JETOUR HOLIDAY LTD v. LEE SHEK YU

Procedure - appeals from Small Claims Tribunal - service of notice of appeal on unrepresented respondents or other parties - express statutory provision for service of notice of hearing of claims to be effected by registered post - whether existing practice also to serve notices of hearing of appeals by registered post conforms with provisions of Small Claims Tribunal Ordinance and the rules made thereunder - Held:

1.    Under Section 14 of Small Claims Tribunal Ordinance Registrar may effect service of hearing of original claim by registered post; 2. Rule 9 of Small Claims Tribunal (General Rules dealing with appeals does not expressly prescribe method of service of notices of hearing for appeals; 3. The residual service provisions of Rules 5 and 6 therefore apply; 4. Rule 5 requires personal service of notices of hearing for appeals or if it cannot be effected substituted service may be ordered by the Registrar under Rule 6; 5. In the absence of an order for substituted service purported service of notice of hearing of appeal by registered post is not merely a procedural irregularity but a nullity; 6. In those circumstances the Court itself exceptionally has the inherent power to set aside any prior order upholding an appeal and to direct the Registrar to effect service of the notice of hearing in accordance with the Rules so that the appeal can proceed to a proper hearing.

IN THE SUPREME COURT OF HONG KONG

HIGH COURT

Small Claims Tribunal Appeal No. 8 of 1988

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JUDGMENT

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1. I heard this appeal on 25th May 1988 when the respondent did not appear. I had before me a copy of the Notice of Hearing addressed to the respondent at his last known residential address, namely 9 Sheung Wo Hang, Sha Tau Kok, New Territories. The Notice was signed on behalf of the Registrar of the Supreme Court and endorsed with an entry in these terms:

        "This notice of Hearing sent to the Respondent by Registered Post. "

2. The Respondent did not appear at the hearing of the appeal. Counsel for the appellant informed the Court, from the Bar, that it was believed that the Respondent was no longer in Hong Kong. I also record that the Notice sent by the Registrar by registered post, had been returned with the remark "Moved, address unknown. "

3. The hearing of the appeal proceeded in the respondent's absence. At the end of the hearing the Court upheld the appeal; remitted the proceedings back to the Small Claims Tribunal; granted the appellant costs; and indicated that reasons for judgment would be handed down subsequently.

4. In the course of preparing reasons for judgment, which would otherwise have been handed down today, the Court became further concerned whether proper service had been effected on the respondent. Section 14 of the Small Claims Tribunal Ordinance, Cap. 338 provides that service of a claim and notice of hearing may be effected by posting them by registered post addressed to the party to be served, at his last known place of residence. I accept that the address to which notice of appeal was sent, was to the respondent's last known place of residence.

5. However, the notice of hearing was in respect of the appeal and not of the claim. I am informed that in the case of appeals, the practice of the Registrar, following the Tribunal's own procedure, is also to send notice of hearing, to unrepresented respondents, by registered post.

6. With respect that practice appears to be wrong. Rule 9(1)(c) of the Small Claims Tribunal (General) Rules provides that where leave to appeal is granted, the Registrar of the Supreme Court shall send notices in the prescribed form of the date and place of hearing, to be served on the parties to the claim who are interested in the appeal. It may be unfortunate that Rule 9 does not expressly specify the manner of service and this may be why the Registrar has hitherto adopted for appeals, the same manner of service by registered post, which is expressly allowed in the case of the original claim.

7. However, Rule 5, in my opinion, makes it quite clear that service requirements for notices of hearing of appeals, are quite different to those which apply for service of notices of hearing for claims. Rule 5 is the residual service provision, which applies when other methods of service are not specified. Rule 5 is in these terms:

8. Rule 5 clearly contemplates personal service by a process server. If the person to be served is not at the place of service, then the documents to be served must be left with some person at that address. Even if a postman could be held to be a person appointed by the Registrar under Rule 5, the documents were not left with a person at the respondent's last known place of residence but instead returned to the Registrar. This is one of the incidental disadvantages of registered post compared with ordinary post.

9. If service cannot be effected under Rule 5, substituted service may be ordered under Rule 6. It may be noted that any order for substituted service is made not by the Court but by the Registrar. If the Registrar makes an order under Rule 6 it is, of course, open to him to order substituted service by registered or ordinary post, or by any other method.

10. There is no suggestion in the present proceedings that the Registrar has made any order for substituted service under Rule 6 which would authorise in this particular case, the practice the Registrar followed, of purporting to effect service by registered post. I hold, as a matter of law, that it was necessary for service of the respondent to be effected under Rule 5 or Rule 6. Service was not effected under Rule 5 nor was any order made by the Registrar under Rule 6.

11. Where a notice of hearing required to be served in a particular manner has not been so served, such failure is not merely a procedural irregularity but renders null and void any order made against the party who should have been served. One consequence of the distinction between a mere procedural irregularity and a failure which renders proceedings null and void, is the significant jurisdictional position which exceptionally arises in relation to the rectification of the latter category of failure. In such cases, as the English Court of Appeal declared in Craig v. Kanssen (1943) 1 KB 256, this Court, in its inherent jurisdiction, can itself set aside its own prior order.

12. I hold that the orders made by this Court on 25th May 1988 upholding the appeal; remitting the proceedings back to the Tribunal; and as to costs; were null and void. In the exercise of this Court's inherent jurisdiction those orders are hereby set aside. The appeal from the Small Claims Tribunal will now proceed on a new date to be fixed.

13. I direct the Registrar to effect service of the new date of hearing on the respondent strictly in accordance with Rule 5 of the Small Claims (General) Rules or, if service cannot be effected thereunder, then under Rule 6. I am sure that in relation to other appeals from the Small Claims Tribunal, the Registrar will forthwith discontinue past practice and ensure that service in future is effected pursuant to Rule 5 or, if necessary, under Rule 6. I further order that the $7,000 already paid into the Small Claims Tribunal by the appellant, shall remain there until the appeal is finally disposed of or until further order.