CHUNG FAI ENGINEERING CO. (a firm) v. MAXWELL ENGINEERING CO. LTD.

HCMP 4473/2000

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

MISCELLANEOUS PROCEEDINGS NO. 4473 OF 2000

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HCA 10504/96

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J U D G M E N T

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Introduction

1. On 27 June, Burrell J gave judgment in the Court of First Instance in two actions which had been consolidated. The order giving effect to that judgment was sealed on 7 July. One of the parties, Chung Fai Engineering Co. ("Chung Fai"), wishes to appeal. However, by 26 August, it had not served its notice of appeal on Maxwell Engineering Co. Ltd. ("Maxwell"), the other party to the actions. Thinking that its time for serving its notice of appeal had expired, Chung Fai filed an originating summons seeking "leave to appeal" against Burrell J's judgment "notwithstanding that [the] time limit for appeal[ing] has expired". It purported to do so pursuant to Ord. 59 r. 4 and Ord. 59 r. 15. The Clerk of Court, thinking that the application could be determined by a Justice of Appeal ex parte without a hearing, sent the papers to me to determine the application.

2. A number of points of practice arise on the application. I have therefore decided to reduce my judgment into writing. I give permission for this judgment, although handed down in chambers, to be reported so that the views expressed in it can receive a wider currency.

The nature of the application

3. The application which Chung Fai wishes to make should not have been described as an application for "leave to appeal". Chung Fai has an automatic right of appeal to the Court of Appeal from the judgment of Burrell J. It does not need the permission of either the Court of First Instance or the Court of Appeal to appeal. What it really wants is an extension of time to take a particular procedural step in the appellate process, namely an extension of time to serve its notice of appeal. Such an application could not have been made

(a) under Ord. 59 r. 4(1) (which merely identifies the time for appealing "[e]xcept as otherwise provided by these rules"), or

(b) under Ord. 59 r. 15 (which enables "the court below" to extend the time for appealing, provided that the application is made before the expiration of the time for appealing).

Chung Fai's application should have been made under Ord. 3 r. 5.

4. I appreciate that an application to extend the time for serving a notice of appeal is colloquially referred to as an application for leave to appeal out of time. But it is better, I think, to use the correct terminology. Apart from anything else, the use of the colloquialism "leave to appeal" has, for reasons which I shall come to, led to the erroneous belief that the application can be determined by a judge ex parte without a hearing.

The nature of the hearing

5. As I have said, the Clerk of Court thought that Chung Fai's application could be heard by a single Justice of Appeal ex parte without a hearing. When I questioned that, I was told that Justices of Appeal have often in the past considered applications for an extension of time for serving a notice of appeal in that way. If the application is granted, it is said to be open to the other party to apply, presumably pursuant to Ord. 32 r. 6, to have the order extending the time set aside.

6. I rather doubt whether Ord. 32 r. 6 can be used for this purpose. The power to set aside an order made ex parte is conferred on "[t]he Court". According to Ord. 1 r. 4(2), the words "the Court" mean the Court of First Instance, not the Court of Appeal. I appreciate that this definition applies "unless the context otherwise requires", and if a provision similar to Ord. 32 r. 6 had appeared in Ord. 59, I would have been very ready to read the words "the Court" in such a provision as referring to the Court of Appeal, but not otherwise.

7. But the real point is that even if an order made ex parte extending the time for serving a notice of appeal could be set aside, I do not think that there is any power to make such an order ex parte. It has never been said that applications for an extension of time under Ord. 3 r. 5 can be made ex parte, and as I have said an application to extend the time limit laid down by Ord. 59 r. 4(1) for serving a notice of appeal is an application under Ord. 3 r. 5.

8. The confusion has arisen, I believe, as a result of the application for an extension of time for serving a notice of appeal being colloquially described as an application for "leave to appeal out of time". Appeals to the Court of Appeal do not lie as of right in certain classes of cases. The best known examples are appeals from the District Court and appeals in respect of orders for costs which are in the discretion of the court: see section 63(1) of the District Court Ordinance (Cap. 336) and section 14(3)(e) of the High Court Ordinance (Cap. 4) respectively. Leave to appeal, properly so-called, is required in such cases. Ord. 59 r. 14(2) permits applications for such leave to be made ex parte without a hearing. Where an application for such leave is made after the time for serving the notice of appeal has expired, the application for leave to appeal should include an application for an extension of time for appealing, and that application for an extension of time may be considered ex parte without a hearing. But Ord. 59 r. 14(2) relates to appeals for leave to appeal properly so-called, and it does not relate to applications for an extension of the time for serving a notice of appeal in a case in which the appellant may appeal as of right.

9. It follows that I cannot determine Chung Fai's application for an extension of time for serving its notice of appeal ex parte without a hearing. To be fair, Chung Fai's solicitors did not think that it could be heard ex parte, because it caused its summons to be served on Maxwell's solicitors.

The need for an extension of time

10. The time limit for serving a notice of appeal in respect of an appeal to the Court of Appeal was reduced earlier this year. As a result, a notice of appeal from Burrell J's order had to be served within 28 days of the sealing of the order. However, before the 28 day time limit had expired, the Court's summer vacation had commenced. The summer vacation is the month of August: see Ord. 64 r. 1(1). Section 31(1) of the High Court Ordinance provides:

"Where by any law regulating civil procedure, or by any special order of the High Court, any period not exceeding one month is appointed or allowed for the doing of any act or the taking of any proceeding, no days included in the summer vacation shall be reckoned in the computation of such time, unless the Court otherwise directs ..... "

Since the 28 day time limit is a "period not exceeding one month", Chung Fai's time for serving its notice of appeal did not run during the month of August. In this connection, I should add that I have not overlooked Ord. 3 r. 3 which provides:

"Unless the Court otherwise directs, the period of the Summer Vacation shall be excluded in reckoning any period prescribed by these rules or by any order or direction for serving, filing or amending any pleading."

I do not think that a notice of appeal can be said to be a pleading. I am confirmed in that view by the fact that, although there is no definition of the word "pleading" in Ord. 1 r. 4(1), a pleading "does not include a petition, summons or preliminary act".

11. It follows that Chung Fai's time for serving its notice of appeal did not expire until 4 September. Thus, it did not need to apply on 26 August for an extension of its time since it was then in a position to serve its notice of appeal. The irony is that its time for serving the notice of appeal has now expired, and unless

(a) the affirmation of Chan Kwok Fai, Chung Fai's project manager, which exhibited the proposed notice of appeal, was served on Maxwell's solicitors by 4 September, and

(b) service of that affirmation constituted service of the proposed notice of appeal exhibited to it,

Chung Fai now needs an extension of time for serving it. But even if it does not need an extension of time for serving the notice of appeal, it will need an extension of the time limited by Ord. 59 r. 5(1) for lodging the two copies of it with the Registrar, as well as a copy of Burrell J's order.

12. It will be noted that the matter would have been different if the time for serving the notice of appeal had not been reduced earlier this year from six weeks to 28 days. Under the old regime, section 31(1) of the High Court Ordinance would not have applied, and an appellant's time for serving the notice of appeal would have continued to run during the month of August. Thus, the irony is that, as a result of the reduction of the time limit to 28 days, Chung Fai had until 4 September to serve the notice of appeal, whereas if the time limit had still been six weeks, its time limit would have expired on 18 August.

Conclusion

13. For the reasons I have given, I direct that Chung Fai's application for an extension of its time for serving the notice of appeal be listed for a hearing in chambers but inter partes on a date to be fixed.