LAM CHING HON v. LAM YU SHUI AND ANOTHER

DCEC370/2005

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

EMPLOYEES’ COMPENSATION CASE NO. 370 OF 2005

R U L I N G

1. The parties came before me for the determination of costs in an inter partes summons dated 9 June 2005 taken out by the applicant under section 10 of the Employees’ Compensation Ordinance and Order 29, Rule 10 of the Rules of the District Court.

2. The summons was first heard before Judge Ng on 10 June 2005 on a call-over hearing and Judge Ng gave directions adjourning the summons sine die and directed the respondents to file affirmation in opposition and the applicant to file an affirmation in reply, etc. and ordering the costs of that hearing to be in the cause.  However, the summons was never restored.  The parties eventually settled the whole action.  The outstanding matter now is the costs of the summons and the consequential costs.

3. Counsel for the applicant, Mr Lau, argued vigorously before me today that the applicant should have his costs of the summons and the consequential costs because the summons was taken out due to the respondent filing a revised Form 2 to the Labour Department on 25 February 2005 after the original Form 2 was filed soon after the accident which took place in August 2004.  And in the revised Form 2, the respondents amended the monthly income of the applicant from $15,600 to $1,950.  On the second page of the revised Form 2, the respondents recorded that the applicant had worked three days in that month and therefore the monthly income was $1,950.  The actual fact is, the applicant had worked for the respondent for a total three days before the industrial accident took place.  The respondents stopped paying out interim payments after five payments of $8,000 per month after the accident.

4. It is Mr Lau’s submission that if the summons was restored and heard, the applicant would have succeeded because the respondent had filed an affirmation in opposition, producing all the documents relied on by the respondent while the applicant had also filed an affirmation in reply stating the applicant’s position.  The court therefore would then have been ready to proceed with the determination of what the earnings of the applicant should be.

5. It is Mr Lau’s submission also that if the summons was restored, the court would have proceeded to determine whether the hearing would be a final hearing under section 10 of the Employees’ Compensation Ordinance or whether it was an interlocutory hearing for interim payment.  And if it was decided that it would be a final hearing to determine the monthly earnings of the applicant, it would immediately be heard in open court and the applicant would have succeeded when the court made a decision on the issue.

6. The respondents’ legal representative, Miss Hui, submitted that the applicant’s summons was confusing.  In one hand, it asks for an interim payment under Order 29 Rule 10 and, on the other hand, it refers to the periodical payment under section 10 of the Employees’ Compensation Ordinance.  Furthermore, the applicant asks for future payments at a rate of $12,480 per month upon issuance of a sick leave certificate in future.  Miss Hui criticised the applicant’s summons to have been taken out in haste without due consideration and without sufficient evidence in support of the applicant’s application.

7. She submitted that the applicant’s summons was taken out at a stage of the proceedings that he would have no hope of success.  She argued that the issues are so much in dispute that these issues could not be resolved interlocutorily.  There was simply no evidence that the applicant could have obtained substantial damages against the respondent at the time when the summons was taken out.  She pointed out that the case was only settled on 9 February 2006.

8. The Court of Appeal decision of Poon Chi Kwong v Poon Wing Kee CACV378 of 2003 was referred to and relied on by both parties.  It is not disputed that if the applicant in this case has his summons restored, the parties must decide whether the application was to be heard as an interlocutory matter or as a final matter to determine the applicant’s monthly earnings based on which the periodical payments under section 10 should be made.

9. Clearly, the applicant did make the application rather prematurely given that the joint medical evidence were not available until November 2005.  On the other hand, as Mr Lau submitted, the respondent had produced all the documents the respondent wished to rely on in the affirmation in opposition.  It is understandable that the applicant should want to be paid an interim payment before the trial because the trial could be months and months away.

10. From the wordings of the summons, I am satisfied that at the time the applicant’s solicitor had intended the summons as an interlocutory application for an interim payment under Order 29, Rule 10; that it was not until later on that it appeared to both parties’ solicitors that the matter could lead to a final determination of the applicant’s earning basis and probably it was at a later stage that both parties’ solicitors realised the decision in the Court of Appeal in Poon Chi Kwong and that perhaps was why the summons was not restored.

11. To speculate at this stage what would have happened if the summons was restored and heard would be most undesirable for it goes in to the realm of speculation and conjecture.  However, it is exactly what I have been asked to do today in order to determine the costs that will result in the hearing of the summons.

12. Based on the direction of Judge Ng on 10 June 2005 and the usual practice of the District Court, taking into consideration of the Court of Appeal decision in Poon Chi Kwong, and if the parties fail to agree on the nature of the summons, whether it should be final or interlocutory, the judge hearing it would probably hear arguments on this issue first to determine if it would be a final hearing, or an interlocutory hearing.  I would not wish to speculate on the outcome as it has not taken place and will never take place.

13. I will, however, indicate that the summons may have been premature, but if the case had not been settled, the summons would have been restored in any event as an interlocutory application as it was so intended at the time of the summons.  It is in the realm of the unknown, however, if it was heard, whether the applicant would have succeeded.

14. It is my ruling, then the costs of the summons should be costs in the cause.  As to the consequential costs, I order that the parties do pay their own costs, including the costs of the resumed hearing if there had been one.

(Discussion re costs)

15. So it follows that for this hearing, each party shall pay his own costs.