MAK KAU-SUM v. MACCHETTI LTD

V. C. J. 3 of 1985

H E A D N O T E

                In view of the judgment of the Court of Appeal in HO Kai-fai, Civil Appeal No. 191 of 1984 that a Deputy Registrar is duty bound to strike out with a District Judge's jurisdiction to extend time retrospectively and revive the action, the ruling in LEE Sai-ho, V. C. J. Action 3086 of 1984, that "pending, the hearing of interlocutory proceedings, rule 31(2) of the District Court Civil Procedure (General) Rules has no application" should be taken to have been overruled albeit not expressly as having not been raised or argued in the said appeal.

IN THE DISTRICT COURT OF HONG KONG

HOLDEN AT VICTORIA

CIVIL JURISDICTION

ACTION NO. 3 OF 1985

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EX  TEMPORE  RULING

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1. This is an application for extension of time beyond the three months period from 2nd of January 1985 to have this action set down for trial. Rule 31 of the District Court Civil Procedures (General) Rules in effect requires a plaintiff or another party in that capacity to have the action set down for trial within three months from the date of close of pleadings, failing which the Registrar, meaning the Deputy Registrar of Victoria District Court shall strike it out. I mentioned 2nd January because this action was transferred from the High Court with notice of the V. D. C. case number delivered to the parties on that date.

2. On 19th of February 1985, the Plaintiff asked for further and better particulars which were fully supplied as requested by 20th of March. It was not until the 4th of June that the Plaintiff applied to set down for trial.

3. Mr. Chow this morning advanced his as one of his grounds for this application that the delay was due to the fact that negotiation between parties had been going on with the view to settlement. I find this reason difficult to accept as nothing in the negotiation stage could deter or inhibit a party from complying with the statutory requirements of setting down. Such a ground by itself cannot be a very ground for extension of time.

4. I have refreshed myself of my little ruling in LEE Sai-ho, V. C. J. case no. 3086 of 1984 in which I ruled: "Pending the hearing of interlocutory proceedings, Rule 31(2) has no application". However, that ruling must now be read subject to HO Kai-fai, Civil Appeal No.191 of 1984, in which in this context Sir Alan Huggins, V.-P. observed in the second paragraph on page 4 that:-

"Under Rule 31(2) the Deputy Registrar has no choice (emphasis by me) once he finds that the period of three months has elapsed, and in the ordinary case, the expirty of the three months will appear on the face of the record."

and on the top of page 5: -

"... although the judge may have had no jurisdiction to alter the time 'at which' the Deputy Registrar was required to strike out the action, Rule 31(2) implicitly required the parties to apply 'within' three months from the date of filing of the Defence to fix a date for the hearing of the action if a striking out was to be avoided, and that the three moths' period was one which the judge had jurisdiction to extend."

5. Although my little ruling was not referred to in argument before the Court of Appeal nor was it mentioned in any of the judgments in that appeal, from the two pages just quoted above I am of the opinion that my ruling should be taken as to have been overruled by implication. Sir Alan had made it abudantly here that the Deputy Registrar has no choice and he is duty bound to strike out once the three months' period is up which will be inconsistent with my ruling that pending interlocutory matters an action cannot be struck out in the circumstances.

6. As frankly admitted by Mr. Chow for the Plaintiff, he is not aware of the Court of Appeal's case but was aware of my ruling. It is not inconceivable that at the close of pleadings, i.e. after the full supply of the particulars asked for, Mr. Chow or his colleague might well have been under the illusion the time started to run from the 20th of March not knowing the implication that my ruling in LEE Sai-ho had in effect been overruled albeit not expressly. For this reason I find it only fair and just for me to extend the time for the Plaintiff to set this action for trial by four months to the 2nd of July 1985. It is desirable for the Plaintiff to do it as quickly as possible for if it is not done due to oversight, it is most unlikely either this Court or another Court will further extend the time.