Chan Tsui Yan v. Social Workers Registration Board

CACV 123/2018

[2018] HKCA 333

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO 123 OF 2018

(ON APPEAL FROM HCAL NO 63 OF 2016)

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J U D G M E N T

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Hon Lam VP (giving the Judgment of the Court):

1.The notice of appeal in this appeal was issued within time on 2 May 2018. By a summons of 14 May 2018, the applicant (who is also the appellant) sought an extension to lodge the sealed order pursuant to Order 59 Rule 5(1)(a) due to its unavailability.

2.As held in Keen Lloyd Holdings Ltd v Commissioner of Customs & Excise [2015] 2 HKLRD 909 at [29], different considerations apply to extension of time to comply with the requirement to lodge a sealed order under Order 59 rule 5(1)(a) as compared with an application for extension of time to serve notice of appeal. 

3.In the present case, the notice of appeal was served within time and the applicant only needs an extension of time to lodge a sealed order because such order was not yet available.

4.The Registrar of Civil Appeals specifically drew the attention of the parties to Keen Lloyd Holdings Ltd v Commissioner of Customs & Excise, supra, in the directions of 15 May 2018.

5.Notwithstanding that, solicitors for the respondent lodged an affirmation of Lee Wing Po opposing the application for extension of time.  In the affirmation, it was said at paras 5 and 6:

“ 5. In the Summons and the Applicant’s Affirmation, I understand that the Applicant has applied to the court for an extension of time (stay of proceedings) for the execution proceedings (延展履行)pending his appeal.

6. The Board has been advised by the Board’s legal adviser that there is no merit in the Applicant’s appeal and the Applicant has failed to provide adequate reason to support his application sought in the Summons.  Any such application is an abuse of proceedings and waste of costs.”

6.The opposition is completely misconceived. First, the applicant did not ask for stay of proceedings or execution.  Second, as stated in Keen Lloyd, in an application for extension of time in these circumstances, the Court will not apply the principle in Norwich & Peterborough Building Society v Steed (No 1) [1991] 1 WLR 449 to examine the merit of the appeal.  In any event, Mr Lee did not explain the basis for saying that the appeal has no merit.  The fact that he had been so advised is neither here nor there.  Third, the applicant had explained that the sealed order was unavailable, hence an extension of time is necessary.  It is not an abuse of process.

7.For these reasons, we grant an extension of time to allow the applicant to lodge the sealed order within 14 days from the date of this judgment.

8.As explained, the respondent’s opposition is wholly unmeritorious.  In Keen Lloyd at [34], the Court had already cautioned against unmeritorious opposition in application of this nature.  In Asgain Co Ltd v Cheng Ka Yan [2017] 4 HKLRD 779, the Court imposed costs sanction against a party who opposed application for extension of time unreasonably. 

9.In the present case, whilst the applicant acts in person, we do not see why the respondent and those advising it should not be mindful of their duties under Order 1A Rule 3, particularly in light of the directions of 15 May 2018.  We shall make an order that each party shall bear his own costs in the application for extension of time.  We further direct solicitors for the respondent to write to inform to the Court within 7 days whether they would waive their costs in the application against the respondent and, if not, explain why the Court should not consider imposing wasted costs order against the solicitors under Order 62 Rule 8A.

The applicant acting in person

Chan and Cheng, for the respondent