Wong Kam Cheung v. Tai Fong Dyeing and Weaving Factory Ltd

CACV000021/1982

Workmen's compensation - agreement approved by Commissioner of labour - application under s.17(4) of Employees' Compensation Ordinance to have agreement made an order of the court - procedure purely administrative : no right to oppose on ground that agreement could be set aside under s.17(5) - time limit under s.17(5) applies to an application by a party as to an application by the Commissioner.

BETWEEN

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Coram: Sir Alan Huggins, V.-P., Yang & Barker, JJ.A.

Date of hearing: 9 March 1982

Date of Judgment handed down on: 16 March 1982

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JUDGMENT

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Sir Alan Huggins V,-P.:

1. This case came before us by way of a reference by special Case under s.22 of the Employees Compensation Ordinance. The question submitted for our decision was in this form:

"having regard to subsections 4 and 5 of section 17 of the Employees' Compensation Ordinance Cap. 282 does the Respondent have the right to oppose an application to have an agreement made an order of the Court where he has not within 6 months after the date of the signification of the Commissioner's approval applied to have the Agreement cancelled ?"

Section 17(1) allows an employer and employee to agree in writing as to the compensation to be e paid for an injury, provided that the compensation so agreed shall not be less than the amount payable under the Ordinance and that the agreement shall not be binding until the Commissioner for Labour has signified his approval of the agreement in writing.  The two sub-sections then calling for consideration are:

2. In the present case an agreement was reached between the parties and the Commissioner for Labour signified his approval in writing. More than six months later, the Employer having failed to pay the agreed sum, the Employee applied under ss.(4) for the agreement to be made an order of the Court. We assume that in accordance with r.27 of the Emloyees' Compensation (Rules of Court) Rules the application was made in Form 3 in the First Schedule to the Employees' Compensation Rules, Somehow this application came to be served on the Employer, who by this time had come to the conclusion that the agreement had been entered into in ignorance of, or under a mistake as to, the true nature of the injury and wished to have it cancelled by virtue of ss.(5)(b). Instead of making an application under ss. (5) the Employer sought to oppose the application under ss.(4) and to argue that, because there was ground for cancelling the agreement, the agreement should not be made an order of the Court.

3. There may have been some superficial logicality in adopting that course but in our judgment it cannot bear careful scrutiny.  In the first place we think the procedure under ss. (4) is purely administrative and was never intended to offer an opportunity for a party who was not the applicant to be heard in opposition. There is no "respondent" to such an application. The employer here was misled by the fact that the application was served on it. Needless to say, where an agreement is made an order of the Court, a copy of the order ought to be served on any party who was not the applicant, but there is nothing which requires service of notice of an application under ss.(4) and such notice would have no valid purpose. Rule 17 of the Employees' Compensation (Rules of Court) Rules, which was apparently thought to apply since we are told that the notice was in Form 4 prescribed by the Schedule to those rules, has no relevance to such an application: "application" in r.17 means an application by an employee or an employer or any other person who desires the determination of any question arising out of an accident in which compensation is or might be claimed" see r. 16(1).

4. It was suggested that the use of the word may in s.17(4) indicated a discretion in the Court and that such a discretion necessarily required that opportunity should be given to oppose the application. The answer to that is that the discretion is not the discretion of the Court but the discretion of the parties. The subject of the verb is "agreement". It will often be unnecessary to make application, because the parties will have fulfilled their obligations under the agreement voluntarily. The meaning of ss.(4) is, therefore, the Commissioner or any party to any such agreement which has been approved by the Commissioner MAY make application to the Court for an order in the terms of the agreement and the Court SHALL thereupon make such an order.

5. The question posed for our decision assumes that the Employer would have had the right to oppose the application under s.17 (4) if it had applied to have the agreement cancelled within six months after the date of the signification of the Commissioners approval. It follows from what we have aid that that was a wrong assumption. We do not mean, of course, that if an aplication to have the agreement cancelled had beer successful the Employee could nevertheless, on an unopposed application under ss.(4), have had the cancelled agreement made an order of the Court. That would have been absurd. However, ss.(5) expressly provides that application for cancellation of the agreement may be made "notwithstanding that the agreement has been made an order of the Court under the provisions of ss. (4)".

6. It is not disputed that an application under ss.(4) may be made more than six months after the approval of the Commissioner to an agreement has been signified. The argument for the employer here was necessarily based upon the same wrong assumption as is contained in the Special Case, for it was sought to establish that the alleged right to oppose an application under ss. (4) on the ground that the agreement was liable to cancellation under ss.(5) came to an end when the right to cancellation itself came to an end. The substance of the argument is most clearly shown by inserting a comma into the material part of ss.(5), so that it would read "... on application by any party thereto, or by the Commissioner within six months after the date of the signification of the Commissioner's approval,... ". Thus the time limit would apply only to an application by the Commissioner and not to one by a party, and the application in the present case would therefore not be affected by the expiration of the period of six months from the date on which the Commissioner signified his approval. The necessity for this strained interpretation of ss.(5) is said to arise from the general tenor of the statue and from considerations of public policy: it was, for example, unreasonable that a party should be barred absolutely from raising the defence of fraud after six months, although it might be reasonable that the Commissioner should be so barred since he had at his disposal sources of information which would more readily enable him to discover any fraud. In our judgment this argument is invalid. We are satisfied that in relation to the time limit the Legislature did not intend to make any distinction between the Commissioner and the party. We are not concerned with the soundness of the policy considerations which led to the imposition of this time limit, but it was doubtless thought that where parties saw fit to make an agreement under s.17(l) a measure of finality was desirable. It is immaterial that, as was submitted, the construction of ss.(5) which was advanced by the Employer would do no injustice to either party.

7. We answer the District Judge' as follows:

"No. There is no right at any time to oppose an application to have an agreement made an order of the Court."

8. We would add this. We are told that, the Employer having been(wrongly) served with notice of the application under ss. (4), its solicitor was misled by the form of the notice. Form 4 states that a specified date "has been fixed as the  time and place for hearing of the application "and gives notice that" in default of your lodging with me within the time aforesaid a written answer as herein required, or of your appearing at the said time and place fixed for the hearing of the application, such order may be made as the Court deems just and expedient". Having lodged a written answer within the appointed time the solicitor assumed that it was unnecessary for him to appear at the time and place fixed for the hearing (that course being stated as an alternative) and that he would be notified of an adjourned date for the hearing of his opposition. We have some sympathy with him, although on more mature consideration he might have realized that the form was not intended to mean that the hearing on the date specified would be a mere formality.   It is desirable that the form should be amended so as to leave no doubt that a person served should attend on the date specified even though he has lodged a written notice in accordance with the rules.

16th March, 1982.

Representation:

Pirie (D.L.A.) for Applicant.

Allman-Brown (Deacons) for Respondent.