YAU FOOK HONG CO LTD AND OTHERS v. THE COMMISSIONER OF INLAND REVENUE

1988, M.P. No. 1340

IN THE HIGH COURT OF HONG KONG

HEADNOTE

The plaintiffs instituted an action against the defendant, commenced by originating summons. On the first hearing, directions as to the filing of evidence, etc. were given and the proceedings were adjourned. The plaintiffs failed to comply with these directions and failed to ask for any extension of time in which to do so; but the defendant obtained dates for the substantive hearing of the originating summons, notwithstanding that the case was nowhere near ready for trial. The plaintiffs applied to vacate the dates,

HELD (giving further directions) :

(1)    It was the duty of the plaintiffs to apply if they needed it for an extension of time in which to comply with the Court's directions;

(2)    If a plaintiff failed to do so, the defendant's remedy was to apply under Order 28 rule 10 to have the plaintiffs proceedings dismissed, not to apply for fixed dates when the case was nowhere near ready for trial;

(3)    A party who applied to the Court to vacate a fixed date ought to be ready at the same time to indicate what alternative dates he suggests in place of the dates sought to be vacated;

(4)    Such an application should be made to the listing Master (or Judge, if necessary).

1988, M.P. No. 1340

IN THE SUPREME COURT OF HONG KONG

HIGH COURT

MISCELLANEOUS PROCEEDINGS

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J U D G M E N T

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1. I have before me an interlocutory application in an action commenced by originating summons. The Plaintiffs in the action are tax-payers, and the Defendant is The Commissioner of Inland Revenue. The Defendant has issued notices dated 1st June 1988 for recovery of tax under S.76(1) of the Inland Revenue Ordinance with which the Plaintiffs ask the Court to declare that they do not have to comply.

2. The originating summons first came before me on 10th October 1988, when the Plaintiffs was represented by Mr. Henry Litton Queen's Counsel, and Mr. Sujanani. The Defendant was represented by Mr. Feenstra. On that occasion, Mr. Litton told me that the Plaintiffs needed an adjournment. The matters before the Court were not ready for determination having regard to the state of the Plaintiffs own evidence. Mr. Litton asked for the adjournment in order to file supplemental affidavit evidence. He suggested that the case should be adjourned with liberty to either party to restore it on two clear days notice He accepted that all costs thrown away by the adjournment should be paid by the Plaintiffs in any event.

3. In order to try and put the matter into some sort of order, I gave directions as to the filing of evidence. I directed that the Plaintiffs were to be at liberty to file further evidence in support of the originating summons not later than 4.30 p.m. on Friday, 25th November 1988; that the Defendant was to be at liberty to file evidence in answer, if so advised, not later than 4.30 p.m. on Friday, 9th December 1988; and I gave liberty to either party to restore when ready, but not earlier than 9th December 1988. I noted that a fair estimate of the length of the hearing would be 2 days. I directed that the (hearing should be) in open Court. (There is a widespread failure to understand that an action commenced by originating summons is an action just like any other, although commenced by a different originating process, and that unless, there are some special reasons, the substantive hearing has to be in open Court. Special reasons include the security of the state on the protection the interests of infants disabled persons, or the protection of trade secrets. Generally speaking, apart from such cases, actions commenced by originating summons, like, as I say, any other action, ought to be heard in open Court : see Scott v. Scott [1913] Appeal Cases 417.)

4. Be that as it may, 25th November 1988, the day by which the Plaintiffs were to file their evidence, came and went. Nobody did a single thing about it. The Plaintiffs did trouble to apply for an extension of time, and the Defendant did nothing about that matter. The Defendant could, after 25th November 1988, have called upon the Plaintiffs to produce their evidence or could have applied, under O.28 r.10, for an Order to have the proceedings dismissed, on the ground of the Plaintiffs' failure to prosecute the proceedings with dispatch : see United Bank Ltd. v. Maniar [1988] 2 WLR 28. This Rule provides a Salutary remedy for q defendant to an originating summons who finds that the case against him is not being prosecuted "with dispatch".

5. The Defendant here, as I say, did not make any application under that rule, although he could have done so. What he did do was to obtain a date for the substantive hearing of the originating summons, although the case was entirely unready for such a hearing. This curious course appears to have been taken because the Defendant was anxious to have a determination of this case upon its merits. However, a plaintiff who does not prosecute his case cannot be forced to do so. He stands the risk, not of having his case determined on his merits, but of having it dismissed for failure to prosecute it with dispatch. The course the Defendant took here has led to the present difficulty, that the dates given for the hearing of the originating summons were given when the evidence was nowhere near complete. And leading Counsel for the Plaintiffs is unable to attend on those dates anyway. It is, therefore, understandable that in the circumstances the Plaintiffs find it necessary to make this present application, which is an application to vacate the dates. However, the Plaintiffs, in launching that application, do not appear to have taken the slightest trouble to come to the Court ready and able to offer specific dates which could be substituted for the dates sought to be vacated. The result of that is that the Court is left unable to decide what it ought to do about vacating the dates. To vacate the dates and leave the matter in limbo is out of the question. If a party wishes to vacate a date, the Court is entitled to expect that party to be ready, willing and able to offer to the Court alternative dates for the hearing, so that a decision can be made, then and there, as to what dates should be fixed. Otherwise the Court is placed in an impossible position. The date is vacated, and there is no telling when the case is going to come back into the lists again.

6. Having heard submissions, I have decided to extend the Plaintiffs time for filing further evidence in support to not later than 4.30 p.m. on 17th February 1989. I shall consequentially extend the Defendant's time for filing evidence in answer to not later than 4.30 p.m. on 17th March 1989. The Plaintiffs' evidence in reply (if any) must be served not later than 4.30 p.m. on 28th March 1989.

7. On this basis, I will vacate the date, 28th February 1989, presently fixed, and refix the case for 3rd April 1989. I will give the Defendant liberty to restore the originating summons, on one day's notice to the Plaintiffs, if the Plaintiffs further evidence which I have mentioned is not filed in accordance with these directions. That is to enable the Defendant forthwith to apply for an Order under O.28 r.10 to dismiss the originating summons; and should be a spur (which they desperately need, as it seems to me) to the Plaintiffs to have their evidence ready on time. The conduct of both parties to this litigation seems to me to leave much to be desired. I propose therefore to make only this Order as to the costs of this application; that the costs of this application be costs in the cause. I should add that applications such as this should properly be made to the listing Master (or Judge, if necessary). He is in a much better position to decide what has to be decided, that is to say, not only whether a fixed date ought to be vacated, but also what date should be substituted if it is. Applications for an extension of time for filing evidence, or other directions, on the other hand, should be made when practicable to the Judge whose directions are sought to be varied; and, which as here, such an application becomes necessary, it must be made, not omitted.