LAU SAU FAI v. CHINA STATE CONSTRUCTION ENGINEERING (HONG KONG) LTD

DCEC 832/2012

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

EMPLOYEES’S COMPENSATION CASE No. 832 OF 2012

____________

____________

_______________________________________

DECISION

_______________________________________

Introduction

1.  This is an application of the respondent to consolidate the present proceedings (“the 1^st Application”) and another set of proceedings commenced by the same applicant against the respondent under DCEC 940/2012 (“the 2^nd Application”) by its summons dated 31 May 2013. 

2.  The two applications allegedly involve two separate accidents occurring on two different dates in September 2011 of which the respondent puts the applicant to strict proof in its respective Answers filed in the two applications. It is not in dispute that the applicant was the employee of the respondent at the material times of the two applications.

Governing principles

3.  The present application is made pursuant to Order 4 rule 9 of the Rules of the District Court. The provision reads as follows:

“(9) Where two or more causes or matters are pending, then, if it appears to the Court –

(a) that some common question of law or facts arises in both or all of them or

(b) that the rights to relief claimed therein are in respect of or arise out of the same transaction or series or transactions, or

(c) that for some other reason it is desirable to make an order under this rule

the Court may order those causes or matters to be consolidated on such terms as it thinks just or may order them to be tried at the same time, or one immediately after another, or may order any of them to be stayed until the determination of any other of them.”

4.  It is common ground that in dealing with an application under this rule, the court has an unfettered discretion. The principal objective of an order for consolidation is to save time and costs. There is no hard and fast rule and all the circumstances of the situation have to be taken into account: Sincere View International Limited v Kenco Investments Limited & Ors, unreported, HCA 301/2005, 3.2.2006 per Kwan J (as she then was) at §14.

Order of Chief District Judge Poon dated 26 October 2012 (“the Order”)

5.  The present application appears to be objectionable to me in the light of the Order. Paragraph 1 of the Order reads:

“DCEC832/2012 and DCEC940/2012 are to be dealt with together.”

6.  It is necessary to look into the history of the Order. The Order was made by the judge after hearing the parties at the first hearing of the 1^st Application. Immediately before the said first hearing, in the Joint Written Application dated 25 October 2012, the parties indicated to the court that the respondent proposed that the 1^st Application be consolidated with the 2^nd Application and that the applicant did not agree to this proposal. The purpose of this indication was to inform the court of the likelihood of any further interlocutory application.

7.  On the same date, nonetheless, the parties signed and filed a consent summons with a view to vacating the said first hearing. However, the judge asked the parties to attend the said first hearing and requested that the case file of the 2^nd Application should be brought up for consideration.

8.  The transcript of the said first hearing was made available to me and it helped me understand the circumstances leading to the making of the Order. First, Mr Wong appearing for the respondent indicated to the court that the respondent had not made a formal application for consolidation yet. Then Mr Wong told the court why he thought the respondent had a strong case on consolidation. Mr Fu appearing for the applicant also made his position clear. He wanted that the 1^st and 2^nd Applications to be heard one after the other or be dealt with together instead of consolidation.

9.  Chief District Judge Poon then observed that it did not matter a lot whether the two applications were to be consolidated if they were to be dealt with together. Mr Wong in reply indicated, in his own words, that he would not insist on these “verified procedural differentiation to be dealt with together” and just that he did not agree that the two applications should be dealt with one after the other. The judge then moved on to other case management matters.

The present application

10.  It thus appears to me that the issue of consolidation was properly canvassed at the said first hearing and after hearing the arguments, the judge duly made a case management decision. There is no reason why the respondent should be entitled to reopen the issue absent any change of circumstances.

11.  Mr Wong submits that there was no formal application before the judge. However, as pointed out to Mr Wong, according to the letters of the said rule, the court is entitled to make such an order under the said rule even without an application by either parties.

12.  Mr Wong then submits that the Order was not exactly made under the said rule as it was only ordered that the two applications were to be dealt with together and not to be heard together. I find no merit in this submission. On a fair and plain interpretation of the Order, it must mean that the two applications were to be heard together.

13.  Mr Wong further argues that he is not seeking to challenge and/or vary the Order by this application despite his criticism that full arguments were not ventilated at the said first hearing. He contends that the subsequent development of these proceedings warrants a consolidation order. He submits that when he attempted to file one list of documents for the 1^st and 2^nd Applications in a consolidated manner subsequent to the Order, the Registry of the District Court refused to accept the document and asked the respondent to file a separate list of document for each of the Applications.

14.  The Registry of the District Court was clearly right. In the absence of a consolidation order, the respondent could not file one single list for both applications. The unsuccessful attempt to file the document is merely a natural consequence of the Order and I fail to see how this amounts to a new development.

15.  Even if I have jurisdiction to allow the respondent to have a second bite of the cherry, I am far from persuaded that a consolidation order in lieu of the Order can save more time and costs.

16.  I would readily accept that there might be duplication of documents to be filed in the 1^st and 2^nd Applications. The only outstanding matters in the two applications, as indicated to the judge, were about the filing of evidence, both factual and medical. I am not given any estimate of the extra costs necessitated by the absence of a consolidation order. On the other hand, I bear in mind that the preparation and filing of pleadings for the purpose of a consolidated action would also require time and incur costs and I am not convinced by the evidence before me that such costs would be worthwhile to save the costs arising out of duplication of documents further down the road.

17.  Lastly, Mr Wong submits that it is also in the interest of the applicant, who is legally aided in both applications, to have the two applications consolidated in the event that he wins both. I am not so persuaded on the evidence.

Conclusion and Orders

18.  I thus come to the conclusion that this application has no merit. I order that that this application should be dismissed. Mr Wong accepts that costs should follow the event. Mr Fu handed up his statement of costs. Mr Wong objects to certain items of the statement and argues that in this simple matter, the hourly rate of Mr Fu should be reduced from HK$2,600 to HK$2,300. Mr Wong further argues that the adjournment of the hearing of this application was necessitated by the late production of the transcript by the applicant and so there should be adverse costs consequences against the applicant.

19.  As the parties agree that summary assessment is appropriate, I am minded to take a broad-brush approach. Nonetheless, I should make it clear that I do not think the applicant could be blamed for the adjournment. The hearing originally fixed on 27 June 2013 was a 15-minute one and it could merely be for call-over purpose given the parties had already filed 4 affirmations. The hearing was only duly vacated by the parties for a full-blown argument before this court.

20.  Given the simple nature of this application and the evidence prepared by the application in opposition thereto, I conclude that HK$25,000 is an appropriate figure to cover the costs of the applicant. I hence make an order nisi that the respondent do pay costs of and occasioned by this application to the applicant in the sum of HK$25,000 assessed summarily. The applicant’s own costs to be taxed in accordance with the Legal Aid Regulations.

21.  Lastly, I thank Mr Wong and Mr Fu for their helpful assistance.