TSANG CHIN KEUNG v. EMPLOYEES COMPENSATION ASSISTANCE FUND BOARD

CACV 3312/2001

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO. 3312 OF 2001

(ON APPEAL FROM HCPI NO. 161 OF 2001)

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J U D G M E N T

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Hon Rogers VP:

1. This appeal first came before another division of this court comprising two judges on 11 July 2002. The court was divided in its views as to the outcome. At the conclusion of the hearing of this appeal this court reserved its judgment which we now give.

Background

2. This action was commenced on 6 February 2001. In it the plaintiff seeks a declaration pursuant to section 24 of the Employees Compensation Assistance Ordinance, Cap. 365 ("the Ordinance") that the defendant should pay the plaintiff the damages together with interest and costs in respect of which the plaintiff has succeeded in obtaining judgment in HCPI No. 806 of 1995. By summons dated 6 March 2001, the defendant sought to have the action struck out under Order 18 r. 19 of the Rules of the High Court on the basis that it was frivolous, vexatious or otherwise an abuse of the process of the court. The matter came before Suffiad J and, by a ruling of 28 September 2001, the judge dismissed the defendant's application. The history of the matter extends over a considerable period but is important for purposes of determining this application.

3. The plaintiff was injured on 26 June 1988 when his hand was caught by an electric saw which was in a residential flat in Kwai Chung Garden. There is no dispute that at the time a Mr Hui Yuk Fu was carrying out redecoration work which entailed, apart from anything else, the construction of a cupboard and that required carpentry work. As a result, Mr Hui had brought an electric saw to the premises. There has never been any dispute that the plaintiff was injured when he was alone in the flat, at about lunch time, whilst Mr Hui had gone to buy lunch. The plaintiff took himself to hospital where he remained for a week; whilst he was there Mr Hui visited him. Again it does not seem to be disputed, the plaintiff apologized to Mr Hui for making a mess as a result of being injured in the flat. Also there is no dispute that after the accident an accident report form was completed and filed on behalf of Hung Kwong Glass Works, which was the trading name of Mr Lo Tat Kwong. On that form it was stated that that firm was the plaintiff's employer. It would seem that there was also a payment in respect of wages by Hung Kwong Glass Works to the plaintiff after the accident.

The employees' compensation proceedings

4. The first step taken by the plaintiff to seek compensation for his injuries was the commencement of employees' compensation proceedings in the District Court. It might be mentioned at this stage that the employees' compensation proceedings were financed under the aegis of the Legal Aid Department. As a result of evidence filed in the present proceedings, many, if not all, the documents in the plaintiff's solicitors' files, including advice of counsel, have been disclosed.

5. Amongst those papers was a copy of a memo, dated 8 December 1988, from the Commissioner of Labour to the Director of Legal Aid introducing the plaintiff as a person requiring assistance to file a claim in respect of employees' compensation "against his employer, Hung Kwong Glass Works." That memo went on to say that Mr Lo Tat Kwong had alleged in a telephone conversation that he was only the "principal contractor" of the plaintiff and that the direct employer had been Mr Hui Yuk Fu, whose address was unknown to the plaintiff.

6. The employees' compensation proceedings were commenced in August 1989 naming Mr Lo Tat Kwong trading as Hung Kwong Glass Works as the respondent. It was said that he had employed the applicant who was working as a decoration technician. The claim was first listed to be heard on 13 August 1990. It was not reached due to the state of the list. After that hearing, counsel, who attended on the plaintiff's behalf, advised that it would be difficult to persuade the court that Lo Tat Kwong had been the plaintiff's employer given the plaintiff's absence of knowledge of the existence of Mr Lo and his firm until some time after the accident. Counsel advised that consideration should be given to joining Mr Hui as a respondent.

7. The same counsel then attended the hearing on 24 December 1990. When the plaintiff gave evidence he said that Mr Hui was his employer. As a result the hearing was, apparently, thrown into some confusion and the respondent's advisers wished to have an adjournment to deal with a substantially different case. Counsel advised in a note to the solicitors that she had no choice but to seek leave to amend Form 1 and an adjournment was granted on that basis.

8. The plaintiff's application for employees' compensation then came on for hearing before HH Judge Surman on 11 November 1991. By this time different counsel had been instructed. There is a note of advice following a conference in which the counsel had surmised that the real situation was that Mr Hui had been the immediate employer and that Hung Kwong Glass Works had filed the employees' compensation certificate and Form 2 as a friend of Mr Hui. Somewhat surprisingly, although a draft application naming Mr Hui as a respondent had been prepared, the amended application made in court still only named Mr Lo Tat Kwong as the respondent although the first paragraph referred to the plaintiff being an employee employed by the respondent and/or Hui Yuk Fu. There was a plea that Mr Hui Yuk Fu was a subcontractor of the respondent. Thus, although Mr Hui was not named as a respondent, one of the issues raised was that the plaintiff had been employed by Mr Hui; another of the issues which was raised was that Mr Hui was Lo Tat Kwong's subcontractor.

9. At the hearing, evidence was given not only by the plaintiff but by both Mr Lo and his wife as well as by Mr Hui. Although the plaintiff maintained that he was employed by Mr Hui, all the other witnesses stated otherwise. In particular, the evidence on behalf of Hung Kwong Glass Works had been that the plaintiff had been employed as a casual worker and had been engaged in delivering glass to Mr Hui. Mr Hui gave similar evidence. He said that he had known the plaintiff for some time and when he saw him he wanted to buy him lunch and so he had left him in the flat alone whilst he went to buy lunch. By the time he returned, the plaintiff was no longer there but he saw the blood as a result of the accident.

10. There was no fair copy of the judgment of the District Judge but there is a full note of his reasons and he made the following findings:

"(1) that on 26/6/88 the Applicant was employed by the Respondent Co. to deliver glass to Mr. Hui;

(2) that that delivery of glass was the only contractual relationship between Mr. Hui and the Respondents that day;

(3) that the Applicant did deliver glass to Mr. Hui, and whilst at the premises he used the electric saw belonging to Mr. Hui. Not sure whether this was either on the direct, or implied, instruction of Mr. Hui;

(4) the operation of the saw by the Applicant was not in the context of any contractual agreement between Mr. Hui and the Respondent.

(5) although the Applicant was employed by the Respondent the accident did not arise out of or in the course of that employment."

11. There was no appeal from the decision of the District Judge. It would appear from the documents that have been revealed that those advising the plaintiff considered that the decision arrived at was one to which the judge had been entitled to come and that an appeal would not be successful.

The personal injury claim

12. Prior to the hearing of the employees' compensation claim in November 1991, a writ had been issued on 20 June 1991 on behalf of the plaintiff against Mr Lo Tat Kwong and Mr Hui claiming damages for personal injuries. The defendants' address was given as ground floor, 7 Heung Wo Street, Tsuen Wan. No attempt was made to serve the defendants immediately on the issuance of the writ. In June 1992, counsel who had been asked to advise prior to the resumed hearing of the employees' compensation claim was asked to advise whether the legal aid certificate should be extended to cover the common law claim. Counsel advised

"I would grant Legal Aid for the purposes of the service of the writ, and drafting of a statement of claim, and to allow those instructing me to 'go through the motions', with a view to asking for and settling for a 'nuisance payment' of say $50 - $100,000. The Common Law action will in effect be 'an appeal' from or a 'review of', the District Court proceedings."

The advice went on to say, however, that there was not any res judicata in the strict sense of the word. It might also be noted that at the conclusion of the opinion, counsel had mentioned that if judgment were to be obtained against Mr Hui, who was uninsured, an application could be made for an "Employees' Assistance Scheme Payment".

13. Very shortly after that opinion was given the writ in this action was served on Mr Lo at the Glass Works premises. There is also an affidavit of service on Mr Hui at 1 Heung Shing Street, Tsuen Wan. It is to be noted that that was neither the address given for Mr Hui on the writ nor was it the address given by Mr Hui at the employees' compensation proceedings hearing, namely Room 322, King Wing Court, Shan King Estate, Tsuen Wan.

14. Whilst appearance was entered on behalf of Mr Lo, no appearance was entered on behalf of Mr Hui. The statement of claim, which was filed in July 1992, suffered from the defect that when referring to the 1st defendant it was in fact referring to Mr Hui, who was named as the 2nd defendant, and similarly Mr Lo, who had been named as the 1st defendant, was referred to in the body of the statement of claim as the 2nd defendant. More importantly, the statement of claim did not allege employment of the plaintiff by either of the defendants. Paragraph 2 of the statement of claim merely stated that

"The plaintiff had been undertaking carpentry work ... at the request of the 1st and 2nd defendant."

15. Shortly after the statement of claim had been served on the 1st defendant, Mr Lo, judgment was entered against Mr Hui in default of any notice of intention to defend. The original statement of claim was thus never served on Mr Hui.

16. Very little appears to have taken place in respect of the conduct of the action save for filing of lists of documents. In June 1994, Mr P.M. Burke filed notice of intention to proceed and a notice of change of solicitors replacing the previous solicitors by the Director of Legal Aid. In September of that year the case was reassigned to Messrs Hoosenally and Neo and specifically to Mr Burke.

17. The next matter which appears to have taken place was that the court initiated a hearing on 26 July 1995 which was for mention. The court sent notice of that hearing to the parties, including Mr Hui at the address of King Wing Court, which had been used in the notice of intention to proceed in June 1994. The judge's and his clerk's notes record that at that hearing the plaintiff's solicitors produced a summary of case. The summary of case was a 13-point document and remains on the court file. It accurately recites the parties' contentions as to the employment of the plaintiff. However, it refers to liability being admitted in Form 2. This is perhaps a little oblique since, although it had always been Mr Lo's case that the plaintiff had been employed by him, no liability, as such, had ever been admitted on behalf of Mr Lo. Two matters may, however, be observed in relation to this summary of case. In the first place, paragraph 6 states

"In the connected EC proceedings, claim only pursued against D1(?), and claim dismissed. D2 gave evidence, that the plaintiff had previously worked for him, but was not working for him at the time of the accident. The court left open this point, and indicated it was not sure whether plaintiff used the saw on the instructions of D2."

This, as can be seen by a reference to the findings of Surman DJ, could not be said to be an accurate reflection of his findings. Paragraphs (1) and (5) of the findings make clear that it was found that the plaintiff was employed by Mr Lo and paragraph (4) of the findings makes clear that, whatever the plaintiff was doing at the residential flat on 26 June 1988, it was not in the context of "any contractual agreement between Mr Hui and the Respondent (Mr Lo)". Thus, the District Judge clearly found that the plaintiff had not been employed by Mr Hui.

18. The summary of case also misstates the date of filing of the defence on behalf of Mr Lo. Finally, it might be noted that the last paragraph of the summary states

"12. We are considering discontinuing claim against D1, and only pursue D2 - that is in reality plaintiff's case.

13. We need to check position with DLA and also ECAS, before making appropriate applications."

19. Shortly thereafter a notification of the transfer of the case to the personal injuries list was issued and the case was renumbered to P.I. 806 of 1995. The proceedings had been adjourned to 25 October 1995, but in the meantime the plaintiff's solicitors notified the Chairman of the Employees' Compensation Assistance Fund Board of the proceedings. Also the proceedings were discontinued by consent against the 1st defendant, Mr Lo, and an order was obtained before Master Woolley to set aside the judgment which had been obtained against Mr Hui and to amend the statement of claim as well as the writ. In the amendment it was specifically pleaded that the plaintiff had been employed by Mr Hui. The order that was obtained before the Master also dispensed with service of the amended statement of claim on Mr Hui, who thereafter remained the sole defendant. Although it might be considered a technicality, it may be mentioned that the affirmation of service in respect of the summons was made on the same day as the summons had been posted. Naturally, therefore, the affirmation could not contain a statement that the documents had not been returned. It did state that the documents had been sent to the address at King Wing Court which was the last known address of Mr Hui, but there is no statement by the maker of the affirmation that it was his belief that the documents would have come to Mr Hui's attention.

20. The order made by the Master was made on a three minutes summons. There is no record of anything that was said at the hearing, which, presumably, was brief. The Master would, of course, have had the case file which contained the summary of case. Hence, even if it is right to conclude that the Master was aware that there had been employees' compensation proceedings that would be on the basis that he would have been under the misconception that the judge hearing those proceedings had left open the question as to the plaintiff's employment by Mr Hui. At this stage all that can be said is that had the Master been aware of Surman DJ's findings, it would have been surprising in the extreme if he were to have made the orders which were made.

21. Interlocutory judgment was subsequently entered against Mr Hui, this time in default of defence, in March 1996 and that was followed by an assessment of the damages before the Master. The Master awarded a total of HK$2,917,243.

Bankruptcy proceedings

22. Brief mention of the bankruptcy proceedings can also be referred to. A bankruptcy notice issued by the plaintiff based on the assessment of damages and the taxed costs was filed on 3 September 1997. That gave the address of Mr Hui as the King Wing Court address. However, almost immediately an application for extension of time for service of the notice on the basis that "further evidence or particulars may be obtained to enable the judgment creditor to apply for an order for substituted service." Similar applications were made thereafter at regular monthly intervals with the last order for extension being made on 20 March 1998. It appears from an affirmation that was filed in support of that last application that an attempt had been made to serve the copy of the notice on Mr Hui at the last known address of the Hung Kwong Glass Works at 7, Heung Wo Street. The attempt was unsuccessful. Indeed, it was apparent that the Hung Kwong Glass Works were no longer at that premises. The person serving the order apparently went to its new address at 40, Heung Wo Street and there found a man called Mr Lo who stated that Mr Hui had not been seen for several years and that he had no idea of his present whereabouts.

23. Finally, it may be mentioned that there were notes on the plaintiff's solicitors' file indicating that attempts to locate Mr Hui in May 1998 at 322 King Wing "House" elicited the information that the address was occupied by a Madam Ho. She stated that there was no such person as Mr Hui at that address. Inquiries at the housing office of the premises indicated that Madam Ho had lived at the unit since 1994. Visits were made to the Heung Wo Street addresses in June 1998 and to No. 1 Heung Shing Street, the location where Mr Hui had apparently been served with the writ, but again no information as to Mr Hui's existence or whereabouts could be discovered. Finally, there is a note dated 6 August 1998 in which the process server states

" I was given appointment to meet Mr. Hui Yuk Fu, at 40, Heung Wo Street, Ground Floor, Tsuen Wan for the purpose of serving his a Statutory Demand.

At 11:30 hours on 6.8.98, I arrived at the above unit, I interviewed that where, (鴻光玻璃鏡業) the staff, and disclose that no such person named as (Mr Hui)."

There is, however, no indication as to who made that appointment or as to how it was made and whether the person who made the appointment had claimed to be Mr Hui is by no means clear.

Proceedings against Employees Compensation Assistance Fund Board

24. The first proceedings against the present defendant were commenced by writ issued on 5 October 2000. Those proceedings were dismissed as a result of failure to comply with an order to serve a statement of claim.

25. The present proceedings were then commenced on 6 February 2001 and a statement of claim was filed on the same day. The summons to strike out these proceedings was issued the following month. The basis of the plaintiff's case against the defendant is section 16 of the Ordinance. That reads, in its form relevant for this action, as follows:

"16(1) A person who is unable to recover from an employer payment of an amount of compensation or damages for which the employer is liable may apply for payment of that amount from the fund.

(2) For the purpose of this section an employer is not to be regarded as liable for the payment of an amount of compensation or damages unless-

(a) the amount is payable-

(i) pursuant to a judgment or order of a court or tribunal of competent jurisdiction in Hong Kong ..."

Section 21 of the Ordinance provides that an application for payment from the Fund should be made to the Board and section 21(2) requires the Board to carry out such inquiries as it considers necessary to make a determination under section 22. The applicant is required to assist the Board in carrying out those inquiries. Section 22 of the Ordinance provides that

" (1) The Board shall in respect of any application under a section of this Part determine -

(a) whether or not it is satisfied as to an applicant's entitlement to apply under that section; and

(b) if so, what amount should be paid from the Fund; and

(c) to whom such amount should be paid,

and shall advise the applicant and any interested person by written notice of its determinations."

Section 24 provides that an applicant who is dissatisfied with a determination of the Board under section 22 may commence proceedings in a court against the Board.

26. The objection taken by the defendant to these proceedings is that although there may not be estoppel in the strict sense of that term, this action constitutes an abuse of the process of the court because it seeks to reopen the same question which had been decided in the employees' compensation proceedings and seeks to make a collateral attack on the judicial determination in that case.

27. Whilst it was contended in the court below that there was no collateral attack on any judicial determination because there had been no relevant determination as to Mr Hui's employment, it is now conceded on behalf of the plaintiff that the prosecution of this action does entail a collateral attack on the decision and findings by Surman DJ. Whilst it is sometimes dangerous to proceed on the basis of a concession made by a party's legal advisers, in this case, I consider that concession was rightly made. As has already been pointed out in paragraph 17 above, the District Judge clearly found that the plaintiff had not been employed by Mr Hui. It is fundamental to the plaintiff's claim in this case that Mr Hui had been the plaintiff's employer at the time of the accident. There is thus, clearly, a judicial determination, which was final, which came to the contrary conclusion.

28. Whilst it was argued that the judgment obtained in the personal injury proceedings PI 806 of 1995 entailed an order based upon the allegation that Mr Hui had been the plaintiff's employer, that judgment was not based upon any contested litigation. Furthermore, it would appear from the investigations made on behalf of the plaintiff in 1998 that any service of documents by post at the King Wing Court address in 1995 would, almost certainly, have failed to reach Mr Hui. Moreover, it is quite clear that Master Woolley was not informed of the findings of Surman DJ in the employees' compensation proceedings and indeed the summary of case which was contained in the court file, which by that stage was by no means voluminous, gave an inaccurate and false impression as to the outcome of those proceedings. The observation has already been made that had Master Woolley been informed of the true facts it is highly doubtful that he would have made the order sought.

29. In considering the history of this matter in relation to the personal injury proceedings it might be thus observed that:

(i) The court was not informed that the plaintiff had failed to join Mr Hui in the employees' compensation proceedings, who was one of the two persons whom he had alleged had been his employer despite the fact that

(a) his oral evidence was that Mr Hui had been his employer

(b) an adjournment had been requested and granted so that Mr Hui should be made a party to those proceedings.

(ii) There had been a clear decision that Mr Lo, the other alleged employer, had been the plaintiff's employer and that Mr Hui had not been his employer.

(iii) There had been no appeal from that decision.

(iv) Mr Hui, the remaining defendant in the personal injury proceedings, had almost certainly never received anything in relation to the action after the writ and was almost certainly unaware of the amended statement of claim or of any of the steps in the action after the order dispensing with service thereof.

(v) When it came to enforcement of the judgment in the personal injury action, despite obtaining adjournments with a view to seeking an order for substituted service, the enforcement proceedings were simply allowed to lapse.

30. Whilst one cannot fail to sympathize with the plaintiff's predicament in that it would appear that he has consistently claimed that Mr Hui was his employer and yet Mr Hui was not made a party to the employees' compensation proceedings, and in pursuing the personal injury proceedings the plaintiff's legal advisers appear to have been more concerned in seeking recovery from the present defendant rather than from Mr Hui against whom judgment had been obtained, it cannot be said that the decision in the employees' compensation proceedings would necessarily have been any different had Mr Hui been joined as a party thereto.

Abuse of process

31. The jurisdiction of the court to prevent the continuation of civil proceedings on the grounds of abuse of process must be exercised with extreme caution. It is a very serious matter to prevent a party from commencing litigation or pursuing it. That can only be done in circumstances where the court considers that it is, in the words of Lord Diplock in Hunter v Chief Constable of the West Milands Police [1982] AC 529 at 536, the court's duty rather than a discretion exercised by the court. It is, as that judge said at 536C

"... the inherent power which any court of justice must possess to prevent misuse of its procedure in a way which, although not inconsistent with the literal application of its procedural rules, would nevertheless be manifestly unfair to a party to litigation before it, or would otherwise bring the administration of justice into disrepute among right-thinking people. The circumstances in which abuse of process can arise are very varied; ..."

32. There are, perhaps, at least two streams of thought which have led to the recognition of this duty on the part of the court. The first is the general abuse which would come from raising the same issues in a subsequent proceedings simply by changing the form of the action. This was recognised for example by Lord Halsbury LC in Reichel v Magrath [1889] 14 App. Cas. 665 at 668. The recognition stemmed, perhaps, from a need to have finality and certainty in the outcome of litigation. Akin to that have been the various attempts to demonstrate that a conviction has been wrongful by bringing ancillary litigation, whether it be against police officers, lawyers or otherwise, the effect of which is to demonstrate the wrongfulness of the conviction. The other aspect is one of unfairness to a party who is entitled to rely on a previous decision and is put to disadvantage by having to contest the new litigation.

33. As Miss Eu SC has demonstrated, there has been no case where there has been a collateral attack upon a final decision made after a contested hearing which has been permitted in civil proceedings. In the case of Smith v Linskills and Another [1996] 1 WLR 763 Sir Thomas Bingham M.R. referred to the main considerations of public policy which underlie the rule: see page 773B-H. They can be summarised as (1) the affront to any coherent system of justice if there were to be final but inconsistent decisions of courts of competent jurisdiction; (2) the virtual impossibility of fairly retrying at a later date an issue which had been tried on an earlier occasion before a court of competent jurisdiction; and (3) the importance of finality in litigation. Some two years later, in the Court of Appeal decision in Arthur J.S. Hall & Co. v Simons [1999] 3 WLR 873 at 903E, the same judge said:

"... we think it may be helpful if we draw together the main features of the law as we now understand it to be in cases where (1) a plaintiff in a later action seeks relief against legal advisers who acted for the plaintiff in an earlier action which ended in a considered decision of the court or an approved settlement and (2) the plaintiff's claim in the later action is based on negligence allegedly leading to an outcome less favourable than, but for the negligence, the plaintiff would and should have achieved and (3) the legal advisers sued in the later action apply to restrain further prosecution of the proceedings:

(1) The first question to be asked is whether the plaintiff's claim represents an abusive collateral challenge to the earlier judgment of the court. If it does the claim will ordinarily be dismissed or struck out unless there are grounds for not following that course.

(2) In deciding whether, in any given case, the later proceedings constitute an abusive collateral challenge to the earlier judgment of the court it is always necessary to consider (a) the nature and effect of the earlier judgment, (b) the nature and basis of the claim made in the later proceedings, and (c) any grounds relied on to justify the collateral challenge (if it is found to be such).

(3) In considering the nature and effect of the earlier judgment, even greater weight will be accorded to a criminal conviction than to the final judgment in a contested civil trial, and greater weight will be accorded to the judgment in a contested civil trial than to an interlocutory judgment or order or a consent order approved by the court. It can never, however, be appropriate to explore the extent to which an individual judge considered and appraised the merits of a proposed settlement in any particular case."

The judge then went on to consider matters which are irrelevant to the present proceedings. Of course, it is appreciated that there is a difference between taking proceedings against legal advisers in respect of a breach of duty in conducting previous litigation and the present case which is an attempt to found liability on a factual basis which was decided against the plaintiff in previous but related litigation.

34. As already noted it is correctly conceded there is a collateral attack on the decision and findings of Surman DJ. The plaintiff has had a full hearing of his allegation that he was employed by Mr Hui and it has been decided in a final decision that Mr Hui was not his employer. In contrast, by various undefended procedural steps, the plaintiff has succeeded in obtaining a judgment which was not based on a decision on any evidence or merits. That judgment cannot be contrasted with the employees' compensation proceedings decision which was not appealed. In those circumstances it does appear to be the fact that to bring the present proceedings which have to be founded on an allegation that Mr Hui was the plaintiff's employer would be to misuse the legal process and seek a contrary finding which would undermine the certainty of a legal decision, thus bringing the legal system into disrepute.

35. In my view the defendant in this case would be put in an invidious position if this action were permitted to proceed. The length of time which has passed since the relevant events cannot be ignored. Mr Hui has long since ceased to take any active part in any proceedings and his whereabouts are unknown. Moreover, the plaintiff's legal advisers failed to take steps to serve and locate Mr Hui which they indicated in the bankruptcy proceedings they could. Witnesses such as the caretakers of the block of flats in which the accident took place and others are probably no longer traceable. In the absence of Mr Hui himself the defendant would be placed at an extreme disadvantage in having to establish again the factual basis of the decision which had already been arrived at in the employees' compensation proceedings.

36. It was suggested that, after the correspondence commencing in 1995, the defendant should have taken an active part in the personal injury proceedings. I, for my part, do not consider that in the scheme of the Ordinance that was so. The proceedings were being taken against Mr Hui and it was not for the defendant to intervene in personal injury proceedings until, at any rate, it had been joined as a party. It was for the plaintiff to ensure that the proceedings were brought effectively and properly against the party who is primarily liable. That, as indicated, is highly questionable in the present circumstances. In this respect it should be noted that there has been an amendment, in particular, the introduction of the present section 25A of the Ordinance which has taken effect after the relevant time in this action.

37. Mr Bleach SC, on behalf of the plaintiff, sought to rely upon special circumstances in this case and in particular two matters. The first was the memo from the Commissioner of Labour to the Director of Legal Aid which is referred to in paragraph 5 above. That memo was apparently not used in the employees' compensation proceeding either as evidence of the facts therein contained nor in cross-examination. It is not for this court to speculate as to why that was so. The availability of that document for use in those proceedings can, however, not be doubted. It was, after all, the document which drew the attention of the Director of Legal Aid to the plaintiff and the need for proceedings to be taken on his behalf. If the document were not used then, it is far too late for the plaintiff now to seek, under the heading of special circumstances, that an exception be made to allow its use. In any event, its probative value is, in my view, somewhat limited.

38. So, too, the other matter which has emerged, namely, that the owner of the flat in question has indicated that Mr Hui had not been engaged to change any glass and hence there was no apparent need for any delivery of glass on the day of the accident. Again, the probative value of this evidence is perhaps somewhat limited. It is now 14 years since the events in question and the first matter which may be considered is whether Mr Hui had decided of his own volition to change the glass or had in some way damaged the glass in the course of his redecoration of the premises and needed to replace it. The glass involved was by no means expensive and hence would not have constituted a significant factor in the overall redecoration.

39. Under the rather loose phrase "what is sauce for the goose is sauce for the gander" the appellant sought to suggest that, because the defendant was required under section 22 of the Ordinance to make investigations in respect of any claim made against the fund, it was open to both parties to dispute any findings of fact contained in a final decision of a court of competent jurisdiction. In my view that argument can be shortly disposed of. Section 22 does not empower the defendant to disregard any judgment which has been entered. It simply requires the defendant to examine the validity of any claim which is made against it under the Ordinance. That does not empower the defendant to disregard a judgment in the absence of evidence of collusion or other vitiating factors or to redecide matters which have already been decided in litigation.

40. Given the circumstances, I consider that it would be wrong to allow these proceedings to continue. To allow a claim to be brought now against the present defendant which would entail a relitigation of the issue and require for its success a reversal of that decision would be wrong in principle, it would be unfair to the defendant and it would open the way to a multiplicity of litigation which would be wrong.

Hon Le Pichon JA:

41. I agree.

Hon Yuen JA:

42. I agree.

Hon Rogers VP:

43. The appeal will therefore be allowed. There will be an order that this action be struck out. There will be an order nisi that the defendant should have the costs of the action and the appeal.