

47.  The applicant tried to distinguish the Court of Appeal's decision in Tsang Yu case (above) by arguing that the approach recognized by the Court of Appeal only applied to general civil cases and they had no application to employees' compensation cases.  Further, as submitted on the applicant's behalf, the approach as recognized by the Court of Appeal as the "correct course" was alleged to be the very mischief that CJR aimed at preventing.

48.  I do not accept the applicant's argument that consolidation of cases was not applicable to employees' compensation cases, simply because the ECR had no specific provisions for consolidation of cases.

49.  The jurisdiction of the District Court in employee compensation cases is expressly stipulated by s 21 of ECO which provides that:-

"Jurisdiction of the Court

(1) Save as is provided in this Ordinance and any rules made thereunder, the District Court shall, upon or in connection with any question to be investigated or determined thereunder, have all the powers and jurisdictions exercisable by the District Court in or in connection with civil actions in such Court in like manner as if the Court had by the District Court Ordinance (Cap 336) been empowered to determine all claims for compensation under this Ordinance whatever the amount involved and the law, rules and practice relating to such civil actions and to the enforcement of judgments and orders of the Court shall mutatis mutandis apply."

50.  In my judgment, the Court's powers under the District Court Ordinance must include the power to consolidate cases under O 15 r 4 of RDC.

51.  In Ng Chiu Wing v Yip Hoi Ching and another, (unreported, CACV 362/2008, 29 June 2009) an applicant in an employees' compensation case applied to join one Mr Mok as a co-respondent on two capacities, namely as the principal contractor and as his alternative employer.  The District Judge allowed Mr Mok be joined as the principal contractor but refused leave to join him as the applicant's alternative employer.  The District Judge took the view that the applicant did not know, had not met and could not locate Mr Mok.  Upon appeal by the applicant, the Court of Appeal held that:-

"23. Thus analysed, the fact that next to nothing is known about 莫應倫 is neither here nor there.  Allowing the joinder applied for does not mean that the court at trial is bound to find in favour of the applicant against 莫應倫 either.  It is a matter for trial, as explained above.

24. The correctness of the above analysis is illustrated by the simple fact that it is open to the applicant to commence another application for employees’ compensation against 莫應倫 and apply for consolidation of the two applications or for hearing them together.  Leaving aside the question of limitation (which the judge did not rely on to refuse joinder), the ability of the applicant to start a new application against 莫應倫 demonstrates the futility of refusing joinder in the existing application.  Of course, if limitation is something that would defeat this new application, it should have been relied on by the judge as a reason for refusing joinder.  But that was not the case."  (Per A Cheung J, as he then was, at paras 23-24).  (emphasis added)

52.  The significance of Ng Chiu Wing case (above) is, inter alia, as follows:-

(a) Court of Appeal recognized the course of starting a fresh action against a new party where limitation period had prima facie expired was an available course in employee compensation cases;

(b) consolidation of cases is available in employee compensation cases; and

(c) the mere fact that starting a fresh action and then applying for consolidation is not a mischief that CJR is aimed at preventing.  Ng Chiu Wing case (above) is a post-CJR decision.

53.  Furthermore, I am of the view that the court's jurisdiction to order cases to be consolidated, tried together, or tried one after the other, is to facilitate the effective, speedy and economical determination of disputes.  Thus, the Court's power under O 15 r 4 RDC is consistent with the essence of CJR.  I do not agree that consolidation of cases by itself is a complicated procedure as suggested by the applicant.  Each case must be decided on its own facts.

54.  Concerning Route 2 as put forward by the applicant, I agree that it is a practical way of joinder of a new party after time-bar.  This approach was adopted by the parties in Chiu Kwok Hung Ban case (above) in which the new parties were named as intended parties on the summons and they were served with the summons.  The intended parties were given a fair chance to oppose the summons for joinder after limitation period had expired.

55.  In the present case, there is no reason for the applicant not to follow the approach as referred to in Tsang Yu v Tai Sang Container Cold Storage & Wharf Ltd [2000] 1 HKLRD 780, CA; or the approach adopted by the parties in Chiu Kwok Hung Ban v Ng Fu Wing and others (unreported, DCEC 887 of 2002)

56.  Mr Cheng for the 2^nd respondent argued that if Green Elegant was simply added to the present case without any notice, the 2^nd respondent would then be the 3^rd respondent after amendment.  The 2^nd respondent would then need to amend all the pleadings, reference to parties in witness statements and etc.  Subsequently, Green Elegant may well appear at a later stage and applies for setting aside the order for joinder on the grounds of abuse of court process, time-bar, or etc.  If Green Elegant is successful, all of the amended pleadings and references to parties have to be re-amended back to its original version.  It will waste time and costs, it will also create confusions on the court documents.

57.  At his submission in reply, Mr Lam for the applicant contended that the applicant had a fallback position that the present application was an application made under O 15 r 4 RDC.  Yet, the applicant had not applied for leave to amend its Summons as such.  Mr Cheng objected to the applicant's late contention.  The applicant's fallback position took the case back to square one, ie why was the Summons not issued pursuant to O 15 r 4 RDC in the first place, and why was the Summons not served on Green Elegant despite the applicant had the address of Green Elegant; and etc.

58.  The applicant failed on joinder point.

(F) Whether reasonable excuse for delay

59.  I bear in mind that the present Summons is an inter parte summons between the applicant and the 1^st and 2^nd respondents only.  As between the applicant and the 1^st and 2^nd respondents, the issue is whether the applicant can amend the Application.  As the applicant had raised the issue of s 14(4) ECO and relied on it in the present application, I shall deal with the arguments advanced on the applicant's behalf.

60.  The Accident was alleged to have occurred on 14 July 2011.  Information about Green Elegant was disclosed in the 1^st respondent's Answer and the 2^nd respondent's Answer on 25 March 2013 and 14 May 2013 respectively.  Mr Chow filed his witness statement for the 2^nd respondent on 29 August 2013.  The 1^st respondent filed his witness statement on 13 September 2013.  The witness statements of the 1^st and 2^nd respondents were consistent with their Answers.

61.  Time for giving notice under s 14(1) ECO expired on 13 July 2013.  The present Summons was only taken out on 2 December 2013.

62.  The District Court in Wong Man Tak v Shaws & Sons Limited [1957] DCLR 85 had interpreted the meaning of "reasonable excuse" as follows:-

"A reasonable excuse, in the ordinary sense of the phrase, means, in relation to a failure by an applicant to make his application for compensation within the prescribed period, that the failure was due to such cause or causes that it ought, as a matter of reason, to be excused.  The phrase thus means the same as the phrase "reasonable cause" which occurred in section 14 of the Workmens' Compensation Act 1925 of the United Kingdom.  The numerous authorities upon that phrase show that a cause for failure to make a claim within the prescribed period was reasonable, and therefore excused the failure, if it were:- a reasonable belief on the part of the applicant that his injury was trivial; or a mistaken diagnosis of his injury; or a belief in the applicant that a claim for compensation was unnecessary, when the belief had been induced by the employer in such circumstances as reasonably warranted it; or the inability of the applicant to transact business because of his injury.  On the other hand, a cause was not reasonable if it were a belief by the applicant that it would be to his interest to defer or not to make a claim.  (See Willis's Workmens' Compensation, 36th Ed., page 436 et. seq.).   Moreover, an applicant was not excused if he had a reasonable cause which operated only for part of the period: he had to have reasonable causes for the whole period.  Thus, while an applicant might delay making his claim until the last moment of the prescribed period, he was not entitled to be excused if his last moment claim was prevented by a reasonable cause unless he could show that he had good reason for not making his claim before that cause arose.  (Aldridge v Warwickshire Coal Company and Ashton v London North Eastern Railway.)  The principle to be deduced from the foregoing is, I think, that an applicant has a reasonable excuse for not making an application to the court for compensation within the prescribed time if his failure were due to a cause or causes other than unreasonable conduct or an unreasonable decision on his part."

63.  By the proposed Amendment, the applicant alleged that Green Elegant was one of his employers.  The applicant submitted that the existence of Green Elegant was only disclosed on about 29 August 2013 when the witness statement of Chau Wai Hung was filed for and on behalf of the 2^nd respondent. By that time, as argued by the applicant, time for giving notice of accident had already been expired.

64.  In support of the Summons, the Affirmation of Chiu Man Yee was filed on the applicant's behalf on about 16 December 2013.  According to the Affirmation of Chiu Man Yee, Miss Chiu simply explained why the applicant took out the Summons.  Paragraphs 4 and 5 of her affirmation reads as follows:-

"4. Only in the Witness Statement made by Mr Chau Wai Hung for and on behalf of the 2^nd respondent dated 29 August 2013, was the existence of Green Elegant disclosed.  According to Mr Chau Wai Hung's Witness Statement, Green Elegant is responsible for providing security services to the 2^nd Respondent.  Green Elegant is also an associated company with the 2^nd Respondent.  The 1^st Respondent was employed by the Green Elegant as Security Team Leader or Security Manager.  The applicant was thus employed by Green Elegant through the 1^st Respondent. A copy of Mr Chau Wai Hung's Witness Statement dated 29 August 2013 is now produced and shown to me marked Exhibit "B".  Therefore, Green Elegant was the direct employer of the applicant at the time of the accident and shall be joined as another respondent in this action.

5. The complex relationship between the 1^st Respondent, 2^nd Respondent Jiaduobao Holdings Limited and Green Elegant was only disclosed at such a late stage, I therefore humbly pray to this honourable Court for an Order to be made in terms as set out in the Inter Partes Summons attached herein and the issue of costs of the Inter Partes Summons be reserved."

65.  Miss Chiu did not provide any proper explanations to the Court regarding what endeavour had been tried by the applicant to enquire about the role of Green Elegant before and after the prescribed time of 24 months for giving notice had expired.

66.  Contrary to what the applicant contended, the 1^st respondent and 2^nd respondent had disclosed the role and information of Green Elegant at their earliest opportunity.  The 1^st respondent had filed his Answer on 25 March 2013.  As pointed out in the foregoing paragraphs, although documents about Green Elegant had been attached to the 1^st respondent's Answer, they were described by the 1^st respondent as documents of Jiaduobao Group.  Thus, some credits may be given in favour of the Applicant due to the mis-description of documents.

67.  However, according to the 2^nd respondent's Answer and its List of Documents both filed on 14 May 2013, Green Elegant clearly came to light.  The 2^nd respondent unequivocally stated that Green Elegant was the employer of the 1^st respondent.  Also stated in the 2^nd respondent's Answer was the address of Green Elegant.  In the 2^nd respondent's List of Documents, the 2^nd respondent also disclosed copies of the certificate of incorporation of Green Elegant; computer printout of offer of employment from Green Elegant to the 1^st respondent; employees' compensation policy schedule from QBE Hongkong & Shanghai Insurance Ltd to Green Light; and computer printout of Company particulars search of Green Elegant.

68.  Thus, it was incorrect for Miss Chiu to say that the existence of Green Light was only disclosed in the Witness Statement of Chau Wai Hung filed on 29 August 2013.  To salvage the Applicant's delay, Mr Lam argued that in 2^nd respondent's Answer, it was not stated that Green Elegant was the only company within Jiaduobao Group which would employ security guards and drivers, but it was so stated in Chau Wai Hung's witness statement.  I do not see how this point could change the fact that Green Elegant had come to light in the 2^nd respondent's Answer and in the 2^nd respondent's List of Documents both filed on 14 May 2013.

69.  Even assuming that the applicant had really become aware of the existence of Green Elegant only upon the time he had been served with the Witness Statement of Chau Wai Hung on about 29 August 2013, the applicant had no reasonable excuse as to why the Summons was only taken on 2 December 2013.

70.  More importantly, on 9 September 2013 and 31 October 2013, the applicant's solicitors had filed Appendix D to the Court.  Paragraph 19 of Appendix D reads:-

"19.   Is another party required to be added to the case?  If so, give particulars of the party intended to be added"

71.  On both occasions, the applicant's solicitors answered "No".

72.  There are some factors which are in the applicant's favour in exercising the court's discretion to allow the proposed amendment, inter alia:-

(a)   the applicant was wrongly informed by the 1^st respondent in his Answer that the latter worked for Jiaduobao Group, with Green Elegant's documents described as Jiaduobao Group's documents;

(b)   the period of delay was about four and a half months; and

(c)   there is no evidence that the delay had prejudiced Green Elegant. However, Green Elegant is not given a chance to oppose the present Summons by showing prejudice.

(d)   it is true that some employees might not know the exact identity of his employers, particularly when the alleged employer was one of a company within its own group of related companies.

73.  However, there are some factors against the exercise of the Court discretion, inter alia:-

(a)   no steps had been taken to ascertain the role of Green Elegant before 13 July 2013;

(b)   no steps had been taken to ascertain the role of Green Elegant after 13 July 2013;

(c)   despite time for giving notice to employers had expired on 14 July 2013, the applicant had not applied to join Green Elegant as a party until the present Summons was taken out on 2 December 2013; and

(d)   no proper explanation was given in relation to the reasons for delay.

(e)   the applicant's solicitors had on 9 September 2013 and 31 October 2013 confirmed to the court that no other party was required to be added as a party to the present case.  Theses confirmations, though not being an estoppel as between the applicant the Green Elegant, were consistent with the applicant's inexplicable delay and lack of reasonable excuse.

74.  The applicant sought to rely on Chiu Kwok Hung Ban case (above). Chiu Kwok Hung case (above) was distinguished from the present case at least on three grounds.  Firstly, the solicitors for the applicant were prompted to enquire how the 1^st respondent, intended 2^nd respondent and intended 4^th respondent were related even before the 24 months limitation period had expired.  At the end, the Court held that the applicant's solicitors had been diligent in ascertaining the true position.  Secondly, the intended 2^nd respondent had actually misled the applicant by saying that the 1^st respondent was the applicant's employer.  The intended 2^nd respondent should not be benefited from his own wrong.  Thirdly, the Judge concluded that the intended 3^rd and 4^th respondents suffered no real prejudice.

75.  The facts of this case is that the applicant took no steps to ascertain the role of Green Elegant even though the applicant was informed by the 2^nd respondent in its Answer on about 14 May 2013 that Green Elegant was the employer of the 1^st respondent.  Hence, the facts of the present case are distinguishable from the facts in Chiu Kwok Hung Ban case (above).

76.  Thus, for the purpose of the present application, the applicant has not shown any reasonable excuse so that the discretion under s 14(4) ECO should be exercised.

(G) Residual discretion

77.  The ultimate test is justice and merits.  If the applicant has a case which is so strong that justice requires Green Elegant be joined as a party despite the limitation period had expired, the Court may exercise its discretion to join Green Elegant to the present proceedings.

78.  At this stage, I do not find the applicant's case is one of this kind of cases.  The applicant's case very much depends on his own evidence and his credibility.  Whether the applicant was actually involved in the alleged Accident on the 14 July 2011; whether he was an employee of the 1^st respondent and/or 2^nd respondent and/or even Green Elegant; and etc, are all disputed issues to be decided by the trial judge. At the present stage, the applicant's case against Green Elegant cannot be described as so overwhelming that justice requires Green Elegant be joined as a party to the present proceedings, despite all the problems of the present Summons.

79.  The admission made by the 2^nd respondent was only to the extent that 1^st respondent was employed by Green Elegant.  For the purpose of the present application only, whether from the document disclosed so far or from the witness statements filed, I am not persuaded that the merits of the applicant's case against Green Elegant have outweighed all of the problems of the present application for amendment, so that the Court should exercise its discretion and grant leave for the amendment of the Application. 

(H) Conclusion

80.  Having considered all of the relevant matters, the applicant's application for leave to amend the Application as per the proposed Amendment is refused.  The Summons is dismissed.

81.  There be a costs order nisi that costs of and occasioned by the Summons including costs of the hearing on 14 March 2014, be paid by the applicant to the 1^st respondent and the 2^nd respondent in any event, to be taxed if not agreed.  This costs order nisi shall become absolute after 14 days.

82.  The applicant's own costs be taxed in accordance with Legal Aid Regulations.