Yau Lai Yi v. Yoshinoya Fast Food (HK) Ltd

DCEC 1476/2018

[2019] HKDC 163

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

EMPLOYEES’ COMPENSATION CASE NO 1476 OF 2018

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DECISION ON COSTS

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Introduction

1.Unless otherwise stated, I will adopt the definitions and abbreviations used in the Decision herein dated 28 December 2018 (the “Decision”).

2.At §63(b) of the Decision, I made a costs order nisi that the respondent shall pay the applicant’s costs of her Summons dated 5 December 2018 (the “Affirmation Summons”) in any event, such costs are to be taxed if not agreed.

3.By a letter dated 10 January 2019, the respondent made an application to vary the said costs order nisi.  I directed that the variation application is to be dealt with on paper, and gave directions for the filing of written submissions.

4.To briefly recall, the applicant made the Time Application by Summons dated 28 June 2018 for leave to issue the application for employees’ compensation out of time under section 14(4) of the Employees’ Compensation Ordinance (Cap 282). The respondent complained that the applicant’s affirmations in support of the Time Application suggested that she may not be conversant in written Chinese, but there was no declaration in her 1^st affirmation confirming that the contents thereof were explained to her and that she understood them.  In response, the applicant applied by way of the Affirmation Summons for leave to adduce the applicant’s 3^rd affirmation in which she clarified that the contents of her 1^st affirmation was explained to her, and that she fully understood them.

5.In the Decision, I granted leave for the applicant to adduce her 3^rd affirmation in support of the Time Application.  I further concluded that the respondent has acted unreasonably in opposing the Affirmation Summons, rendering argument of the same necessary during the hearing on 14 December 2018.  As such, I made a costs order nisi at §63(b) of the Decision, the terms of which are already stated in paragraph 2 above.

Discussion

6.The respondent submits that the appropriate costs order should be “no order as to costs”, for the following reasons:-

(a)  First, the applicant did not make a reasonable proposal for the application to adduce her 3^rd affirmation, as she did not initially offer to bear the respondent’s costs of the application.

(b)  Second, the Affirmation Summons is part and parcel of the Time Application. The costs of the Affirmation Summons should therefore be in line with those for the Time Application.

7.As for the respondent’s first argument, it is noted that in the pre-summons correspondence, the applicant proposed that costs be reserved.  However, the lack of an offer to pay costs was not the basis on which the respondent refused to consent to the adducing of the applicant’s 3^rd affirmation.  As the applicant pointed out, the respondent refused to give consent on grounds that I have rejected in paragraphs 11-12 and 19-20 of the Decision. If the respondent would like to agree to the applicant adducing her 3^rd affirmation subject to payment of the respondent’s costs, they should have taken that view in correspondence, such that at the hearing, the court only needs to deal with the issue of costs. This had not been done. I am therefore unable to accept that the respondent’s first argument has any bearing on the issue of the costs of the Affirmation Summons.

8.As for the respondent’s second argument, I am unable to accept the respondent’s argument that the costs of the Affirmation Summons should be in line with the costs of the Time Application.  This is because separate summonses were required for the two applications, and the matters giving rise to and the issues to be decided by the court in the two applications are different.

Conclusion

9.For the reasons above, I dismiss the respondent’s application to vary the costs order nisi.

10.The costs of this application should follow the event. I order that the respondent shall pay the applicant’s costs of this application in any event, such costs are to be taxed if not agreed.  The applicant’s own costs shall be taxed in accordance with the Legal Aid Regulations.

Mr S F Wong of Edward Lau, Wong & Lou, assigned by the Director of Legal Aid, for the applicant 

Mr Stephen Fung of Tang & Lee, for the respondent