Hung Chun Cheong v. Chun Wo Construction and Co. Ltd. and Another

CACV000190/1991

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Coram: Hon Sir Derek Cons, V.-P., Hon Liu and Hon Godfrey, JJ. In Court

Date of hearing: 14th April 1992

Date of delivery of judgment: 14th April 1992

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J U D G M E N T

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Liu J.

1. This is a personal injuries case. The plaintiff sustained alleged permanent disabilities and continuing loss.

2. By a summons dated 26th July 1991, the plaintiff sought from both defendants the following particulars :-

"Wages record, employer's tax returns for the employees, time attendance records in respect of the two to three employees of the Defendants engaged in similar work to that of the Plaintiff for the period from the date of the accident up to the date of Order made pursuant to this application."

An order was made in terms by Mayo J. on 26th November 1991.

3. No point is taken on the nature of the ordered specific documents. I do not propose to deal with the Grounds of Appeal specifically. In essence, it is complained that the extent of the order is obscure and its ambit undefined, hence oppressive. From that order of Mayo J., the defendants now appeal.

4. As pleaded in the Statement of Claim, in particular paragraphs l(f) and 4, the 2nd defendant as the site sub-contractor, was he plaintiff's employer and the plaintiff was the 2nd defendant's carpenter. No other contract of employment existed except for that between the 2nd defendant and the plaintiff. The summons of 26th July sought under 0.24, r.7 to impose an obligation on both the 1st and the 2nd defendants. It was not ordered that these defendants, 1st and 2nd, do jointly file an affidavit. The need to file an affidavit of specific documents would appear to be separate. The reference made in the summons of 26th July to "the employer's tax returns for the employees" (emphasis added) put the dual requirement beyond, I think, argument. It is no part of the Grounds of Appeal of the defendants that the order should not have included the 1st defendant, but evidently, the 1st defendant was uninvolved in any contractual relationship with the plaintiff.

5. The order made in terms of the summons identifies three separate classes of specific documents in respect to two to three employees. The order is not one which seeks disclosure for all the employees indiscriminately. The employees in the order of Mayo J. are to come from a group engaged in work similar to that of a carpenter.

6. The defendants, through their counsel Mr Mumford, submitted that the reference to "two to three employees" in respect to whom these specific documents are required is unclear. In my view, this is obscure. The group as stated in the summons and subsequently transposed to the order of Mayo J. has not been sufficiently identified. Mr Mumford, counsel for the defendants, is prepared to accept the substitution of the word "those" for the words "the two to three". On that concession of counsel, I see no objection to the proposed substitution. The inclusion of the 1st defendant in the order for disclosure is not being objected to. In my view, the reference to "two to three" employees is ambiguous and I would take the opportunity, while acceding to Mr Mumford's invitation to substitute the word "those" for the words "the two to three" in the order, also of confining discovery to the 2nd defendant.

7. For all these reasons, I would allow the appeal to the extent I have indicated. It is sad that on a triviality like this, much time has been wasted both before the judge and the Court of Appeal. I would, subject to what counsel have to say, prefer to award no costs to either the appellants or the respondent.

Cons, V.-P.,

8. I agree with My Lord that the appeal should be allowed and the order of the judge below varied to apply only to the 2nd defendant and with the replacement of the words "the two to three" with a single word "those". I would also echo My Lord's comments as to the time taken on this matter and the expense incurred. It is a sad commentary on the legal profession that an imaginery dispute of no practical importance should have been allowed to escalate into what it has. My Lord has suggested, and I would agree with him too, that subject to any submissions that may be made by counsel, the proper order in respect to costs is that each side should bear its own costs all the way through, before the master, before the judge and before this Court. I would, therefore, for my part, vary the orders of the judges made below to an order in each case of no costs and make a similar order in this Court.

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Godfrey, J.

9. I agree with My Lords and I do not desire to add anything.

Representation:

Mr E.C. Mumford, Q.C. and Mr Kenny C.P. Lin, inst'd. by M/s Simon Ho & Co. for the Appellants/Defendants.

Mr Peter Graham, inst'd. by M/s W.K. To & Co. for Respondent/Plaintiff.