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CACV000012/1990
| IN THE COURT OF APPEAL |
1990, No. 12
(Civil) |
BETWEEN
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CHERYL CHAN formerly known as CHAN NGAI then DEANNA CHAN |
Plaintiff |
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AND
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NGAI PO LUN PAUL |
Defendant |
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Coram: Sir Derek Cons, V.P., Hunter, J.A. & Barnes, J.
Date of hearing: 14 March 1990
Date of delivery of reasons for judgment: 27 March 1990
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REASONS FOR JUDGMENT
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Sir Derek Cons, V.-P. delivered the judgment of the Court:
1. On 14th March we had before us two applications - one for "an order that the time for compliance with Order 59 rule 5(1) of the Rules of the Supreme Court be extended"; the other for an order that an "undated notice of appeal ... be discharged and the said appeal dismissed" on the ground that the Appellant had "failed to comply with Order 59 rule 5 of the Rules of the Supreme Court" and that the Appellant's solicitors had "acted in breach of their undertaking to the Court to proceed with the said appeal without delay". After hearing argument we made an order extending time, if that were necessary, to four days thereafter, upon an undertaking by the solicitors for the Appellant to file within the same period a duly completed Form 1 in accordance with the Practice Direction of the10th January 1986 . We refused to strike out the notice of appeal. We said we would give our reasons later, which we now do.
2. The applications derive from divorce proceedings some 7 years ago in which there was a consent order for the maintenance of the wife and children of the marriage. In June 1988 the wife issued a summons to vary, which still remains to be dealt with. It is said, on her behalf, that the husband has been reluctant to disclose his assets. Be that as it may, on the 24th July last year Judge Chism made an order, inter alia, that the husband should
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"supply such audited accounts of (a limited company in which the husband is a shareholder) as to which any shareholder is entitled, such accounts to include Profit and Loss and Income and Expenditure Accounts of the said company for the last five years" |
It is common ground that the order has not been complied with, although the reasons suggested for the failure are not. the same.
3. On the 8th January this year Judge Chism made a further orders:
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1. |
Respondent do make the Petitioner (her Solicitors and Accountants) his attorney for the purposes of obtaining such audited accounts of (the same company) as to which any shareholder is entitled, such accounts to include Profit and Loss and Income and Expenditure Accounts of the said Company for the last five years;
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All costs of and incidental to this application and the proper costs incurred in taking action in the name of Respondent to be paid by the Respondent and to be taxed under Legal Aid Regulations." |
4. The husband was particularly concerned with the second paragraph, for he understood that the company intended not to cooperate and there was the possibility of court proceedings. Accordingly he asked for and obtained leave from the judge to appeal from the decision, the judge staying his order
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"pending the hearing of the appeal with liberty to apply on the undertaking of the Respondent's solicitors to proceed without delay." |
The solicitors did not abide by that undertaking, for reasons which would have provided little answer in contempt proceedings. But different considerations apply to an application to strike out, for that involves the client as well.
5. Notice of appeal was served on the wife on the 20th January, and we assume as well upon the Registrar of the District Court: Order 59 rule 19(1). Those copies would seem to have been undated, although the copy exhibited to the affirmation dated 15th February of the litigation clerk of the husband's solicitors bears a date, the 12th January. In any event the date inscribed upon the notice does not matter. When it is the notice of appeal that governs the next stage of proceedings, as in the present instance, it is the date of service from which time runs.
6. We refer now to an affidavit by the husband's solicitor in which he acknowledges his firm's "failure to set down the appeal within time" and exhibits a letter written on 7th February to the wife's solicitors in which their consent. to a "summons for leave to file notice of setting down out of time" is requested. Consent not being forthcoming, the husband's solicitors, having read Rule 15 and being aware of Section 38(2) of the Supreme Court. Ordinance, applied to a Master to extend the time "for compliance with Order 59 rule 5(1) of the Rules of the Supreme Court". Hearing was eventually set for the 1st March, but meanwhile the wife's solicitors had countered with an application to the judge below to lift the stay granted pending appeal. That application was, on26th February, adjourned sine die, but counsel instructed for the husband took the opportunity to advise that rule 15, on which reliance had been placed, is in reality a trap for the unwary. It reads:
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"15. (1) Without prejudice to the power of the Court of Appeal, a single judge or the Registrar under Order 3, rule 5, to extend or abridge the time prescribed by any provision of his Order, the period for serving notice of appeal under rule 4 or for making application ex parte under rule 14(3) may be extended or abridged by the court below on application made before the expiration of that period." |
7. It would not be unreasonable for the reader to assume, from the express reference to the Court of Appeal a single judge and the Registrar, that the general power to extend the time conferred by Order 3 rule 5 is exercisable by anyone thereof. However that is not so. The power is only extended to "the Court of Appeal and a single judge of that Court". The explanation is probably that in the English rules, from which Rule 15 appears to have been adapted, Order 3 rule 5 also includes the "registrar of civil appeals".
8. Realising their mistake the husband's solicitors withdrew their summons before the Master and issued another in similar terms returnable before a single judge of this Court. But as in the meantime the wife's solicitors had issued their motion to strike out the notice of appeal, it was agreed that both matters should be dealt with together by this Court.
9. On the same day as that happened, i.e. the 14th March, the litigation clerk of the husband's solicitors filed a further affirmation in which he affirmed that:
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1. I did on Monday the 22nd of January 1990 filed 3 copies of Notice of Appeal together with 3 sealed copies Order of His Honour Judge Chism dated the 8th day of January 1990 on the Clerk of Appeal.
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2. At the time I filed the Notice of Appeal, all 3 of them were indorsed with an indorsement of service to the effect that I had served the same on the Petitioner's solicitors, Messrs. Cheung, Tong & Rosa on the 20th day of January 1990 by leaving the same at 8th floor, Caxton House, No.1 Duddell Street, Hong Kong.
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3. At the same time, I also paid $600.00 being the fee required for a Notice of Appeal and the payment was evidenced by a stamp of $600.00 being put onto the original copy of the Notice of Appeal. |
10. No documents are exhibited to the affirmation but it appears to be common ground that it refers to the matters we are concerned with. In other words, unrealised by themselves, the husband's solicitors had in fact complied with rule 5(1) comfortably within the allotted time. Their application, and indeed the order we made, was unnecessary.
11. The husband's application should perhaps have been for an extension to comply with rule 5(4). Whether that was indeed necessary depends upon what is meant by "setting down" the appeal, and it may be convenient at this stage to set out the rule in full:
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5. (1) Within 7 days after the later of (i) the date on which service of the notice of appeal was effected, or (ii) the date on which the judgment or order of the Court below was sealed or otherwise perfected, the appellant must lodge with the Registrar -
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(a) |
a copy of the said judgment or order, and
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(b) |
two copies of the notice of appeal, one of which shall be indorsed with the amount of the fee paid, and the other indorsed with a certificate of the date of service of the notice. |
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(2) Upon the said documents being left, the Registrar shall file one copy of the notice of appeal and cause the appeal to be set down in the list of appeals; and the appeal shall come on to be heard according to its order in that list unless the Court of Appeal or a judge of that Court otherwise orders.
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(4) Within 4 days after an appeal has peen set down, the appellant must give notice to that effect to all parties on whom the notice of appeal was served." |
12. What is meant by "setting down" in the English rule, which is identical to our own, save that it contains a subrule 3, is explained in Note 59/5/1 of the Supreme Court Practice
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Setting down the appeal - This is the process whereby the appeal is entered in the records of the Court of Appeal (N.B. "setting down" an appeal does not mean the same as "setting down an action for trial". Setting down an appeal means instituting the appeal by lodging with the Civil Appeals Office the fee and the documents required by 0.59, r.5; it does not mean that the appeal is ready for hearing). In order to set down an appeal it is necessary to pay the fee (see para. 59/5/4), and to lodge a copy of the order of the court below (see para. 59/5/6) and to lodge two copies of the notice of appeal (ibid). Appeals may be set down by post or by personal attendance in the appropriate office (see para. 59/5/5). The requirements of 0.59, r.5 are satisfied, and an appeal is duly set. down, if the fee is paid and the correct documents are lodged within the prescribed time limit (see next para.); it makes no difference that the appeal is not entered onto the C.A. computer until a later date." |
13. The doubt arises in this jurisdiction because the Court of Appeal here has never maintained a "list of appeals" in the sense in which the phrase is obviously used in subrule (2) and in the opening words of rule 9. All appeals here are given fixed dates. Provision for that is made in a Practice Direction issued by the then Chief Justice on the 10th January, 1986, which requires the submission to the Clerk of the Court of a Form 1, which is headed "Application to fix a date for the hearing of an appeal".
14. Mr. Chain, for the husband, suggests that the local profession tends to equate the allocation of a date by the Clerk of the Court with "setting down the appeal" and to interpret subrule (4) accordingly. This may perhaps stem in part from the Form 1 scheduled to the predecessor of the present Practice Direction, which has the heading "Application to set down an appeal", a form which we note in passing was used by the husband's solicitors when. complying with the undertaking given to this Court.
15. We have made enquiries from the officer in charge of the Supreme Court Registry and understand that when he is presented with the appropriate documents, and payment is made of the appropriate fee, he enters the appeal in the Register of Appeals, by which it is given a number. At the same time he will open for it a court file. If an application is included for a date to be fixed, he will do so straight away. Otherwise he will wait. But if no such application is made within fourteen days he will, as a matter of good administration but not of legal requirement, advise the appellant's solicitor of the omission.
16. In our view it is the entry in the Register which in this jurisdiction must be construed as the step envisaged by the requirement in subrule (2) that the Registrar "cause the appeal to be set down in the list of appeals".
17. It follows from this that the husband's solicitors have failed to comply with subrule (4), but it would seem pointless to extend time to enable them to do so now, since the wife's solicitors are well aware of the position. We need only add that had extension of time for setting down been properly for consideration we would have thought it appropriate to do so. It is well settled that the default of solicitors may be taken into consideration: Chau Butt-york v. Chau Kwok-lin, 1980, H.K.L.R., p. 459. Making allowance for the Chinese New Year holiday the husband was only six days out of time when the approach was made to the wife's solicitors. Had that approach been accepted the appeal would now be well on its way to being heard. It raises a serious question of jurisdiction and may involve a substantial amount of costs.
18. We should also add that there was a suggestion in the course of argument that it might be desirable to amend Order 59 rule 5 to include, as a third item in subrule (1), an application to fix a date. On reflection we do not think this is necessarily so, for there may be occasions when the Appellant, for good reason, is not yet ready to do so. There should be no difficulties as matters now stand, if those responsible keep clearly in mind that service of the notice of appeal, setting down, and fixing a date, are three separate and distinct stages in the procedure and should be accomplished in that order. We do however venture to suggest that the Rules Committee might re-consider generally the wording of the Order which in parts seems more appropriate to the English practice in which, in particular, the Registrar of Civil Appeals, an officer whom we do not have as such in this jurisdiction, plays a significant part.
19. We shall now be pleased to hear counsel as to costs, including the question, as we mentioned before, of whether the husband's solicitors should not bear some personal responsibility.
| (Sir Derek Cons) |
(D.S. Hunter) |
(E.C. Barnes) |
| Vice President |
Justice of Appeal |
Judge of the High Court |
Representation:
Miss H.C. WONG (M/s. Cheung Tong & Rosa) for the Petitioner/Respondent
Benjamin CHAIN (M/s. Alexander Tsang & Co.) for the Respondent/Appellant
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