LICAYO, JINNA DIMINO v. SCULLY, SEAN JOSEPH

DCEO 7/2021

[2023] HKDC 266

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

EQUAL OPPORTUNITIES ACTION NO 7 OF 2021

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DECISION

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1.  By a summons dated 29 November 2022, the respondent applies for the following order:

“The claimant’s application for an extension to His Honour Judge Ko order dated 16 August 2022 be denied. The extension request should have been made before the order became absolute. Ms Wong Hoi Ting is a professional solicitor and has been representing [the claimant] long enough to know of her remote living conditions. The court provided clear time frames which the claimant did not adhere to.”

2.  The summons is supported by two affidavits of the respondent, both dated 25 November 2022.

3.  After sight of the parties’ letters (both dated 22 December 2022), I set down the summons for paper disposal and gave directions for written submissions.

4.  Pursuant to my directions, the respondent lodged an undated written submissions by fax on 28 December 2022 and filed an affidavit on 5 January 2023, and the claimant lodged a written submissions dated 20 January 2023.  There is no reply submission from the respondent by the deadline.

Procedural background

5.  The factual background of this case is set out in my earlier decision dated 23 September 2021 ([2021] HKDC 1216).  In gist,

(a)  The claimant was formerly employed by the respondent as a live-in domestic helper.  Her employment was terminated by the respondent in February 2019.  On 20 July 2021, she commenced this action pursuant to the Sex Discrimination Ordinance, Cap 480, to claim against the respondent for sexual harassment.

(b)  The respondent is a teacher by profession.  He has since returned to Canada after completing his teaching contract in Hong Kong.

(c)  At the First Hearing held on 23 September 2021, the respondent was absent and no Notice of Response was filed.  The Equal Opportunities Commission representing the claimant in these proceedings (“EOC”) applied for default judgment and interlocutory judgment for damages to be assessed was entered against the respondent: see [2021] HKDC 1216.

6.  On 8 August 2022, the respondent took out a summons to set aside the interlocutory judgment (“Setting Aside Summons”).

7.  On 16 August 2022, I made an order nisi for paper disposal of the Setting Aside Summons and gave directions for filing of affidavits and lodging of submissions (“Setting Aside Directions”).  There was no application for variation and the order nisi became absolute on 29 August 2022. 

8.  According to the Setting Aside Directions, the claimant was supposed to file and serve her affidavit in opposition to the Setting Aside Summons by 26 September 2022.  By EOC’s letter dated 23 September 2022, the claimant applied for extension of time for filing of the affidavit and consequential time adjustment of the Setting Aside Directions.

9.  By a letter dated 28 September 2022 and an affidavit filed on 3 October 2022, the respondent voiced his objection.

10.  In the meantime, the EOC formally filed the claimant’s affidavit on 29 September 2022 under the cover of a letter of the same date.

11.  On 9 November 2022, I informed the parties by letter inter alia that:

“1. The claimant’s letter dated 23 September 2022 (Folio 35) is superseded by the letter dated 29 September 2022 (Folio 37).

…

3. Notwithstanding the objection in the respondent’s fax dated 28 September 2022 (Folio 36) and his affirmation filed on 3 October 2022 (Folio 40), retrospective leave is granted to the claimant to file and serve her affidavit in opposition out of time (Folio 38).

…”

12.  On 29 November 2022, the respondent took out the summons under consideration.

Discussion

13.  In her written submissions, Ms Wong for the claimant observed that the respondent is not applying for leave to appeal against the order dated 9 November 2022 and has failed to identify any relevant legal provisions for his application. 

14.  She opposes the application on the ground that:

(a)  The application is academic as the substance of the application has already been dealt with by way of the order dated 9 November 2022 which has taken effect pursuant to Order 42, rule 3 of the Rules of the District Court, Cap 336H (“RDC”).

(b)  Applying the test propounded in Lau Sin v Wong Mary [2018] 3 HKLRD 202 at para 33, the application is wholly unmeritorious and allowing it to proceed amounts to an abuse of process.

15.  In Lau Sin, Deputy High Court Judge Paul Lam SC (as he then was) considered a number of cases in which the court dealt with a second interlocutory application after the dismissal of a prior application of the same nature and generalized the following principles:

(a)  The doctrine of res judicata, properly so-called, does not apply to interlocutory orders.

(b)  If a party seeks to re-litigate a matter which has been determined in a previous interlocutory decision by taking out a second application, the second application is liable to be dismissed by the court, either of its own motion or on application, pursuant to its inherent jurisdiction or Order 18, rule 19, on the ground that it constitutes an abuse of process.

(c)  It will not be an abuse of process if there are express statutory provisions permitting the re-litigation of the matter.  There are many express provisions allowing the respondent to an application to apply to set aside an order made in its absence or as a result of its failure to comply with certain procedural steps (eg Order 13, rule 9; Order 14, rule 11; Order 19, rule 9; Order 24, rule 17; Order 26, rule 8).  Another useful example is that directions on evidence (including expert evidence) may also be revoked and varied by a subsequent direction (Order 38, rule 44).

(d)  In the absence of any express statutory provision, whether the second application constitutes an abuse of process must depend on the particular circumstances of each case.  Generally speaking, the court should consider what is just and reasonable.

(e)  It is inappropriate and impossible to set out exhaustively what the relevant considerations will be.  Naturally, the court will need to consider the nature of the interlocutory application; whether the applicant had, or could and should have, challenged the first interlocutory decision by other means; and why a second application concerning the same matter has been made. Examples of situation where the court may conclude that there is no abuse of process include: the ruling on the first application was not based on merits but on a technical objection; the applicant failed to prove essential facts from mistake or inadvertence at the first application, there is new evidence that seriously justifies reconsideration of the issue; or there is a material change of circumstances.

(f)  Nevertheless, the court should adopt a holistic, rather than a dogmatic or mechanistic, approach.  At the end of the day, the court shall consider whether it is in the interests of justice to allow the second application to proceed having regard to all relevant circumstances of the particular case. And in considering how its discretion should be exercised, Order 1A, rule 2 requires the court to give effect to the underlying objectives of the Rules of the High Court as set out in Order 1A, rule 1.

16.  One of the cases considered by the learned Judge was Wong Kam Hong (t/a Continental Knitting Factory) v Triangle Motors Ltd [1998] 2 HKLRD 330. In that case at 336D, Cheung J (as he then was) confirmed that:

“The court has jurisdiction to reconsider and rehear the matter before the order is perfected: Re Harrison’s Settlement [1955] 1 Ch 260 and Note 32/1-6/21 of the Supreme Court Practice.”

17.  The up-to-date local reference of Hong Kong Civil Procedure 2023 carries the following commentary (at para 32/6/12):

“There is no power to rehear an application after any order made on the hearing has been perfected, even though made in the absence of a party and even though made in interlocutory proceedings except by consent of all parties concerned and except in certain specified cases expressly provided for by the rules… On the other hand the court has power to re-hear an application so long as the order has not been perfected. This power is exercisable under r 5, where the order is made in the absence of the party and the court is satisfied that it is just so to do; but this power is of general application, and is exercisable whether the application is made in court or in chambers so long as the order has not been perfected (Re Harrison’s Settlement [1955] Ch 260, CA). After an order has been perfected the court may make a supplemental order on new facts (Ford-Hunt v Singh [1973] 1 WLR 738; [1973] 2 All ER 700).”

18.  The reference of “r 5” is to Order 32, rule 5 of the RDC which is in these terms:

“(1) Where any party to a summons fails to attend on the first or any resumed hearing thereof, the Court may proceed in his absence if, having regard to the nature of the application, it thinks it expedient so to do.

(2) Before proceeding in the absence of any party the Court may require to be satisfied that the summons or, as the case may be, notice of the time appointed for the resumed hearing was duly served on that party.

(3) Where the Court hearing a summons proceeded in the absence of a party, then, provided that any order made on the hearing has not been perfected, the Court, if satisfied that it is just to do so, may re-hear the summons.

(4) Where an application made by summons has been dismissed without a hearing by reason of the failure of the party who took out the summons to attend the hearing, the Court, if satisfied that it is just to do so, may allow the summons to be restored to the list.”

19.  In the present instance, the summons under consideration is concerned with the claimant’s application by letter dated 23 September 2022 for extension of time to file and serve her affidavit in opposition to the Setting Aside Summons.  It serves the same purpose as the respondent’s letter dated 28 September 2022 and affidavit filed on 3 October 2022 to object to the claimant’s application.  That application was resolved in the claimant’s favour on 9 November 2022 when retrospective leave was granted for her to file her affidavit out of time.

20.  The claimant’s application was not made by means of a summons and no hearing was held.  Straightly speaking, Order 32, rule 5 is not engaged.  Be that as it may, the principles laid down in Re Harrison’s Settlement, which is of general application, is still applicable.  As the order dated 9 November 2022 has not been perfected, this court has the power to reconsider the respondent’s objection in terms of the summons under consideration.  The summons may not therefore be dismissed as an outright abuse of process.

21.  It is true that the respondent has failed to set out the rules under which his application was made on the face of the summons.  Whilst it is good practice to endorse the jurisdictional reference in the margin of the summons, an incorrect indorsement will not preclude the court from granting relief: see para 32/6/7 of Hong Kong Civil Procedure 2023 and Premier Fashion Wears Ltd v Li Hing Chung [1994] 1 HKC 213.  A fortiori, I do not think an omission would affect the jurisdiction of this court to entertain the respondent’s application on its merit. 

22.  In the letter dated 23 September 2022, the EOC explained that the claimant’s affidavit had been finalized but that the claimant required more time to arrange for notarization as she was working in a school located at a remote area in the Philippines.  The school was distant from the nearest town where offices of notaries public were located and the claimant had to travel to town to look for one and to engage the service of a logistic company, hence the application for extension of time to file the affidavit out of time after it had been notarized in the Philippines and brought to Hong Kong.  An unsigned finalized claimant’s affidavit in opposition to the Setting Aside Summons was enclosed in the letter and the letter was copied to the respondent.

23.  In their subsequent letter dated 29 September 2022, the EOC reported that they had received the duly notarised affidavit from the claimant and submitted the same for filing.

24.  In the meantime, the respondent voiced his objection by his letter dated 28 September 2022 and affidavit filed on 3 October 2022.  He argued that the legal representatives of the claimant, who had been acting for her for a considerable time, should be aware of the claimant’s remote habitancy in the Philippines at the time of the order nisi and should have applied for extension whilst the order was still nisi.

25.  In the summons under consideration and the supporting documents, the respondent basically repeated the same argument.  He reiterated that those advising the claimant should have requested to vary the order nisi before it became absolute.  He criticized the claimant for failing to adhere to the clear time frames provided by the court.  He asked rhetorically whether the order is absolute if the claimant is provided with an exemption.  And he doubted if the EOC would agree to represent her if the claimant had been completely honest and forthcoming.

26.  The claimant was driven to apply for time extension because of practical difficulty she encountered in arranging for notarisation.  I accept Ms Wong’s submission that the claimant had not foreseen the difficulty at the time of the order nisi and so did not apply for variation.  As it turned out, the claimant was late for 3 days only.  An unnotarised but finalized affidavit was enclosed in the EOC’s letter ahead of the deadline for the respondent’s reference. So the respondent in fact had more time than that allowed by the Setting Aside Directions to consider his response.  In any event, the timetable has been revised on account of the slight delay and the respondent could not have been prejudiced.  It would have been most dogmatic and draconian to deny the claimant the opportunity to oppose the respondent’s Setting Aside Summons in such circumstances.  Similar accommodation was accorded to the respondent when he took out the Setting Aside Summons improperly[1] and filed an affidavit on 5 January 2023 in support of his summons notwithstanding the direction that there should be no further affidavit without leave[2].  Nothing in the summons and the supporting documents has caused me to depart from my decision.    There is simply no merit in the respondent’s application.

Disposition

27.  For the above reasons, the respondent’s summons dated 29 November 2022 is dismissed.  There be an order nisi that the respondent do pay the claimant’s costs of opposing the summons. 

28.  Unless an application has been made to vary the above costs order nisi by summons, it shall become absolute 14 days after this decision is handed down and there be the following directions for summary assessment of the claimant’s costs:

(a)  the claimant do lodge and serve a statement of costs within 28 days from the date the costs order nisi becomes absolute;

(b)  the respondent may lodge and serve a concise statement of objections within 14 days thereafter; and

(c)  the parties will be informed of the result within 3 months of the close of submissions.