HUNG CHIU KWAN DANKA v. LUI CHI MUN TEDDY formerly t/a SAMMY EXHIBITION DESIGN PRODUCTION CO AND ANOTHER

DCEC 703/2012

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

EMPLOYEES’ COMPENSATION CASE NO 703 OF 2012

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IN THE MATTER OF AN APPLICATION BETWEEN:

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REASONS FOR DECISION

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Introduction

1. The applicant by summons dated 25 September 2015 sought to vary the costs order nisi that I made on 14 September 2015.

2. In essence, the applicant asked for:-

(a)  counsel certificate in respect of the applicant’s costs of the original application; and

(b)  that the 2^nd respondent’s costs of opposing the original application be paid by the 1^st respondent instead.

Background

3. The costs order nisi was made in relation to an application for employees’ compensation by the applicant as employee relating to an accident at work brought against the 1^st respondent as the applicant’s employer, and alternatively, against the 2^nd respondent also as the applicant’s employer (this being the applicant’s fall-back position) should the court find the 1^st respondent not to be the employer but instead a principal contractor under section 24 of the Employees’ Compensation Ordinance, Cap 282 (“the Ordinance”).

4. The 1^st and the 2^nd respondents both denied their employer status.  In addition, the 2^nd respondent asserted that he himself was an employee of the 1^st respondent and that it was he (the 2^nd respondent) who introduced the applicant to the 1^st respondent as a co-employee.

5. In the same proceedings resulting in the judgment dated 14 September 2015, the applicant also lodged an appeal against the reviewed assessment of the Employee’s Compensation (Ordinary Assessment) Board under section 18 of the Ordinance.  The appeal was unopposed.

6. In the end, I held for the applicant by finding that for the purposes of the Ordinance, the 1^st respondent was the applicant’s employer, and in that employment, personal injury by accident arising out of and in the course of the employment had been caused to the applicant as described in the evidence.  However, I found that the applicant’s alternative case failed in that the 2^nd respondent was not the applicant’s employer and was not liable to pay compensation to the applicant under the Ordinance.

7. I also allowed the applicant’s appeal lodged under section 18 of the Ordinance.

8. As costs followed the event, one of the orders I made nisi was that “costs of this application insofar as the applicant is concerned be paid by the 1^st respondent, to be taxed if not agreed”.

9. However, because I held that the applicant gained a benefit by adding the 2^nd respondent into the proceedings (for which he had to pay a price), another order nisi that I made was that “the 2^nd respondent’s costs of opposing this application be paid by the applicant, to be taxed if not agreed”.

Preliminaries

10. As the only party which appeared in the inter partes summons hearing herein was the applicant (by counsel), I made enquiries regarding proper service of notice and relevant papers.

11. It appeared after enquiries that although proper service had been made on the unrepresented 1^st respondent, the same could not be said in the case of the now unrepresented 2^nd respondent.  There therefore existed the real possibility that the 2^nd respondent might not have been made aware of the hearing.

12. A short adjournment was permitted to enable the applicant to consider how to proceed in such circumstances.

13. On resumption of proceedings, the applicant informed the court that it would not proceed with the intended variation of the costs order in favour of the 2^nd respondent.

Consideration

14. Having satisfied myself that in light of the applicant’s change of position, the 2^nd respondent’s interests would not be prejudiced, I allowed the proceedings to continue in the absence of the 2^nd respondent (and of course the 1^st respondent as well).

15. I went on to consider the applicant’s intended addition of counsel certificate to the costs order in his favour.  It is clear from the records that no mention was made by the applicant of the matter of counsel certificate in the trial proceedings.

16. Having heard counsel and read the submissions filed on behalf of the applicant, I came to the view that the attendance of counsel in the trial proceedings was proper in the circumstances of the case.

Order

17. For the above reason, I order that the part of the costs order nisi made on 14 September 2015 dealing with the applicant’s costs of the original application be varied to the extent that:-

“the costs of this application insofar as the applicant is concerned be paid by the 1^st respondent, to be taxed if not agreed, with counsel certificate”.

18. Because of the peculiar circumstances under which the present application came to be made, I order that there be no order as to costs of this summons.  I also order that the applicant’s own costs of this summons are to be taxed in accordance with Legal Aid Regulations.