EVANGELINE J. DELA CRUZ v. STEVEN JOHN DELICH

DCEC 1689/2017
[2018] HKDC 15

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

EMPLOYEES’ COMPENSATION CASE NO 1689 OF 2017

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O R D E R

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A.　INTRODUCTION

1.  The applicant, a Filipina, was employed by the respondent as a domestic helper. In her home-made employees’ compensation application (“Application”) in the prescribed “Form 1” filed on 25 July 2017, the applicant brought these proceedings against the respondent for employees’ compensation in respect of an alleged accident arising out of and in the course of her employment on 2 May 2017. Her application for legal aid was refused. Throughout the proceedings, the applicant acted in person. The respondent was represented by Messers Winnie Leung & Co (“Solicitors”).

2.  The applicant appeared in person in the first directions hearing on 31 August 2017.  Directions for the serving of an answer and a list of earnings, among other things, were given.

3.  Before the adjourned directions hearing fixed to be heard on 8 December 2017, the Solicitors by their letter of 5 December 2017 informed this court of two new developments. First, the Labour Department had written to the respondent on 4 December 2017 stating that the applicant had withdrawn her claim for employees’ compensation.  Second, the Solicitors received information that the applicant would be leaving Hong Kong, and would not attend the hearing on 8 December 2017.

4.  At the hearing on 8 December 2017, the applicant was indeed absent.  I did not accede to the respondent’s request at the hearing to strike out the Application on the strength of the above information, but instead adjourned the proceedings to the following year to allow the respondent to furnish this court with more supporting documents to confirm that the applicant has indeed abandoned these proceedings.

5.  After the hearing on 8 December, the Solicitors by their letter of 14 December 2017 enclosed a copy of a document (“Notice”) under the heading “Withdrawal of Employees’ Compensation Claim” addressed to the Employees’ Compensation Division of the Labour Department.

6.  The Notice is in a pro-forma form. For easy understanding, I will set out the body of the Notice as follows:

“I Evangeline J. Dela Cruz (which is the name of the applicant) was injured in an accident arising out of and in the course of employment on 2/5/2017. I now decide not to further pursue my employees’ compensation claim and request the Labour Department to close my case.

I understand that according to section 14(1) of the Employees’ Compensation Ordinance, if I still wish to pursue the claim for employees’ compensation, I should make an application to the District Court within 24 months from the date of the accident causing the injury.”

7.  Appearing at the end of the Notice is a purported signature of the applicant and the date was stated to be 4 December 2017.

8.  Relying on the Notice and the information contained in the earlier letter of 5 December 2017 (at para 3 above), the Solicitors, by letter dated 14 December 2017, seek an order to have “the [a]pplicant’s claim provisionally struck out or a disposal of the case by the Court as the learned Judge deems fit”.

B.　DISCUSSION

B.1　O.21 and O.25 are inapplicable

9.  Apart from relying on the information and documents provided by the Labour Department that the applicant has given written notice to the latter to withdraw her claim in relation to the subject accident, the Solicitors are not able to refer this court to any authorities or procedural rules in support of their application for a provisional striking out order.

10.  Although I agree with the Solicitors that the applicant, as evidenced by the copy of the Notice she submitted to the Labour Department, clearly no longer wishes to further pursue her employees’ compensation claim, as the applicant has not filed a similar notice of withdrawal in these proceedings, it is not open to this court to order the discontinuance or striking out of the Application under O.21 of the Rules of the District Court.

11.  Neither can this court order a provisional striking out of the Application as sought by the Solicitors notwithstanding that in an employees’ compensation proceeding, a court is empowered by O.25 r.4 (and mandated by Practice Direction 18.2, para 130 for the application of O.25 rrs 3(2), (3) and (4)) to provisionally strike out an employees’ compensation application when an applicant fails to appear at a case management conference or pre-trial review.  As the directions hearing on 8 December 2017 at which the applicant was absent, was not a case management conference or pre-trial review, the respondent cannot rely on the case management powers under O.25 r.4 to have the Application provisionally struck out.

B.2　Having regard to the underlying objectives

12.  The absence of a notice of withdrawal of the Application in these proceedings should not however be an obstacle precluding this court from carrying out its duty to actively manage a case to further the underlying objectives under O.1A.  The materials that are now placed before me, in my view, overwhelmingly show that the applicant has evinced a clear intention to abandon this employees’ compensation claim.

13.  In my judgment, I find beyond peradventure that the applicant, as evidenced by the Notice as well as the applicant’s absence from the hearing on 8 December 2017 without any explanation, has failed and will continue fail to prosecute the proceedings.

14.  Under such circumstances, I regard it expedient, having regard to the underlying objectives of the Rules of the District Court of increasing “the cost-effectiveness” of practice and procedure, of promotion of “procedural economy “ and of ensuring “fairness between the parties” and that “a case is dealt with as expeditiously as is reasonably practicable”, to give effect of the court’s active case management powers by ordering the striking out of the Application on the ground that the applicant has failed to prosecute the proceedings.

15.  Since the order is made on the court’s own motion without giving the parties an opportunity to make representations, I will make the following Order:

(1) There be an order nisi that the Application be struck out;

(2) There be an order nisi that there be no order as to costs;

(3) The above orders nisi will become absolute within 28 days after the service of a sealed copy of this order on the applicant unless a party has applied to the court to vary them;

(4) Upon the above orders nisi becoming absolute, the hearing fixed on 8 June 2018 be vacated; and

(5) This order shall be drawn up and served on the applicant by the Solicitors.