RAI KAMALJANG v. SAFEWORKS CONSTRUCTION LTD AND OTHERS

DCEC 954/2023

[2024] HKDC 662

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

EMPLOYEES’ COMPENSATION CASE NO 954 OF 2023

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DECISION

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1.  On 27 April 2023, the applicant, acting in person, commenced these employees’ compensation proceedings in relation to an alleged accident that took place on 24 June 2015 against the 1^st and 2^nd respondents. Later, the insurance company was added as the 3^rd respondent.

2.  The first directions hearing took place on 27 October 2023.  In that hearing, the 1^st respondent was absent, and the 2^nd and 3^rd respondents were represented by their solicitor. Since the applicant was acting in person, this court personally explained to him that his Employees’ Compensation Application was commenced out of time.  This court further explained to the applicant that in order to allow him to continue proceeding with his compensation claim, he would be required to issue a summons to apply for this court’s leave to commence these proceedings out of time.

3.  I explained to the applicant the procedure that was required for an out of time application.  Apart from issuing the summons, he would also be required to support the summons with an affirmation explaining and giving as many details as possible, such as the reason for his delay and the case merits.  I explained to him the law and what he would be required to do.

4.  After I had ascertained from the applicant that he fully understood what documents he would be required to file, the court then discussed with him the time he would need to file the summons and the supporting affirmation.

5.  In view of the long delay of about 5 to 6 years in this Application, the legally represented 2^nd and 3^rd respondents would only agree to give the applicant 14 days to file the summons.  Having ascertained from the applicant that if the court were to give him additional two weeks, he would have sufficient time to file the summons and the supporting affirmation, this court exercised its discretion to allow the applicant 28 days to file the required documents.

6.  In view of the fact that this employees’ compensation case had such a long period of delay, it would have been necessary to ensure that the applicant would not cause any further delay in relation to his intended application for leave to commence the proceedings out of time.  Therefore, this court, by paragraph 3 of the order dated 27 October 2023, stipulated that in the event that the applicant failed to file the summons by 24 November 2023, these employees’ compensation proceedings would stand dismissed.

7.  Due to the gravity of the consequence in the event of non-compliance, I myself have repeatedly explained to the applicant that it was essential and of paramount importance that he must comply with the deadline date, otherwise he would face the very grave consequence as stated above.  The applicant at that hearing confirmed with me that he understood what kind of consequence he would face should he fail to issue the summons by 24 November 2023.

8.  Unfortunately, despite the very careful and detailed explanation given to the applicant; stressing the importance of complying with the deadline date, he had defaulted in complying with the deadline date of 24 November 2023 in filing any form of application.

9.  Effectively by paragraph 3 of the order dated 27 October 2023, it is not required for the court to make a separate order for dismissal because the sanction would automatically take effect, which means after 24 November 2023 this action would have been dismissed.

10.  For clarity, the solicitors for the 2^nd and the 3^rd respondents wrote to this court on 27 November 2023, informing the court that the applicant had failed to comply with the deadline date of 24 November 2023 in filing the summons, and asked the court to make an order of dismissal.  However, this court only proceeded to make an order of dismissal on 8 December 2023, 14 days after the deadline date of 24 November 2023.

11.  According to Order 2, rule 4 of the Rules of the District Court, any application for relief from sanction after the sanction takes effect has to be made within 14 days of the failure. In fact, by the time the court made the order of dismissal on 8 December 2023, no application for relief from sanction was issued by the applicant.

12.  Therefore, the dismissal order was only made after the expiry of the 14-day deadline. Subsequently, on 2 January 2024, the order was sealed.

13.  The applicant did not apply to this court for relief from sanction until more than 2 months after the deadline date. He only issued a summons on 19 February this year to apply for relief from sanction for not complying with paragraph 3 of the order dated 27 October 2023.  In the supporting affirmation for his summons, he gave no explanation for his failure to comply with the deadline date of 24 November 2023 nor did he state why he waited for so long to come to this court to apply for relief from sanction.

14.  By the sealing of the dismissal order, this court has become functus, which means its duty has been discharged.  Putting aside this issue of “functus”, on merits, I am unable to see the applicant is able to provide any good reasons or grounds to support his application for relief from sanction.

15.  In the circumstances, this court dismisses the applicant’s summons for relief from sanction.

16.  Since costs follow the event, I do not see any special reason why I should not order costs against the applicant. Therefore, I order the applicant to pay to the 2^nd and 3^rd respondents the costs of the summons, to be taxed if not agreed.

17.  This order is to be drawn up by the solicitors for the 2^nd and 3^rd respondents and served on the applicant by ordinary post.