TSANG KAR LEE v. RICH LONG TRANSPORTATION LTD AND ANOTHER

CACV 73/2003

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO. 73 OF 2003

(ON APPEAL FROM DCEC NO. 15 OF 1995)

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REASONS FOR JUDGMENT

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Hon Rogers VP:

1. I agree with the judgment of Le Pichon JA.

Hon Le Pichon JA:

2. This was an appeal from an order of Master Yuen made on a summons to show cause by the applicant's solicitor ("the appellant") against the order nisi dated 16 August 2001 made by Master Yuen that he personally pay the costs of $2,400 of the law costs draftsman appointed by Messrs Wong, Poon, Chan, Law & Co. ("the 1st assigned solicitors") representing the time spent by the law costs draftsman at the taxation hearing responding to the appellant's objections. The appeal was dismissed for want of jurisdiction of this court to hear the appeal for reasons to be reduced into writing later. This we now do.

Background

3. In March 1995, the 1st assigned solicitors were assigned by the Director of Legal Aid ("the Director") to represent the applicant in an employee's compensation claim. The 1st assigned solicitors had previously represented the applicant on a private basis. It later transpired that a trainee solicitor of the 1st assigned solicitors who was related to the applicant might have to give evidence in the proceedings and to avoid a potential conflict of interest, the case was reassigned to the appellant's firm on 2 December 1997.

4. The applicant's claim was rejected in the court below but was successful in this court and she was awarded party and party costs. The applicant's own costs were ordered to be taxed in accordance with Legal Aid Regulations. There were thus two bills to be taxed, one for the District Court proceedings ("the DCEC bill") and the other for the appeal ("the CACV bill"). On 24 April 2001, at the taxation callover of the DCEC bill, Master Chow granted leave to transfer the DCEC bill to the High Court be heard by Master Lung on 15 May 2001 at the callover hearing of the CACV bill. At the callover hearing before Master Lung, it was ordered that the taxation of the DCEC bill be heard at the same time as the taxation of the CACV bill.

5. The substantive hearing on costs on both bills came before Master Yuen on 16 August 2001. Agreement was reached by the parties concerned on party and party costs. Agreement was also reached between the Director and the law costs draftsman ("Mr Ho") for the 1st assigned solicitors in respect of the common fund costs claimed by the 1st assigned solicitors. When the Director's representative and Mr Ho sought Master Yuen's taxation of those common fund costs in the agreed sum of $7,331, the appellant objected to the proposed taxation of the common fund costs. After hearing submissions on this question, Master Yuen ruled that the appellant had no locus standi to object to the common fund costs taxation and made an order nisi that the costs of 1 1/2 hours at $1,600 per hour representing Mr Ho's time spent in court in arguing against the appellant's submissions on locus standi be borne by the appellant personally and that the order nisi become absolute unless application was made by the appellant within 5 days to show cause. On the same day but after the hearing before Master Yuen, the appellant attended the applicant who consented to the common fund costs taxation.

6. Some two months later, on 22 October 2001, the appellant took out a summons to show cause. This was served not only on the Director and the 1st assigned solicitors but also the applicant and Mr Ho's firm, Messrs Henry Ho & Co. The hearing of that summons took place on 9 November 2001 and 21 May 2002. It was attended by the appellant, the 1st assigned solicitors, Henry Ho & Co. and the Director. In her decision handed down on 27 February 2003, the master reaffirmed her previous order. She also made an order nisi for the costs of the summons to show cause to follow the event. This appeal was from the order made by Master Yuen on 27 February 2003.

Jurisdiction

7. The first question for consideration is whether this court has jurisdiction to entertain the appeal. Mr Bharwaney who appeared for the appellant submitted that the appeal was within section 23 of the Employees' Compensation Ordinance, Cap. 282 ("the ECO") which provides for appeals to the Court of Appeal from any order of the "Court". "Court" for the purposes of section 23 is defined in section 2 of the ECO as meaning:

"(a)	In relation to any proceedings for the recovery of compensation in or required to be in the District Court, the District Court; ..."

Leave is not required where the amount in dispute is not less than $1,000.

8. Mr Bharwaney relied on section 18A(1) which provides as follows:

" (1) Except where otherwise provided under this Ordinance, all claims for compensation, ... and any matter arising out of proceedings in respect of such claims shall be determined by the District Court, whatever may be the amount involved ..." (emphasis added)

It was said that section 18A gave the District Court exclusive jurisdiction in relation to the matters therein stated and that the order made by Master Yuen under appeal was within the terms of section 18A as the taxation of costs was "a matter arising out of proceedings" to determine a compensation claim. Pausing there, I would observe that an award of costs in compensation proceedings and the taxation thereof would appear to be separate and distinct matters. Be that as it may, it was submitted that, given that exclusive jurisdiction, Master Yuen's order was made in exercise of the jurisdiction of a master of the District Court although it was heard in the High Court. It was said that that was authorised by section 14(4) of the District Court Ordinance. Whilst it was accepted that in making the order Master Yuen was exercising her discretion under Ord. 62, r. 8(6) of the Rules of the District Court, it was submitted that she did so by virtue of section 21(1) of the ECO which empowered the District Court when dealing with employee compensation cases to exercise all the powers and jurisdictions exercisable by the District Court in connection with civil actions with the result that the order under appeal was an "order of the Court" within section 23(1) of the ECO.

9. Section 21 merits closer consideration. It deals specifically with the jurisdiction of the Court and, as such, may shed light on the ambit of the exclusive jurisdiction contemplated by section 18A:

" (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."

In my judgment, the provisions of section 21(1) do have a bearing on the scope of the exclusive jurisdiction of the District Court under section 18A. When read together, it is quite clear that there is no monetary limit on the jurisdiction of the District Court when entertaining employee compensation claims. The District Court is vested with exclusive jurisdiction as regards such claims "and any matters arising out of proceedings in respect of such claims". But the law, rules and practice of the District Court are to apply to the enforcement of judgments and orders of a compensation claim. That provision must, it seems to me, affect the ambit of the words "and any matter arising out of proceedings in respect of such claims" in section 18A. The exclusive jurisdiction of the District Court in employee compensation claims would not extend to matters such as taxation since that pertains to the "enforcement of judgments and orders". The jurisdiction exercised in that regard would be that of the District Court and not the exclusive jurisdiction conferred on it by the ECO. For these reasons, I am unable to agree with Mr Bharwaney that taxation proceedings come within section 18A. It follows that section 23 of the ECO has no application to the present appeal.

10. When Master Chow made his order in April 2001, he was plainly exercising the jurisdiction of a master of the District Court. The transfer of the taxation of the DCEC bill to the High Court was plainly within his powers: see section 42 of the District Court Ordinance, Cap. 336. The subsequent hearings by a High Court master were therefore in exercise of their powers under the Rules of the High Court. The order that the appellant should personally pay the costs of objecting to an arrangement for common fund costs between the Director and the 1st assigned solicitors was well within the master's powers contained in Ord. 62 r. 8 of the Rules of the High Court. Any appeal would lie to a judge in chambers and not to this court: see Ord. 58 r. 1(1) of the Rules of the High Court. It would follow that this court has no jurisdiction to entertain the appeal.

11. I would add that it is perhaps understandable that the appellant felt aggrieved by the personal costs order made against him when his intervention on behalf of the applicant had been well-intentioned. It was most unfortunate that notwithstanding the small amount of costs to be paid personally the appellant considered that there was a principle involved. This led him to embark on a course of action, seemingly, without reflecting on the costs that might be involved in the exercise. Once unleashed, the course of action gained a momentum of its own and became unstoppable. The costs that now have to be borne as a result cannot but be out of all proportion to what had been at stake.