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DCCJ1309/2011
IN THE DISTRICT COURT OF THE
HONG KONG SPECIAL ADMINISTRATIVE REGION
CIVIL ACTION NO. 1309 OF 2011
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| BETWEEN |
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Richard Ethan Latker |
Plaintiff |
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and |
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Chamkaur Singh
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Defendant |
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| Before: Deputy District Judge K. Lo in Chambers |
| Date of Hearing: 11 November 2011 |
| Date of Ruling: 11 November 2011 |
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R U L I N G
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Application
1. This is an application taken out by the Defendant seeking that the Statement of Claim herein be struck out under Order 18 rule 19 of the Rules of the District Court and/or under the inherent jurisdiction of the Court and this action be dismissed on the grounds that:
(a) it discloses no reasonable cause of action against the Defendant; and/or
(b) it is scandalous, frivolous and vexatious; and/or
(c) it may prejudice, embarrass or delay the fair trial of the action, and or
(d) it is an abuse of process of the Court.
2. The Defendant is also asking that the Plaintiff shall pay costs of the action, taxed if not agreed.
Discussion
3. The Plaintiff’s claim against the Defendant relates to the Defendant’s successful claim against the Plaintiff under DCEC796/2007. The Plaintiff here, being the Defendant in the other action, was sued as an employer by the Defendant here as an employee, for compensation under the Employees’ Compensation Ordinance in relation to injuries the Defendant here suffered as a result of an accident which he says has arisen out of and in the course of employment with the Plaintiff.
4. The Plaintiff here denied that the accident did arise out of and in the course of employment, but he was not successful and his case was not accepted by the Court who ruled in favour of the Defendant. The Defendant here says that he was injured while at work by falling bricks, while the Plaintiff here says the Defendant was injured while he was having an unauthorised joyride in a scooter.
5. The Plaintiff being dissatisfied with the judgment in DCEC 796/2007 appealed to the Court of Appeal (CACV 270/2009) which has resulted in the hearing on 10 November 2010. The appeal was dismissed. Leave was not granted for the Plaintiff here to adduce additional evidence in the appeal hearing.
6. Quoting from the judgment of the Court of Appeal in CACV270/2009, paragraph 2 of the same reads:-
“The applicant claimed that, on 15 June 2006, in the course of such work, he was injured when a column of 4 or 5 bricks fell on his left foot. It was the respondent’s (employer) case that the applicant was injured whilst joy riding on the employer’s vespa scooter.”
7. In paragraph 11 of the same judgment, it says:-
“The learned judge, after careful consideration of the evidence of the witnesses, had preferred the evidence of the applicant to the evidence given on the respondent’s behalf.”
8. It is set out in Paragraph 13 and 14 that :-
“On the other hand, the learned judge found evidence given by the applicant credible and supported by what he (through his wife) had told the hospital.
Essentially the trial turned on the credibility of the applicant and the respondent and his witnesses. This is precisely the sort of case where a trial judge has an immense advantage over an appellate court.”
9. Coming to paragraph 19 of the judgment, it says:-
“This is an appeal against a finding of fact and we cannot interfere unless we are satisfied that the trial judge was plainly wrong. Ting Kwok Keung v Tam Dick Yuen and Ors (2002) 5 HKCFAR 336. With respect, the decision which the learned judge had come to was fairly open to him.”
10. Paragraph 33 also reads:-
“For the above reasons, we have dismissed the appeal as well as the application to adduce further evidence with costs. The applicant’s costs are to be taxed in accordance with Legal Aid Regulations.”
11. The Plaintiff here further sought leave to appeal to the Court of Final Appeal but again was unsuccessful and an order dated 28 March 2011 from the Acting Registrar of the Court of Final Appeal reads:
“By the order 27 May 2011 from the Acting Registrar it is ordered by the Appeal Committee that the applicant’s application for leave to appeal be dismissed under Rule 7(2) of the Rules on the ground that it discloses no reasonable grounds for leave to appeal.”
12. During the trial of the DCEC 796/2007, the Plaintiff did challenge the evidence of the Defendant, as well as that of his witnesses.
13. Coming to the Statement of Claim in the present action, the same reads:-
“1. On 16 June 2006, the defendant rode a motor-scooter owned by me without authorisation, and
2. The defendant lost control of the motorscooter, sustaining minor injuries to his foot in the presence of at least three witnesses, and
3. The defendant knowingly intentionally exaggerated the nature and extent of his injury, and
4. The defendant knowingly and intentionally filed a false claim of industrial accident with the Labour Department, and
5. The defendant knowingly and intentionally misrepresented the cause of his injuries to the Hong Kong public hospital and the Labour Department, and
6. The defendant knowingly and intentionally conspired with Shah Rozan Ali to solicit false testimony from witnesses, and
7.The defendant knowingly and intentionally perjured himself in DCEC796/2007, and
8. With the assistance of counsel, the defendant suborned perjury from his wife in DCEC796/2007, and
9. With the assistance of counsel, the defendant knowingly and intentionally withheld critical evidence from the defence and the Court, and
10.The defendant, by virtue of the above crimes, did fraudulently obtain a favourable verdict in DCEC796/2007.”
14. It is clear, therefore, that the case now raised by the Plaintiff in the present action as evinced in the Statement of Claim goes to dispute the same basic facts found by the Court in DCEC 796/2007. These issues, surrounding circumstances under which the accident took place, were already before the Court and had been canvassed fully in the trial in the EC case. In fact, the same issues were also before the Court of Appeal.
15. It is to be noted that the Plaintiff, now acting in person was legally represented at the trial of the DCEC as well as on Appeal.
16. Order 18/19/11, Hong Kong Civil Procedure 2011 sets out that:-
“It may be an abuse of procedure to litigate matters which have, or could have, been decided in earlier proceedings. The basic rule is that, where a matter becomes the subject of adjudication, the court requires the parties to put forward their whole case and will not (except under special circumstances) permit them later to reopen matters which might have been brought forward as part of already concluded litigation (see Henderson v. Henderson (1843) 3 Hare 100, 115 (Wigram V.-C.); Yat Tung Co. v. Dao Heng Bank [1975] A.C. 581, at 590B-D (Lord Kilbrandon)).”
17. The same principle was also applied in the case of Barrow v Bankside Members Agency Ltd[1996] 1 WLR 257 as well as China North Industries Investment Ltd v. Ronald Chum and Ors CACV321/2006.
18. This applies equally to matters which were resolved or dismissed in overseas proceedings but which the same party attempts to raise afresh in a Hong Kong action (Wee Soon Kim Anthony v UBS AG Hong Kong Branch[2006] 2 HKC 1).
“res judicatafor this purpose is not confined to the issues which the court is actually asked to decide, but … it covers issues or facts which are so clearly part of the subject matter of the litigation and so clearly could have been raised that it would be an abuse of the process of the court to allow a new proceeding to be started in respect of them (see Greenhalgh v. Mallard [1947] 2 All E.R. 255, at 257 (Somervell L.J.)).
The rule aims to achieve finality in litigation so that a party shall not be twice vexed in the same matter (see Johnson v. Gore Wood & Co. (No. 1) [2002] 2 A.C. 1, at 31A-B); and Brooklyn v. Palmer [1984] 3 All ER 558 J.”
19. In my view, to allow the Plaintiff here to further his claim under the present action would clearly be an abuse of process of the Court.
20. The DCEC case has been determined, appealed upon and no Court will assist in disturbing the judgment in that case via a backdoor.
21. In addition, there is the pending DCPI case where the Defendant as the Plaintiff is claiming the Plaintiff for common law damages in relation to the same accident. It is a venue open to the Plaintiff to seek to adduce evidence which that he said he had previously failed to adduce in the DCEC case.
22. I see no reason at all why he now would like to start a third action in relation to the same accident and in the circumstances, I do not think I need to deal further with the other grounds of the application.
Conclusion
23. Accordingly, I order that the Statement of Claim be struck out and further that the present action be dismissed.
Costs
24. Now coming to the question of costs. As costs normally follow the event, I intend to make an order of costs in accordance with the result of the application.
(Discussion re costs)
25. In the circumstances of this case, I do not find it appropriate, just because that the Defendant or the Plaintiff is acting in person, to depart from the normal rule that costs should follow the event. Accordingly I rule that the Plaintiff shall pay the Defendant costs of the action, including, inter alia, all costs reserved and the cost of the present application.
(Discussion re costs and remainder of proceedings)
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(K. Lo)
Deputy District Judge |
Plaintiff: in person, present
Mr Dheeraj S. Mohnani, of Messrs. Jal. N. Karbhari & Co., for the Defendant